text:
    A14A1223.
    JOHNSON v. THE STATE.
    (762 SE2d 813)
   ELLINGTON, Presiding Judge.

A Fulton County jury found Elbert Johnson guilty beyond a reasonable doubt of aggravated child molestation, OCGA § 16-6-4 (c); and two counts of child molestation, OCGA § 16-6-4 (a) (1). Johnson appeals from the denial of his motion for a new trial, contending that he received ineffective assistance of counsel. Finding no reversible error, we affirm.

Viewed in the light most favorable to the jury’s verdict, the evidence shows the following. In August 2006, when the victim was nine years old, Johnson was dating her mother and living with her family. One night, after Johnson had been out drinking, he returned home to find the victim and her younger sister sleeping in the bed he and her mother shared. The victim woke and started to go back to her room, but Johnson told her that she could stay in his bed. The victim lay back down on the bed. Johnson then got in bed with the victim and her sister, pushed the victim’s sister to the end of the bed, lay between them, removed the victim’s shorts, and began rubbing the victim’s leg. Johnson rubbed his bare penis on the victim’s genital area over her underwear. He also placed his penis inside the victim’s mouth. Johnson stopped when the victim got out of the bed and ran into the bathroom.

Approximately two years later, in October or November 2008, the victim, her family, and Johnson were living in another residence. One night, Johnson came into the victim’s room while she was asleep. The victim felt someone sit on the bed, and she awoke to find that it was Johnson. Johnson began stroking the victim’s leg and put his hand on the victim’s genital area. After touching the victim for a brief period, he stopped and left the room.

On another night in 2008, Johnson came home after a night of drinking alcohol and got in bed with the victim’s mother. In the dark bedroom, the victim’s mother heard Johnson crying. She asked him what was wrong and he responded with statements like, “I didn’t mean to do it,” “she didn’t deserve it,” and “she’s just a child.” The victim’s mother got up, turned the light on, and saw that Johnson was asleep. Johnson stopped crying, and the victim’s mother went back to sleep.

The next morning, the victim’s mother recounted to Johnson his crying and the statements he made, and Johnson claimed that he did not remember any of it. A few days later, the victim’s mother asked the victim if Johnson had ever touched her in any inappropriate way, and the victim said that he had. The victim’s mother immediately telephoned Johnson and told him that he needed to come home immediately because she needed to talk to him.

While Johnson was on his way home, the victim’s mother telephoned Johnson’s mother and told her what the victim had said. Johnson’s mother said that she did not believe that Johnson molested the victim. She asked to speak with the victim, then asked the victim whether she was just mad at Johnson. The victim denied being mad or upset. Shortly after Johnson’s mother hung up the phone, Johnson’s sister called the victim’s mother and asked the victim the same questions.

Johnson came home, and the victim’s mother, with the victim present, confronted him with the victim’s outcry. Johnson denied molesting her. The victim looked at Johnson and insisted that he had molested her, but Johnson continued to deny it. Eventually the argument stopped, and the victim, the victim’s mother, and Johnson said nothing else to each other about the alleged molestation.

Afew years later, in a diary entry dated May 26, 2011, the victim wrote that Johnson had “raped [her] twice,” that she no longer felt comfortable calling him “daddy,” and that she could not forgive him for what he did to her. Shortly thereafter, in early June, the victim’s mother read the diary entry. On June 4, 2011, she reported to the police that Johnson had molested the victim.

The State indicted Johnson on three counts, charging him with the following offenses: in Count 1, committing aggravated child molestation “by placing [his] male sex organ into the mouth of [the victim]”; in Count 2, committing child molestation “by rubbing [his] male sex organ against [the victim’s] female sex organ”; and, in Count 3, committing child molestation “by rubbing [the victim’s] female sex organ with [his] hand[.]” The jury found Johnson guilty beyond a reasonable doubt on all three counts.

Johnson’s appellate counsel moved for a new trial on the grounds of ineffective assistance of counsel. Johnson asserted that trial counsel was ineffective in that, among other things, he “failed to interview key witnesses and family members.” At the motion hearing, Johnson presented the testimony of his mother and sister, neither of whom had testified at trial. Johnson’s mother testified that, in the summer of 2006 or 2007, the victim referred to Johnson only as “daddy” and Johnson and the victim appeared to have a close relationship. The mother, however, testified that she did not get an opportunity to see their interactions after the summer of 2006 or 2007. Johnson’s sister also testified that she periodically stayed at Johnson’s home for brief visits between 2006 and 2011 and that, during those visits, the victim referred to Johnson as “daddy” and Johnson and the victim appeared to have a good relationship.

Johnson’s mother and sister also testified that they never had telephone conversations with the victim after the molestations. This testimony was contrary to the trial testimony of the victim’s mother, who testified that the victim had a telephone conversation with Johnson’s mother and sister about the molestation accusations sometime in 2008. Both witnesses admitted that they never lived with the victim and had no personal knowledge about whether the molestations had occurred.

During the same motion for new trial hearing, trial counsel testified that, before trial, he consulted with Johnson and investigated the case. Pursuant to that investigation, he realized

that nobody had any knowledge as far as any potential eyewitnesses. Nobody had any knowledge about someone who might have been present there who could say, I was there during this time and I can say in an affirmative manner that this misconduct never took place. There wasn’t anything like that.

Trial counsel testified further that, due to the lack of eyewitnesses, his strategy at trial was to show the jury that the evidence presented by the State consisted only of the victim’s testimony, that the victim was not credible, that there was no physical or forensic evidence to support her claims, and that, as a result, there was a reasonable doubt as to whether Johnson was guilty. Based upon the testimony presented, the trial court concluded that trial counsel’s representation was not deficient, nor was Johnson prejudiced by counsel’s strategic decisions, and it denied Johnson’s motion for a new trial.

On appeal, Johnson contends that his trial counsel’s performance was deficient in that he failed to properly investigate the case and failed to call Johnson’s mother and sister as witnesses at trial.

In order to prevail on a claim of ineffective assistance of counsel, a criminal defendant must show that counsel’s performance was deficient and that the deficient performance so prejudiced the client that there is a reasonable likelihood that, but for counsel’s errors, the outcome of the trial would have been different. Strickland v. Washington, 466 U. S. 668 (104 SC 2052, 80 LE2d 674) (1984) [.] The criminal defendant must overcome the strong presumption that trial counsel’s conduct falls within the broad range of reasonable professional conduct. [As the appellate court, we] accept the trial court’s factual findings and credibility determinations unless clearly erroneous, but we independently apply the legal principles to the facts.

(Citations and punctuation omitted.) Robinson v. State, 277 Ga. 75, 75-76 (586 SE2d 313) (2003). “As a general rule, matters of reasonable tactics and strategy, whether wise or unwise, do not amount to ineffective assistance of counsel.” (Citation and punctuation omitted.) Lester v. State, 278 Ga. App. 247, 252 (5) (628 SE2d 674) (2006).

Johnson has failed to show that trial counsel’s performance was deficient. The record shows that counsel consulted Johnson before trial and investigated the case. He concluded that there .were no eyewitnesses to the molestations. Neither Johnson’s mother nor his sister, for example, lived with Johnson and the victim, nor did they have any knowledge as to whether the molestations occurred. Trial counsel thus had no reason to believe that Johnson’s mother and sister had anything to contribute to the case; therefore, he made the reasonable decision not to call them as witnesses. Rather, he emphasized the lack of credible evidence against Johnson. This decision was a valid trial strategy, and it does not constitute grounds for a new trial. See Sweet v. State, 278 Ga. 320, 323-324 (3) (602 SE2d 603) (2004).

Furthermore, even if trial counsel’s decision not to call Johnson’s mother and sister as witnesses was error, Johnson has failed to show that trial counsel’s error so prejudiced him that there is a reasonable likelihood that, but for the error, the outcome of the trial would have been different. Contrary to Johnson’s assertions, his mother’s testimony that the victim called Johnson “daddy” and appeared to have a close relationship with him during the summer of 2006 or 2007 has no bearing on the merits of this case. The first alleged molestation occurred in August 2006, and Johnson’s mother testified that she had not seen Johnson interact with the victim since the summer of 2006 or 2007. Thus, it is possible that Johnson’s mother has not witnessed any interactions between Johnson and the victim since the first alleged molestation in August 2006, and it is certain that she has not witnessed their interactions since the second alleged molestation, which, occurred in 2008. Johnson’s mother’s testimony on this issue, therefore, is irrelevant.

To the extent that Johnson’s sister’s testimony that the victim called Johnson “daddy” between 2006 and 2011 conflicts with the victim’s May 2011 diary entry, in which she wrote that she no longer felt comfortable calling him “daddy,” this issue is tangential to the ultimate question to be decided in this case, i.e., whether the acts of molestation actually occurred.

Furthermore, given the victim’s specific testimony about the molestations, Johnson has failed to show a reasonable likelihood that, had the jury heard the testimony of his mother and sister on this purely collateral issue, the outcome of the trial would have been different. It is axiomatic that the testimony of a single witness is sufficient to prove the elements of the crime charged. See former OCGA § 24-4-8; Hammontree v. State, 283 Ga. App. 736, 737 (1) (642 SE2d 412) (2007). This rule is often applicable to child molestation cases where, as here, the victim and the defendant are the only people present when the alleged molestation occurs. See, e.g., Malone v. State, 277 Ga. App. 694, 696 (1) (627 SE2d 378) (2006) (“The testimony of the child molestation victim alone was sufficient to authorize the jury to find that [the defendant] committed the acts claimed by her and to infer that he acted with the intent to arouse or satisfy his and her sexual desires.”) (footnotes omitted).

The hearing testimony of Johnson’s mother and sister that they never spoke on the phone with the victim after the alleged molestations contradicts the victim’s mother’s testimony, but it does not contradict the victim’s testimony. Because their testimony does not contradict the victim’s testimony, and because it is unrelated to whether the alleged molestations actually occurred, Johnson has failed to show that he was prejudiced by counsel’s failure to present the testimony at trial.

Accordingly, under the circumstances presented, we find no error in the trial court’s conclusion that Johnson failed to meet his burden of showing that his trial counsel’s representation was deficient or that he was prejudiced thereby, nor in the court’s denial of Johnson’s motion for new trial based upon that conclusion.

Judgment affirmed.

Phipps, C. J., and McMillian, J., concur.

Decided August 12, 2014.

Adam M. Hames, for appellant.

Paul L. Howard, Jr., District Attorney, Marc A. Mallon, Assistant District Attorney, for appellee.

        Jackson v. Virginia, 443 U. S. 307, 319 (III) (B) (99 SCt 2781, 61 LE2d 560) (1979).

       Although Johnson contends that his trial counsel should have objected when the State tendered copies of pages from the victim’s diary, should have asked more questions during voir dire of the potential jurors, and should have conducted a more thorough cross-examination of the State’s witnesses, he has failed to show that counsel’s conduct resulted in the improper admission of probative evidence or the improper exclusion of exculpatory evidence, or that these alleged errors prejudiced his defense in any other way. “Absent clear error and [resulting] harm, we will affirm the trial court’s finding that [Johnson] did not receive ineffective assistance of counsel.” (Punctuation and footnote omitted.) Overstreet v. State, 304 Ga. App. 275, 280 (6) (696 SE2d 114) (2010).

       The trial in this case took place in May 2012. Although the Georgia General Assembly repealed the existing Evidence Code in its entirety and replaced it with a new Evidence Code in 2011, the provisions of the new Code did not become effective until January 1,2013, and apply to any motion, hearing or trial commenced on or after such date. Ga. L. 2011, p. 99, §§ 1, 101. Pursuant to that legislative act, the relevant provision of former OCGA § 24-4-8 has been reenacted as OCGA § 24-14-8.


source: Caselaw Access Project

author: Ray, Judge.

license: Public Domain

text:
    A14A0869.
    BELL v. THE STATE.
    (762 SE2d 827)
   Ray, Judge.

A jury found James Lee Bell guilty of theft by shoplifting. At his sentencing hearing, the State introduced certified copies of guilty pleas that Bell had entered in four prior shoplifting cases for purposes of recidivist punishment under OCGA § 16-8-14(b) (1) (C). Onappeal, Bell argues that the trial court erred in sentencing him as a recidivist because the State failed to sufficiently establish that he had waived his right to counsel in two of the prior shoplifting convictions. For the reasons that follow, we affirm.

In recidivist sentencing, the State bears the burden of showing both the existence of the prior guilty pleas and that the defendant was represented by counsel when he entered the pleas. See Nash v. State, 271 Ga. 281, 285 (519 SE2d 893) (1999). If the defendant was not represented by counsel at the time of the guilty pleas, the State can satisfy its burden by showing that the defendant had waived his right to counsel. See Beck v. State, 283 Ga. 352, 353-354 (2) (658 SE2d 577) (2008). “The State can do this by introducing a transcript of the plea hearing, a docket entry or another document affirmatively showing that the right to counsel was waived.” Id. at 354 (2). When the State is able to show that the defendant waived his right to counsel, a “presumption of regularity” attaches to the plea proceedings and the burden then shifts to the defendant to show any irregularities in the proceedings. Id.

Bell contends that the State should have the additional burden of proving that he knowingly and voluntarily waived his right to counsel. Specifically, Bell argues that the State must prove that he was aware at the time of the waiver that his guilty pleas could later be considered, for recidivist sentencing purposes, if he committed future shoplifting offenses. However, the presumption of regularity which final judgments enjoy necessitates that the State only be required to show evidence that the defendant waived his right to counsel. Beck, supra at 354 (2). Once such evidence is shown, it is presumed that the defendant waived his right knowingly and intelligently and that the plea would not have been accepted by the trial court otherwise. Id.

Decided August 13, 2014.

Michael W. Tarleton, James C. Bonner, Jr., for appellant.

Layla H. Zon, District Attorney, Candice L. Branche, Assistant District Attorney, for appellee.

With respect to the two pleas at issue here, the State introduced documents showing that Bell had waived his right to counsel. Those documents were sufficient to meet the State’s initial burden, whereupon the burden shifted to Bell to produce evidence that the pleas were invalid. Nash, supra at 285. Adefendant can attempt to meet his burden by relying on a plea transcript or by providing testimony or other affirmative evidence regarding the taking of the plea. Id. “A silent record or the mere naked assertion by an accused that his prior . . . plea was not made knowingly and intelligently is insufficient.” Id.

Here, Bell has offered no evidence to show that the pleas were invalid. As Bell failed to satisfy his burden, the trial court was authorized to rely on the guilty pleas at issue for the purpose of sentencing Bell as a recidivist. Beck, supra.

Judgment affirmed. Andrews,

P. J., and McFadden, J., concur.

       If the defendant is able to present evidence of a constitutional infirmity regarding the plea, the burden shifts back to the State to prove that the plea was valid. See Nash, supra.

       Bell was represented by counsel with regard to the other two guilty pleas.

       Although Bell argues that the waiver of counsel documents did not specifically inform him that an attorney could have advised him of the possibility of recidivist punishment for future offenses, we note that the waiver documents in each case informed Bell that an attorney could help him understand the charges against him. We decline to find that a waiver of counsel form or a pro se plea proceeding must affirmatively show that the defendant is aware of all of the specific advice that an attorney can provide with regard to a particular case.


author: McFadden, Judge.

text:
    A14A1077.
    KING v. PEEPLES et al.
    (762 SE2d 817)
   McFadden, Judge.

Margo King appeals pro se from the trial court’s order granting summary judgment to Kenneth Peeples in King’s action against him for injuries she sustained in a motor vehicle collision. She also challenges the trial court’s earlier order granting summary judgment to her uninsured/underinsured motorist (UM) carrier, Ameriprise Insurance Corporation; the trial court’s order permitting Bang’s counsel to withdraw from representing her; and the trial court’s failure to continue the proceedings. As detailed below, the undisputed evidence showed that the trial court did not err in granting the motions for summary judgment filed by Ameriprise and Peeples and that the trial court acted within his discretion in permitting counsel to withdraw and declining to continue the proceedings. Accordingly, we affirm.

1. Facts and procedural posture.

Viewed in the light most favorable to King, the nonmovant, see Lau’s Corp. v. Haskins, 261 Ga. 491 (405 SE2d 474) (1991), the evidence showed that King was involved in a vehicle collision with Peeples on July 23, 2004. At that time, she had an insurance policy with Ameriprise that included UM coverage but she did not notify Ameriprise of the accident. On July 20, 2006, King filed a personal injury action against Peeples in the Superior Court of Walton County. She did not serve Ameriprise with a copy of that complaint. See OCGA § 33-7-11 (d) (setting forth requirements for serving UM carrier with action where owner or operator of vehicle causing injury or damage to insured is known and vehicle is believed to be uninsured). She first notified Ameriprise of her intent to pursue UM coverage on October 28, 2011.

On January 9, 2012, King entered into a limited liability release with Peeples, which released Peeples from “any and all” claims of King resulting from the accident, “except to the extent other insurance coverage is available which covers the claim or claims of [King] against [Peeples].”

On January 18, 2012, represented by new counsel, King voluntarily dismissed her Walton County action against Peeples without prejudice. Two months later, on March 27, 2012, she renewed her action against Peeples in the State Court of Gwinnett County. See OCGA § 9-2-61 (a) (setting forth requirements for renewal action). On August 23, 2012, she served a copy of the complaint on Ameriprise, which answered, raised several affirmative defenses, and filed a cross-claim against Peeples.

On March 25, 2013, Ameriprise moved for summary judgment. It argued among other things that the doctrine of laches barred the action against it. King did not file a response to Ameriprise’s motion, and the trial court granted the motion. That same day, King’s counsel filed a notice of intent to withdraw from representing her. On May 22, 2013, the trial court entered an order allowing counsel to withdraw.

On June 17, 2013, Peeples moved for summary judgment, arguing that the limited liability release barred King’s action against him. King made several pro se filings in response. On July 11, 2013, she wrote the trial court asking for help under the Americans with Disabilities Act, 42 USC § 12101 et seq., on the ground that she was cognitively disabled. On July 22, 2013, she filed an opposition to Peeples’s motion for summary judgment. Finally, on July 23, 2013, she moved to set aside the grant of summary judgment to Ameriprise and moved for a continuance while she secured counsel.

On August 1,2013, the trial court granted summary judgment to Peeples on the ground that King already had released her claims against him. In the same order, the trial court denied King’s motion to set aside the earlier grant of summary judgment to Ameriprise.

2. Peeples’s motion for summary judgment.

The trial court did not err in granting Peeples’s motion for summary judgment. The release King executed on January 9, 2012, barred her from making a claim against Peeples for damages resulting from the accident “except to the extent other insurance coverage is available which covers the claim or claims of [King] against [Peeples].” Although King argues that her UM policy with Ameriprise provided such coverage, as discussed in Division 3 below the trial court properly ruled that King could not pursue her action against Ameriprise. King has pointed to no other facts showing that the exception in the release applies. Accordingly, the undisputed facts show that King’s right to pursue her claim against Peeples has been extinguished, and the trial court did not err in granting summary judgment to Peeples. See Dodds v. Dabbs, Hickman, Hill & Cannon, LLP, 324 Ga. App. 337, 344 (2) (750 SE2d 410) (2013) (where release extinguished plaintiff’s cause of action, trial court did not err in granting summary judgment to defendant on plaintiff’s claims).

3. Ameriprise’s motion for summary judgment.

The trial court did not err in granting Ameriprise’s motion for summary judgment. Among other reasons, the trial court ruled in Ameriprise’s favor upon a finding that King was “guilty of laches because she did not even attempt to serve the summons and complaint upon Ameriprise until long after the renewal statute of limitations had expired.”

“Under Georgia law, the general rule is that a plaintiff making a claim against a [UM carrier] must serve process upon the [UM carrier] within the same statute of limitation applicable to the uninsured motorist.” Lewis v. Waller, 282 Ga. App. 8, 12 (2) (637 SE2d 505) (2006) (citations omitted). This requirement is met where the UM carrier is timely served in a renewal action despite not having been served in the original action. See Stout v. Cincinnati Ins. Co., 269 Ga. 611, 612 (502 SE2d 226) (1998) (construing earlier version of OCGA § 33-7-11 (d), concerning UM coverage); see also Retention Alternatives v. Hayward, 285 Ga. 437, 439-440 (2) (678 SE2d 877) (2009) (holding that rule set forth in Stout, supra, applies under current version of OCGA § 33-7-11 (d)). But where a plaintiff does not perfect service of a renewal action within the six-month renewal period established by OCGA § 9-2-61 (a), the plaintiff has the burden of showing that she acted in a reasonable and diligent manner to ensure proper service was made as quickly as possible. See McClendon v. 1152 Spring Street Assocs.-Ga., 225 Ga. App. 333, 336 (484 SE2d 40) (1997).

“The determination of whether the plaintiff was guilty of laches in failing to exercise due diligence in perfecting service after the [expiration of the six-month renewal period] is a matter within the trial court’s discretion and will not be disturbed on appeal absent abuse.” Heard v. Hart, 241 Ga. App. 441, 443 (526 SE2d 908) (1999) (citation omitted). Ameriprise presented evidence that King served it with the complaint more than a month after the six-month renewal period expired, and that King had made no prior attempts to perfect service. In response, King offered no evidence to contradict these facts or to show that she had acted in a reasonable and diligent manner to perfect service upon Ameriprise. Although she argues that there was “an attempted service within the statute of limitations,” she points merely to evidence of her August 29, 2012 service of the complaint in the renewal action upon Peeples and responsive pleadings filed by Ameriprise and Peeples in the renewal action. The trial court did not err in granting Ameriprise’s motion based on the doctrine of laches. See Heard, 241 Ga. App. at 443.

4. Withdrawal of counsel.

King argues that the trial court erred in permitting her counsel to withdraw. The version of Uniform Superior Court Rule (USCR) 4.3 (1) in effect at the time provided that an attorney of record who wishes to withdraw as counsel for a party

shall submit a written request to an appropriate judge of the court for an order permitting such withdrawal. Such request shall state that the attorney has given due written notice to the affected client respecting such intention to withdraw 10 days (or such lesser time as the court may permit in any specific instance) prior to submitting the request to the court or that such withdrawal is with the client’s consent. Such request will be granted unless in the judge’s discretion to do so would delay the trial of the action or otherwise interrupt the orderly operation of the court or be manifestly unfair to the client.

Decided August 13, 2014.

Margo King, pro se.

Cruser & Mitchell, William T. Mitchell, Michael D. Hoffer, Cowsert & Avery, Craig C. Avery, Michael S. Broun, for appellees.

That rule also specified the contents of the notice to be given the client and requires the attorney to file with the court a written certification demonstrating compliance with the notification requirements. Former USCR 4.3 (1). (This superior court rule is applicable in state court. See Uniform State Court Rules.) We review for abuse of discretion a trial court’s ruling on an attorney’s request to withdraw. See Odum v. State, 283 Ga. App. 291, 292 (641 SE2d 279) (2007).

We find no abuse of discretion in this case. Although King argues that her attorney withdrew without informing her and without her consent, the trial court was entitled to rely upon the attorney’s written certification that he had complied with the requirements of USCR 4.3 (1). See Harbolt v. Pelletier, 291 Ga. App. 582, 583 (1) (662 SE2d 355) (2008) (physical precedent only). We are aware of no authority, and King points to none, requiring the trial court to deny her attorney’s request to withdraw as a means of accommodating her disability.

5. Continuance.

King argues that the trial court erred in declining to continue the proceedings while she attempted to secure new counsel. Whether to grant a continuance is a matter for the trial court’s discretion, even in the face of the “sudden withdrawal of retained counsel.” Bryan v. Fed. Express Corp., 180 Ga. App. 163 (1) (348 SE2d 705) (1986) (citation and punctuation omitted). And, as with her argument regarding the withdrawal of counsel, King has pointed to no authority requiring the trial court to grant her a continuance due to her disability. We find no abuse of discretion.

Judgment affirmed.

Andrews, P. J., and Ray, J., concur.


text:
    A14A1185.
    HENDRIX v. THE STATE.
    (762 SE2d 820)
   Ray, Judge.

A jury convicted LaMonte T. Hendrix of one count each of aggravated assault (OCGA § 16-5-21 (a) (2))d family violence battery (OCGA § 16-5-23. (f)); family violence simple battery (OCGA § 16-5-23 (f)); third-degree cruelty to children (OCGA § 16-5-70 (d)); misdemeanor fleeing or attempting to elude (OCGA § 40-6-395); and driving with a suspended license (OCGA § 40-5-121). He was sentenced as a recidivist pursuant to OCGA § 17-10-7 (c). Hendrix filed this out-of-time appeal from the denial of his motion for new trial. On appeal, Hendrix contends that the trial court erred in finding that the State had proven that a table he threw at the victim was a deadly weapon pursuant to OCGA § 16-5-21. He also argues that he received ineffective assistance of counsel. For the reasons that follow, we affirm.

Viewed under the standard laid out in Jackson v. Virginia, 443 U. S. 307 (99 SCt 2781, 61 LE2d 560) (1979), the evidence shows that Hendrix lived with his mother, Janice Mills, and her two grandchildren, J. T. and O. M. On July 19, 2010, Hendrix and his mother got into an argument when she refused to let him borrow her van. Hendrix poured water on his mother and called her a “stupid bitch.” Mills’ ex-husband, Hosa Mills, was in the home and came into the room where Hendrix and Janice Mills were arguing. Hendrix was pouring water on his mother and had his hand on her. Hosa Mills told him to stop, and Hendrix punched Hosa Mills in the side of his eye, causing him to fall through and break the glass top of a metal coffee table. While Hosa Mills was still on his knees, Hendrix lifted the coffee table’s 10-to- 12-pound metal frame over his head and threw it down at Hosa Mills, who blocked the blow with his arm. Janice Mills then gave Hendrix the van keys because she was concerned that things between her ex-husband and her son might get “a little rougher[.]” J. T, who was 14 or 15 years old, then locked the door behind Hendrix and called 911. A police officer who heard a “Be On the Lookout” spotted Hendrix driving the van, and he turned on his blue lights and siren. Hendrix did not stop. After following Hendrix for nearly two miles, the officer was able to block the van and arrest Hendrix.

1. Hendrix argues that the trial court erred in determining that the State met its burden of proving that the table Hendrix threw was a “deadly weapon” or “dangerous weapon.”

OCGA § 16-5-21 (a) (2) provides that “[a] person commits the offense of aggravated assault when he or she assaults: . . . [w]ith a deadly weapon or with any object, device, or instrument which, when used offensively against a person, is likely to or actually does result in serious bodily injury[.]” (Emphasis supplied.) The indictment accused Hendrix of assaulting Hosa Mills “with a table, an object which, when used offensively against a person is likely to result in serious bodily injury, by throwing the table frame at the victimf.]” It did not accuse Hendrix of using the table as a deadly weapon, so Hendrix’s contention on this point is without merit.

As to whether the table was dangerous and likely to cause serious injury when used offensively, it is well settled that when an object is not considered an offensive weapon per se, a jury must determine whether the State has shown that the circumstances under which the object was used caused it to function, when used offensively, in a way likely to result in serious bodily injury. Scott v. State, 243 Ga. App. 383, 385 (1) (d) (532 SE2d 141) (2000) (jury question as to whether hands and fists constituted objects likely to result in serious injury).

The term offensive weapon . . . includes not only weapons which are offensive per se (such as firearms loaded with live ammunition), but also other instrumentalities not normally considered to be offensive weapons per se which may be found by a jury to be likely to produce death or great bodily injury depending on the manner and means of their use.

(Citation and punctuation omitted.) Livery v. State, 233 Ga. App. 882, 884 (1) (506 SE2d 165) (1998). This Court has determined that a variety of objects, which are not weapons per se, may be likely to cause serious bodily injury when used offensively, depending upon the circumstances in which they are used. See Talley v. State, 137 Ga. App. 548, 550 (1) (b) (224 SE2d 455) (1976) (lamp); Simmons v. State, 149 Ga. App. 830, 831-832 (2) (256 SE2d 79) (1979) (beer bottle); Banks v. State, 169 Ga. App. 571, 571-572 (1) (314 SE2d 235) (1984) (ceramic statue); Gough v. State, 236 Ga. App. 568, 569 (1) (512 SE2d 682) (1999) (hammer).

One law enforcement officer testified that if someone Hendrix’s size threw a table at him, he would fear “substantial bodily injury” and would use deadly force to protect himself. Hosa Mills testified that he was concerned that he would be injured by the table. Although Hendrix points out that there was conflicting testimony about the weight, sturdiness, and manner in which the table broke, witness credibility issues are for the jury, and the jury’s verdict must be upheld so long as there is “some competent evidence, even though contradicted, to support each fact necessary for the State’s case[.]” Scott, supra at 384 (1) (a). Viewed in the light most favorable to the verdict, a rational jury could find beyond a reasonable doubt that Hendrix used the table offensively in a way likely to cause serious bodily injury. Jackson, supra. This enumeration is without merit.

2. Hendrix argues that the trial court erred in denying his motion for new trial as he contends that his counsel was ineffective. We disagree.

To prevail on an ineffective assistance claim, Gordon
was required to show both that his counsel’s performance was professionally deficient and that but for counsel’s unprofessional conduct, there is a reasonable probability [that] the outcome of the proceedings would have been different. . . . The likelihood of a different result must be substantial, not just conceivable. . . . [W]e accept the trial court’s factual findings and credibility determinations unless clearly erroneous, but we independently apply the legal principles to the facts.

(Citations and punctuation omitted.) Hill v. State, 291 Ga. 160, 164 (4) (728 SE2d 225) (2012).

(a) Hendrix argues that his counsel was ineffective in failing to move for a directed verdict on the grounds that there was insufficient evidence to show that the table was used as a “deadly weapon.” As we determined in Division 1, however, the evidence was sufficient to support the jury’s verdict. “The failure to raise a meritless motion for a directed verdict, as a matter of law, is not ineffective assistance of counsel.” (Citation and punctuation omitted.) Jones v. State, 310 Ga. App. 705, 709 (b) (713 SE2d 895) (2011).

(b) Hendrix contends that his counsel was ineffective in failing to investigate Hosa Mills’ criminal history, and that if the jury had known of Mills’ prior conviction for a violent felony, the jury would have given him less credibility as a witness and victim.

However, Hendrix did not call his trial counsel to testify at the motion for new trial hearing, and there is no evidence whatsoever regarding any investigation counsel may or may not have done. While, as Hendrix points out, counsel “has a duty to make reasonable investigations or to make a reasonable decision that makes particular investigations unnecessary,” Wright v. State, 292 Ga. 825, 827 (2) (742 SE2d 468) (2013) (citation and punctuation omitted), it is well settled that trial counsel’s decision not to impeach a witness with a felony conviction is a matter of trial strategy. Strong v. State, 308 Ga. App. 558, 561 (707 SE2d 914) (2011). Absent testimony to the contrary, counsel’s actions are presumed strategic. Brumbelow v. State, 289 Ga. App. 520, 523 (1) (b) (657 SE2d 603) (2008).

Decided August 13, 2014.

Penny S. Hunter, for appellant.

Lee Darragh, District Attorney, Jennifer C. Bagwell, Assistant District Attorney, for appellee.

Further, although Hendrix’s new lawyer argued at the motion for new trial hearing that Hosa Mills had “a conviction in 1999,” counsel did not state what Mills was convicted of and did not offer any evidence of the conviction. Hendrix also does not cite to any page in the record before us where such evidence exists. Hendrix failed to produce certified copies of the alleged conviction at the motion for new trial hearing to establish that Mills, in fact, had a criminal record that his lawyer could have found through investigation. Thus, Hendrix did not carry his burden of proving that counsel’s performance was deficient. See Bihlear v. State, 295 Ga. App. 486, 488-489 (2) (b) (672 SE2d 459) (2009); see also Rucker v. State, 205 Ga. App. 651, 652 (423 SE2d 51) (1992) (evidence of a witness’s prior conviction must be admitted as a certified copy; testimony alone is insufficient).

Hendrix has shown neither ineffectiveness nor prejudice, and this enumeration fails.

Judgment affirmed.

Andrews, R J., and McFadden, J., concur.

       OCGA§ 16-5-21 was amended effective July 1,2014. See Ga. L. 2014, pp. 432,438, § 2-2; pp. 441,445,450, §§ 2,3; andpp. 599,622, § 3-1. Thus, we apply the prior version of the statute, Ga. L. 2011, p. 752, § 16, effective May 13, 2011.


text:
    A14A1287.
    COTMAN v. THE STATE.
    (762 SE2d 824)
   Ray, Judge.

Tamara Cotman was charged with conspiracy to violate the Georgia Racketeer Influenced and Corrupt Organizations Act (RICO) (OCGA § 16-14-4 (c)) and with influencing witnesses (OCGA § 16-10-93) in an initial indictment. Cotman was tried and acquitted of influencing witnesses under a second indictment, and she now faces trial for the RICO conspiracy charge under the initial indictment. Cotman appeals, contending the trial court erred by denying her plea in bar and by denying her special demurrer. Finding no error, we affirm.

The appellate standard of review of a grant or denial of a double jeopardy plea in bar is whether, after reviewing the trial court’s oral and written rulings as a whole, the trial court’s findings support its conclusion. But where the evidence is uncontroverted and no question regarding the credibility of witnesses is presented, we review de novo the trial court’s application of the law to undisputed facts.

(Citations and punctuation omitted.) Garrett v. State, 306 Ga. App. 429, 429 (702 SE2d 470) (2010).

The State alleges that Cotman, among others, conspired to promote, reward and conceal cheating on the State Criterion Referenced Competency Test (“CRCT”) to meet rigorous targets set by the superintendent of the Atlanta Public Schools (“APS”). On March 29, 2013, the Fulton County grand jury indicted Cotman on one count of conspiracy to violate RICO in Count 1 and one count of influencing witnesses in Count 4 (“the First Indictment”). Count 1 identifies 126 acts of racketeering activity and 44 overt acts in furtherance of the conspiracy. Cotman is accused of committing one of the acts of racketeering activity, consisting of influencing witnesses. She is also alleged to have taken an overt act in furtherance of the conspiracy in that she failed to report a parent’s complaint that a teacher gave students answers during the Spring 2008 CRCT. As to Cotman, the influencing witnesses charge set forth in Count 4 is substantially the same as the alleged act of racketeering set forth in Paragraph C. 11 of Count 1.

Cotman filed a special demurrer seeking to quash Count 4 of the First Indictment. The charge in relevant part alleges that on or about November 17, 2010, “Tamara Cotman . . . did knowingly intimidate Jimmye Hawkins, and other principals under her supervision, with the intent to hinder or delay the communication of information related to the commission of a criminal offense to . . . law enforcement[.]” Cotman argued that Count 4 of the First Indictment did not adequately inform Cotman of the facts constituting the offense because it failed to specify how she intimidated the witnesses.

On June 7, 2013, the State re-indicted Cotman solely on the influencing witnesses charge (“the Second Indictment”), specifying that Cotman intimidated Hawkins by “placing her in fear of retaliation if she cooperated with any investigation and by actual demotion in positionf.]” That day, the State also filed a motion for nolle prosequi of the original influencing witnesses charge in Count 4 of the First Indictment and a motion for joinder of the two indictments. Cotman objected to the motion for joinder and filed a demand for a speedy trial on the Second Indictment. Cotman was then tried separately on the Second Indictment and was acquitted of influencing witnesses.

After her acquittal for influencing witnesses under the Second Indictment, Cotman filed a plea in bar contending that she could not be tried under the First Indictment by reason of OCGA § 16-1-8 and the Double Jeopardy Clause of the Georgia and United States Constitutions. After hearing arguments from the parties, the trial court denied Cotman’s plea in bar as to the RICO conspiracy count of the First Indictment, finding that it was Cotman who desired to have a trial encompassing the single charge of influencing a witness. The trial court also denied Cotman’s demurrer to the First Indictment. Cotman appeals.

1. Cotman contends that the trial court erred in denying her plea in bar. Specifically, she argues that, under OCGA § 16-1-8 (b), the RICO conspiracy and the influencing witnesses charges should have been tried together since the charges involved the same conduct and the State knew of both the RICO conspiracy and influencing witnesses charges at the time of trial, and that having two separate trials results in double jeopardy. We disagree.

OCGA § 16-1-8 (b) provides in relevant part:

[P]rosecution is barred if the accused was formerly prosecuted for a different crime ... if such former prosecution . . . [Resulted in ... an acquittal and the subsequent prosecution [(i)] is for a crime of which the accused could have been convicted on the former prosecution, [(ii)] is for a crime with which the accused should have been charged on the former prosecution (unless the court ordered a separate trial of such charge), or [(iii)] is for a crime which involves the same conduct, unless each prosecution requires proof of a fact not required on the other prosecution[.]

Pertinent to whether a crime “should have been charged on the former prosecution” for purposes of OCGA § 16-1-8 (b), OCGA § 16-1-7 (b) provides that “[i]f the several crimes arising from the same conduct are known to the proper prosecuting officer at the time of commencing the prosecution and are within the jurisdiction of a single court, they must be prosecuted in a single prosecution____” See Prater v. State, 273 Ga. 477, 481 (4) (545 SE2d 864) (2001) (“Offenses arising from the same conduct, within the jurisdiction of a single court, must be prosecuted in a single action”) (punctuation omitted). OCGA § 16-1-8 (b) “embraces the concept of res judicata and is not constitutional double jeopardy, but is protection against subsequent prosecution where the defendant could have been, and under . . . OCGA § 16-1-7 (b), should have been prosecuted on a former prosecution.” (Citation omitted.) McCannon v. State, 252 Ga. 515, 517 (315 SE2d 413) (1984).

In this case, however, and pretermitting whether OCGA § 16-1-8 (b) might otherwise bar a prosecution under the First Indictment, Cotman faces subsequent prosecution because she chose to have the two indictments tried separately. The State wanted the indictments tried together, as indicated by the filing of its motion to join them. It was Cotman who pursued a speedy trial on the Second Indictment only and objected to joinder, thereby indicating her desire to have the two indictments tried separately.

Although Cotman relies primarily on the protections afforded her by the Georgia statutes, we find the federal law to be nevertheless persuasive. In Jeffers v. United States, 432 U. S. 137, 152 (II) (B) (97 SCt 2207, 53 LE2d 168) (1977), the United States Supreme Court found that even where a defendant is normally entitled to have charges “resolved in one proceeding, there is no violation of the Double Jeopardy Clause when he elects to have the two offenses tried separately and persuades the trial court to honor his election.” (Footnote omitted.) Id. See, e.g., People v. Gill, 59 F3d 1010, 1014 (9th Cir. 1995) (defendant’s “election to have the two indictments tried separately deprived him of any right that he might have had against consecutive trials”) (punctuation and footnote omitted); United States v. Edmond, 924 F2d 261, 270 (III) (D.C. Cir. 1991) (where nothing constrained defendant to move for a severance of counts other than the hope of a tactical advantage, upon the success of the motion it was the defendant and not the government that caused him to be twice placed in jeopardy). See also Cox v. State, 585 S2d 182, 188 (I) (A) (Ala. Crim. App. 1991) (noting that double jeopardy jurisprudence “allows a second prosecution [where] the defendant’s own actions deprived him of the right to insist that his liability ended with the first prosecution”). Accordingly, we conclude that Cotman, having opposed the State’s invitation to join the two indictments for a single trial, faces subsequent prosecution because of her own election and thereby waived the protections against subsequent prosecutions afforded by OCGA § 16-1-8 (b). See generally Holcomb v. State, 268 Ga. 100, 103 (2) (485 SE2d 192) (1997) (on appeal a party cannot complain about a ruling that she contributed to or acquiesced in by her own action, trial strategy, or conduct).

Decided August 13, 2014 —

Benjamin A. Davis, for appellant.

Paul L. Howard, Jr., District Attorney, Bondurant, Mixson & Elmore, John E. Floyd, for appellee.

2. Cotman also contends that the trial court erred in denying her demurrer to the First Indictment because there are no factual allegations in Count 1 which sufficiently place her on notice of how she intimidated the witness. Although Cotman suggests that she demurred to both Count 1 and Count 4 of the First Indictment on this ground, her “Special Demurrer-Influencing Witnesses” was a motion to quash only Count 4, the influencing witnesses charge, and not Count 1, the RICO conspiracy charge. As the State did not oppose Cotman’s plea in bar as to Count 4, her claim that the trial court erred in denying her demurrer to the First Indictment is moot.

Judgment affirmed.

Andrews, P. J., and McFadden, J., concur.

       We would like to encourage the State, when re-indicting an accused, to include all charges then pending against the accused, not simply to re-cast only those charges that are the subject of a special demurrer.

       The new indictment also differed from the First Indictment in that it specified a second date, February 11, 2011 (in addition to November 17, 2010), on or about which the alleged intimidation occurred.

       Although it does not appear from the record that the trial court entered an express ruling on these motions, the trial court implicitly denied the State’s motion to join by later proceeding to trial on only the Second Indictment.

       We interpret the trial court’s order as only pertaining to Count 1 of the First Indictment because the State agreed at the motion hearing that it did not oppose Cotman’s plea in bar as to Count 4 of the First Indictment. Thus, neither the State nor Cotman contemplates that Cotman may be tried or convicted of the crime of influencing witnesses under Count 4 of the First Indictment. The State has also represented in this appeal that “out of an abundance of caution, the State will nolpros Count 4, such that there will be no possibility that Cotman will be convicted of influencing a witness in this case.”

       Cotman does not argue substantive double jeopardy for purposes of the appeal. ‘‘The question of multiple punishments (as opposed to multiple prosecutions) for the same criminal conduct is addressed under the rubric of substantive double jeopardy.” (Citation omitted.) Smith v. State, 290 Ga. 768, 772 (3) (723 SE2d 915) (2012).

       Cotman prefaces her argument with “[notwithstanding the fact that the State can not use the witness intimidation count as a predicate after [her] acquittal on that very offense----” In arguing her claim of error as to the plea in bar, Cotman also suggests that the State has not conceded “that the Influencing A Witness predicate offense . . . should at a minimum be stricken[.]” As we noted above, Count 1 is a RICO conspiracy claim that includes as one of the allegations of racketeering activity that Cotman influenced witnesses. Although Cotman, through these asides, suggests that the State is collaterally estopped from establishing that she influenced witnesses for purposes of prosecuting Count 1, she does not show that the trial court has ruled on the issue. Accordingly, we express no opinion thereon.

       Cotman’s motions to amend her appellate brief are denied.


author: Boggs, Judge.

text:
    A14A1112.
    WORLDS v. THE STATE.
    (762 SE2d 829)
   Boggs, Judge.

We granted Teresa Worlds’ interlocutory application in this case to determine whether a trailer hitch ball installed on the bumper of a vehicle in front of the rear license plate “obstructs or hinders the clear display and legibility of a license plate” within the meaning of OCGA § 40-2-41. Worlds appeals from the trial court’s denial of her motion to suppress, urging that the trial court erred in concluding that her license plate was obstructed, thus justifying a traffic stop. We disagree and affirm.

When reviewing a trial court’s ruling on a motion to suppress, we apply the “any evidence” standard, which means that we sustain all of the trial court’s findings of fact that are supported by any evidence. We construe all evidence presented in favor of the trial court’s findings and judgment.

(Citation, punctuation and footnote omitted.) Davis v. State, 302 Ga. App. 144, 144-145 (690 SE2d 464) (2010). Because Worlds “intensely cross-examined the officer and challenged his credibility” in the hearing on the motion to suppress, we “do not apply a de novo standard of review, which applies only where the facts are undisputed.” (Citation and footnote omitted.) Id. at 145.

So construed, the evidence showed that in November 2012, a police officer stopped Worlds’ vehicle after he observed “that the fourth digit [of her license plate] was obstructed by the attached ball hitch.” During the stop, the officer discovered drugs in plain view in the vehicle. At the hearing on her motion to suppress, Worlds introduced photographs of her vehicle purporting to show that the license plate was not obscured by the hitch. The officer, however, testified that the photographs did not show the plate as it appeared to him when he made the traffic stop, because they were taken at a different angle and distance and not while the two vehicles were moving. At least one of Worlds’ photographs, moreover, shows the fourth digit on the license plate partially obstructed by the bumper hitch, as testified to by the officer. The video recording of the stop is of poor quality, but the video shows the bumper hitch concealing at least one of the license plate numbers, and the officer’s recorded comment to dispatch states that he cannot read the entire tag. The trial court concluded,

based upon the officer’s testimony, the video recording and the photographs put into evidence by the defense, that the clear display and legibility of the plate was obstructed by the ball hitch in this case, giving the officer a valid basis to stop the vehicle driven by the Defendant.

1. Worlds contends that a single, partially obscured digit on a license plate does not violate the law. The applicable Code section provides:

OCGA § 40-2-41. Display of license plates
Unless otherwise permitted under this chapter, every vehicle required to be registered under this chapter, which is in use upon the highways, shall at all times display the license plate issued to the owner for such vehicle, and the plate shall be fastened to the rear of the vehicle in a position so as not to swing and shall be at all times plainly visible. No person shall display on the rear of a motor vehicle any temporary or permanent plate or tag not issued by the State of Georgia which is intended to resemble a license plate which is issued by the State of Georgia. The commissioner is authorized to adopt rules and regulations so as to permit the display of a license plate on the front of certain vehicles. It shall be the duty of the operator of any vehicle to keep the license plate legible at all times. No license plate shall be covered with any material unless the material is colorless and transparent. No apparatus that obstructs or hinders the clear display and legibility of a license plate shall be attached to the rear of any motor vehicle required to be registered in the state. Any person who violates any provision of this Code section shall be guilty of a misdemeanor.

(Emphasis supplied.) The fact that the plate was only partially obstructed does not change the fact that the hitch “hindered” the “clear display” of the plate and that part of it was not “legible.” See, e.g., State v. Davis, 283 Ga. App. 200, 201 (1) (641 SE2d 205) (2007) (plate cover that partially obscured name of state violated Code section, even though officer recognized state of origin); Nelson v. State, 247 Ga. App. 455, 456 (1) (544 SE2d 189) (2001) (black plate border obscured name of state but not numbers; “the statute does not specify that only certain portions of the tag must not be obscured”). And

we must defer to the trial court’s determination on the credibility of witnesses, and the trial court’s ruling on disputed facts must be accepted unless it is clearly erroneous. Under these circumstances, the trial court was authorized to reject [Worlds’ witness’] testimony and to believe [the officer’s] testimony. . . . And when an officer observes a traffic law violation, the resulting stop is not pretextual.

(Citation and footnote omitted.) Bailey v. State, 283 Ga. App. 365, 367 (1) (641 SE2d 548) (2006) (appellant stopped for failure to wear seat belt and obscured decal). State v. Aguirre, 229 Ga. App. 736 (494 SE2d 576) (1997), cited by Worlds, is not dispositive because of our standard of review. There, we deferred to the trial court’s conclusion that the writing on a temporary tag was legible and that the officer’s stop was pretextual, observing that “in the absence of evidence of record demanding a finding contrary to the judge’s determination, the appellate court will not reverse the ruling sustaining a motion to suppress. [Cits.]” Id. at 737. Here, the trial court’s conclusion was supported by the evidence, including the officer’s testimony that he was unable to read the entire license plate and the video showing that he gave several alternative numbers to dispatch based upon those numbers that he could read, and the evidence did not demand a contrary finding.

2. Worlds also argues that OCGA § 40-2-41 applies only to items such as a plate cover that are attached to the license plate itself, not to other items attached to the motor vehicle, such as a trailer hitch attached directly to the bumper. OCGA § 40-2-41 provides in pertinent part that the license plate “shall be at all times plainly visible,” that “[i]t shall be the duty of the operator of any vehicle to keep the license plate legible at all times,” and that “[n]o apparatus that obstructs or hinders the clear display and legibility of a license plate shall be attached to the rear of any motor vehicle required to be registered in the state.” Georgia decisions have interpreted this Code section to forbid license plate frames and covers that obscure portions of the plate. See Davis, supra, 283 Ga. App. at 201 (1); Bailey, supra; Nelson, supra; and Aguirre, supra; see also Wilson v. State, 306 Ga. App. 286-287 (1) (702 SE2d 2) (2010) (registration decal). But the question of whether the statute forbids items other than those attached to the license plate itself has not been addressed in Georgia.

Other states, however, have determined that a bumper hitch that obscures part of a license plate violates a statute requiring that a plate be “plainly visible” or “legible.” In People v. White, 93 Cal. App. 4th 1022 (113 CalRptr2d 584) (2001), a deputy testified that he stopped White because the bumper hitch on his pickup truck blocked the lower half of the middle numeral on the license plate. Id. at 1024. The trial court granted White’s motion to suppress because it believed the statute dealt only with “dirt or grit or grime or material on the license plate.” Id. The California Court of Appeals considered the applicable Vehicle Code section 5201, which provided: “License plates shall at all times be ... mounted in a position to be clearly visible,... and shall be maintained in a condition so as to be clearly legible.” The court concluded that partial obstruction by a trailer hitch ball violated this Code section because “a license plate must not be obstructed in any manner and must be entirely readable.” Id. at 1026. It therefore reversed the trial court’s grant of the motion to suppress. Id.

In Parks v. State, 2011 WY 19 (247 P3d 857) (2011), as here, a “trailer hitch ball was mounted in a predrilled hole in the truck’s factory bumper so that the license plate was partially obstructed.” 247 P3d at 858. The applicable law, Wyo. Stat. Ann. § 31-2-205, provided that a license plate shall be “plainly visible” and “[m]aintained free from foreign materials and in a condition to be clearly legible.” Id. at 858-859. The Wyoming Supreme Court concluded:

The requirements that a license plate be “plainly visible” and “clearly legible” indicate that a license plate must not be obstructed in any manner. This interpretation is in accord with the purpose of the statute. License plates need to be easily read in order to facilitate law enforcement and ordinary citizens in reporting and investigating hit-and-run accidents, traffic violations, gas-pump drive offs, and other criminal activity. . . . Law enforcement officers frequently must determine from tag numbers whether a vehicle is stolen; whether it is properly registered; or whether its occupant is suspected of a crime, is the subject of a warrant, or is thought to be armed. The plain language and the purpose of the statute indicate that a trailer ball mounted in a place that causes it to partially obstruct a license plate from view is a violation of Wyo. Stat. Ann. § 31-2-205.

(Citations and punctuation omitted.) Id. at 860. Here, once the officer stopped Worlds’ vehicle and was able to read the complete license plate number, he discovered that the vehicle’s registration was suspended and there was no valid insurance on it.

The Florida Court of Appeals in Harris v. State, 11 S3d 462 (Fla. Dist. Ct. App. 2d Dist. 2009), reached a different result based upon Fla. Stat. § 316.605 (1), requiring that numbers and other marks on license plates “shall be clear and distinct and free from defacement, mutilation, grease, and other obscuring matter.” (Emphasis in original.) Id. at 463. The court applied the statutory construction principle of “ejusdem generis” to hold that the language “other obscuring matter” applied “only to matter on the tag itself” and that “[mjatters external to the tag, such as trailer hitches, bicycle racks, handicap chairs, u-hauls, and the like are not covered by the statute.” Id. at 463-464.

The court acknowledged that its holding was in the minority on this point, noting White, supra, as well as decisions from New Mexico and Ohio finding that statutes with the “clearly legible” or “visible” language prohibited license plates partially obscuredby trailer hitches. Harris, supra, 11 S3d at 464. Similarly, the Supreme Court of Wyoming in Parks, supra, observes that “a number of jurisdictions have considered this issue and nearly all have determined that a trailer hitch that partially obstructs a license plate is a traffic violation,” citing United States district court decisions from Kansas and a Washington State Court of Appeals decision as well as the decisions cited by the Florida court. 247 P3d at 861.

Bearing in mind these decisions, the plain wording of OCGA § 40-2-41 does not limit its prohibition to items attached to the license plate itself, but includes any “apparatus” that is “attached to the rear of any motor vehicle” (emphasis supplied), such as the bumper hitch at issue here. It is not clear whether a distinction can be made between an attachment that obscures the license plate and is more or less permanent — such as a trailer ball bolted to the vehicle itself— and a temporary attachment such as a separate, removable trailer hitch inserted into a receiver welded to the vehicle frame, a bicycle rack whether loaded or unloaded, or a hitch tray or step folded in an upright position against the rear of the vehicle or piled high with luggage. But that is not a question that need be answered here, although the General Assembly would be the proper body to clarify the point.

Decided August 14, 2014.

Grace K. Akan, for appellant.

Lee Darragh, District Attorney, Kelley M. Robertson, Assistant District Attorney, for appellee.

Judgment affirmed.

Barnes, P. J., and Branch, J., concur.

       While the officer testified that he initially followed Worlds’ vehicle because he observed it leaving “a high drug area,” “the stop of a vehicle is authorized, and not pretextual, if the officer observed a traffic offense.” (Citations, punctuation and footnote omitted.) Nelson v. State, 247 Ga. App. 455 (1) (544 SE2d 189) (2001).

       We have observed that Aguirre is also factually distinguishable because it “affirmed the grant of a motion to suppress because the temporary Ohio license tag was covered only by a clear plastic cover which the evidence showed had no effect on the legibility of the tag.” (Citation and footnote omitted; emphasis in original.) Nelson, supra, 247 Ga. App. at 456.

       Similarly, in People v. Gaytan, 2013 Ill. App. 4th 120217 (992 NE2d 17, 25-26) (2013), the Appellate Court of Illinois construed a statute requiring that “[e] very registration plate... shall be maintained in a condition to be clearly legible, free from any materials that would obstruct the visibility of the plate, including, but not limited to, glass covers and plastic covers.” (Emphasis in original.) Id., 992 NE2d at 20-21 (II) (B). The court held that this provision applied only to materials attached to the plate and not to a trailer ball hitch. The court noted the distinction between statutes using the “clearly/plainly legible” and “visible” language and the Illinois and Florida statutes which refer to the plate itself. Id. at 22-23 (II) (B).

       The Florida court also cited to a different Ohio Court of Appeals case holding that the trial comet did not err in granting a motion to suppress when a state trooper contended that a portion of the defendant’s license plate was obscured by a trailer hitch, but that decision does not consider the wording of the applicable statute, if any. State v. Ronau, 2002 Ohio 6687, 2002 Ohio App. LEXIS 6480 (Ohio App. 2002).


author: BARNES, Presiding Judge.

text:
    A14A1039.
    WATSON v. THE STATE.
    (763 SE2d 122)
   BARNES, Presiding Judge.

A jury found Everett Thomas Watson guilty of two counts of felony obstruction of a law enforcement officer, and the trial court denied his motion for a new trial. On appeal, Watson contends that the trial court erred in rejecting his written request to charge the jury on the lesser included offense of misdemeanor obstruction. Watson further contends that the trial court erred in excluding evidence that he had previously been the victim of a home invasion, which he sought to introduce to support his affirmative defense that he used force to defend his habitation. Discerning no error, we affirm.

“Following a criminal conviction, the defendant is no longer presumed innocent, and we view the evidence in the light most favorable to sustain the verdict.” Anthony v. State, 317 Ga. App. 807 (732 SE2d 845) (2012). So viewed, the evidence showed that Watson lived with his girlfriend in an apartment in Whitfield County. In April 2012, a police detective interviewed Watson and his girlfriend at their apartment regarding their alleged involvement in a drug crime. During the interview, the detective observed numerous weapons near a coffee table in the living room. When the detective questioned Watson, he became verbally aggressive and confrontational, leading the detective to terminate the interview and leave the apartment.

Around 11:00 a.m. on May 4, 2012, the detective returned to the apartment with his partner to serve an arrest warrant on Watson’s girlfriend. Both wore plain clothes but had their badges displayed. The detective’s partner knocked on the front door, and when Watson approached and asked who was there, the partner gave only his first name. Watson did not open the door, but after a few more minutes passed with continued knocking, his girlfriend came to the door and started to open it, but then attempted to shut it when she saw the detective and his partner standing there. However, the detective and his partner stopped the girlfriend from shutting the door and entered the living room, verbally identified themselves as law enforcement officers, and informed the girlfriend that they had a warrant for her arrest. Watson was standing in the living room and saw the entire interaction.

After the detective showed the girlfriend the arrest warrant, Watson suddenly lunged toward the coffee table and grabbed a can of what was later confirmed to be pepper spray. Because he was focused on the girlfriend at the time, the detective did not see Watson grab the pepper spray, but his partner saw Watson do it and moved to intercept him. The detective’s partner and Watson began to fight for control over the can, and the detective immediately joined his partner in the struggle once he realized what was happening. Although the detective ordered Watson to stop struggling and put his hands behind his back, Watson continued to resist and was able to drag the detective and his partner over to a couch. Watson dropped the pepper spray, but then repeatedly attempted to reach for something toward the edge of the couch. The detective and his partner later discovered that a hammer was located at the side of the couch where Watson had been reaching.

As Watson continued to struggle and reach for the hammer, the detective drew his firearm and threatened to shoot Watson if he failed to comply with the detective’s orders. At that point, Watson stopped resisting the detective and his partner and stopped reaching for the hammer at the side of the couch. Watson told them, “You guys didn’t have to fight me like that. ... I wasn’t trying to get a weapon. I was trying to get pepper spray.”

Watson was arrested and indicted on two counts of felony obstruction of a law enforcement officer. The indictment alleged that on May 4, 2012, Watson had knowingly and wilfully obstructed the detective and his partner, who were acting in the lawful discharge of their official duties, by “offering violence” to their persons “by grabbing a can of pepper spray, raising it toward [them], and reaching toward another weapon.”

At the ensuing jury trial, the detective and his partner testified to the events as set forth above, while Watson testified to a different version of events. Watson denied having ever spoken with the detective on a previous occasion in April 2012, and he denied knowing that the two men who entered his apartment were law enforcement officers, claiming that medication that he had taken had made him “real groggy and disoriented.” Watson also denied lunging at or grabbing the pepper spray or reaching for any weapons by the couch. According to Watson, he had simply “looked over toward” the coffee table where the pepper spray was located, whereupon the detective and his partner grabbed him and jerked him over to the couch. Watson denied attempting to punch or kick the detective or his partner or making any effort to fight them, instead admitting only that he had tried to “brace” himself to keep the weight of the detective and his partner off of him on the couch because he had leg, back, and hip problems.

Watson’s girlfriend testified that she began screaming when the detective and his partner forced their way into the apartment to serve the arrest warrant, at which point Watson came back into the living room and “thought [she] was being hurt” because “he didn’t know what was going on.” According to the girlfriend, Watson was on several medications, including pain pills and sleeping pills, which affected him in the morning hours. She testified that Watson moved toward the pepper spray that was sitting on the coffee table in an effort to defend her from what he mistakenly believed was a home invasion, leading the detective and his partner to intercept Watson before he could reach the pepper spray and to slam him down on the couch. At another point in her testimony, Watson’s girlfriend testified that he had simply “look[ed]” in the direction of the pepper spray, and the detective and his partner had “assumed he was going after [it]” and grabbed him and forced him over to the couch.

Watson also sought to introduce evidence that he had previously-been assaulted by a third party forcing his way into his residence in an effort to support a defense-of-habitation affirmative defense. The State objected, and the trial court sustained the objection and excluded the evidence on the ground that it was irrelevant.

Additionally, Watson filed a written request to charge on misdemeanor obstruction. The trial court declined to give the charge, concluding that there was no evidence to support it. But the trial court did give several of Watson’s requested charges, including a charge on the affirmative defense of mistake of fact.

After hearing the conflicting testimony from the witnesses and the charge of the court, the jury found Watson guilty on both counts of the indictment. Watson filed a motion for new trial, which the trial court denied. This appeal followed.

1. Watson contends that the trial court erred by rejecting his written request for a jury charge on misdemeanor obstruction of a law enforcement officer as a lesser included offense of felony obstruction. We disagree.

Misdemeanor obstruction “requires proof that the defendant knowingly and wilfully obstructed or hindered a law enforcement officer in the lawful discharge of his official duties.” Jones v. State, 276 Ga. App. 66, 68 (622 SE2d 425) (2005). See OCGA § 16-10-24 (a). To establish that the obstruction was done “knowingly and wilfully” there must be proof that the defendant knew that the person he was obstructing was a law enforcement officer. See Reddick v. State, 298 Ga. App. 155, 156-157 (1) (679 SE2d 380) (2009); Mangum v. State, 228 Ga. App. 545, 547 (3) (492 SE2d 300) (1997). Felony obstruction has the same elements that must be proven as misdemeanor obstruction, plus one more element — that the defendant obstructed the officer “by offering or doing violence to the person of such officer.” OCGA § 16-10-24 (b). See Jones, 276 Ga. App. at 68.

As our discussion of the two offenses indicates, misdemeanor obstruction clearly is a lesser included offense of felony obstruction, see White v. State, 310 Ga. App. 386, 390 (3) (714 SE2d 31) (2011), and “a written request to charge a lesser included offense must always be given if there is any evidence that the defendant is guilty of the lesser included offense.” State v. Alvarado, 260 Ga. 563, 564 (397 SE2d 550) (1990). Significantly, however, “[w]here the evidence shows either the completed offense as charged or no offense, such evidence will not support a verdict for one of the lesser grades of the offense, and the court should not charge on the lesser grades of the offense.” (Citation and punctuation omitted.) Strickland v. State, 223 Ga. App. 772, 777 (1) (479 SE2d 125) (1996). See Bellamy v. State, 324 Ga. App. 319, 320 (750 SE2d 395) (2013).

Here, the evidence of record showed that Watson committed either the completed offense of felony obstruction or no offense at all. On the one hand, the testimony of the detective and his partner supported Watson’s conviction for felony obstruction as alleged in the indictment. On the other hand, the testimony of Watson and his girlfriend would have authorized the jury to find that Watson did not know that the two men in his apartment were law enforcement officers. The jury also could have found, based on the girlfriend’s testimony, that Watson attempted to resist the detective and his partner by lunging toward the pepper spray and struggling with them, but only in a mistaken belief that he needed to defend her from criminal intruders. Alternatively, the jury could have found, based on Watson’s testimony and other portions of his girlfriend’s testimony, that the detective and his partner assaulted Watson without any basis when he simply “looked over toward” the coffee table where the pepper spray was located, and made no effort to grab the pepper spray or a weapon beside the couch or to otherwise hinder them in their arrest of his girlfriend.

Under the alternative versions of what transpired to which Watson and his girlfriend testified, Watson was guilty of no crime whatsoever. See OCGA § 16-3-5 (“A person shall not be found guilty of a crime if the act . . . constituting the crime was induced by a misapprehension of fact which, if true, would have justified the act or omission.”); Ewumi v. State, 315 Ga. App. 656, 663 (1) (a) (727 SE2d 257) (2012) (defendant did not obstruct or hinder the officer’s lawful discharge of his duties, where officer had no basis for subduing or detaining the defendant). Accordingly, because the evidence showed that Watson either committed felony obstruction or no offense at all, the trial court did not err in declining to charge on misdemeanor obstruction. See White, 310 Ga. App. at 390-391 (3) (no charge on misdemeanor obstruction was warranted, where evidence showed completed offense of felony obstruction or no offense); Williams v. State, 301 Ga. App. 731, 733-734 (4) (a) (688 SE2d 650) (2009) (same). See also Lindsey v. State, 262 Ga. 665, 666 (2) (b) (424 SE2d 616) (1993) (requested jury charge on reckless conduct not appropriate, where evidence showed either that defendant committed the charged offense of aggravated assault, or that defendant’s act was justified and thus constituted no crime at all).

2. Watson also contends that the trial court erred in excluding evidence that he was attacked by a third party during a previous home invasion, which he sought to introduce to support an affirmative defense that he was justified in using force to defend his habitation. Again, we disagree.

Decided August 15, 2014.

Michael R. McCarthy, for appellant.

Herbert M. Poston, Jr., District Attorney, Susan L. Franklin, Assistant District Attorney, for appellee.

“A person is justified in threatening or using force against another when and to the extent that he or she reasonably believes that such threat or force is necessary to prevent or terminate such other’s unlawful entry into or attack upon a habitation.” OCGA § 16-3-23. Because justification defenses are predicated on a reasonable person standard rather than the subjective fears of a particular defendant, “we have on numerous occasions found inadmissible to support a justification defense evidence of violent acts or abuse committed against a defendant by someone other than the victim.” (Citations and punctuation omitted.) O’Connell v. State, 294 Ga. 379, 382 (3) (754 SE2d 29) (2014). See Harris v. State, 279 Ga. 304, 308 (3) (c) (612 SE2d 789) (2005); Bryant v. State, 271 Ga. 99, 101 (3) (515 SE2d 836) (1999). Consequently, Watson could not support a justification defense with evidence of a prior home invasion by a third party, and we therefore find no abuse of discretion by the trial court in excluding such evidence.

Judgment affirmed.

Boggs and Branch, JJ., concur.

       As we have explained:
      When an indictment charges a crime was committed in more than one way, proof that it was committed in one of the separate ways or methods alleged in the indictment makes a prima facie case for jury determination as to guilt or innocence. It is sufficient for the State to show that a crime was committed in any one of the separate ways listed in the indictment, even if the indictment uses the conjunctive rather than disjunctive form.
      (Footnote omitted.) Stinkard, v. State, 259 Ga. App. 755, 759-760 (2) (577 SE2d 825) (2003). Hence, the State was authorized to prove felony obstruction by showing that Watson was “offering violence” in any one of the separate ways listed in the indictment, even though the indictment used the conjunctive form. See id.


text:
    A14A1079.
    ST. LOUIS v. THE STATE.
    (763 SE2d 126)
   BARNES, Presiding Judge.

A jury found Richard Roy St. Louis guilty of the misdemeanor offense of loitering or prowling. On appeal from the denial of his motion for a new trial, St. Louis challenges the sufficiency of the evidence. For the reasons discussed below, we affirm.

On appeal from a criminal conviction, we view the evidence in the light most favorable to the verdict, and [St. Louis] no longer enjoys the presumption of innocence. We neither weigh the evidence nor assess the credibility of witnesses, but merely ascertain that the evidence is sufficient to prove each element of the crime beyond a reasonable doubt. Moreover, conflicts in the testimony of the witnesses are a matter of credibility for the jury to resolve. As long as there is some competent evidence, even though contradicted, to support each fact necessary to make out the state’s case, the jury’s verdict will be upheld.

(Citation omitted.) Rollins v. State, 318 Ga. App. 311 (733 SE2d 841) (2012).

Viewed in the light most favorable to the jury’s verdict, the evidence showed that the female victim lived alone in an apartment in Douglas County. Around 6:45 a.m. on March 13, 2012, the victim was returning to her apartment after spending the night away from home. The victim had her dog with her and was walking up a cement walkway that led to her apartment door. The outdoor light near her apartment was not working and it was still dark outside. As the victim approached her apartment door, St. Louis suddenly jumped out of the darkness toward her dog. According to the victim, St. Louis appeared startled, was standing in a “low” stance, and “looked like he was not right.” The victim began to scream, and St. Louis apologized. Although the victim’s dog was on a leash, St. Louis tried to explain his conduct by telling the victim that he “thought it was a stray dog.” St. Louis then fled into the nearby woods. The victim at that point noticed that the latch to the screen door of her apartment was no longer fastened and that the door was slightly propped open against the door frame, even though she always latched the screen door before leaving home.

Frightened by the encounter, the victim went inside her apartment and called her boyfriend and then the police. The victim was close enough to St. Louis during their encounter to “see what his face looked like in the dark” and was able to provide a description of his appearance.

Around 6:55 a.m., a patrol officer saw St. Louis, who met the description provided by the victim, walking down a street near the apartment complex. The officer stopped St. Louis, explained why he was stopping him, and asked for his name and identification, which St. Louis provided. The officer asked St. Louis where he was coming from and where he was going, and St. Louis told the officer that he lived at the apartment complex, that he had just walked from his apartment to a convenience store to buy some cigarettes, and that he was in the process of returning to his apartment.

When the officer asked St. Louis if he had encountered anyone that morning after leaving his apartment, St. Louis initially denied having contact with anyone. However, when the officer later repeated the same question, St. Louis admitted that he had encountered a lady and her dog at the apartment complex that morning, that he thought he had startled her because she began to scream, and that he ran away when she screamed at him. Later, when the officer searched St. Louis, he discovered a flashlight and thick wool gloves in his coat pocket. According to the officer, it was around 70 degrees outside that morning. The officer asked St. Louis about the flashlight and wool gloves, but St. Louis gave no explanation for why he had them.

Another patrol officer had been dispatched to the victim’s apartment. When the officer arrived at the apartment, the victim was holding her dog and was shaking and crying. After the officer calmed the victim down, the officer drove her to where St. Louis had been detained. When the victim saw St. Louis, she became distraught again, started to cry, and told the officer that St. Louis was the man she had encountered. St. Louis then was arrested for loitering or prowling outside the victim’s apartment. Following the arrest, the victim learned that St. Louis lived in the same apartment complex, and she subsequently moved out of her apartment out of fear for her safety.

At the ensuing jury trial, the victim and responding officers testified to the events as set out above. After the State’s case-in-chief, St. Louis elected to testify, denied unlatching the screen door to the victim’s apartment, and claimed that he had been walking from his apartment to a convenience store along a dirt path that ran through the complex when he encountered the victim. In contrast, the victim testified that she encountered St. Louis on the concrete walkway outside her apartment door, not on the dirt path. The victim also testified that the quickest route to reach the dirt path from where St. Louis’ apartment was located did not involve crossing over the cement walkway that led to her apartment door.

St. Louis further testified that his cat had suddenly darted out in front of him as he walked down the dirt path, and that he had then been startled by what he had thought was a stray dog chasing his cat. St. Louis testified that he then saw the victim, who began to scream, and that he apologized to her and continued walking down the path to the store. In contrast, the victim testified that she never saw a cat, that her dog did not look like a stray and had been on a leash only about “three strides ahead” of her, and that St. Louis had fled into the woods after their encounter.

Lastly, St. Louis claimed that he had the flashlight with him because he worked at a nearby restaurant and sometimes walked home in the dark and had the gloves in case it was cold outside. But St. Louis had not provided that explanation when he spoke with the police on the morning of the incident.

After hearing the conflicting evidence, the jury found St. Louis guilty of the charged offense. St. Louis filed a motion for new trial, which the trial court denied, resulting in this appeal.

A person commits the offense of loitering or prowling when he is in a place at a time or in a manner not usual for law-abiding individuals under circumstances that warrant a justifiable and reasonable alarm or immediate concern for the safety of persons or property in the vicinity.

OCGA § 16-11-36 (a). Here, the evidence and all inferences drawn from it, when construed in favor of the prosecution, would support a finding by the jury that St. Louis was outside the victim’s apartment door at 6:45 a.m., in the dark, with items in his pocket that could be used for a burglary; had unlatched and propped open the screen door; was startled upon unexpectedly encountering the victim and her dog; and then fled from the scene into the woods when the victim screamed. Under these circumstances, the jury was authorized to find that St. Louis was at the victim’s door “at a time [and] in a manner not usual for law-abiding individuals” and that his actions would “warrant a justifiable and reasonable alarm or immediate concern for the safety of persons or property in the vicinity.”

St. Louis argues, however, that the circumstantial evidence did not rule out the reasonable hypothesis that he was simply walking to the convenience store to buy cigarettes when he was startled by the victim and her dog. It is true that “[t]o warrant a conviction on circumstantial evidence, the proven facts must exclude every other reasonable hypothesis except the guilt of the accused.” Nangreave v. State, 318 Ga. App. 437, 439 (1) (734 SE2d 203) (2012). See former OCGA § 24-4-6. But the reasonable hypothesis rule applies only when all of the evidence against the defendant was circumstantial, see Meeks v. State, 281 Ga. App. 334, 337 (636 SE2d 77) (2006), and the victim’s eyewitness testimony about her encounter with St. Louis served as direct evidence supporting his conviction.

In any event, even if the reasonable hypothesis rule were to apply in this case, it would not serve as an impediment to St. Louis’ conviction. Under the rule,

the circumstantial evidence need not exclude every conceivable inference or hypothesis — only those that are reasonable. Moreover, whether a hypothesis is reasonable and whether every other hypothesis except the guilt of the accused has been excluded are generally questions for the jury to decide. Because jurors are able to hear and observe the witnesses, and thus are better able to judge the reasonableness of a hypothesis raised by the evidence, this Court will not disturb their findings unless it is unsupportable as a matter of law.

(Citations and punctuation omitted; emphasis in original.) Wise v. State, 325 Ga. App. 377, 381 (2) (752 SE2d 628) (2013).

Contrary to St. Louis’ argument, the jury could find that the evidence, as previously discussed, excluded every other reasonable hypothesis except his guilt. The jury, as the factfinder, was entitled to credit the testimony of the victim over the testimony of St. Louis regarding their encounter and draw the reasonable inference that St. Louis had unlatched the victim’s apartment screen door. See Nangreave, 318 Ga. App. at 438 (1) (“The jury, not this Court, resolves conflicts in the testimony, weighs the evidence, and draws reasonable inferences from basic facts to ultimate facts.”). Additionally, St. Louis testified at trial that he thought the victim’s dog was chasing his cat, but he never mentioned a cat in his conversation with the patrol officer, and, in fact, initially denied that he had any contact with anyone on the morning in question. St. Louis’ conflicting statements further authorized the jury to find that every other reasonable hypothesis had been excluded. See Viers v. State, 303 Ga. App. 387, 391 (1) (693 SE2d 526) (2010). Finally, the jury could find that St. Louis’ flight from the victim reflected his consciousness of guilt and was inconsistent with a reasonable hypothesis of innocence. See Brooks v. State, 324 Ga. App. 352, 354 (1) (750 SE2d 423) (2013) (noting that “flight is circumstantial evidence of consciousness of guilt, and the weight to be given to such evidence is for jury to decide”). Accordingly, St. Louis’ reasonable hypothesis argument is unpersuasive.

St. Louis also argues that his conviction cannot stand because he fully complied with OCGA § 16-11-36 (b), which provides:

Among the circumstances which may be considered in determining whether alarm is warranted is the fact that the person takes flight upon the appearance of a law enforcement officer, refuses to identify himself, or manifestly endeavors to conceal himself or any object. Unless flight by the person or other circumstances make it impracticable, a law enforcement officer shall, prior to any arrest for an offense under this Code section, afford the person an opportunity to dispel any alarm or immediate concern which would otherwise be warranted by requesting the person to identify himself and explain his presence and conduct. No person shall be convicted of an offense under this Code section if the law enforcement officer failed to comply with the foregoing procedure or if it appears at trial that the explanation given by the person was true and would have dispelled the alarm or immediate concern.

According to St. Louis, he fully complied with the statute because when approached by the patrol officer, he identified himself, did not flee from the officer, and truthfully told the officer that he had encountered the victim while walking that morning and had inadvertently startled her. Again, we are unpersuaded.

“The fact that [St. Louis] did not attempt to flee from the officer, did not refuse to identify himself, or did not attempt to conceal himself from the officer, standing alone, does not mean that the evidence was insufficient to support a finding of prowling or loitering.” (Citation and punctuation omitted.) In the Interest of I. M. W., 313 Ga. App. 624, 627 (1) (b) (722 SE2d 586) (2012). Furthermore, the officer gave St. Louis an opportunity to explain his presence and conduct, thus complying with the requirements of the statute. See Franklin v. State, 258 Ga. App. 281, 282 (574 SE2d 361) (2002). And in light of the victim’s description of what had occurred, the jury was entitled to find that St. Louis’ “explanation justifiably did not dispel the [officer’s] concerns” and that St. Louis had not been truthful with the officer. Id. Consequently, the requirements imposed by OCGA § 16-11-36 (b) were not a bar to St. Louis’ conviction in this case.

For these combined reasons, we conclude that a rational jury was entitled to find St. Louis guilty beyond a reasonable doubt of loitering or prowling under OCGA § 16-11-36 (a) and (b). Jackson v. Virginia, 443 U. S. 307 (99 SCt 2781, 61 LE2d 560) (1979). See, e.g., In the Interest of I. M. W., 313 Ga. App. at 626 (1) (a), 627 (1) (b) (evidence supported finding of prowling or loitering where defendant who was wearing a mask “stood at the door to a stranger’s house and frightened the occupants by standing motionless and silent as to [his] intentions”; jury was entitled to reject defense that “there was a mistake”); Hubbard v. State, 311 Ga. App. 671, 673 (1) (716 SE2d 777) (2011) (evidence supported conviction for loitering based on defendant’s “presence for many hours on the steps of an apartment complex where he did not live, apparent intoxication, and harassment of two women returning to the complex at four in the morning”); McFarren v. State, 210 Ga. App. 889, 890-891 (1) (437 SE2d 869) (1993) (evidence supported conviction for loitering or prowling where defendant “was seen peering into the windows of neighborhood homes” after dark; jury was entitled to reject defendant’s explanation for his presence). The trial court therefore committed no error in denying St. Louis’ motion for a new trial.

Decided August 15, 2014.

James K. Luttrell, for appellant.

Matthew C. Krull, Solicitor-General, David Homes, Assistant Solicitor-General, for appellee.

Judgment affirmed.

Boggs and Branch, JJ., concur.

       Because this case was tried in December 2012, the new Georgia Evidence Code does not apply. See Ga. L. 2011, p. 99, § 101 (“This Act shall become effective on January 1, 2013, and shall apply to any motion made or hearing or trial commenced on or after such date.”).


text:
    A13A0625.
    AUSTIN v. CLARK et al.
    (763 SE2d 130)
    Decided August 18, 2014.

      Childs & Noland, Frank H. Childs, Jr., Lumley & Howell, Jerry A. Lumley, for appellant.

      Page, Scrantom, Sprouse, Tucker & Ford, David A. Siegel, Smith, Welch, Webb & White, A.J. Welch, Jr., Lindsay M. Hodgson, Byrd Garland, for appellees.
   McFadden, Judge.

In Austin v. Clark, 294 Ga. 773 (755 SE2d 796) (2014), the Supreme Court of Georgia reversed our decision in Austin v. Clark, 322 Ga. App. 368 (745 SE2d 293) (2013), which affirmed the trial court’s order granting a motion to dismiss based upon official immunity of the individual defendants. Accordingly, the opinion of the Supreme Court is made the opinion of this court, and the order of the trial court granting the individual defendants’ motion to dismiss based upon official immunity is hereby reversed.

Judgment reversed.

Doyle, P. J., and Boggs, J., concur.