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Stroud v. State

Court of Appeals of Georgia, Fifth Division

March 1, 2018


          MCFADDEN, P. J., BRANCH and BETHEL, JJ.

          Branch, Judge.

         Following a jury trial, Kelly Stroud was convicted in Spalding County Superior Court of a single count each of possession of cocaine, failure to maintain lane, and driving with a suspended license. Stroud now appeals from the denial of his motion for a new trial, arguing that the evidence was insufficient to sustain his conviction for failure to maintain lane. Additionally, Stroud asserts that the trial court erred in denying his motion to suppress and in refusing to give his requested jury instructions on equal access and circumstantial evidence. For reasons explained more fully below, we affirm Stroud's conviction for driving with a suspended license. We reverse, however, Stroud's conviction for failure to maintain lane, finding that the evidence was insufficient to support that conviction. We further find that in denying Stroud's motion to suppress, the trial court failed to determine whether the impoundment of Stroud's car was reasonably necessary under the circumstances. Accordingly, we vacate the order denying the motion to suppress and remand for further proceedings on the same. Finally, we find that the trial court committed plain error when it failed to give Stroud's requested charge on circumstantial evidence and for that reason, we reverse the trial court's denial of Stroud's motion for a new trial on the charge of possession of cocaine.

         "On appeal from a criminal conviction, the defendant is no longer entitled to a presumption of innocence and we therefore construe the evidence in the light most favorable to the jury's guilty verdict." Marriott v. State, 320 Ga.App. 58, 58 (739 S.E.2d 68) (2013) (citation omitted). So viewed, the record shows that late on the evening of March 9, 2009, a patrol officer with the City of Griffin Police Department observed a car driven by Stroud traveling west on Broad Street. As the officer watched, the car "made a wide right turn onto 14th Street, heading northbound" and crossed into "the southbound lane of 14th Street." The officer conducted a traffic stop of Stroud based on his alleged failure to maintain his lane. When the officer ran an identification check on Stroud, he learned that Stroud's driver's license had been suspended. Upon learning of the suspended license, the officer immediately arrested Stroud, handcuffed Stroud's hands behind his back, and placed Stroud in the back of the officer's patrol car. The officer then conducted a search of Stroud's car and found a glass pipe of the type used to smoke crack cocaine and two small pieces of an off-white substance located in between the driver's seat and the car's center console. Subsequent forensic tests showed the off-white substance to be cocaine with a weight of approximately .06 grams.

         Stroud moved to suppress the items seized from his car, arguing that their discovery resulted from an illegal search. At the hearing on the motion to suppress, which was held immediately before trial, the arresting officer testified that the search of Stroud's vehicle was not performed incident to his arrest, but instead was performed because police had to impound the car. The officer further explained that an impound was necessary because Stroud, the car's sole occupant, lacked a valid license and therefore could not drive the car. The officer, however, provided no explanation for why the car had to be removed from the scene immediately - i.e., there was no evidence that the car was illegally or dangerously parked or that it was a hazard to traffic. When questioned about whether Stroud had been given the opportunity to call someone to retrieve the car from the scene, the officer responded that he did not speak with Stroud about that possibility, but that a second officer was present and he might have had that discussion with Stroud, but the arresting officer could not remember.

         The arresting officer also testified that he could not remember whether he searched the car before or after he had called for a tow truck, and he acknowledged the search might have occurred before he began the impound process. The State introduced into evidence the inventory sheet made as part of the car's impoundment, but neither the cocaine nor the crack pipe were listed on that sheet.[1] The arresting officer indicated that he did not personally fill out the impound inventory sheet, and the sheet reflects that someone other than the arresting officer signed it on behalf of the police department. Additionally, the arresting officer could not say at what point after he seized the contraband the remainder of the car's contents were inventoried and the form completed.

         Based on this evidence, the trial court denied the motion to suppress, finding that because Stroud was being arrested, the law required that the car be impounded and its contents inventoried. Immediately following that ruling, the case proceeded to trial, at which the arresting officer gave testimony that was substantially similar to that given at the motion to suppress hearing, with one exception. At trial, the officer testified that the second officer at the scene "tried to get someone [to retrieve the car for Stroud, but] no one was available to get the vehicle [, ] [so] we impounded the vehicle."[2]

         Stroud testified in his own defense and admitted that he had been driving with a suspended license. Stroud also claimed that neither the pipe nor the cocaine belonged to him and that he was unaware those items were in his car. According to Stroud, because he was currently unemployed, he used his car to give people rides in exchange for cash. Just before the traffic stop, Stroud had dropped off a passenger, whom he could identify only as a white female. Based on Stroud's testimony as well as the testimony of the arresting officer, who acknowledged that the contraband was located in an area of the car accessible to passengers, Stroud requested a jury charge on equal access. Over Stroud's objection, the trial court declined to give this charge, finding that it did not apply because there were no other passengers present in Stroud's car at the time of the traffic stop.

         The trial court also declined to give Stroud's requested jury charge on circumstantial evidence, which was based on what was then OCGA § 24-4-6. In explaining this refusal, the trial court stated that the principles contained in the requested charge would be covered by the court's standard charge on circumstantial evidence.

         The jury found Stroud guilty on all counts and the trial court sentenced him to 15 years for possession of cocaine and 12 months on each charge of driving with a suspended license and failure to maintain lane, with all sentences to run consecutively. Following his conviction Stroud filed a motion for a new trial, which was denied. This appeal followed.[3]

         1. Although Stroud has not challenged his conviction for driving with a suspended license, we note that the evidence set forth above, including Stroud's admission that his license had been suspended, supports his conviction for that crime. See Wilson v. State, 278 Ga.App. 420, 421 (629 S.E.2d 110) (2006) ("to establish the offense of driving with a suspended license, the State must show that the accused was driving, that his license was suspended, and that the accused had received actual or legal notice of the suspension") (punctuation and footnote omitted); OCGA § 40-5-121 (a). We therefore affirm Stroud's conviction for driving with a suspended license.

         2.Stroud contends that the evidence was insufficient to sustain his conviction for failure to maintain lane. We agree.

         Stroud was charged with a violation of OCGA § 40-6-48, which provides, in relevant part, that "[w]henever any roadway has been divided into two or more clearly marked lanes for traffic . . . [a] vehicle shall be driven as nearly as practicable entirely within a single lane and shall not be moved from such lane until the driver has first ascertained that such movement can be made with safety." OCGA § 40-6-48 (1). Thus, to convict a defendant of violating this statute, the State must prove that the road on which the defendant was driving at the time of the alleged violation was, in fact, "divided into two or more clearly marked lanes for traffic." See Stewart v. State, 288 Ga.App. 735, 738 (3) (655 S.E.2d 328) (2007) (punctuation omitted). Here, given that no evidence was presented to establish that 14th Street was "divided into two or more clearly marked lanes, " the evidence was insufficient to convict Stroud of failure to maintain lane. Id.

         In an effort to avoid this result, the State cites Moore v. State, 234 Ga.App. 332 (506 S.E.2d 685) (1998), where this Court summarily held that an "arresting officer's testimony that he observed [the defendant] weave across the road was sufficient to sustain the conviction for lane violations under OCGA § 40-6-48." Id. at 333 (3) (d). Moore, however, did not address whether the State had proved that the roadway in question was divided into clearly marked lanes. Accordingly, Moore did not establish binding precedent with respect to that question. See State v. Outen, 289 Ga. 579, 582 (714 S.E.2d 581) (2011) (although the question at issue may have been before the court in previous cases, those cases did not directly address the question and therefore "no binding precedent was established") (citation and punctuation omitted); Abreu v. State, 206 Ga.App. 361, 363 (2) (425 S.E.2d 331) (1992) (same). See also Gordy Tire Co. v. Dayton Rubber Co., 216 Ga. 83, 89 (1) (114 S.E.2d 529) (1960) ("[q]uestions which merely lurk in the record, neither brought to the attention of the court nor ...

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