Newman v. the State , 336 Ga. App. 760 ( 2016 )

FOURTH DIVISION
BARNES, P. J.,
MCMILLIAN and RICKMAN, JJ.
NOTICE: Motions for reconsideration must be
physically received in our clerk’s office within ten
days of the date of decision to be deemed timely filed.
http://www.gaappeals.us/rules
March 9, 2016
In the Court of Appeals of Georgia
A15A1662. NEWMAN v. STATE
BARNES, Presiding Judge.
Following his conviction for loitering, obstruction of an officer, possession of
marijuana, and possession of a firearm by a felon, Dorsey Newman III appeals.
Newman contends that insufficient evidence supported his conviction for loitering
and that his trial counsel rendered ineffective assistance for failing to file a motion
to suppress. For the following reasons we affirm.
1. Newman contends that the State presented insufficient evidence to support
his conviction for loitering. “When a criminal defendant challenges the sufficiency
of the evidence supporting his conviction, the relevant question is whether, after
viewing the evidence in the light most favorable to the prosecution, any rational trier
of fact could have found the essential elements of the crime beyond a reasonable
doubt.” Lopez-Vasquez v. State, 331 Ga. App. 570 (1) (771 SE2d 218) (2015);
Jackson v. Virginia, 443 US 307, 319 (III) (B) (99 SCt 2781, 61 LEd2d 560) (1979).
So viewed, the evidence shows that in June 2013, a police officer was
patrolling downtown Rome when he observed Newman in a parking lot behind a
parking deck around 3:30 in the morning. Newman was standing near the driver’s
side of a parked vehicle and the officer thought at first that Newman was peering into
the vehicle. The officer testified that there had been a rash of car break-ins in the area
and the motion-activated street light was on over the car, so he thought Newman may
have been trying to break into it. When the officer drove up to Newman with his
window open, the officer “could smell the pungent odor of green marijuana emitting
from around [Newman].” When the officer asked Newman if he was okay and why
he was back there, Newman explained he was calling for a cab.
The officer asked Newman for identification because of the marijuana smell,
and while he waited for his computer to check Newman’s information, “the entire
time this marijuana smell [was] just reeking into [the officer’s] car.” The officer then
got out of his patrol car, told Newman, with whom he had attended high school, that
he smelled marijuana, and asked Newman to empty his pockets. As Newman
complied with the request, the officer noticed that he avoided one of the big cargo
pockets on his pants that bulged and “kind of sagged a bit.” At this point, the officer
asked Newman to put his hands on the patrol car to pat him down.
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As the officer “went for” the pocket Newman had been avoiding, Newman ran
away. A backup officer assisted the first officer in finding Newman hiding in the
vicinity, and he was handcuffed and returned to the patrol car. The backup officer
searched Newman’s possible escape route and found a loaded handgun, a large
amount of cash, and a digital scale. The officers also found a bag of marijuana stuck
behind a down spout near the parking lot where Newman was stopped. The officers
then searched Newman pursuant to arrest and found more cash on him. Newman was
arrested and he was charged with and found guilty of loitering, possession of
marijuana, obstruction of an officer, and possession of a firearm by a felon.
Newman argues that the evidence was insufficient to sustain his loitering
conviction. “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 citizens 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).
Specifically, as a threshold matter, the statute requires at least some
manifestation of aberrant behavior and the circumstances must be such
that this behavior warrants alarm for the safety of persons or property in
the vicinity. Our Supreme Court [has] concluded that while perspectives
may differ as to what conduct is “usual” for law-abiding citizens, the
statute narrows the construction of this phrase by making it clear the
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conduct must be that which would alarm a reasonable person that danger
exists to person or property.
In the Interest of JB, 314 Ga. App. 678, 683-684 (1) (725 SE2d 810) (2012)
(reversing trial court’s denial of motion to suppress and adjudication of delinquency
when only evidence to support second tier citizen-police encounter was that the
juvenile was walking from a vacant lot and appeared to be sweaty and out of breath).
OCGA § 16-11-36 (b) offers guidelines that a rational trier of fact may consider
while pondering whether a person’s conduct gave reasonable alarm, such as “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 some object.”
OCGA § 16-11-36 (b); Bell v. State, 252 Ga. 267, 271 (1) (313 SE2d 678) (1984).
Furthermore, OCGA § 16-11-36 (b) requires that the police officer, if able, must
“afford the person an opportunity to dispel any alarm or immediate concern.” OCGA
§ 16-11-36 (b). If a rational trier of fact does not think the explanation is sufficient
to dispel the police officer’s concern, it may find the defendant guilty of loitering.
Franklin v. State, 258 Ga. App. 281, 283 (574 SE2d 361) (2002).
The evidence authorized the jury to find that the patrol officer’s concern for the
safety of the property in the parking lot was warranted due to recent break-ins, the
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time of night, and his initial belief that Newman had been peering into a parked car
over which the street light was illuminated. The officer gave Newman an opportunity
to explain his presence in the parking lot, to which he replied he was waiting for a
cab, which the officer found odd because usually people waited for cabs on the more
brightly-lit streets. That evidence, along with Newman’s concealment of items in his
pants pocket and his subsequent flight when the officer tried to pat him down, was
sufficient to permit a reasonable trier of fact to find Newman guilty of loitering.
2. Newman also contends that his trial counsel rendered ineffective assistance
for failing to file a motion to suppress. “[T]o prevail on a claim of ineffective
assistance of counsel, [Newman] must show both that counsel’s performance was
deficient, and that the deficient performance was prejudicial to his defense.” Allen v.
State, 296 Ga. 785, 792 (10) (770 SE2d 824) (2015); Strickland v. Washington, 466
US 668, 687 (III) (104 SCt 2052, 80 LEd2d 889) (1968).
“When trial counsel’s failure to file a motion to suppress is the basis for a claim
of ineffective assistance, the defendant must make a strong showing that the
damaging evidence would have been suppressed had counsel made the motion.”
Richardson v. State, 276 Ga. 548, 553 (3) (580 SE2d 224) (2003). Newman failed to
make such a showing in this case.
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While Newman argues that his trial counsel was ineffective for failure to file
a motion to suppress the evidence because the stop was illegal under Terry v. Ohio,
392 U. S. 1 (III) (88 SCt 1868, 20 LEd2d 889) (1968), regardless of the legality of the
stop, there was no evidence seized from Newman. The officer found no contraband
on Newman, and Newman disavowed ownership of the gun, drugs, cash, and digital
scale found along his exit route. Those items “were abandoned property, and
therefore, seizure of those items did not implicate the Fourth Amendment.” Williams
v. State, 310 Ga. App. 90, 92 (2) (712 SE2d 113) (2011). A defendant has no
proprietary interest in or legitimate expectation of privacy regarding items found
discarded on public property, because “[t]he constitutional protection of the Fourth
and Fourteenth Amendments does not apply to property which has been abandoned.”
(Citation and punctuation omitted.) McKinnon v. State, 305 Ga. App. 871, 872-873
(700 SE2d 875) (2010). See also Burgeson v. State, 267 Ga. 102, 105 (3) (b) (475
SE2d 580) (1996); Walker v. State, 228 Ga. App. 509, 510 (1) (493 SE2d 193) (1997)
(“[W]hen drugs are discarded during flight or before the suspect is ‘seized,’ they are
admissible as evidence even if there is an issue about the officer’s probable cause or
articulable suspicion.”).
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Because Newman failed to show that a motion to suppress would have been
granted, he has failed to show that his trial counsel provided ineffective assistance of
counsel for failing to file one. McLeod v. State, 297 Ga. 99, 105 (4) (772 SE2d 641)
(2015).
Judgment affirmed. Rickman, J., concurs. McMillian, J., concurs fully in
Division 1 and in the judgment.
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