                             SECOND DIVISION
                               DOYLE, C. J.,
                         MILLER, P. J, and REESE, J.

                   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


                                                                     June 16, 2017




In the Court of Appeals of Georgia
 A17A0264. YANCEY v. THE STATE.                                              DO-010 C

      DOYLE, Chief Judge.

      After a grand jury returned an indictment for second-degree burglary1 against

him, William Todd Yancey filed an application for interlocutory appeal from the trial

court’s order denying his motion to quash the indictment. This Court granted

Yancey’s application, and he appeals, arguing in six separate enumerations of error

that the trial court erroneously denied his statutory right to notice and to appear

before the grand jury pursuant to OCGA § 45-11-4 (c), (g) (2015) and OCGA § 17-7-




      1
        OCGA § 16-7-1 (c). The indictment simply alleges that Yancey and several
other individuals entered the office with the intent to commit theft, but it does not
specify what was taken.
52 (a) (2015),2 and the trial court erred by allowing into evidence a copy of the

videotape of the purported entry into the office. For the reasons that follow, we

reverse.

      We review the trial court’s interpretations of law and application of the law to

the facts de novo and its findings of fact for clear error.3

      The record reveals that Yancey worked for a number of years under Sheriff

Ladson O’Connor as an investigator primarily responsible for property crimes at the

Montgomery County Sheriff’s Department. On the night of June 15, 2015, Sheriff

O’Connor died as a result of a wreck during a high-speed chase of Jim Lowery, whom

Yancey had been investigating. Lowery fled after the crash, and a manhunt quickly

ensued involving numerous police officers from multiple jurisdictions. That same

night, Sheriff O’Connor’s individual office within the Sheriff’s Department was

      2
        In 2016, an amendment deleted OCGA § 45-11-4 (c) and (g) effective July
1, 2016. See Ga. L. 2016, p. 186, § 8/HB 941. The language of those deleted code
sections was recodified in OCGA § 17-7-52, also effective July 1, 2016.
      3
         See Wiggins v. State, 280 Ga. 268, 269 (1) (626 SE2d 118) (2006) (implicitly
applying this standard in review of the trial court’s determination of this issue). See
also State v. Bair, 303 Ga. App. 183 (692 SE2d 806) (2010) (applying this standard
to the trial court’s ruling on a motion to quash the indictment based on a plea-in-bar);
Smith v. State, 297 Ga. App. 300, 302-303 (1) (676 SE2d 750) (2009) (implicitly
applying this standard to review the trial court’s determination of this issue), affirmed
by State v. Smith, 286 Ga. 409 (688 SE2d 348) (2010).

                                           2
opened, and a safe and possibly other items were removed by individuals who worked

at the Department.

       On February 1, 2016, the district attorney presented the facts of the case to the

grand jury, which returned an indictment against Yancey, charging that he

individually and as a party to a crime “without authority and with intent to commit

a theft therein, enter[ed] the office of Sheriff Ladson O’Connor . . . .”4 It is undisputed

that Yancey was not served with notice of the grand jury and did not appear before

it under OCGA §§ 17-7-52 and 45-11-4. Thereafter, Yancey moved to quash the

indictment, arguing that the State violated his rights to notice and an opportunity to

appear and present a statement to the grand jury. Yancey did not testify at the hearing;

however, his attorney argued that Yancey had entered O’Connor’s office that night

through the already-open door to retrieve Lowery’s case file, which he thought might

contain information helpful in ascertaining Lowery’s whereabouts.

       At the hearing on the motion to quash, Jerry Sikes, O’Connor’s administrative

assistant, testified that O’Connor maintained an office in the Sheriff’s Department,

which office he locked when absent because some items kept in the office had


       4
        Five other individuals were charged, including Joey Fountain, Matthew
Waller, Brandon Braddy, Brent Braddy, and Kathy Rudd.

                                            3
disappeared prior to the events in question. Sikes also testified that Yancey frequently

used the office during work hours. Sikes testified that he was second in the chain of

command and was responsible for scheduling but was on vacation out of state when

O’Connor died. Sikes testified that Yancey and the other investigator (Matthew

Mallory) shared on-call duties for nights and weekends when they were not working

— their normal shift being 9:00 a.m. to 5:00 p.m. Sikes testified that Yancey

sustained a gunshot wound about two weeks prior to O’Connor’s death, but he

continued to work full-time after the injury.

      Matthew Mallory, a deputy with Montgomery County, was called into work the

night of O’Connor’s death. Mallory first arrived at the Sheriff’s Department where

he stayed for about 45 minutes, and as he was leaving, he met Yancey in the parking

lot. Mallory then went to the crash scene, and finally arrived at the mobile command

station at 10:30 p.m., where he saw Yancey around 11:45 p.m. or 12:00 a.m. Malloy

testified that Yancey was involved in the discussions about Lowery at the mobile

command station, and although he could not remember whether Yancey was there all

night, Mallory recalled seeing him the following afternoon. Mallory testified that

Yancey was working during the weeks between his injury and O’Connor’s death.



                                           4
      Justin Fountain,5 the other investigator on the Montgomery County force,

testified that Yancey worked during the time between his injury and O’Connor’s

death. Fountain testified that on the day of O’Connor’s death, Yancey had been at the

Sheriff’s Department with a case file on Lowery, which file he had left in O’Connor’s

office. Fountain spent the evening with O’Connor, and when he returned home for

the night, he saw O’Connor’s cruiser engaged in a high-speed chase and radioed into

dispatch and directly to O’Connor for details, later going into the department and then

to the command station. Fountain could not remember if he saw Yancey with the file

at the command site, but he recalled that Yancey was assisting other agencies with the

investigation. A week later, Fountain testified that he found a safe in the back seat of

his personal truck, and he later opened it at Sikes’s direction, finding about $350 in

cash in the safe.

      Lauren Sherling, an assistant district attorney in the circuit serving

Montgomery County, was present at the mobile command station on the night of

O’Connor’s death. She saw Yancey at the command station and discussed suspect



      5
        Fountain appears to have been charged in this burglary along with Yancey
although the indictment charges a “Joey Fountain” and Fountain is referred to as
“Justin” at the hearing.

                                           5
Lowery with Yancey, but she did not recall seeing him with any files or papers.

Sherling was unable to testify regarding a timeline for the evening.

        Officer Cody Clifton, who was working as a road seargent for Montgomery

County at the time of O’Connor’s death, testified that Yancey arrived at the mobile

command station and assisted with the investigation of Lowery, giving possible

locations for searches based on his previous work on Lowery’s case.

        Ronnie Bivens, who became chief deputy in Montgomery County after

O’Connor’s death, testified that he was with Yancey when he sustained his injury and

testified that while serving a search warrant on a house and seizing some firearms,

one of the weapons discharged, injuring Yancey’s shoulder. Bivens testified that after

reviewing the personnel files at the department, he discovered a return-to-work slip

for Yancey, clearing him to return to work and to drive, which slip was dated July 29,

2015.6 Bivens could not testify whether Yancey worked in some capacity between his

injury and July 29 because Bivens was not employed at Montgomery County at that

time.

        Ricky Dykes testified that he drove his girlfriend, Kim Young (a dispatcher for

the Department), to the Sheriff’s Department on the night of O’Connor’s death. He

        6
            The slip was signed by Kathy Rudd.

                                           6
was familiar with the officers at the department and said many were around and some

were in Sheriff O’Connor’s office while he was there. Dykes testified that Young had

an application on her phone that received a video feed from the department security

cameras, and he used his phone to record the feed showing the individuals leaving

O’Connor’s office because Young did not know how to save the video feed. He

provided a copy to the Georgia Bureau of Investigation (“GBI”), and he did not know

if the original footage existed. The video showed the open back door to the Sheriff’s

office with various men and one woman coming out, one of whom was carrying a

safe; some time later, other individuals left, one of whom had a sling around one arm

and was carrying papers. None of the individuals appeared to be concealing their

identities or their presence in the office.

      After O’Connor’s death, the GBI was asked to investigate the break-in at his

office. After reviewing the security footage, GBI investigators interviewed Yancey.

Yancey told them that he had been called into work the night of O’Connor’s death,

that he was under the influence of pain medication and probably should not have been

working, that he remembered hearing people inside O’Connor’s office when he

arrived at the sheriff’s department, that he did not remember why he went inside the



                                              7
office, that he did not remember removing any papers from within, and that he did not

know what the papers were.

      An audio recording of Yancey’s interview with the GBI was admitted and

played at the hearing, as well as a video of the events at O’Connor’s office on the

night of June 15. The court also allowed the State to admit a copy of the surveillance

video taken by Dykes of Young’s phone.

      Following the hearing, the trial court entered an order ruling that OCGA § 17-

7-52 did not protect Yancey because there was no evidence that he had been acting

in the performance of his official duties during the alleged burglary.

      1. Yancey argues that the trial court erred by holding that OCGA §§ 17-7-52

(a) and 45-11-4 (g) did not apply. We agree.

      At the time of the incident and indictment, OCGA §§ 17-7-52 (a) (2015)

provided that

      [b]efore an indictment against a present or former peace officer charging
      the officer with a crime which is alleged to have occurred while he or
      she was in the performance of his or her duties is returned by a grand
      jury, the officer shall be notified of the contemplated action by the
      district attorney of the county wherein the grand jury shall convene and
      the officer shall be afforded the rights provided in Code Section
      45-11-4.

                                          8
In turn, OCGA § 45-11-4 (2015), stated in relevant part that

      (f) [a]ny indictment brought pursuant to subsection (b) of this Code
      section shall specially set forth the merits of the complaint against the
      accused public officer. A copy of the proposed bill of indictment shall
      be served on the accused public officer at least 15 days before it is
      presented to the grand jury[; and that] (g) [t]he accused shall have the
      right to appear before the grand jury to make such sworn statement as he
      or she shall desire at the conclusion of the presentation of the state’s
      evidence. The accused shall not be subject to examination, either direct
      or cross, and shall not have the right individually or through his or her
      counsel to examine the state’s witnesses. The accused and his or her
      counsel shall have the right to be present during the presentation of all
      evidence and alleged statements of the accused on the proposed
      indictment, presentment, or accusation, after which the accused and his
      or her counsel shall retire instanter from the grand jury room to permit
      the grand jury to deliberate upon the indictment.


The protections afforded under these statutes, however,

      have been found not to apply to situations where officers have stepped
      aside from the performance of their official duties in order to commit
      crimes. For instance, we have held that officers charged with committing
      burglary, armed robbery and aggravated assault while on duty are not
      entitled to these rights inasmuch as the performance of their official
      duties does not include the commission of such crimes. Likewise, this




                                         9
      court has held that the performance of official duties does not include
      rape.7


      Relying on Mize v. State,8 the trial court found and the State now argues that

the State was not required to notify Yancey of presentment to the grand jury or allow

him to make statements to the grand jury prior to their return of the indictment

because “performance of . . . official duties does not include the commission of

burglaries.”9 In Mize, however, there was no argument that the officer was

transporting accomplices to the scene of the burgled building for any reason related

to his duties as a police officer; thus, even though he may have been wearing his

uniform and carrying his department issued weapon during duty hours, his actions

could not be characterized as being in performance of his duties.10




      7
       (Footnotes omitted.) State v. Galloway, 270 Ga. App. 184, 185 (606 SE2d
273) (2004).
      8
          152 Ga. App. 190 (262 SE2d 492) (1979).
      9
          Id. at 191-192 (1).
      10
         See id. at 191-193 (1). See also Morrill v. State, 216 Ga. App. 468, 469-470
(2) (454 SE2d 796) (1995) (officer involved in burglary ring who assisted in crimes
by monitoring police radio during the incidents while on duty was not protected by
OCGA §§ 17-7-52 and 45-11-4).

                                         10
      In this case, although Yancey was not in the office during his regularly

scheduled duty hours and normally did not have access to Sheriff O’Connor’s office,

there was substantial evidence that he entered the office in furtherance of the

investigation of Lowery while he arguably was on call the night of O’Connor’s death.

Obviously, the circumstances of that night had most of the police forces of many of

the surrounding counties responding to the command post outside of their normal

assigned working hours, and there was some evidence that Yancey provided

assistance into the investigation at the command post. While it may be the case that

he and the other indicted individuals committed burglary that night, that is not the

relevant inquiry when determining whether an individual is entitled to the protections

of OCGA §§ 17-7-52 and 45-11-4.11


      11
         See Wiggins, 280 Ga. at 270-271 (1) (holding that an officer was protected
by OCGA §§ 17-7-52 and 45-11-4 when he falsified his daily activity sheet to cover
up a sexual assault he committed while on duty), citing State v. Lockett, 259 Ga. App.
179, 181 (576 SE2d 582) (2003) (“on duty police officer charged with speeding and
driving too fast for conditions was entitled to rights under OCGA §§ 17-7-52 and
45-11-4”); State v. Roulain, 159 Ga. App. 233, 234 (2) (283 SE2d 89) (1981)
(“correctional officers who were charged with involuntary manslaughter because they
confined a prisoner under conditions which led to his death by heat prostration did
not step aside from the performance of their duties”). See also Smith v. State, 297 Ga.
App. 300, 301-302 (676 SE2d 750) (2009) (officer protected by OCGA §§ 17-7-52
and 45-11-4 when overlapping hours at two jobs resulted in charges of false
statements and writings against him).

                                          11
      Accordingly, we reverse the trial court’s order denying the motion to quash the

indictment.

      2. Yancey contends that the video footage of the Sheriff’s office from the night

in question should not have been admitted for the trial court to view in relation to his

motion to quash.12 We disagree.

      “Trial courts have broad discretion to determine whether a sufficient

foundation has been provided for the introduction of evidence. We will not reverse

the trial court’s ruling in this regard unless there has been an abuse of that

discretion.”13

      Pursuant to OCGA § 24-9-923 (c), “videotapes created by unmanned cameras

‘shall be admissible in evidence when the court determines, based on competent

evidence presented to the court,’ that the video tends to reliably show the fact or facts

for which it is offered.”14 In this case, although it is not clear why Young did not

testify about the surveillance system at the hearing on the motion to quash, Dykes



      12
       Because this issue could arise on remand, we address Yancey’s second
enumeration despite our holding in Division 1.
      13
           Sheppard v. State, 300 Ga. App. 631, 634-635 (2) (686 SE2d 295) (2009).
      14
           Brannon v. State, 298 Ga. 601, 609 (5) (783 SE2d 642) (2016).

                                           12
testified as to the circumstances under which he created the video of the surveillance

video. While the better practice to lay foundation may have been to have Young or

another employee testify about the system, we discern no abuse of discretion by the

trial court in admitting the video because Dykes testified as to the circumstances and

was personally at the Sheriff’s Department when the video was captured.

Additionally, the date and time are visible prior to Dykes choosing the portion of the

video presented at the hearing. The issues raised as to the State’s failure to produce

the original recording or from Young’s failure to testify impact the weight and not the

admissibility of the video.15

      Judgment reversed. Miller, P. J., and Reese, J., concur.




      15
           See, e.g., id.; Dawson v. State, 283 Ga. 315, 317-319 (3) (658 SE2d 755)
(2008).

                                          13
