                             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.”).



                                          6
      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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