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


                                                                   October 25, 2017




In the Court of Appeals of Georgia
 A17A1258. THE STATE v. PEABODY.

      MILLER, Presiding Judge.

      Former Lieutenant Daniel Peabody was indicted on two counts of aggravated

cruelty to animals (OCGA § 16-12-4 (d)), and one count of making a false statement

(OCGA § 16-10-20), in connection with the hot-car death of his K-9 dog, Inka.

Peabody moved to quash the indictment for the animal cruelty charges, on the

grounds that the State violated OCGA § 17-7-52 by failing to provide him with a

copy of the proposed bill of indictment, and more importantly, notice, before

presenting the case to the grand jury. The trial court granted Peabody’s motion, and

the State now appeals, contending that OCGA § 17-7-52 is inapplicable because

Peabody was not acting in the performance of his official job duties when the alleged

crimes occurred. This Court finds that Peabody was in fact acting within the scope
of his official duties and he was therefore entitled to the protections afforded by

OCGA § 17-7-52, including notice. Accordingly, we affirm the trial court’s grant of

the motion to quash the indictment.

       “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.”1

      So viewed, Peabody was a POST-certified peace officer, K-9 handler, and the

owner of Inka. At the time of this incident, he was employed by the Cherokee County

School District Police Department and had been Inka’s K-9 handler for almost four

years. Although Peabody’s job customarily required him to perform his duties while

inside school district buildings or facilities, he was also authorized to work with Inka

elsewhere.

      In accordance with the Cherokee County School Police Department’s K-9

Policy and Procedures in effect at the time, Peabody was responsible for Inka’s daily

care, and his duties included providing her with food, water, shelter, and exercise.

Peabody was also responsible for getting Inka into county-issued or personal



      1
      Yancey v. State, No. A17A0264, — Ga. App. —,— (802 SE2d 702), 2017 WL
2609113, at *1 (June 16, 2017).


                                           2
vehicles, transporting her, and then removing her from those vehicles. Peabody

housed Inka at his residence, and he was compensated accordingly.

      On the afternoon of June 10, 2016, Peabody left work in his county vehicle,

with Inka in the back seat. On the way home, Peabody received a text message from

his wife asking him to let out a puppy that she was boarding at their home. When

Peabody arrived at his house, he parked in the driveway, turned the car engine off,

and went inside the house to attend to the puppy. Peabody left Inka in the county

vehicle with the doors shut and the windows closed, which ultimately resulted in

Inka’s death.

      After learning that the State intended to present its case to the grand jury,

Peabody timely notified the State that he wanted to testify before the grand jury

pursuant to OCGA § 17-7-52, the statute which governs indictment procedures when

a peace officer is charged with “a crime which is alleged to have occurred while he

or she was in the performance of his or her duties.” OCGA § 17-7-52 (a). When the

statute is applicable, an officer is entitled to at least 20-days notice prior to the

presentment of a proposed indictment to a grand jury. OCGA § 17-7-52 (a).

      In response to Peabody’s notice, the State claimed that the statute was

inapplicable because the crimes did not occur while Peabody was in the performance

                                         3
of his official duties. Consequently, the State did not send Peabody a copy of the

proposed indictment before presenting its case to the grand jury in September 2016.

After the grand jury indicted Peabody, the superior court granted Peabody’s motion

to quash the indictment, finding that the alleged acts did occur while Peabody was in

the performance of his official duties as a police officer. This Court then granted the

State’s request for interlocutory review.

      1. On appeal, the State posits that because Peabody left Inka in the vehicle to

attend to personal tasks, he “stepped aside” from his police-related duties and was

therefore not entitled to the protections afforded by OCGA § 17-7-52. We disagree.

      OCGA § 17-7-52 (2016)2 provides:

      Before a bill of indictment or special presentment 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 presented to a grand jury, the officer shall be given a copy of
      the proposed bill of indictment or special presentment and notified in
      writing of the contemplated action by the prosecuting attorney. Such


      2
        OCGA § 17-7-52 was amended on July 1, 2016. See Ga. L. 2016, p. 186,
§ 8/HB 941. Although Peabody’s alleged crimes occurred prior to the statute’s
amendments, his case was not before the grand jury until after the amendment became
effective. Therefore, the amended version applies to our analysis. The previous
version of OCGA § 17-7-52 provided for only 15-days notice. OCGA § 17-7-52
(2015) and OCGA § 45-11-4 (f) (2015).

                                            4
      notice and a copy of the proposed bill of indictment or special
      presentment shall be provided to such officer not less than 20 days prior
      to the date upon which a grand jury will begin hearing evidence.


(Emphases supplied.) OCGA § 17-7-52 (a).

      These statutory protections, 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
      court has held that the performance of official duties does not include
      rape.


Yancey, supra, — Ga. App. at — (1), 2017 WL 2609113, at *3 (citing State v.

Galloway, 270 Ga. App. 184, 185 (606 SE2d 273) (2004)).

      Given that the statute provides for notice only where the crime alleged occurred

in the officer’s performance of his or her official duties, the question before us is

whether Peabody was acting in the performance of those duties at the time that he left

Inka in the car. We conclude that he was.




                                          5
       The way to determine whether OCGA § 17-7-52 applies to a peace officer is

to specifically examine the “crime which is alleged to have occurred while he or she

was in the performance of his or her duties.” OCGA § 17-7-52 (a). As charged in the

proposed bill of indictment, the crime was leaving Inka in a car under conditions

whereby there was inadequate ventilation for her to survive. The fact that Peabody

left Inka in the car so that he could attend to a personal matter is not the determinative

factor in this analysis; Peabody’s impetus for his conduct is of no import in this case.

Rather, the operative inquiry is whether the specific conduct that predicated the

criminal charges was within the scope of Peabody’s official duties. OCGA § 17-7-52

(a).

       At the motion hearing, Peabody testified that he was responsible for Inka’s

daily care, which encompassed caring for her at his residence and housing her.

Further, pursuant to the Cherokee County School Department’s K-9 Policy and

Procedures, and as conceded by the State, Peabody’s duties as Inka’s K-9 handler

specifically included getting her into county-owned or personal vehicles, transporting

her, and then removing her from those vehicles. Insofar as Peabody was accused of

leaving Inka in a vehicle in an illegal manner, thereby causing her death, the offenses

at issue stem directly from his official duties as a K-9 handler. Whether Peabody’s act

                                            6
is viewed as caring for Inka in an unlawful manner, or transporting her under

circumstances which proved unlawful, Peabody was still in the performance of his

duties.3

      Notably, this conclusion comports with previous decisions of both this Court

and the Supreme Court of Georgia. In cases where either Court has decided that a

crime occurred while an officer was performing his or her official duties, the officer

was engaged in conduct prescribed by his or her position, but purportedly doing so

in a manner contrary to the law. See State v. Roulain, 159 Ga. App. 233, 234 (2) (283

SE2d 89) (1981); Wiggins v. State, 280 Ga. 268, 270 (1) (626 SE2d 118) (2006);

State v. Lockett, 259 Ga. App. 179, 181 (576 SE2d 582) (2003).

      In fact, the issue in this appeal is akin to that in Roulain, supra, 159 Ga. App.

at 234 (2), in which the defendants “confined a named prisoner under conditions


      3
         We also reject the State’s suggestion that OCGA § 17-7-52 is inapplicable
because it only addresses cases in which the officer was in the “performance” of
official duties, and this case involves the crime of “non-performance.” It is clear from
the indictment that Peabody was accused of performing his duties unlawfully. In
count one, Peabody was charged with “maliciously caus[ing] [Inka’s] death . . . by
leaving said dog in a car that was turned off” and in which “all the windows were
closed.” Likewise, in count two, Peabody was charged with “intentionally
exercis[ing] custody and control of [Inka],” and “maliciously fail[ing] to provide [her]
adequate ventilation” by “leav[ing] . . . Inka in a car that was turned off” and in which
“all the windows were closed.”

                                           7
which caused his death by heat prostration.” Id. This Court concluded that the

defendants were entitled to appear before the grand jury and give a sworn statement

because they had been “accused of performing a duty in a criminally negligent

manner.” Id. Similarly, in Wiggins, supra, 280 Ga. at 270 (1), the Supreme Court of

Georgia acknowledged that an officer’s charge for false writing and statements arose

in the performance of his official duties, as it pertained to the officer’s completion of

his activity sheet. Id. at 269 (1).4

       Accordingly, as set forth in OCGA § 17-7-52 (a), Peabody was entitled to

timely notice of the proceeding and a copy of the proposed indictment before the

State presented its case to the grand jury. Since the State failed to comply with these

statutory mandates, the trial court properly granted Peabody’s motion to quash the

indictment.

       4
        The State relies on the Georgia Supreme Court’s ruling in Wiggins, supra, 280
Ga. at 270, that the statute did not apply to the officer’s charge for cruelty to children.
However, this comparison is unavailing because that charge arose from the officer
threatening a minor with incarceration if she refused to cooperate with him, and then
having sex with her in a park. Id. at 269. The State’s attempt to analogize this case to
Galloway, supra, 270 Ga. App. at 185 must also fail. There, the officer “took a
woman into custody, threatened to charge her with a crime and then forced her to
have sexual intercourse with him in exchange for him not pressing charges.” Id. In
Wiggins and Galloway, the very nature of the conduct itself was far outside the scope
of the officer’s official duties and the officer was therefore not entitled to notice
under OCGA § 17-7-52.

                                            8
         2. The State next argues that the trial court exceeded its authority by implying

that any future presentment to the grand jury alleging that Peabody committed animal

cruelty in the first degree would be governed by an inapplicable statutory provision.

Although the trial court correctly cited to the 2016 version of OCGA § 17-7-52 in its

discussion of notice, the trial court later commented about rights afforded under the

2015 version. Specifically, the trial court order stated, “[t]he rights afforded an officer

by OCGA § 45-14-4 include the right to be present with counsel during the state’s

presentation of evidence to the grand jury and, at the conclusion of the state’s

evidence, the right to make a statement without being subject to direct or cross-

examination.”

         Given our previous discussion in Division 1, the State’s observation is correct.

This language, however, as applied to any potential future indictment, is merely

advisory and thus does not provide a basis for reversal. Should the State elect to re-

indict Peabody, the provisions of the 2016 version of OCGA § 17-7-52 would clearly

apply.

         For the preceding reasons, the trial court’s order granting Peabody’s motion to

quash his indictment is affirmed.

         Judgment affirmed. Doyle and Reese, JJ., concur.

                                             9
