                               FIRST DIVISION
                                 DOYLE, C. J.,
                          PHIPPS, P. J., and BOGGS, 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


                                                                     March 28, 2016




In the Court of Appeals of Georgia
 A15A1973. WILLIAMS v. THE STATE.                                             BO-076C

      BOGGS, Judge.

      After a fundamentally flawed bench trial which began in the former Recorder’s

Court of DeKalb County,1 Kevin Andre Williams was convicted of “driving without

a drivers license,” assessed a substantial fine, and sentenced to jail and a lengthy term

of probation. In the course of this trial, Williams was not adequately informed of the

consequences of proceeding with a bench trial or of representing himself without an

attorney, nor was he adequately informed of the charges against him – which changed

mid-trial at the instigation of the prosecutor. Finally, despite all these errors on the

part of the trial court and the State which worked to Williams’ disadvantage, the State

      1
       The Recorder’s Court of DeKalb County was abolished as of March 3, 2015,
and the Traffic Division of DeKalb State Court was created to replace it. 2015 Ga.
Laws p. 3501 et seq. Williams’ prosecution spanned the transition to the new court.
still failed to present sufficient evidence to support the conviction. We therefore

reverse.2

      Construed to support the verdict, the record shows that Williams initially was

stopped by a DeKalb County police officer for speeding. The officer did not cite him

for speeding, however, but simply gave him a warning. During the traffic stop,

Williams presented a valid Florida drivers’ license to the officer. But the officer

testified that “upon running him” he discovered that Williams’ “privilege in Georgia

was not valid. . . and he was written a citation for . . . not having a license.”3 The

officer testified that he explained to Williams that even though his Florida license was

valid, he could not drive in Georgia “per . . . the Department of Driver Services.” No

further explanation was offered as to the reason for the purported invalidity. The

officer testified that Williams told him he “did live in Georgia” and had “for awhile;”



      2
        The process in which Williams found himself enmeshed was particularly
troubling. After waiving his right to counsel and to a jury trial, Williams was at the
mercy of the State, which showed no mercy. His attempts to comply with the
instructions of the police officer, who then testified against him, were used by the
State to win a conviction for a crime other than that with which he originally was
charged, with the acquiescence if not the assistance of the trial court.
      3
        The citation was written for “No license in violation of code section 40-5-20.”
In a “remarks” section, the officer noted, “Has FL LIC #[number] which valid but GA
priv not valid. Advised to get GA lic.”

                                           2
prompted by the prosecutor, the officer agreed that Williams had “been living in

Georgia for more than 30 days.” The officer told Williams that “he could’ve went to

jail” and instructed him that he needed to “get a Georgia license.”4

      Williams testified that he “wasn’t aware” that there was any problem with his

drivers’ license. He added that he went the same day to the Georgia drivers’ license

office as instructed by the police officer and obtained a Georgia license “without any

issues” and without paying any costs. On cross-examination, he insisted that he

“wasn’t living as a resident” in Georgia.5 The prosecutor then asked if he did not

become a resident when he obtained a Georgia drivers’ license using an address in

Georgia, and he responded that he did so, but only because the police officer told him

that he had to get a Georgia license, and added that it was only a temporary address.

      Williams was found guilty of “no license” by the judge “under 40-5-20,”

without specifying whether he was found guilty because his driving privileges in

Georgia had been suspended, or because he was a permanent resident of Georgia for

      4
       At trial, as we note in Division 4, below, the State produced no evidence to
show that Williams’ “privilege in Georgia was not valid.” At oral argument,
Williams’ counsel speculated that a long-ago Georgia traffic ticket might have been
the source, but noted that there was no evidence on this point.
      5
        At oral argument, the State erroneously asserted that Williams never raised
this issue at trial.

                                          3
more than 30 days without obtaining a Georgia drivers’ license.6 At the hearing on

Williams’ motion for new trial, the trial court asserted that he was found guilty of

both. He was sentenced to a jail term and a fine, as well as 12 months’ probation. His

motion for new trial was denied, and he appeals.

      1. As a preliminary matter, the State argues that most of Williams’ claims,

including his sufficiency claim, cannot be considered because the electronic audio

recording of Williams’ bench trial is not a “transcript” within the meaning of OCGA

§ 5-6-41.7 But we do not consider that argument, because the State has waived this

contention by failing to interpose a timely objection. “Appellee shall be deemed to

have waived any failure of the appellant to comply with the provisions of the

Appellate Practice Act relating to the filing of the transcript of the evidence and

      6
       As Williams’ counsel pointed out at oral argument, driving with a suspended
license or suspended privilege to operate a motor vehicle in Georgia is governed by
OCGA § 40-5-121. OCGA § 40-5-20 (a) by its terms does not apply “to a person
driving with a suspended license or license that has been revoked.”
      7
        The audio recording of the trial was transmitted to this court on a USB flash
drive. Compare Banks v. State, 332 Ga. App. 259, 260 (1) n.1 (772 SE2d 57) (2015),
in which the parties submitted a “purported audio recording,” but the compact disc
contained no accessible file. We observe in passing that such a recording appears to
be analogous to other recordings officially made in the course of litigation, such as
video depositions or recorded statements, and may form part of the record transmitted
to this court under OCGA § 5-6-43. The flash drive was submitted to this court as a
supplemental record, not a transcript. But we need not reach that issue.

                                          4
proceedings or transmittal of the record to this Court, unless objection thereto was

made and ruled upon in the trial court prior to transmittal and such order is appealed

as provided by law.” Court of Appeals Rule 20; see also Bowden v. State, 304 Ga.

App. 896, 898 n. 1 (698 SE2d 372) (2010) (arguments not raised by the State in the

trial court will not be considered for the first time on appeal). The State waived any

objection not only below, but also in this court, when it failed to object either to

Williams’ motion to supplement the record with the recording, or to Williams’ request

for oral argument, in which he again indicated his intention to rely on the recording.

      2. Williams argues that the trial court failed to apprise him of the risks of

proceeding without the representation of an attorney, and that he was also not advised

at his arraignment, before a different judge, of the risks of proceeding without a jury

trial. He contends from this that his waivers of his right to counsel and a jury trial

therefore were not made knowingly or intelligently. We agree.

      (a) The question of whether Williams knowingly and intelligently waived his

right to counsel is controlled by our recent decision in Banks v. State, 332 Ga. App.

259 (772 SE2d 57) (2015), which is directly on point. There, we observed that

      [u]nder Georgia law, whether a charge is a felony or a misdemeanor, an
      accused facing a term of imprisonment is constitutionally guaranteed the


                                          5
      right to counsel and must waive that right. Such a waiver of counsel is
      valid only if it is made with an understanding of (1) the nature of the
      charges, (2) any statutory lesser included offenses, (3) the range of
      allowable punishments for the charges, (4) possible defenses to the
      charges, (5) circumstances in mitigation thereof, and (6) all other facts
      essential to a broad understanding of the matter. When the record is
      silent, waiver is never presumed, and the burden is on the State to
      present evidence of a valid waiver. The State may carry its burden by
      showing a valid waiver through either a trial transcript or other extrinsic
      evidence, including an appropriate pretrial waiver form. However, in
      order for the State to use a pretrial waiver form to show that a defendant
      has intelligently elected to represent himself at trial after being advised
      of his right to counsel and the “dangers” of waiver, the form should
      outline those pertinent dangers: such as (1) the possibility of a jail
      sentence; (2) the rules of evidence will be enforced; (3) strategic
      decisions with regard to voir dire and the striking of jurors must be made
      by defendant; (4) strategic decisions as to the calling of witnesses and/or
      the right to testify must be made by defendant; and (5) issues must be
      properly preserved and transcribed in order to raise them on appeal. In
      other words, a proper waiver form should contain the warnings,
      themselves, not just conclusions.


(Citations and punctuation omitted.) Id. at 259-260 (1). Here, Williams initialed and

signed a form entitled “Record of Defendant Entering a Plea of Not Guilty and Faretta




                                          6
Warning.”8 It informed him that he could receive a maximum fine of $5,000 and up

to12 months in jail, but it did not describe the nature of the charges against him.

Instead, it merely recited that an attorney could explain some but not all of the factors

listed in Banks, quoting them but never explaining what they were.9 It further recited

that Williams had been informed that he was entitled to an attorney, that “[a]ll

litigation can be complex,” that “an attorney can assist me in making strategic

decisions” such as those listed in Banks, and that an attorney could “preserve [his]

case for appeal.” In other words, it “contained only conclusory statements concerning

[his] rights rather than an explanation of the dangers of proceeding to trial pro se.

[Cit.]” Id. at 260 (1). The waiver form, standing alone, thus did not show that

Williams’ waiver was “made with an understanding” of those factors, as required by

Georgia law. 332 Ga. App. at 259 (1).




      8
          Faretta v. California, 422 U. S. 806 (95 SCt 2525, 45 LE2d 562) (1975).
      9
       At the hearing on his motion for new trial, Williams testified that he did not
understand the meaning of some of these terms. He also noted that he believed the
process would be “just a traffic hearing” where the officer and he made their cases
and the judge made a ruling.

                                           7
      An insufficient pretrial waiver form may be supplemented by showing that a

defendant has been advised individually and in detail of the dangers of proceeding

pro se:

      We believe that the best way to ensure that a defendant fully appreciates
      the right he has chosen to relinquish, and that trial judges fully
      understand their duty in this process, is for the trial court to address each
      factor, individually, and on the record. By so doing, a trial court can
      likely avoid the time and expense of another trial.


(Citations and punctuation omitted.) Cook v. State, 297 Ga. App. 701, 703 (678 SE2d

160) (2009). While the State maintains that this was the case, it has misstated what

occurred below. At the hearing on Williams’ motion for new trial, the trial court

recited at length its customary practice in informing defendants of their rights as

support for its decision. Nevertheless, the audio recording of the trial demonstrates

that the trial court did not follow its stated practice. When Williams’ case was called,

the trial court recited that Williams had waived his right to a jury trial and to an

attorney via the form, asked him to identify his signature and initials on the form, and

asked him if he was under the influence of alcohol or drugs. But the sum total of the

trial court’s individual colloquy with Williams on the issue of waiver was: “And you

want to go forward today with this bench trial, is that correct?” to which he responded

                                           8
that he did, followed by: “And did you want an attorney?” to which he responded that

he did not. In other words, “the record is devoid of a knowing and intelligent waiver

of [Williams’] right to counsel.” Banks, supra, 332 Ga. App. at 259 (1).

      The State in its brief relies primarily upon its unsuccessful contention that the

audio recording of the trial should not be considered by this court. Essentially, its

position is that it is not responsible for Williams’ “bad decisions” even though his

decisions were made in the context of the trial court’s failure to explain the dangers

associated with proceeding to a bench trial pro se. Although the State makes a

perfunctory argument in its brief that Williams’ waiver was knowing and intelligent,

at oral argument the solicitor acknowledged that the pretrial waiver form alone was

insufficient to establish a waiver.

      Had Williams been represented by counsel, his attorney most likely would have

objected to the hearsay testimony introduced by the State, challenged the citation or

the failure of the evidence to support the offense charged, and moved for a directed

verdict, which should have been granted. “Accordingly, we cannot say that the error

did not contribute to the judgment.” (Citation omitted.) Tucci v State, 255 Ga. App.

474, 477 (2) (565 SE2d 831) (2002).



                                          9
      (b) Likewise, the State has not demonstrated that Williams was advised of the

risks of waiving his right to a jury trial when he signed a preprinted form at his

arraignment.

      A defendant’s right to trial by a jury is a fundamental constitutional right
      that the defendant must personally, knowingly, voluntarily, and
      intelligently choose to waive. A defendant’s consent to a trial without
      a jury need not be in any particular, ritualistic form; the trial court need
      only conduct an inquiry of the accused on the record so as to ensure that
      the waiver is knowing, voluntary and intelligent . . . . the trial court
      should ask the defendant sufficient questions on the record to ensure that
      the defendant’s waiver is knowing, voluntary, and intelligent.


      When a defendant challenges his purported waiver of the right to a jury
      trial, the State bears the burden of showing that the waiver was made
      both knowingly and intelligently, either (1) by showing on the record
      that the defendant was cognizant of the right being waived; or (2) by
      filling a silent or incomplete record through the use of extrinsic evidence
      which affirmatively shows that the waiver was knowingly and
      voluntarily made. Such extrinsic evidence may include testimony by or
      an affidavit from trial counsel about his specific recollections; routine
      or standard practices; and evidence regarding the defendant’s
      intelligence and cognitive ability.


(Citations and punctuation omitted.) Green v. State, 323 Ga. App. 832, 834-835 (2)

(748 SE2d 479) (2013). Here, as in Green, “the record does not contain a colloquy

                                            10
showing that the trial court asked [Williams] sufficient questions on the record to

ensure that his waiver of his right to a jury trial was knowing, voluntary, and

intelligent.” Id. at 835 (2).

       At the hearing on the motion for new trial, the trial court asserted with respect

to the initial arraignment form that it “would have a hard time believing that a judge

would sign off saying that the Court finds the defendant has knowingly and

voluntarily waived his or her rights . . . without having any type of conversation.” But

the burden is on the State to demonstrate, whether by the record or extrinsic evidence,

that such a conversation or colloquy took place, and the trial court’s mere belief is no

cure for the entire failure of the State to meet its burden.

       3. Williams asserts that the vague and general wording of the traffic citation

charging him with “no license in violation of code section 40-5-20” failed to give him

adequate notice of the charges against him. But, as the State correctly points out, he

       waived any objection to the form of the accusation by signing the
       charging document and entering a not guilty plea at the beginning of
       trial. The right to be tried upon an accusation that is perfect in form and
       in substance is waived when a defendant fails to timely and properly
       challenge the accusation. Because [Williams] failed to challenge the
       accusation by way of special demurrer or by filing a motion to quash



                                           11
      before entering [his] . . . plea, [he] waived the right to a perfect
      accusation.


(Citations, punctuation, and footnote omitted.) Sevostiyanova v. State, 313 Ga. App.

729, 741 (18) (722 SE2d 333) (2012).10 But this does not dispose of the more

important question of the failure of the evidence to prove the charge in the citation,

as discussed in Division 4, below.

      4. Finally, we consider Williams’ contention that the evidence produced at trial

was insufficient as a matter of law to support his conviction. Here, as with other

enumerations of error, the State makes no attempt to address the merits of Williams’

argument, relying wholly on its erroneous assertion that the trial court proceedings

may not be considered. But a review of the bench trial demonstrates that the State,

despite changing its theory of the alleged offense mid-trial, still failed to prove that

Williams was in violation of the law.

      (a) We first consider the State’s initial attempt to prove that Williams violated

the law by driving while his driving privileges were suspended in Georgia. As noted

above, this offense is governed not by OCGA § 40-5-20, the Code section under

      10
       We agree with Williams that, given the trial court’s failure to properly inform
him of his right to counsel, it is hardly surprising that a pro se defendant would be
unaware of the necessity of a pretrial demurrer.

                                          12
which Williams was charged, but by OCGA § 40-5-121. Therefore, even if the State

had shown that Williams’ Georgia driving privileges were suspended, the fatal

variation between the accusation and the proof at trial would have rendered the

evidence insufficient. See, e.g., Younger v. State, 293 Ga. App. 20, 21-22 (666 SE2d

460) (2008) (evidence insufficient due to fatal variance: appellant charged with

operating vehicle without license plate, but evidence showed only no license plate on

towed trailer.)

      In any event, the only evidence in support of this charge is the police officer’s

testimony that “upon running him,” which appears to mean entering his drivers’

license information into a computer database, the officer found that Williams’

Georgia driving privilege was “not valid.” No documentary evidence was presented

to support the officer’s claim, and no testimony was adduced regarding how or for

what reason Williams’ privileges purportedly were suspended.11 Williams testified at

trial that he knew of no problem with his license. When he went to get a Georgia




      11
       Williams also produced documentary evidence at the hearing on the motion
for new trial that his drivers’ license was valid and his driving record contained no
suspensions. He believed that the officer’s assertion was simply “a case of
misidentity.”

                                         13
license as instructed by the police officer, he obtained a license the same day “without

any issues” and at no cost, because he is a veteran.12

      The new Evidence Code, OCGA § 24-9-924 (a), governs the “admissibility of

records of Department of Driver Services” and “computer transmitted records,” and

permits the introduction of “information otherwise admissible . . . obtained from any

terminal lawfully connected to the Georgia Crime Information Center without the

need for additional certification of such records.” But no evidence was presented of

the contents of a “record” or that it was derived from a lawfully connected terminal.

Moreover, OCGA § 24-8-803 provides for a “public records” exception to the hearsay

rule, but subsection (8) (B) excludes “against the accused in criminal proceedings,

matters observed by police officers and other law enforcement personnel in

connection with an investigation.”


      12
        The State argued at the hearing on the motion for new trial that in order for
Williams to obtain a Georgia license, he “would have had to fix that suspension on
the Florida license” before attempting to exchange it for a Georgia license. But this
stands the presumption of innocence, as well as the burden of proof, on its head. The
State asserts, without any evidence of record, that Williams “would have had to” pay
a fine or purge himself of contempt in order to obtain a Georgia drivers’ license on
the same day he was stopped by the officer. The State made this assertion despite
Williams’ uncontradicted testimony that he simply surrendered his Florida license and
obtained a Georgia license at the Georgia DDS without incident and without any
payment.

                                          14
      Under the new Evidence Code, hearsay if unobjected to is admissible. OCGA

§ 24-8-802.13 But even if the officer’s testimony were deemed admissible, our

Supreme Court has held that a report of a state or national crime information center

record, while it may be reliable enough to establish probable cause for an arrest,

“would not be sufficient to authorize conviction.” (Emphasis in original.) Harvey v.

State, 266 Ga. 671, 673 (469 SE2d 176) (1996) (radio check reported outstanding

bench warrant). In Harvey and the cases cited therein, the report proved to be

inaccurate. Id. Here, the State failed to present any written record at trial or at the

hearing on the motion for new trial showing that Williams’ driving privileges had in

fact been suspended. And, in addition to his trial testimony, Williams presented

documentary evidence at the hearing on his motion for new trial that no such

suspension existed and that his Florida license was valid in Georgia. The officer’s


      13
         We note that the trial court allowed the State to introduce hearsay testimony
without comment. In contrast, while Williams was attempting to testify in his own
defense, after the State interposed one hearsay objection to Williams’ account of his
telephone conversation with the Department of Driver Services, which was sustained,
the trial court sua sponte interrupted Williams continually to tell him that he could
not introduce hearsay testimony, to instruct him that he could not argue his case
during his testimony, to chastise him for not answering “yes or no” to the prosecutor’s
question as to whether he was a resident of Georgia, and on one occasion to
reprimand him because the court erroneously believed that Williams was conducting
cross-examination rather than testifying.

                                          15
conclusory testimony at trial that Williams’ record showed a suspension, based solely

on his verbal report that upon “running him” he found his “privilege in Georgia was

not valid,” is therefore insufficient to support a conviction.

       (b) When it became apparent that the officer’s testimony with regard to a

supposed suspension of driving privileges in Georgia was somewhat tenuous, the

State pivoted from the allegation that Williams was driving while his Georgia driving

privileges were suspended, to an allegation that he was driving with a Florida license

after having been a resident of Georgia for more than thirty days. OCGA § 40-5-20

(a).

       Williams testified at trial that he “wasn’t living as a resident” of Georgia. At

the hearing on Williams’ motion for new trial, additional evidence was presented that

Williams, a Marine Corps veteran and former Florida law enforcement officer, was

temporarily on assignment in Georgia as part of his duties while training for a

position as a federal corrections officer. While he had lived in Georgia on three

different occasions in connection with this training, he always returned to his home

in central Florida, which he owned. At the time of the events giving rise to this

prosecution, in December of 2014, his stay in Georgia had begun in the fall, and he

had stayed with friends, in a hotel, and in an apartment.

                                          16
      The Georgia Code governing drivers’ licenses defines “resident” as “a person

who has a permanent home or abode in Georgia to which, whenever such person is

absent, he or she has the intention of returning.” OCGA § 40-5-1 (15). This

subsection also creates a rebuttable presumption that a person is a resident when that

person “accepts employment or engages in any trade, profession, or occupation in

Georgia,” places children in school in Georgia, or “except for infrequent, brief

absences, has been present in the state for 30 or more days.” OCGA § 40-5-1 (15)

(A), (B). But “as a matter of constitutional due process, statutory presumptions cannot

be conclusive on the factfinder or shift the burden of proof to the defendant in

criminal cases. [Cits.]” Castillo-Solis v. State, 292 Ga. 755, 759 (2) n.8 (740 SE2d

583) (2013) (driver may defend against charge of driving without license “by offering

other evidence, tangible or testimonial, that he had a valid license, from Georgia or

another jurisdiction, at the time he was stopped, to rebut the presumption.”)

      In Castillo-Solis, our Supreme Court also noted that

      OCGA § 40-5-21 exempts 13 categories of drivers from the licensing
      requirement, including . . . drivers with a temporary or limited
      connection to Georgia or in situations not involving regular use of the
      roads. In particular, OCGA § 40-5-21 (a) (2) exempts any nonresident
      of Georgia who could receive a Georgia driver’s license if he or she
      were a Georgia resident and who has in his or her immediate possession

                                          17
      a valid driver’s license issued to him or her in his or her home state or
      country.


(Punctuation omitted.) Id. at 757(2) n.4. And this court has construed OCGA §§ 40-5-

1 (15) and 40-5-20 (a) together to conclude that “the intention of the General

Assembly was . . . to permit visitors, with no intention of becoming residents, to drive

here without obtaining a Georgia license.” (Emphasis supplied.) Diaz v. State, 245

Ga. App. 380, 383 (4) (537 SE2d 784) (2000).

      The State argued at trial that the Georgia license and “permanent” address that

Williams obtained after the traffic stop proved that he was a resident. But, as

Williams observes, “this tautological reasoning borders on entrapment.” Williams

testified that he obtained that license only because he was instructed to do so by the

police officer, and that the address he used to obtain it was only temporary. Other

than attempting to obtain an admission from Williams that he was a resident, an

admission that he refused to give, the State produced no evidence to show that

Williams had a “permanent home or abode in Georgia.” The State in questioning

Williams repeatedly used the term “living” rather than “residing,” and made no

attempt to elicit information tending to show his residence, such as voter registration,

permanent mailing address, or other contacts with Georgia. See generally Cohen v.

                                          18
Cohen, 300 Ga. App. 7, 9 (2) (684 SE2d 94) (2009) (listing indicia of residence for

purposes of jurisdiction). Moreover, Williams repeatedly testified at trial that he

“wasn’t living as a resident” and that the apartment that he rented was “a temporary

address” or “temporary residence.” And he successfully grasped the central difficulty

with the State’s case: that he was “issued a citation for not having a license, not for

changing over.” Construing the entire record in favor of the verdict, we conclude that

Williams’ testimony at trial rebutted the presumption created by OCGA § 40-5-1 (15)

(B).

       As a result of the State’s conduct, Williams was convicted of a crime with

which he was not charged, jailed, fined over $600, and sentenced to a year of

probation. Moreover, his conviction and sentence carry numerous collateral

consequences, including jeopardizing Williams’ current job and future prospects in

his chosen career of law enforcement. As noted by this Court at oral argument, the

State and the trial court had any number of opportunities to terminate this meritless

prosecution, including when Williams presented a valid Florida license, when the

allegations regarding Williams’ residence were called into question, when the State

failed to introduce sufficient evidence to prove its case at trial, when Williams

produced additional evidence at the hearing on the motion for new trial, or when this

                                          19
appeal was briefed. Yet the State pressed on, forcing Williams to expend substantial

time and money to clear his name and wasting the State’s scarce resources in a failed

prosecution. Even in this court, the State has attempted to avoid the consequences of

this miscarriage of justice by relying not upon the merits of its case or the applicable

law, but upon a baseless assertion that Williams failed to perfect the record.

      “The State has the power to take liberty, but commensurate with that power is

the duty to do justice.” Wesley v. State, 225 Ga. 22, 24 (2) (165 SE2d 719) (1969).

Justice was denied to Williams in this case, and accordingly, the judgment of

conviction is reversed.

      Judgment reversed. Doyle, C. J. and Phipps, P. J., concur.




                                          20
