Georgia Cases June 18, 2020: Serdula v. State

Case Description

[845 S.E.2d 365]

The Merchant Law Firm, Ashleigh B. Merchant, John B. Merchant III, for appellant.

Leigh E. Patterson, District Attorney, Emily G. Johnson, Assistant District Attorney, for appellee.

Dillard, Presiding Judge.

[356 Ga.App. 94]

Following a bench trial, Paul Serdula appeals his convictions for nineteen counts of unlawful surveillance, eleven counts of aggravated sodomy, two counts of sexual assault against a person in custody, one count of child molestation, and one count of aggravated child molestation. Specifically, Serdula argues that the trial court erred in (1) denying his motion to recuse the trial judge; (2) entering the State's proposed order as to the recusal motion without giving him an opportunity to respond; and (3) denying his motion to suppress certain evidence. Serdula also challenges the sufficiency of the evidence to support his aggravated-sodomy convictions and argues that his trial counsel was ineffective for failing to present a defense that he suffered from a delusional compulsion, rendering him incompetent to stand trial. For the reasons set forth infra , we affirm.

Viewing the evidence in the light most favorable to the trial court's verdict, the record shows that on November 18, 2009, Kim Nimmons, a dental hygienist, noticed a device of some kind concealed

[356 Ga.App. 95]

in pipe covering under a sink in the employee's bathroom where she worked. The dental office reported Nimmons's discovery to police, and Officer A. K. Stallings responded to the scene, where he observed what appeared to be "[a] camera secreted under the [bathroom] sink." Detective Christopher Twiggs also responded to the scene, and ultimately, determined that the hidden device was a black Verizon LG cell phone positioned in a manner to record the toilet and cabinet areas of the bathroom.

While Stallings and Twiggs were photographing the scene, Serdula appeared in the bathroom doorway and said, "that's my camera." In response, Stallings and Twiggs asked Serdula if he would speak to them about the incident, and he agreed to do so. And during the interview, Serdula told the officers that he placed his cell phone in the bathroom that morning because he believed "someone was stealing drugs from the facility and using the bathroom to hide the drugs on their person." Serdula claimed that he notified the dental office's management of his suspicions, but the office manager and the accounting manager later informed Twiggs that Serdula never made such a report to

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them. Following the interview, Serdula was arrested for unlawful surveillance.

On November 19, 2009, Twiggs obtained a search warrant for Serdula's residence, car, and cell phone. Then, later that day, another detective analyzed the phone's memory card and confirmed that Serdula recorded two of the dentist office's female employees using the toilet in the employee bathroom. And through the investigation that followed, police detectives discovered that Serdula was a nurse-anesthetist who recorded, molested, and sodomized nineteen female patients—two of whom were under the age of 16—while they were unconscious and awaiting medical procedures at a hospital or other medical office.

Subsequently, on February 19, 2010, Serdula was charged with fifteen counts of unlawful surveillance, nine counts of aggravated sodomy, one count of sexual assault against a person in custody, one count of child molestation, and one count of aggravated child molestation. A second indictment was issued on December 16, 2010,

[356 Ga.App. 96]

charging Serdula with four additional counts of unlawful surveillance, two additional counts of aggravated sodomy, and another count of sexual assault against a person in custody. On February 14, 2011, the State moved to join the indictments for trial, and the motion was granted.

Prior to trial, Serdula filed a motion to recuse the trial judge, Judge Reuben Green, expressing concern that Green was an assistant district attorney during the time when he was indicted and that Patrick Head, the district attorney, was instrumental in helping Green secure his current position as a Cobb County superior court judge. Serdula attached an affidavit that he executed, claiming that there was a "close relationship" between Green and Head and contended that this relationship "may greatly influence the perception the Court may have in [his] case." Then, during the hearing on his motion, Serdula requested an evidentiary hearing before a different judge to determine the closeness of Green's relationship with Head. But Green denied the request, and ultimately, denied the recusal motion, finding Serdula's affidavit legally insufficient. Serdula also filed a pretrial motion to suppress evidence retrieved from his cell phone, which included video recordings of his criminal acts, but this motion was also denied following a hearing.

Ultimately, Serdula pleaded not guilty to all counts, waived his right to a jury trial, and stipulated to the facts detailed supra. Thereafter, Serdula proceeded to a bench trial at which he was convicted of all charged offenses. Serdula filed a motion for a new trial, but it was denied following a hearing.

Serdula appealed his convictions, arguing, inter alia , that the trial court erred in denying his motion to recuse Green. And in Serdula v. State , we held that Green's impartiality might reasonably be questioned, and, at a minimum, Green should have referred the recusal motion to another judge for resolution. Thus, we vacated Serdula's convictions and remanded the case to the trial court so that "the recusal motion as to ... Green [could] be assigned to another

[356 Ga.App. 97]

judge for disposition ...." In doing so, we instructed that

[i]f the judge assigned to decide the recusal motion denies it, then ... Green will continue to preside over the case, the judgments

[845 S.E.2d 367]

of conviction against Serdula should be re-entered, and he may file a new appeal enumerating the denial of the recusal motion as error along with the enumerations of trial error that he raised in this appeal. If the recusal motion is granted, however, Serdula's case must be reassigned, all proceedings and orders after the filing of the motion would be void as to Serdula, and his case would start over from that point before the new judge assigned to the case.

Upon remand, Serdula's motion to recuse Green was assigned to a different judge. The new judge conducted a hearing on the motion, at which Head testified, and the motion was ultimately denied. The recusal order, in accordance with Serdula I , reentered Serdula's judgments of conviction. This appeal follows.

1. Serdula first argues that the trial court erred in denying his motion to recuse Green. We disagree.

This Court reviews a trial court's denial of a motion to recuse for abuse of discretion. In doing so, our analysis necessarily begins with Rule 25.3 of the Uniform Superior Court Rules, which provides:

When a judge is presented with a motion to recuse, or disqualify, accompanied by an affidavit, the judge shall temporarily cease to act upon the merits of the matter and shall immediately determine the timeliness of the motion and the legal sufficiency of the affidavit, and make a determination, assuming any of the facts alleged in the affidavit to be true, whether recusal would be warranted. If it is found that the motion is timely, the affidavit sufficient and that recusal would be authorized if some or all of the facts set forth in the affidavit are true, another judge shall be assigned to hear the motion to recuse. The allegations of the motion shall stand denied automatically. The trial judge shall not otherwise oppose the motion. In reviewing a motion to recuse, the judge shall be guided by Canon 3 (E) of the Georgia Code of Judicial Conduct.

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And if all three criteria are met, another judge shall "be assigned to hear the motion to recuse." Furthermore, whether the three threshold criteria have been met is "a question of law, which an appellate court reviews de novo."

Also relevant to our analysis is former Canon 3 (E) (1) (a) and current Rule 2.11 of the Georgia Code of Judicial Conduct, which both provide that "[j]udges shall disqualify themselves in any proceeding in which their impartiality might reasonably be questioned," including but not limited to instances when "the judge has a personal bias or prejudice concerning a party or a party's lawyer ...." And as to this judicial canon and rule language, we have held that

[845 S.E.2d 368]

"[i]mpartiality might reasonably be questioned" means a reasonable perception, of lack of impartiality by the judge, held by a fair minded and impartial person based upon objective fact or reasonable inference; it is not based upon the perception of either interested parties or their lawyer-advocates ....

Additionally, recusal on this ground requires "a rational basis for such questioning, not an arbitrary basis, even though no actual impropriety on the part of the trial court judge has been shown."

In Serdula I , this Court questioned whether the averment of a "close relationship" between Green and Head would require assignment to another judge

because "this claim lacks objective facts

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regarding the relationship." But we also noted that even when the facts in an affidavit do not warrant recusal if assumed true, a judge "still maintains an ethical duty to recuse himself when he is independently aware of grounds to do so." Indeed, under the Georgia Code of Judicial Conduct, judges are to "act at all times in a manner that promotes public confidence in the impartiality of the judiciary." So, even though Serdula only alleged generally that Green and Head had a "close relationship[,]" we acknowledged in Serdula I that "Green ... later admitted during a hearing on a recusal motion in Post v. State that Head had served as his campaign treasurer for his ultimately abandoned 2010 State Court campaign." And under these circumstances, we remanded the case for an evidentiary hearing before a different judge because "the extent, timing and nature of Head's involvement as treasurer [were] untold and need[ed] to be factually developed."

Upon remand, Serdula's motion to recuse Green was reassigned to Judge Salmon, and a hearing was held on the motion at which Head was the sole witness. At the hearing, Head testified as follows. In 2010, at the time this case was tried, Head was the district attorney for the Cobb Judicial Circuit. At some time prior to 2010, Green was an employee of the Cobb County District Attorney's Office, serving as an assistant district attorney. In late 2009 or early 2010, Green approached Head to discuss his desire to run for an open state court seat. And during this discussion, Head agreed to serve as the treasurer for Green's campaign. But ultimately, Head did not establish an office as the treasurer, and he denied filling out any "paperwork" related to the campaign. Indeed, when Head agreed to serve as treasurer, "it was provided [he] didn't have to do any work." So, while Green agreed to fill out any necessary paperwork and have Head sign it when necessary, Head only recalled signing two campaign

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disclosures. And although Head certified that the information on the disclosures was true, he did so solely in reliance on "[w]hoever gave [him] the document[s] and said that [they] had

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been prepared correctly." Head believed this practice to be "pretty common."

So, despite signing these disclosures, Head had no idea how Green kept track of his campaign's money. Head did not sign any checks for the campaign or make any deposits, as he was not even an authorized user on the campaign's bank account. Indeed, despite officially being named treasurer of the campaign, Head "was not involved with any of [Green's] [campaign] funds in any capacity." Head believed that the reason for listing him as the treasurer "was basically using [his] name to show that [he] was supporting [Green] in [the] race; that was the bottom line." Simply put, according to Head, his involvement in Green's campaign was "nominal" or "minimal, if any."

As it turns out, Green's campaign to be a state court judge was short lived. Indeed, while this campaign was still pending, Green was appointed to the Superior Court of Cobb County by then-Governor Sonny Perdue. And shortly thereafter, on October 21, 2010, his campaign for state court judge was terminated, and a final report was filed. Head had no involvement in that process. According to Head, not only did he have no involvement in Green's decision to seek the superior-court appointment, he was not even sure he was aware that Green was doing so at the time. Head claimed that his "whole involvement with [Green] had been for the state court, and [he] thought that's the position [Green] wanted." Head never spoke to the governor about the superior-court appointment being sought by Green, nor was he asked to make a recommendation as to who should be appointed. Head also did not believe that he had financially contributed to Green's state or superior-court campaigns. And as to his personal relationship with Green, Head testified that he "certainly wouldn't call [them] close friends[,]" because they never socialized together, and he did not think they had ever had lunch together. In Head's view, he and Green merely had an "employer-employee" relationship.

In Post , the Supreme Court of Georgia addressed whether Green should have recused himself from the case when the defendant alleged that "Head, the district attorney whose office was prosecuting him, was serving as the treasurer for ... Green's election campaign[.]"

[356 Ga.App. 101]

The defendant in Post presented documents showing that "the district attorney, using the address of the district attorney's office, was serving as the treasurer of ... Green's active campaign for the Superior Court, not the State Court seat the judge was seeking when he was appointed." The Post Court concluded that, given the statutory provisions governing the duties of campaign treasurers, there is a "reasonable inference that a person selected to serve as the treasurer of a judge's existing campaign committee is playing a significant role in managing the financial activities of the judge's campaign, and the financing of a campaign may be critical to its success in keeping the judge in office.’’ And as in Serdula I , the Post Court held that this inference was sufficient to warrant assigning the case to another judge for an evidentiary hearing.

Nevertheless, our Supreme Court explained in Post that "[w]hen the factfinder—the judge to whom the recusal motion is reassigned—determines what relevant facts are actually true and properly established, and what inferences from those facts should actually be made, it may turn out that the treasurer plays no especially important role

[845 S.E.2d 370]

in an ongoing or recent campaign." Indeed,

[i]t could be that the designation as treasurer was entirely honorary or otherwise nominal and the tasks that could be performed by the treasurer are in fact all performed by the candidate, the campaign chairperson, or campaign employees or contractors; that the campaign has been defunct for a significant period; or that other facts exist which, once made known to the factfinder (and the public), would dissipate the appearance of partiality that might otherwise exist.

But on the other hand, it may turn out that, "other than the candidate judge, the most important person in a particular campaign is the treasurer." As a result, the Post Court remanded the case because "there [were] a number of undeveloped but potentially material facts

[356 Ga.App. 102]

bearing on the recusal question that need[ed] to be determined[.]" Specifically, it appeared that questions remained "regarding ... Green's campaign committee or committees, what judicial offices they were for and whether and when their activities were terminated, and the scope and nature of Head's functions as treasurer." Ultimately, the Post Court held that the defendant's allegation that Head served as the treasurer of Green's campaign " potentially authorize[d] an order requiring ... Green's recusal."

Here, unlike in Serdula I and Post , this case has already been remanded to the trial court, the recusal motion was assigned to another judge, and a full evidentiary hearing was held to determine the nature and scope of Green and Head's relationship. And upon remand, the evidence showed that while Head served as Green's campaign treasurer close in time to Serdula's 2010 indictments and 2011 trial, Head had little to no involvement in the campaign. So, despite Serdula's unsupported claim that Head was "directly and significantly involved" in Green's campaign, Head repeatedly testified that his name was listed as treasurer solely to show his support for the campaign. And while Head signed certain campaign disclosures, he did no work in preparing them. Indeed, Head only agreed to be Green's treasurer if the position did not require him to do any work. And importantly, Head testified that he did not have a close relationship with Green, nor did they socialize together.

Suffice it to say, any analysis of the necessity for recusal is, by its very nature, "fact-bound, requiring an examination of the nature and extent of any business, personal, social or political associations, and an exercise of judgment concerning just how close and how extensive (and how recent) these associations are or have been to mandate recusal." And when the trial court sits as trier of fact, its findings "shall not be set aside unless clearly erroneous." Furthermore, the clearly erroneous test is the same as the any evidence rule, and as a result, we will "not disturb fact findings of a trial court if there is any evidence to sustain them." And here, based on Head's testimony, Salmon, as the factfinder, determined that "there was not a ‘close

[356 Ga.App. 103]

relationship’ between ... Green and Head," and "[t]he facts developed through the testimony of Head at the hearing and the exhibits presented dissipate the appearance of partiality." This finding was not clearly erroneous because Head's testimony supported it.

[845 S.E.2d 371]

Nevertheless, Serdula appears to contend that the exhibits he presented at the recusal hearing, which apparently included campaign-disclosure statements with Head's signature on them, conclusively establish that Head served a significant role in Green's campaign, and as a result, his recusal was warranted. This argument is a nonstarter. To begin with, none of those exhibits are included with the transcript of the recusal hearing, and so, we are unable to confirm their contents. In any event, Head admitted that he agreed to serve as the treasurer of Green's state-court campaign, albeit in name only. Additionally, Head acknowledged that—with the exception of one disclosure report which mistakenly suggested that he served as treasurer for Green's superior-court campaign—he signed at least two campaign disclosures. So, even assuming that Serdula accurately describes the exhibits, the trial court apparently credited Head's testimony that he played no significant role in the campaign, did not prepare the disclosures, and signed the disclosures solely in reliance on someone else.

If, as Serdula suggests, the sole fact that—close in time to his prosecution—Head served as treasurer of one of Green's campaigns warranted his recusal, the Supreme Court in Post and this Court in Serdula I would simply have remanded the case and ordered Green to recuse himself. But instead, both cases were remanded for an evidentiary hearing to determine the nature and scope of Green and Head's actual relationship. And as contemplated in Post , the actual evidence presented in this case supported Salmon's conclusion that Head "play[ed] no especially important role in an ongoing or recent campaign." As a result, we cannot say that the trial court abused its

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discretion in denying Serdula's motion to recuse Green from his case.

2. Next, Serdula argues that the trial court erred in entering the State's proposed

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order denying his recusal motion without giving him an opportunity to respond to the State's erroneous proposed findings of fact. Again, we disagree.

Before reaching this claim of error, Serdula argues at length that, because the parties stipulated to the exhibits admitted at the recusal hearing and those exhibits are public records, the trial court was required to consider them accurate and reliable. But in the trial court's order, it concludes that one of Serdula's exhibits—a printout from the Georgia Government Transparency and Campaign Finance Commission—"is clearly in error." The court reached this conclusion because, "[w]hile it may say ‘Office Sought Judge Superior Court,’ the Committee Information is ‘Reuben Green for State Court Judge’ and lists the committee Judge Green had for his State Court Campaign."

As previously mentioned, the exhibits presented at the recusal hearing are not included with the transcript in the record before us, and under such circumstances, we must accept the trial court's description of the exhibits as true. Moreover, the court's description

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of that exhibit as reporting, in substance, on Green's state-court campaign is consistent with Head's testimony that—while he was treasurer of this campaign—he had no involvement in Green's pursuit of his current superior-court seat. Furthermore, there is nothing in the appellate record indicating that the parties stipulated to the accuracy of these exhibits, as opposed to merely their admissibility. As a result, we will not presume that they agreed to anything beyond that.

The campaign-disclosure printout was, of course, admitted into evidence under OCGA § 24-8-803 (8), which provides that public records and reports "shall not be excluded by the hearsay rule, even though the declarant is available as a witness." This hearsay exception "closely tracks its federal counterpart, Fed. R. Evid. 803 (8)," and is "based on both the necessity for admitting such records and their inherent trustworthiness." It is fair to say, then, that, generally speaking, a campaign-disclosure report is an inherently reliable source of information because the information contained in this document is provided by someone—here, Green—under a "legally imposed duty" and is "the subject

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of a reporting duty." But that

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hardly means that every public record is error free or immune from scrutiny once it is admitted into evidence. For example, OCGA § 24-8-806 (‘‘Rule 806’’) provides that "[w]hen a hearsay statement has been admitted in evidence, the credibility of the declarant may be attacked and, if attacked, may be supported by any evidence which would be admissible for those purposes if the declarant had testified as a witness." So, if instead of relying on Green's campaign-disclosure report to support his argument, Serdula instead wanted to attack or question the veracity of the information contained in the report, Rule 806 would allow him to do so. But here, Serdula is attempting to preclude Head from explaining or clarifying obvious inconsistencies in Green's campaign-disclosure report ( i.e. , relevant evidence), which only serves to undermine the truth-seeking process. Simply put, Serdula has presented no legal authority suggesting that trial courts are required to accept the accuracy of public records even when, as here, the record itself is internally inconsistent and conflicts with witness testimony.

Serdula also argues that the trial court erred in "not granting" his motion for reconsideration of the recusal order because he was not afforded a right to object to the State's erroneous proposed findings of fact before the court's "carte blanche" entry of the State's proposed order. But Serdula filed his notice of appeal on April 29, 2019, before filing his motion for reconsideration on May 2, 2019. So, as the record stands before us, the trial court has yet to rule on Serdula's motion for reconsideration; but regardless, it lacks jurisdiction to do so. Indeed, as a general rule, in civil actions other than injunctions, a trial court, "upon the filing of a notice of appeal, loses jurisdiction to modify or

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enforce a judgment which is the subject of the appeal during the period of supersedeas." And because it is well settled that a notice of appeal "divests the trial court of jurisdiction to consider a motion for reconsideration of that judgment," the trial court "lack[s] jurisdiction to rule on [Serdula's] motion for reconsideration."

3. Serdula also contends that the trial court erred in denying his motion to suppress

[845 S.E.2d 374]

the evidence retrieved from his cell phone. This claim likewise lacks merit.

Our Supreme Court has identified three corollaries of the principle, "which limit the scope of review in appeals from a grant or denial of a motion to suppress in which the trial court has made express findings of disputed facts." Specifically, an appellate court must construe the evidentiary record "in the light most favorable to the trial court's factual findings and judgment[,] ... accept the trial court's factual findings unless they are clearly erroneous, ... and ... limit its consideration of the disputed facts to those expressly found by the trial court." Furthermore, although we owe "substantial deference to the way in which the trial court resolved disputed questions of material fact, we owe no deference at all to the trial court with respect to questions of law, and instead, we must apply the law ourselves to the material facts." With these guiding principles in mind, we turn to Serdula's specific claim of error.

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(a) Probable Cause. Serdula claims that there was no probable cause to support the issuance of a warrant to search his cell phone. As explained by our Supreme Court, a search warrant will "only issue upon facts sufficient to show probable cause that a crime is being committed or has been committed." And the magistrate's task in determining if probable cause exists to issue a search warrant is "simply to make a practical, common-sense decision whether, given all the circumstances set forth in the affidavit before him, including the ‘veracity’ and ‘basis of knowledge’ of persons supplying hearsay information, there is a fair probability that contraband or evidence of a crime will be found in a particular place." So, our review of the magistrate's decision is limited to "determining if the magistrate had a substantial basis for concluding that probable cause existed to issue the search warrant." Further, a presumption of validity attaches to "an affidavit supporting a search warrant[,] [and] ... doubtful cases should be resolved in favor of upholding search warrants." Importantly, substantial deference is to be afforded to "a magistrate's decision to issue a search

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warrant based on a finding of probable cause."

Here, the following facts were set forth in Twiggs's affidavit and application for a search warrant.

On 11/18/2009 the Cobb County Police Department responded to [a dentist office]. When officers arrived they met with Kim Nimmons, an employee. Nimmons stated that she was in the bathroom at the office and noticed a hole in the padding surrounding the pipes to the sink. She looked closer and discovered a black in color Verizon LG cell[ ]phone

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inside the padding. The cell[ ]phone had a camera function and the camera lens was pointing in the direction of the toilet. She notified office staff of the discovery. Nimmons advised that she noticed the same hole in the padding last week, but there was no camera.

Officers and investigators located a black cell[ ]phone positioned inside the padding in the bathroom. The cell[ ]phone was positioned to view the commode in the bathroom. While collecting the cell[ ]phone[,] Paul Serdula approached the affiant and Ofc. Stallings. He stated that the cell[ ]phone was his. We interviewed Serdula at the office. He stated that he suspected someone of stealing drugs from the office and had placed the cell[ ]phone in the bathroom in an attempt to video the person secreting the drugs. He stated he placed the cell[ ]phone in the bathroom this morning around 0800 HRS. He also stated it was the first time he had done this. The affiant spoke with the office management and they advised that Serdula had never reported any suspicions of drugs missing.

Serdula was then arrested and charged with unlawful surveillance.

OCGA § 16-11-62 (2) provides that—with some exceptions not applicable here—"[i]t shall be unlawful for ... [a]ny person, through the use of any device, without the consent of all persons observed, to observe, photograph, or record the activities of another which occur in any private place and out of public view." Significantly, Serdula admitted that he hid his phone in the bathroom to secretly record other employees who he believed were stealing drugs. And even though the record reveals that Serdula was recording employees for sexual purposes, OCGA § 16-11-62 (2) does not require the defendant to record others with any particular purpose. So, under such circumstances, there was a fair probability that he was using the phone to

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unlawfully record activities of others in a private place in violation of OCGA § 16-11-62 (2).

Nevertheless, Serdula argues that the magistrate issued the search warrant based on false information provided by Twiggs. Specifically, Serdula contends that

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Twiggs failed to inform the magistrate that the phone was turned off and that he falsely claimed the phone's camera was aimed at the toilet, rather than the lockers. Serdula quotes portions of Twiggs's affidavit and provides an alternative version of how the affidavit should have read. But other than citing Twiggs's search-warrant affidavit, Serdula cites no evidence in the record to support his version of the facts, even when purporting to quote witnesses. And while Serdula summarily contends that Twiggs's affidavit included "exaggerations and misrepresentations," it is not the function of this Court to "cull the record on behalf of a party in search of instances of error." In any event, to the extent that there were any discrepancies between the search-warrant affidavit and the testimony presented at the suppression hearing, it was for the trial court, as the fact finder, to resolve any conflicts in the evidence and to determine the credibility of witnesses.

Serdula also maintains, without any citations to supporting legal authority, that—even absent the alleged inaccuracies and omissions in Twiggs's affidavit—the affidavit still failed to establish probable cause sufficient to support the issuance of the search warrant. And he contends, again without citing any support in the record, that the

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cell phone was turned off and there was no evidence that any eavesdropping took place. But to establish probable cause, the search-warrant affidavit did not have to present evidence conclusively establishing that a crime had been committed. Instead, the affidavit only needed to establish that there was "a fair probability that contraband or evidence of a crime [would] be found in a particular place." Here, Twiggs averred that Serdula admitted to owning a phone that he concealed in a private place to record fellow employees whom he suspected of stealing drugs. The magistrate found Twiggs to be credible and made a reasonable, common-sense determination that these allegations created a fair probability that Serdula unlawfully surveilled employees of the dental office while they were in the bathroom in violation of OCGA § 16-11-62 (2).

In sum, given the substantial deference we owe to a magistrate's decision to issue a search warrant, and viewing the facts in the light most favorable to the trial court's decision, we cannot say that the trial court abused its discretion in finding that there was probable cause to issue a search warrant for Serdula's phone.

(b) The Particularity Requirement. Serdula also argues that the evidence obtained from his phone should have been suppressed because the search warrant failed to satisfy the Fourth Amendment's particularity requirement. Serdula is indeed correct that the Fourth Amendment to the United States Constitution "provides that ‘no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly

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describing the place to be searched, and the ... things to be seized.’ " In this regard, we have explained that "[a]lthough a warrant cannot leave the determination of what articles fall within its description and are to be seized entirely to the judgment and opinion of the officer executing the warrant, the degree of specificity in the description is flexible and will vary with the circumstances involved." Indeed, the "particularity requirement"

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only demands that "the executing officer be able to identify the property sought with reasonable certainty."

In this case, the relevant portion of the search warrant provided that the thing and place to be searched was "a black in color LG Verizon cell[ ]phone that was collected from the pipe padding of the bathroom at 600 Galleria Pkwy Suite 800, Atlanta, Georgia 30339 to access the phone to look for information to verify the owner of the phone, any recorded files, videos, and all phone activity logs." But Serdula argues that the search warrant was overly broad because it did not specify that the removable memory card in the phone, which is a "separate and distinct" component of the phone, would be searched. We disagree.

As previously noted, the level of specificity required is flexible and will vary with the circumstances involved. And here, the search warrant specified that the phone was to be searched for recorded files and videos, and the forensic analyst testified that those files are stored on the memory card, which is retrieved from inside the phone. Additionally, our Supreme Court has held that "although an electronic device, a cell phone is ‘roughly analogous’ to a container that properly can be opened and searched for electronic data, similar to a traditional container that can be opened to search for tangible objects of evidence." Indeed, the similarity of a cell phone to a traditional container in which there might be found physical entities of evidence is clear; "it is reasonable to believe that the object of the search will be found inside the cell phone." Thus, although the search warrant did not specifically reference the memory card, a search of the phone would necessarily include its contents, which included the memory card.

Serdula also maintains that the search warrant was not specific enough regarding the type of files to be recovered. But as evidenced supra , the warrant did specify the types files to be recovered—"recorded files, videos, and all phone activity logs." For comparison,

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our Supreme Court recently held that "the use of the phrase ‘electronic data’ was specific enough to enable a prudent officer to know to look for photographs and videos stored on [a defendant's] cell phone."

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Thus, a search warrant specifically instructing the officer to look for recordings and videos is also sufficient.

4. Serdula also argues that there was insufficient evidence to support his conviction for aggravated sodomy. Again, we disagree.

In challenging the sufficiency of the evidence to support his convictions for aggravated sodomy, Serdula does not allege that the State failed to prove any particular element of the offense. Instead, he summarily contends that, absent the evidence he claims should have been suppressed, there was insufficient evidence to support his convictions. But because we hold in Division 3 supra that the trial court properly admitted the video files recovered from Serdula's cell phone, this argument lacks merit.

5. Finally, Serdula argues that his trial counsel was ineffective for failing to argue that he suffered from a delusional-compulsion disorder that rendered him incompetent to stand trial. Once again, we disagree.

To prevail on his Sixth Amendment claim of ineffective assistance, a claimant "must show both that counsel's performance was deficient and that the deficient performance prejudiced [him]." And with respect to deficient performance, a claimant must show that his attorney performed at trial in "an objectively unreasonable way considering all the circumstances and in the light of prevailing professional norms." Moreover, when reviewing counsel's performance, we apply a strong presumption that counsel's representation was "within the ‘wide range’ of reasonable professional assistance."

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Indeed, to show that he was prejudiced by the performance of his counsel, a claimant must "prove a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different." And a reasonable probability is "a probability sufficient to undermine confidence in the outcome." Finally, the trial court's factual findings and credibility determinations are "reviewed under a clearly erroneous standard, but this Court will independently apply the legal principles to the facts." With these guiding principles in mind, we will address Serdula's specific ineffective-assistance claim.

In Georgia, a person is not legally insane simply because "he suffers from schizophrenia or a psychosis ." Instead, a defendant is not guilty by reason of insanity if, at the time of the criminal act, he or she "did not have the mental capacity to distinguish between right and wrong in relation to such act or a mental disease caused a delusional

[845 S.E.2d 379]

compulsion that overmastered his will to resist committing the crime." Furthermore, a finding of insanity based upon OCGA § 16-3-3 requires proof that "(1) the accused acted under a delusional compulsion; (2) the criminal act was connected with the delusion; and (3) the delusion related to a fact which, if true, would have justified the act." Of course, defendants are presumed sane, and "a defendant claiming insanity bears the burden to prove his insanity by a preponderance of the evidence."

Here, Serdula contends that his trial counsel was deficient for failing to argue that he suffered from a delusional compulsion that rendered him incompetent to stand trial. But as explained supra , for a defendant to prevail on an insanity defense based on a delusional compulsion, the defendant must show that he was laboring under

[356 Ga.App. 115]

that compulsion at the time of the criminal act, and thus, for purposes of Serdula's particular ineffective-assistance claim, his mental state at the time of trial is irrelevant. Significantly, Serdula has not identified any specific delusion related to any particular fact which, if true, would have justified his criminal acts. Instead, relying on a psychological report prepared by Dr. Robert Shaffer and submitted at the motion-for-new-trial-hearing, Serdula contends, generally, that, despite having the report prior to sentencing, his counsel was ineffective for failing to present evidence of delusional compulsions to the trial court.

Shaffer's report indicated that (1) Serdula suffered from bipolar mania resulting in sexual-behavior compulsions; (2) the behavior leading to his arrest was influenced by manic mood states and neuropsychological disinhibition; (3) Serdula experienced "grandiose delusion " during the process of planning and executing his crimes; and (4) in his manic state, there is a continuing compulsion to engage in his particular criminal conduct. But although the report described a mental illness resulting in compulsive criminal behavior, it did not identify any specific delusion as to a fact that Serdula had at the time

[845 S.E.2d 380]

of his criminal conduct that would have "justified" his behavior.

[356 Ga.App. 116]

Furthermore, Shaffer specifically testified at the sentencing hearing that he did not conclude Serdula was laboring under any delusional compulsion at the time of his criminal conduct. Indeed, according to Shaffer, there was no evidence that Serdula was incapable of understanding the difference between right and wrong. Serdula's trial counsel, consistent with the foregoing testimony, testified at the motion-for-new-trial hearing that Serdula did not appear to have any delusional compulsions that would support an insanity defense. Trial counsel also discussed Shaffer's report with him and believed that Shaffer agreed.

Given the foregoing testimony, Serdula has presented no evidence that he had a viable delusional-compulsion defense. Thus, trial counsel was not deficient in presenting such a meritless defense, and Serdula cannot show that he was prejudiced by his counsel's failure to do so because it would not have been successful.

For all these reasons, we affirm Serdula's convictions.

Judgment affirmed.

Rickman and Brown, JJ., concur.