text:
    A01A2321.
    NEW ATLANTA EAR, NOSE & THROAT ASSOCIATES, P.C. v. PRATT et al.
    (560 SE2d 268)
   Miller, Judge.

This case involves the enforceability of restrictive covenants found in employment and shareholder agreements of five physicians who left a medical group and announced they intended to violate the covenants. The trial court deemed all of the covenants unenforceable. We hold that with the exception of one physician (Dr. Pratt), the employment restrictive covenants allow the medical group to shift and expand the proscribed territory during the term of the agreements and are therefore unenforceable. We also hold that the shareholder restrictive covenant, which contains no territorial restriction, cannot be blue-penciled and is therefore unenforceable. Accordingly, we affirm the trial court’s judgment declaring all of the covenants unenforceable, with the exception of Dr. Pratt’s employment restrictive covenant, which is enforceable.

Atlanta Ear, Nose & Throat, P.C. (the “former medical group”) operated a medical clinic.at which numerous physicians worked, including the five who are defendants here. In November 1996 the former medical group and its owners (who did not include defendants) agreed to sell, at a later date, the group’s assets to PSC Management Corporation. Three months later in February 1997, the five defendants entered into employment agreements with New Atlanta Ear, Nose & Throat Associates, P.C. (the “new medical group”), which had been formed to operate the assets of the former medical group once the asset sale closed. The closing took place two months later, in which the new medical group contracted with PSC to use those assets and to have PSC manage the new medical group’s operations. The five defendants and other physicians received stock in PSC’s parent corporation and in the new medical group and apparently entered into a shareholder agreement with the new medical group, although in the record we have only a copy of a restated shareholder agreement executed two years later in August 1999. Based on the parties’ representations, we assume for purposes of this opinion that the original shareholder agreement contained the same restrictive covenant found in the restated agreement.

Four sets of restrictive covenants are found in the various agreements. The November 1996 asset acquisition agreement has a broad five-year post-closing covenant preventing the former medical group from competing, soliciting, and hiring; the February 1997 employment agreements prohibit the defendants from post-termination competition for eighteen months; the March 1997 management agreement precludes the new medical group from engaging in various competitive activities with PSC for eighteen months after termination; and the August 1999 restated shareholder agreement prevents each shareholder from practicing medicine with other new medical group physicians for three years after termination.

Four years into their employment contracts, the five defendants (Drs. Pratt, Bhansali, Golde, Burton, and Robinson) terminated their employment and announced they intended to disregard the restrictive covenants contained in the employment and restated shareholder agreements. The new medical group sued to enforce the employment and shareholder restrictive covenants but moved for an interlocutory injunction on the employment restrictive covenants only. The defendants moved to enjoin enforcement of both the employment and shareholder restrictive covenants. The court ruled that both sets of covenants were -unenforceable and enjoined their enforcement. The new medical group appeals.

1. The Employment Restrictive Covenants. The employment restrictive covenants all provide:

Physician agrees that during Physician’s employment by Medical Group and for a period of eighteen (18) months following the effective date of any termination of the Employment Term, . . . Physician will not, directly or indirectly, alone or in conjunction with any other Person: i. open or join a medical office within an eight (8) mile radius of a “Prohibited Office” and practice medicine at that office or practice medicine at any other medical clinic, ambulatory service center or hospital located within such eight (8) mile radius of a Prohibited Office in any of the Practice Specialties; and ii. see “Patients” for consultation or treatment within any of the Practice Specialties at any medical office located within an eight (8) mile radius of a Prohibited Office. For purposes hereof a “Prohibited Office” is one or more of the offices listed in Part Two of Exhibit A, in which Physician saw Patients for Medical Group during the eighteen (18) months preceding the effective date of termination of the Employment Term, and “Patient” means any individual to whom services were provided by Physician at a Prohibited Office during the eighteen (18) month period prior to Physician’s date of termination.

Part Two of Exhibit A has the heading “Medical Group Office Locations to Which Physician is Assigned,” which is then followed by a list of two or three locations. For Dr. Robinson the list is “Medical Quarters/Northside, Roswell, Snellville”; for Dr. Burton “Medical Quarters/Northside, Marietta, Austell”; for Dr. Bhansali “Marietta, Medical Quarters/Northside”; and for Dr. Golde “Marietta, Austell, Medical Quarters/Northside.” Although Dr. Pratt’s list originally read “Medical Quarters/Northside, Marietta, Austell,” in December 1998 he executed and delivered an amendment to change that list to read:

Austell - Cobb Medico, 1680 Mulkey Road, Suite E, Austell, Georgia 30106 and 1790 Mulkey Road, Suite 7, Austell, Georgia 30106
Marietta - 833 Campbell Hill Street, Marietta, Georgia 30060 and 790 Church Street, Suite 140, Marietta, Georgia 30060
Medical Quarters/Northside - 5555 Peachtree Dun-woody Road, Suite 235, Atlanta, Georgia 30342
Woodstock - 120 North Medical Parkway, Suite 102, Woodstock, Georgia 30189.

(a) Level of Scrutiny. In determining the enforceability of restrictive covenants, we first determine what level of scrutiny to apply. There are three levels: strict scrutiny, which applies to employment contracts; middle or lesser scrutiny, which applies to professional partnership agreements; and much less scrutiny, which applies to sale of business agreements.

The answer here is quite clear, as there were restrictive covenants contained in both the employment and shareholder agreements executed by the defendants. Independent of the relative bargaining power of the parties, Russell Daniel Irrigation Co. v. Coram held that where a party, in conjunction with the same transaction, has signed an employment and a partnership agreement with his employer, both of which contain restrictive covenants, then the restrictive covenant in the employment agreement is subject to strict scrutiny. Coram explained:

Subjecting two restrictive covenants to different treatment, even though found in agreements executed as part of the same transaction, is consistent with the rationale behind the different levels of scrutiny. When one is selling a business or purchasing partnership interests, more weighty consideration is being offered in exchange for the non-compete covenant. The business seller is receiving substantial consideration for the business he has built up, the value of which would be significantly diminished to the buyer if he were allowed to compete in the same market. The potential partner will receive a share of the profits, which profits are generally protected by non-compete covénants required from the other partners. Thus, non-compete covenants found in sale of business or partnership agreements are generally afforded greater degrees of latitude. If the business seller or potential partner as a part of the transaction also enters into a separate employment agreement with its own additional non-compete covenant, then the consideration received for that covenant is usually less (generally employment benefits such as salary and insurance coverage), subjecting it to a stricter level of scrutiny. The context and consideration of the two restrictive covenants being different, they are subject to different levels of scrutiny.

Here there are the following additional factors differentiating the restrictive covenants in the employment contracts from those in the shareholder agreement: (i) at the time they entered into the employment agreements, the defendants were not shareholders of the new or former medical group, as they received no stock until the closing two months later; (ii) the employment agreements all specified that their restrictive covenants “shall be deemed, and shall be construed as separate and independent agreements”; and (iii) the restrictive covenant in the shareholder agreement indicated that it was in addition to the employment restrictive covenants in that it in no way relieved the shareholders of those separate employment obligations. Accordingly, we review the employment restrictive covenants under strict scrutiny.

(b) Shifting and Expanding Territorial Restrictions. Inasmuch as covenants against competition in employment contracts are in partial restraint of trade, they are enforceable only “if strictly limited in time and territorial effect, and if they are otherwise reasonable considering the business interests of the employer sought to be protected and the effect on the employee.” This is a question of law for the court based upon the wording of the covenant.

The defendants do not contend that either the 18-month time limitation or the restricted scope of activity is unreasonable. Rather, the question is whether each physician’s respective territorial restriction is unreasonable. In this regard, Koger Properties v. Adams-Cates Co. held that “a territorial restriction which cannot be determined until the date of the employee’s termination is too indefinite to be enforced. . . . [The employee must be] able to forecast with certainty the territorial extent of the duty owing.” Thus, if the covenant’s language allows territories to be added during the course of the agreement, the covenant is unenforceable.

Citing AGA, LLC v. Rubin, the defendants argue that because the list of two or three prohibited locations could be narrowed during the course of the agreement so as to eliminate locations where the physician had not seen patients during the last eighteen months of the agreement, the agreement’s territory could not be forecast with certainty and therefore was unenforceable. This argument is without merit. Unlike Rubin, the list of two or three locations was the outside limit that circumscribed the reach of the restrictive covenant. The fact that this small list could be narrowed does not diminish the fact that no locations could be added; indeed, the narrowing aspect of the covenant only worked to the physician’s advantage, as the maximum number of locations covered by the covenant was set and immovable.

Nevertheless, as found by the trial court, the listing of the prohibited locations has a fatal flaw: the addresses and the number of offices in each location are not identified, thus allowing (during the course of the agreement) the 16-mile circles of prohibited territory within each listed location to shift as offices move and to expand in number as offices are added. Indeed, in its appellate brief, the new medical group conceded that under the wording of the employment restrictive covenants, four defendants

were restricted from practicing medicine within an eight mile radius of “one or more of” [the new medical group’s] Marietta offices at which they had seen “Patients” during the eighteen months prior to the termination of employment. It was obvious that the territorial limit was based on the location of any [new medical group] office in Marietta.

(Emphasis supplied.)

These very circumstances occurred, as the Marietta office moved twice during the course of the agreement, approximately one-half mile each time. Also, a second office was opened in Austell. The new medical group’s president testified that the list of prohibited offices moved or expanded to include the additional locations to accommodate offices that moved or expanded. Accordingly, the covenants fall squarely within the holding of Roger Properties and its progeny invalidating territorial restrictions that change and expand during the course of the agreement.

Dr. Pratt, however, cannot avail himself of this analysis, as he and the new medical group subsequently amended the exhibit setting forth his territorial restriction to specify the precise address and number of the offices that served as the centerpoint of the prohibited circles. Contrary to Dr. Pratt’s argument, we do not find the description of the prohibited activities ambiguous. He is prohibited, within the restricted territory, (a) from opening or joining a new office and practicing medicine there, (b) from practicing any of the specified “Practice Specialties” at any other medical clinic, ambulatory service center, or hospital, and (c) from seeing “Patients” at a medical office. Therefore, as to Dr. Pratt, the trial court erred in holding that his employment restrictive covenant was unenforceable.

2. The Shareholder Restrictive Covenant. The restated shareholder restrictive covenant prohibits each shareholder, for a period of 36 months after terminating employment with the new medical group, from practicing medicine with any other physician who was employed by the new medical group prior to the date of the shareholder’s termination. No territory is specified.

Regardless of the level of scrutiny we apply, the lack of a territorial restriction renders this covenant unenforceable. Even under the liberal sale of business standard, a reasonable territorial limitation must be specified. Blue penciling cannot cure the problem, for “[t]he ‘blue pencil’ marks, but it does not write. It may limit an area, thus making it reasonable, but it may not rewrite a contract void for vagueness, making it definite by designating a new, clearly demarcated area.” Certainly if the blue pencil cannot rewrite a vague territorial limitation, where the parties at least tried to describe a territory, it cannot insert an absent territorial limitation, where the parties consciously chose not to include one. Case law references to territorial blue penciling specify that the parties designated an over-broad geography, not that they omitted a geographical restriction altogether. As blue penciling cannot cure this omission, the shareholder restrictive covenant is unenforceable. Moreover, the employment agreement executed in February 1997 cannot be construed together with the restated shareholder agreement executed two and one-half years later in August 1999 (which became effective in July 1999 and expressly superseded the March 1997 shareholder agreement) so as to supply the missing element, as the agreements are not contemporaneous.

Accordingly, with the exception of Dr. Pratt’s employment restrictive covenant, the restrictive covenants found in the employment and restated shareholder agreements are unenforceable.

Judgment affirmed in part and reversed in part.

Andrews, P. J., and Eldridge, J., concur.

Decided January 25, 2002

Reconsideration denied February 13, 2002.

Rogers & Hardin, Robert B. Remar, Ashley R. Hurst, Moore, Ingram, Johnson & Steele, G. Phillip Beggs, for appellant.

Kitchens, Kelley & Gaynes, Mark A. Kelley, Stephen V. Kern, for appellees.

        Habif, Arogeti & Wynne, P.C. v. Baggett, 231 Ga. App. 289, 290-291 (1) (498 SE2d 346) (1998).

       237 Ga. App. 758, 759 (1) (516 SE2d 804) (1999).

       Id.; see Johnstone v. Tom’s Amusement Co., 228 Ga. App. 296, 298 (2) (491 SE2d 394) (1997) (physical precedent only); Arnall Ins. Agency v. Arnall, 196 Ga. App. 414, 419 (2) (396 SE2d 257) (1990) (physical precedent only).

       (Citation and punctuation omitted.) Roger Properties v. Adams-Cates Co., 247 Ga. 68 (1) (274 SE2d 329) (1981); see Advance Technology Consultants v. RoadTrac, 250 Ga. App. 317, 320 (1) (551 SE2d 735) (2001).

        Roger Properties, supra, 247 Ga. at 69 (2).

       Id. at 68 (1).

       (Citations and punctuation omitted.) Id. at 68-69 (1); see Advance Technology Consultants, supra, 250 Ga. App. at 322 (4); AGA, LLC v. Rubin, 243 Ga. App. 772, 774-775 (533 SE2d 804) (2000).

        Ceramic & Metal Coatings Corp. v. Hizer, 242 Ga. App. 391, 393 (1) (529 SE2d 160) (2000).

       Supra, 243 Ga. App. at 774-775.

       Cf. Sysco Food Svcs. &c. v. Chupp, 225 Ga. App. 584, 586-587 (1) (484 SE2d 323) (1997) (list of 11 prohibited counties was set by agreement).

       See, e.g., Hizer, supra, 242 Ga. App. at 393 (1).

       See McAlpin v. Coweta Fayette Surgical Assoc., 217 Ga. App. 669, 672-674 (2) (458 SE2d 499) (1995).

       See Hudgins v. Amerimax Fabricated Products, 250 Ga. App. 283, 287 (2) (551 SE2d 393) (2001).

        Hamrick v. Kelley, 260 Ga. 307, 308 (392 SE2d 518) (1990).

       See, e.g., Jenkins v. Jenkins Irrigation, 244 Ga. 95, 100-101 (3) (259 SE2d 47) (1979); Hudgins, supra, 250 Ga. App. at 287-288 (2); cf. Drumheller v. Drumheller Bag & Supply, 204 Ga. App. 623, 628 (3) (420 SE2d 331) (1992) (trial court may “blue pencil” the covenants so as to include only those activities enumerated in the agreement that are necessary for the protection of legitimate business interests).

        Lyle v. Memar, 259 Ga. 209, 210 (378 SE2d 465) (1989).


source: Caselaw Access Project

author: ELDRIDGE, Judge.

license: Public Domain

text:
    A02A0724.
    WADE v. FINDLAY MANAGEMENT, INC. et al.
    (560 SE2d 283)
   ELDRIDGE, Judge.

Derick Wade, plaintiff, sued Findlay Management, Inc. d/b/a McDonald’s Restaurant in Douglas, across from the county high school, and Ann Stapleton, its manager, for failing to protect him from an assault on November 26, 1996. Even though Stapleton had caused some older boys to leave the playground in front of and connected to the restaurant around 7:00 p.m., because they were bothering smaller children and an attack on September 12, 1996, of an adult by two teenage boys had occurred, the defendants moved for summary judgment, alleging that they lacked notice for them to foresee third-party criminal conduct on its premises. The trial court granted summary judgment. We reverse, because there exists a jury issue as to whether or not the defendants should have reasonably foreseen the assault and whether they exercised ordinary care to protect plaintiff.

On November 26, 1996, at approximately 7:00 p.m., Stapleton had a complaint from an assistant manager, Smith, that older boys were bothering small children in the fenced-in play area connected to the restaurant; Stapleton approached the boys and told them that she was locking up the playgate, causing them to leave without argument, although she planned to allow others to use the playground. She did not consider that such discriminatory treatment would cause the older boys to become angry with those younger children allowed to use the playground. The plaintiff walked toward the playground and restaurant with the small children, and the older boys yelled at him and attacked him, while Stapleton was closing the gate. Wade was knocked to the ground by a blow to the head, and three of the boys started kicking him on the ground where he hit his head on a planter. Smith opened the door and screamed at the boys, causing the boys to flee.

On Friday and Saturday nights, the defendants maintained a security guard to maintain order, particularly when there was a game at the high school. By affidavit, Stapleton testified that “during the entire 2½ years that I have worked at this McDonald’s Restaurant until the time of the attack, there had never been any incident when an adult was threatened or physically attacked by older boys or others anywhere on the property.” However, on September 12, 1996, Joseph Samuel Padgett, Jr., an adult, was attacked there by two boys about the same time on a weekday night, after they had teased his son and he tried to stop them; one of the attackers brandished a gun and yelled, “I’ll put a cap up your ass.”

Plaintiff contends that the trial court erred in granting summary judgment. We agree, because there exist issues of material fact for jury determination.

“Simply put, without foreseeability that a criminal act will occur, no duty on the part of the proprietor to exercise ordinary care to prevent that act arises.” Days Inns of America v. Matt, 265 Ga. 235, 236 (454 SE2d 507) (1995). “If the proprietor has reason to anticipate a criminal act, he or she then has a ‘duty to exercise ordinary care to guard against injury from dangerous characters.’ Atlantic C. L. R. Co. v. Godard, 211 Ga. 373, 377 (86 SE2d 311) (1955).” Lau’s Corp. v. Haskins, 261 Ga. 491, 492 (1) (405 SE2d 474) (1991); see also Sturbridge Partners v. Walker, 267 Ga. 785, 786 (482 SE2d 339) (1997).

Accordingly, the incident causing the injury must be substantially similar in type to the previous criminal activities occurring on or near the premises so that a reasonable person would take ordinary precautions to protect his or her customers or tenants against the risk posed by that type of activity. See Matt v. Days Inns of America, 212 Ga. App. 792 (443 SE2d 290) (1994), aff’d, Days Inns of America v. Matt, supra. In determining whether previous criminal acts are substantially similar to the occurrence causing harm, thereby establishing the foreseeability of risk, the court must inquire into the location, nature and extent of the prior criminal activities and their likeness, proximity or other relationship to the crime in question. While the prior criminal activity must be substantially similar to the particular crime in question, that does not mean identical. What is required is that the prior incident be sufficient to attract the landlord’s attention to the dangerous condition which resulted in the litigated incident. Further, the question of reasonable foreseeability of a criminal attack is generally for a jury’s determination rather than summary adjudication by the courts.

(Citations and punctuation omitted.) Sturbridge Partners v. Walker, supra at 786; accord Doe v. Prudential-Bache/A.G. Spanos Realty Partners, 268 Ga. 604, 605 (492 SE2d 865) (1997). “The prior incident need not be the same crime, and the means of inflicting injury need not be identical [to be deemed substantially similar].” (Citation omitted.) Crapp v. Elberta Crate &c. Co., 223 Ga. App. 902, 905 (479 SE2d 101) (1996).

In this case, in opposition to the motion for summary judgment, plaintiff introduced evidence that not only contradicted the material factual statement of the defendant, impeaching her, i.e., no prior similar assault on an adult, but also gave evidence of a prior similar criminal assault that had occurred in the restaurant by a teenager on an adult after a child had been bullied and the adult sought to stop the bullying during a week night at approximately the same time. Further, the victim had given actual notice to the same defendant. The restaurant was across the street from the high school, and the defendants foresaw trouble on the weekends at night so that they provided security to maintain order; the voluntary undertaking to provide security on weekend nights could be construed by the jury to be evidence of foreseeability of criminal conduct. Doe v. Briargate Apts., 227 Ga. App. 408, 410 (1) (489 SE2d 170) (1997); Carlock v. Kmart Corp., 227 Ga. App. 356, 360 (2) (489 SE2d 99) (1997). Generally, comparison of the nature of the crimes will determine similarity; “we consider the key to sufficient similarity to be not in the details of the crime or even in the degree of force used, but rather in the nature of the offense: was the prior incident also an offense against a person, or was it an offense against property or public morals?” (Emphasis in original.) Piggly Wiggly Southern v. Snowden, 219 Ga. App. 148, 149 (1) (464 SE2d 220) (1995).

In this case, older boys sufficiently bullied smaller children so that assistant manager Smith told the defendant who caused the older boys to leave, which should have alerted the defendant to possible trouble for any adult who complained or attempted to stop the boys. While the defendant was physically present, the boys yelled at the plaintiff as he led young children to the area and then attacked him. Although close to the plaintiff at the gate to the playground, the defendant heard the yelling and saw the boy knock the plaintiff to the ground with a blow to the head.

“[W]e note that a showing of prior similar incidents on a proprietor's premises is not always required to establish that a danger was reasonably foreseeable. An absolute requirement of this .nature would create the equivalent of a one free bite rule for premises liability, even if the proprietor otherwise knew that the danger existed.” (Citation and punctuation omitted.) Shoney’s, Inc. v. Hudson, 218 Ga. App. 171, 173 (2) (460 SE2d 809) (1995). Thus, even if the defendants could not foresee the initial attack on the plaintiff, then a jury issue existed as to whether or not the defendants should have foreseen that the assault would continue or that other boys would also join in the assault on the plaintiff. Confetti Atlanta, Ltd. v. Gray, 202 Ga. App. 241, 243-244 (1) (414 SE2d 265) (1991). Although the assault occurred in the immediate physical presence of and proximity to Stapleton, she took no action to stop the boys’ attack after the plaintiff was knocked to the ground. See Good Ol' Days Downtown v. Yancey, 209 Ga. App. 696, 698 (2) (434 SE2d 740) (1993). The three boys began to kick the plaintiff while he lay on the ground, causing him to hit his head on a planter. Assistant manager Smith, who was inside the restaurant, opened the door and screamed at the boys, causing them to flee. Thus, defendant’s inaction and failure to even order the boys to stop their attack on the plaintiff and the boys fleeing upon the screaming of the assistant manager give rise to a jury question whether Stapleton exercised ordinary care to protect the plaintiff by stopping the attack after she saw the attack in progress. Id. at 697.

Decided January 31, 2002

Reconsideration denied February 13, 2002

Preston & Preston, Robert H. Preston, for appellant.

Clark & Clark, Fred S. Clark, for appellees.

Judgment reversed.

Smith, P. J., and Ellington, J., concur.


author: Mikell, Judge.

text:
    A01A1939.
    HARRELL v. THE STATE.
    (560 SE2d 295)
   Mikell, Judge.

Shawn Maurice Harrell was convicted of kidnapping with bodily injury, aggravated assault, and criminal damage to property in the second degree by a Henry County jury. On appeal, he argues the following: (1) the trial court erred by denying his motion for directed verdict; (2) the jury verdict is contrary to the weight of the evidence; (3) the trial court should have granted his motion for new trial on the issue of jury misconduct; (4) the trial court erroneously instructed the jury; and (5) his trial counsel was ineffective. We disagree and affirm.

“On appeal from a criminal conviction, the evidence must be construed in the light most favorable to the verdict, and the appellant no longer enjoys a presumption of innocence. An appellate court determines only the legal sufficiency of the evidence adduced below and does not weigh the evidence or assess the credibility of the witnesses.”

Construed in the light most favorable to the verdict, the evidence shows that Harrell approached Joey Long at a gas station. He asked Long to give him a ride, and Long agreed, as he was going to his girlfriend’s house which was near where Harrell needed to go. When they arrived at Harrell’s destination, which Long thought was Harrell’s parent’s house, Long stopped his truck so that Harrell could get out. Instead of exiting the truck, however, Harrell began talking to a man who had come out of the house. When a second man approached the back of Long’s truck, Long drove off.

Long testified that Harrell pulled something that Long thought was a gun from under his jacket and pointed it at him. Long recalled that he told Harrell, “Please don’t shoot me. My goodness, please don’t shoot me. I give [sic] you a ride down here.” Long stopped the truck and thinking that the gun was still pointed at him, he stepped out and tried to alert a bystander. After his attempts failed, Long got back into the truck and asked Harrell what he wanted him to do. Harrell instructed Long to return to the house they had just left.

Long stopped after he passed the house and told Harrell to get out of his truck. Long testified that at that point, Harrell attacked him with a knife, cutting him, and then held the knife to Long’s throat and asked for money. When Long produced only $1, Harrell searched Long’s truck for more money. While Harrell searched, Long tried to escape and Harrell grabbed Long by the back of his shirt, cutting the back of Long’s neck. Long was able to escape Harrell’s grasp and exit the truck.

As he ran away from the truck, Long looked back and saw that Harrell was breaking the windows of the truck with a wooden bat. Harrell then told Long to get back into the truck, and after Long complied, Harrell broke another window, shattering the glass on Long. Long then drove to the home of his girlfriend and was taken to the hospital later that evening. The hospital personnel called the police.

1. Harrell argues that the trial court’s denial of his motion for directed verdict as to the kidnapping with bodily injury and criminal damage to property charges was erroneous. The standard of review for the denial of a motion for directed verdict of acquittal or a motion for new trial is the same as that utilized under Jackson v. Virginia when the sufficiency of the evidence is challenged.

“A person commits the offense of kidnapping when he abducts or steals away any person without lawful authority or warrant and holds such person against his will.” Harrell contends that the state did not prove its case because there was no evidence of asportation. We disagree. “The asportation element [of kidnapping] may be satisfied by slight movement on the part of the victim.” Here, Long testified that Harrell told him to return to the house they had left. This testimony was sufficient to support a rational trier of fact’s finding that the state proved the asportation element of the offense.

“A person commits the offense of criminal damage to property in the second degree when he [intentionally damages any property of another person without his consent and the damage thereto exceeds $500.” Harrell argues that there was no testimony establishing that the value of the damage exceeded $500. Again, we disagree. The value of damage to the property of another may be established by a lay witness’s opinion as to the property’s value, provided the witness states the factual predicate upon which his opinion is based. The state questioned Long’s mother, Karen Cottner, about the damage to the truck. When asked about the cost to repair the windows, she replied: “the windows on the side were electric and I think everything had to be disassembled to put new windows back in it. Between the three windows, I would say that the damages exceeded $500.” Based on this testimony, any rational trier of fact could conclude that Harrell was guilty of criminal damage to property in the second degree.

2. Next, Harrell argues that the jury verdict was contrary to the weight of the evidence; thus, the trial court should have granted his motion for new trial. As we concluded in Division 1, the evidence was sufficient to support Harrell’s convictions for kidnapping with bodily injury and criminal damage to property. As to the charge of aggravated assault, we also find that the evidence was sufficient to support Harrell’s conviction.

A person commits the offense of aggravated assault when he assaults with a deadly weapon, which, when used offensively against a person, is likely to or actually does result in serious bodily injury. Long testified that Harrell assaulted him with a knife, cutting him on his arm and neck. State’s Exhibits 3 and 4 display the cuts on Long’s arm and neck. Though Harrell testified that he was defending himself when he swung at Long with his box cutter, this testimony does not render the evidence against Harrell insufficient. Conflicts in the testimony of the witnesses are a matter of credibility for the jury to resolve. Since the testimony of a single witness is generally sufficient to establish a fact, Long’s testimony alone authorized a rational trier of fact to find Harrell guilty beyond a reasonable doubt of aggravated assault.

3. In his third enumeration of error, Harrell challenges the jury verdict by arguing that he is entitled to a new trial because the jury deliberated while some of its members were not present. We disagree.

All 12 jurors testified at the hearing on Harrell’s motion for new trial. Harrell relies on the testimony of two jurors, Carole Elliott and Olivia McRae. Elliott testified that three jurors may have been out of the room on a smoking break when one of the jurors found an answer to a question that the jury planned to ask the judge in their notes. Elliott also testified, however, that the jury did not discuss the case when less than 12 people were present. When McRae was asked if the case was discussed when some of the jury members were not present, she replied, “In a way.” McRae was not asked to explain her answer. On cross-examination, however, McRae testified that all of the jurors were present when the jury reached its verdict.

Of the remaining ten jurors who testified at the hearing on this issue, eight, including the foreman, testified that the case was not discussed without the presence of all twelve jurors. The foreman specifically recalled that when he returned from a smoking break, the jury had not answered any questions in his absence. One juror did not recall the deliberation at all. The last juror was out of the room at the relevant time, but testified that he had no reason to believe that the case was discussed out of his presence.

“The general rule in this state is that jurors may not impeach their own verdict.” Exceptions to that rule are made when “extrajudicial and prejudicial information has been brought to the jury’s attention improperly, or where non-jurors have interfered with the jury’s deliberation.” This Court can also set aside a jury verdict on the grounds of irregular jury conduct if it concludes “that the conduct was so prejudicial that the verdict is inherently lacking in due process.” The circumstances in this case do not warrant a departure from the general rule. Further, based on the testimony of the jurors and each member’s concurrence in the verdict when polled, we cannot conclude that the conduct, if it occurred, was so prejudicial that it resulted in a verdict that lacked due process. Moreover, in the face of somewhat disputed evidence and the trial court’s role to determine the jurors’ credibility, we must rely on the trial court’s finding of fact that no misconduct occurred. Accordingly, we conclude that the trial court’s denial of Harrell’s motion for a new trial on this ground was correct.

4. Harrell next argues that the trial court erred in its charge to the jury in four respects: (1) it failed to charge on the lesser included offenses of kidnapping, false imprisonment, and criminal trespass; (2) its responses to two jury questions were erroneous; (3) the trial court’s “dynamite” charge was in error; and (4) the charge, as a whole, denied Harrell a fair trial.

(a) In this case, there is no dispute that Long’s bodily injury was caused by Harrell, who admitted that he swung at Long with a box cutter. Although “kidnapping is a lesser included offense of kidnapping with bodily injury, lacking only the element of bodily injury,” since the evidence established without dispute the commission of the greater offense, Harrell was not entitled to a charge on kidnapping.

The trial court did not err in refusing to give Harrell’s requested charge on false imprisonment as a lesser included offense of kidnapping with bodily injury. The charge was not warranted by the evidence since Long’s detention was accompanied by the element of asportation. The evidence does not show that Long was falsely imprisoned without being forced to drive where Harrell instructed him to go. Thus, there is no evidence that Harrell was guilty of false imprisonment.

“Criminal trespass is committed when one intentionally damages any property of another without his consent and the damage thereto is $500.00 or less or when he knowingly and maliciously interferes with the possession or use of the property of another person without his consent.” Harrell argues that there is little or no proper evidence of the damage to Long’s vehicle, and thus the jury could have inferred less than $500 in damage. We disagree.

Value of the property may be established by the owner’s testimony stating the cost of repair to the property combined with photos of the damaged item. As discussed in Division 1, Long’s mother testified that the cost to repair the windows exceeded $500 and there was no evidence offered to refute her testimony. Additionally, two photographs of the truck were admitted into evidence. These factors, in conjunction with Harrell’s testimony that “I hit the driver’s side window [with a bat], was pissed off and I started knocking out the other two windows,” was sufficient to support the jury’s finding that Harrell destroyed three windows and the cost to repair them exceeded $500., Thus, the evidence did not warrant a charge on misdemeanor criminal trespass.

(b) During its deliberation, the jury asked: “[M]ust written documentation of the costs of damage on the truck be a part of the deliberations?” The judge responded, “The answer to that is no.” Harrell argues that the trial court should have recharged the jury on criminal damage to property in response to its question. We disagree. “[W]here the jury requests further instructions upon a particular phase of the case, the court in its discretion may recharge them in full, or only upon the point or points requested.” The court properly charged the jury on criminal damage to property in its initial charge. Thus, the trial court did not abuse its discretion by not repeating the charge when it answered the jury’s question.

The jury also asked: “[I]n the first count of the indictment, does the victim have to fear for his safety and well-being in order to justify the change [sic]? Yes or No? Circle one.” The trial judge circled “no.” Defense counsel contends that the jury should not have been able to limit the court to a yes/no answer and that the trial court should have recharged the jury on kidnapping with bodily injury. We disagree.

The trial judge charged the jury on kidnapping with bodily injury in its original charge and again in response to the jury’s request to be recharged on kidnapping. We find that the response of the trial court to the jury’s question accurately reflected the law and was not misleading. “While the court has a duty to recharge any part of the charge at the request of the jury, the extent and character of any supplementary instructions are within the discretion of the court.” By only answering the jury’s specific question, we find that the trial court did not abuse its discretion.

(c) After the jury informed the court that it was split nine to three on Count 1, without revealing the direction of the split, the court charged:

Ladies and gentlemen, a jury in Henry County will have to reach a verdict on this decision and I don’t think that we could possibly impanel one that’s better-qualified than you are. You’re an excellent jury and I’m sure that if you work a little longer on this matter that you’ll be able to resolve it. I’m going to give you that opportunity to continue working on it and see if you can’t work your differences out.

Harrell argues that this charge forced some of the jurors to surrender their decisions to avoid a mistrial. We disagree.

“The issue in reviewing such [a] charge is whether the instruction is coercive so as to cause a juror to abandon an honest conviction for reasons other than those based upon the trial or the arguments of other jurors.” The language of the charge given was not coercive and did not force the jurors to abandon their convictions.

(d) Finally, Harrell argues that the charge as a whole was erroneous. Conversely, we conclude that “[w]hen considered as a whole, the charge of the court was full, complete and fair.”

5. In his final enumeration of error, Harrell contends that his trial counsel was ineffective because he failed to: (1) object to Cottner’s hearsay testimony; (2) tender certified copies of Long’s convictions; (3) adequately investigate Long’s medical condition; (4) adequately prepare so as to rebut effectively the state’s presentation of Long as a sympathetic victim; and (5) request a charge on the alleged victim’s duty to retreat. We disagree.

“[I]n order to prevail on a claim of ineffectiveness of trial counsel, a defendant must show that his attorney’s performance was deficient and that the deficiency prejudiced him such that a reasonable probability exists that, but for the attorney’s errors, there would have been a different outcome at trial.” Furthermore, “[a] court ... is not required to address the performance portion of the inquiry before the prejudice component or even to address both components if the defendant has made an insufficient showing on one [and its] finding of effectiveness must be upheld unless clearly erroneous.” We find that Harrell has not made either showing.

(a) Cottner testified that Long was mentally disabled because of head injuries he sustained in two accidents. When she explained Long’s injuries, Cottner repeated statements that his doctors had made to her during the course of Long’s treatment. Harrell argues that trial counsel should have objected to this testimony because it contained hearsay statements.

Trial counsel, Russell Pope, testified that he did not object for strategic reasons. Pope stated: “I wanted her to go ahead and explain to the jury how she perceived her son to be. . . . [A]nd that he was barely capable of functioning ... so that when they had the opportunity to view Mr. Long himself, they would see the disparity or the discrepancy between her description . . . and the actuality of Mr. Long.” Since “[decisions as to whether to interpose certain objections fall within the realm of trial tactics and strategy,” we find no error in the trial court’s conclusion that trial counsel was not ineffective for failing to object to Cottner’s testimony.

(b) Next Harrell contends that trial counsel was ineffective because he failed to tender certified copies of Long’s convictions into evidence. Long testified that he was on probation for shoplifting and DUI. Harrell argues that had trial counsel discussed these convictions in detail, he would have damaged Long’s credibility. While we agree that trial counsel could have further impeached Long with certified copies of these convictions, any such deficiency in counsel’s performance could not have prejudiced Harrell because the jury was made aware of the convictions by Long. Accordingly, no reasonable probability exists that, but for trial counsel’s failure to introduce the certified convictions, the result of the proceeding would have been any different.

(c) Harrell argues that his trial counsel failed to adequately investigate Long’s medical condition, which enabled the state to effectively garner sympathy for Long without resistance from the defense. Pope testified that he did not think it was necessary to subpoena Long’s medical records because they were not relevant. Further, he wanted the jury to see the disparity between how Long appeared and how he had been described. Again, there is no reasonable probability that had trial counsel requested Long’s medical records in the course of his preparation for trial, the outcome of the proceeding would have been any different.

(d) Next, Harrell contends that trial counsel should have better prepared the defendant to testify and that his failure to do so constituted ineffective assistance of counsel. Both lawyers who represented Harrell testified that initially, Harrell cancelled several of the meetings they scheduled to prepare him for trial, but they eventually met with him by telephone and in person several times. One of the lawyers testified that he drilled Harrell during the meeting to give him an idea of what to expect at trial. Harrell has not shown that trial counsel’s performance was deficient in this regard.

(e) Lastly, Harrell argues that trial counsel should have requested a charge on the alleged victim’s duty to retreat and the lesser included offense of false imprisonment. We held in Division 4 of this opinion that a charge on false imprisonment was not warranted. Regarding the duty to retreat, Harrell “does not provide this Court with any indication regarding what the jury should have been charged or [with] a showing that such a charge was warranted and that such a charge would have affected the outcome of the trial.” Accordingly, we reject Harrell’s claim of ineffective assistance of counsel.

Decided February 13, 2002

O’Brien & Koontz, Dennis C. O’Brien, David J. Koontz, for appellant.

Tommy K. Floyd, District Attorney, Blair D. Mahaffey, Assistant District Attorney, for appellee.

Judgment affirmed.

Blackburn, C. J., and Pope, P. J., concur.

       (Citations and punctuation omitted.) James v. State, 227 Ga. App. 907, 908 (1) (490 SE2d 556) (1997).

       443 U. S. 307 (99 SC 2781, 61 LE2d 560) (1979).

       OCGA § 16-5-40 (a).

       (Punctuation and footnote omitted.) Shue v. State, 251 Ga. App. 50, 51 (1) (553 SE2d 348) (2001).

       OCGA § 16-7-23 (a) (1).

        Spann v. State, 250 Ga. App. 354, 355 (551 SE2d 755) (2001).

       See OCGA § 16-5-21 (a) (2).

        McLeod v. State, 245 Ga. App. 668-669 (538 SE2d 759) (2000).

       OCGA § 24-4-8.

       (Footnote omitted.) Glover v. State, 274 Ga. 213, 215 (3) (552 SE2d 804) (2001).

       (Punctuation and footnote omitted.) Id.

       (Footnote omitted.) Butler v. State, 270 Ga. 441, 444 (2) (511 SE2d 180) (1999).

       See Lyons v. State, 244 Ga. App. 658, 661 (1) (535 SE2d 841) (2000).

        Hunter v. State, 228 Ga. App. 846 (493 SE2d 44) (1997).

        Gilliam v. State, 237 Ga. App. 476, 479 (2) (517 SE2d 348) (1999).

        Brown v. State, 232 Ga. App. 787, 791 (2) (504 SE2d 452) (1998).

       (Citation, punctuation and emphasis omitted.) Robinson v. State, 217 Ga. App. 832, 833 (1) (459 SE2d 588) (1995).

       See Holbrook v. State, 168 Ga. App. 380 (1) (308 SE2d 869) (1983).

       (Punctuation, footnote and emphasis omitted.) Duffle v. State, 273 Ga. 314, 316 (2) (540 SE2d 194) (2001).

       (Citations omitted.) Welch v. State, 257 Ga. 197, 198 (1) (357 SE2d 70) (1987).

       (Citation and punctuation omitted.) Black v. State, 255 Ga. 668, 671 (2) (341 SE2d 436) (1986).

       Id.

        Walls v. State, 148 Ga. App. 112, 113 (3) (251 SE2d 103) (1978).

       (Citations omitted.) Butler v. State, 273 Ga. 380, 384 (10) (541 SE2d 653) (2001).

       (Citation and punctuation omitted.) Green v. State, 240 Ga. App. 650, 652-653 (3) (523 SE2d 632) (1999).

       (Footnote omitted.) Shelnutt v. State, 242 Ga. App. 723, 726 (4) (531 SE2d 122) (2000).

        Ross v. State, 231 Ga. App. 793, 798 (6) (499 SE2d 642) (1998).

       Id.

        Holloway v. State, 245 Ga. App. 510, 513 (2) (b) (537 SE2d 708) (2000).


text:
    A01A2156.
    CORTEZ v. THE STATE.
    (561 SE2d 142)
   Mikell, Judge.

Indicted for malice murder and felony murder, Abel Hernandez Cortez was convicted of the lesser included offense of voluntary manslaughter. On appeal from the denial of his motion for new trial, Cortez argues that the trial court erred in (1) admitting his custodial statement, (2) allowing his statement to be reread to the jury during its deliberations, (3) charging the jury that intent to kill may be inferred from the use of a deadly weapon, (4) pressuring the jury into reaching a unanimous verdict, (5) admitting certain photographs into evidence, and (6) denying his ineffective assistance of counsel claim. Finding no error requiring reversal, we affirm.

Construed most favorably to upholding the verdict, the evidence shows that on August 30, 1999, around 10:30 p.m., Cortez went to an apartment in Stone Mountain looking for a co-worker named Jose Luis Aguilar. Aguilar resided at the apartment with several relatives, including his sister, Graciela Aguilar Hernandez (“Graciela”); her husband, Aquiles Rubio Garcia (“Aquiles”); their three small children; Aquiles’s nephew, Joel Rubio; Graciela’s father, Luis Aguilar Comacho; and the victim, Hermenegildo Soto.

Aquiles testified that he answered the door and told Cortez that Aguilar was not home. Cortez was not convinced, and he became upset. According to Aquiles, Soto, who had been drinking beer with the men on the patio, urged Cortez to leave, but Cortez started shooting. The first shot struck the door. Soto advanced toward Cortez, who took a few steps backward and fired three more shots. Soto was struck once in the chest; he was able to walk to the backyard, where he collapsed against a tree and died. Aquiles and Rubio attacked Cortez, managed to wrestle the gun from him, and battered him. Cortez was hospitalized for three days due to the injuries he sustained in the beating.

Aquiles testified that he discovered later that Aguilar had been at home asleep in a bedroom when Cortez arrived. Aguilar testified that he came home that evening around 10:00 p.m., went straight to bed without speaking to anyone, and emerged only when he heard shots fired. Aguilar also testified that he did not see Cortez on the day of the shooting and did not know why Cortez was looking for him.

Graciela testified that she and the children were in a bedroom when the first shot was fired. She locked the children in the bedroom, ran out the back door of the apartment, and saw Aquiles. Cortez, who was running away from the apartment, began shooting in her direction. Graciela testified that she saw Comacho and Soto pursue Cortez and that Cortez shot at Comacho, hitting the ground near his feet.

Aquiles asked Graciela to call the police. Rubio handed her a telephone and then went after Cortez as well. Graciela called 911. While she was waiting for the operator to find a Spanish-speaking interpreter, she noticed Soto bleeding profusely. Graciela tried to help him inside, but he fell. By that time, Aquiles and Rubio were holding Cortez. Graciela testified that she did not notice Aguilar until the police arrived.

. Rubio testified that he was on the patio when Cortez arrived. Rubio overheard Aquiles tell Cortez not to get upset and to leave a message for Aguilar. Then Rubio heard shots fired, he testified. Rubio called the police. He heard more shots fired while he was on the phone but could not see what transpired. Two gunshots can be heard on the recording of Rubio’s telephone call to 911, which was introduced into evidence. After making the call, Rubio testified, he went into the yard and saw Aquiles beating Cortez. Rubio helped Aquiles subdue Cortez and take his gun. The police arrived shortly thereafter.

DeKalb County Police Officer Stan Hall was the first to arrive on the scene. He observed Soto lying under a tree and Cortez lying on the sidewalk 20 yards away. Hall also saw two Hispanic males holding Cortez down. Rubio, who had wrapped the gun in his t-shirt, gave it to the officer. Detective D. M. Bradbury testified that he appeared briefly at the scene but was soon dispatched to Grady Hospital to check on Cortez. There, nurses found six rounds of live ammunition in Cortez’s clothing, which they gave to Bradbury.

Veronica Nelson, who lived in the apartment above Aquiles’s, testified that she heard a gunshot coming from the downstairs patio, which was directly below her bedroom window. She ignored the first shot, but called 911 after hearing three more shots fired. Nelson testified that after the shooting was over, she heard a “commotion . . . as though they were having a tussle or something because there was knocking against the wall.” Nelson heard no arguing or fighting before the shots were fired. Cortez did not testify at trial.

1. In his first three enumerations of error, Cortez challenges the admission of his custodial statement into evidence. In the statement, Cortez admitted firing four shots into the group of men, but claimed he did so only after being punched in the back of the head. He also claimed that he fired the shots in rapid succession as he was running away.

(a) Cortez contends that his custodial statement should have been suppressed because he did not knowingly, intelligently, and voluntarily waive his Miranda rights. We disagree.

The standard for determining the admissibility of confessions is the preponderance of evidence. To determine whether the state has proven that a confession was made voluntarily, the trial court must consider the totality of the circumstances. Unless clearly erroneous, a trial court’s findings as to factual determinations and credibility relating to the admissibility of a confession will be upheld on appeal.

(Citations and punctuation omitted.) Lee v. State, 270 Ga. 798, 800 (2) (514 SE2d 1) (1999).

The trial court did not err in concluding by a preponderance of the evidence that Cortez’s custodial statement was knowingly and voluntarily given. See Moreno v. State, 251 Ga. App. 352 (553 SE2d 387) (2001). The uncontroverted evidence introduced during a Jackson-Denno hearing showed that before making his statement, Cortez, who speaks only Spanish, was informed of his Miranda rights in Spanish by an officer who is fluent in that language. Cortez stated that he understood those rights and voluntarily signed the Spanish Miranda form. There is no evidence that Cortez was threatened or coerced into making a statement. Indeed, the Spanish-speaking officer testified that Cortez was “extremely cooperative.”

Cortez claims that his statement was involuntary because he made it immediately upon his release from the hospital, while he was recovering from injuries sustained during the melee after the shooting. However, the arresting officer testified at the Jackson-Denno hearing that before making his statement, Cortez was asked whether he was under the influence of pain medication, and Cortez indicated that he was not. The Spanish-speaking officer testified that although Cortez had cuts and bruises, he was coherent and relaxed, and he appeared to understand all the officer said to him. As Cortez did not testify, the officer’s testimony was uncontroverted. It follows that the trial court did not err in refiising to suppress his statement on this ground.

(b) Cortez next asserts that his statement was inadmissible because the arresting officer failed to advise him of his right to contact the Mexican consulate, a violation of the Vienna Convention and the 1943 Treaty with Mexico. However, Cortez failed to raise this issue during the Jackson-Denno hearing or at any other time during trial. Therefore, the claim has not been preserved for appellate review. Sims v. State, 242 Ga. App. 460, 462 (2) (530 SE2d 212) (2000); Backey v. State, 234 Ga. App. 265, 266 (2) (506 SE2d 435) (1998). Moreover, even if Cortez had not waived this issue, it is meritless. In Villegas v. State, 273 Ga. 824, 826 (6) (546 SE2d 504) (2001), the Supreme Court noted that in general, “international treaties do not create individual rights which are privately enforceable in court proceedings.” The Court went on to hold that even assuming that a failure to inform a foreign suspect of his right to call the consulate violates the Vienna Convention, such a violation does not require the suppression of his statement. Id.

(c) Cortez testified at the hearing on the motion for new trial that he was tricked into signing the statement and that it contained information that was added after he signed it. He argued for the first time that because the statement was written for him in English and not Spanish, its admission rendered his trial fundamentally unfair. However, no evidence admitted at trial supports Cortez’s allegations. Thus, the trial courtdid not err in refusing to suppress his statement on the ground that it was not written in Spanish.

2. Cortez’s fourth enumeration of error challenges the admission into evidence of three photographs of the victim’s bloody shirt. Counsel objected at trial that the photographs were unnecessarily duplicative. As the photographs depicted different views of the shirt, the trial court did not abuse its discretion by admitting them. See Jackson v. State, 270 Ga. 494, 498 (8) (512 SE2d 241) (1999); Crozier v. State, 263 Ga. 866, 867 (2) (440 SE2d 635) (1994).

3. In his fifth enumeration of error, Cortez argues that the trial court erred in charging the jury as follows:

You may infer that a person of sound mind and discretion intends to accomplish the natural and probable consequences of that person’s intentional act. And if a person of sound mind and discretion intentionally and without justification uses a deadly weapon or instrumentality in the manner in which the weapon or instrumentality is ordinarily used and thereby causes the death of a human being, you may infer the intent to kill. Whether or not you make any such inference is a matter solely within the discretion of the jury-

The state argues that Cortez has waived any error by failing to object to the charge when it was given. We disagree. “Contrary to the State’s assertion, the appellant was not required to object to the charge in order to preserve the issue for appeal. In a criminal case, defense counsel is not required to object„ immediately to the charge but may reserve the right to object on appeal.” Sweat v. State, 173 Ga. App. 441, 442 (326 SE2d 809) (1985). In this case, defense counsel reserved her right to raise other objections to the charge and raised this specific objection during the hearing on the motion for new trial. Accordingly, the issue has been preserved for appeal.

The Supreme Court declared the giving of the charge at issue error in Harris v. State, 273 Ga. 608, 609 (2) (543 SE2d 716) (2001). The state argues that Harris is distinguishable because the defendant in that case was convicted of malice murder, whereas Cortez was convicted of the lesser included offense of voluntary manslaughter. However, “[i]ntent to kill is an essential element of both murder and voluntary manslaughter.” (Punctuation omitted.) Nance v. State, 272 Ga. 217, 221 (3) (526 SE2d 560) (2000). It follows that the trial court erred in giving the charge.

However, the error does not require reversal because the state presented overwhelming evidence of Cortez’s intent to kill. The uncontroverted evidence shows that Cortez arrived at the victim’s apartment with a loaded, newly purchased weapon. The medical examiner testified that the victim was shot from a distance of at least two feet. This testimony supports the jury’s rejection of Cortez’s claim that he shot in self-defense. Moreover, Cortez paused after he fired the first or second shot, as can be heard in the background on the tape of Rubio’s call to 911. This fact is further corroborated by Nelson’s testimony. In summary, all of the evidence contradicts Cortez’s statement that he “wasn’t shooting at anybody.” Accordingly, the erroneous jury charge was harmless.

4. In his sixth enumeration of error, Cortez argues that the trial court erred in permitting Cortez’s statement to be reread to the jury during its deliberations. There was no error. “It has been recognized for more than 100 years that it is permissible for the trial judge, in his discretion, to permit the jury at their instigation to rehear requested parts of the evidence after they have retired and begun deliberations.” (Punctuation omitted.) Parker v. State, 248 Ga. App. 748, 752 (5) (548 SE2d 634) (2001). Moreover, after reading Cortez’s statement, the trial court in this case cautioned the jury to consider it together with all the other evidence in the case. Therefore, the evidence was not unduly emphasized, as Cortez claims. Finally, Cortez has shown no “special circumstances” that would make it unjust to allow the jury to revisit the evidence. Watkins v. State, 273 Ga. 307, 310 (3) (540 SE2d 199) (2001).

5. In his seventh enumeration of error, Cortez contends that the trial court pressured the jury into reaching a verdict. We disagree. The record shows that the jury deliberated for approximately one hour on Wednesday, July 26, 2000. Deliberations resumed the following morning. At noon, the jury indicated it had reached an impasse. A lunch break was taken. Shortly after the jurors returned, they again announced a deadlock. The court stated that the jury would not be kept indefinitely but would need to deliberate further. The court then gave a modified Allen charge. Counsel did not object to the charge or move for a mistrial. About an hour later, the jury sent the court another note stating it was deadlocked. The court instructed the jury that the court was not prepared to accept that the jury was hopelessly deadlocked until it had a chance to consider the case overnight. The jury returned its verdict the following morning. Where, as here, there was no motion for mistrial, no objection to the court’s Allen charge, and the length of deliberations was not excessive, there was no abuse of the trial court’s discretion in allowing the jury to continue to consider the case. Clifford v. State, 266 Ga. 620, 622 (4) (469 SE2d 155) (1996).

6. Cortez lastly assigns error to the trial court’s denial of his motion for new trial on the grounds of ineffective assistance of counsel. Cortez asserts trial counsel was ineffective by failing to (a) move to suppress his statement on the ground that it was obtained in violation of the Vienna Convention and 1943 Treaty with Mexico, (b) advise Cortez to testify at the Jackson-Denno hearing, and (c) object to the admission into evidence of the six bullets found in Cortez’s possession.

To establish ineffectiveness, an appellant must show not only that his counsel’s performance was deficient, but also that the deficiency prejudiced him. Strickland v. Washington, 466 U. S. 668 (104 SC 2052, 80 LE2d 674) (1984); Rucker v. State, 268 Ga. 406, 407 (2) (489 SE2d 844) (1997). “Failure to satisfy either prong of the Strickland standard is fatal to an ineffective assistance claim.” Lawrence v. State, 238 Ga. App. 102, 104 (3) (517 SE2d 822) (1999). “Moreover, a defendant must overcome the strong presumption that trial counsel’s conduct fell within the wide range of reasonable professional conduct.” Id. Unless it was clearly erroneous, the trial court’s determination that a defendant was afforded effective assistance of counsel will not be reversed on appeal. Hall v. State, 243 Ga. App. 804, 805 (534 SE2d 196) (2000).

(a) The Vienna Convention and the 1943 Treaty with Mexico. Given the holding in Villegas, supra, that international treaties do not create privately enforceable individual rights, and the fact that no Georgia precedent authorizes the exclusion of a defendant’s statement for a violation of this treaty, counsel’s performance cannot be deemed deficient for failure to argue the issue in the trial court.

(b) At the hearing on the motion for new trial, trial counsel testified that she did not advise Cortez to testify at the Jackson-Denno hearing because he had told her conflicting stories concerning his custodial statement. During her first interview with Cortez, he admitted that his custodial statement was accurate. Later, Cortez claimed that “he had not brought the gun and he couldn’t imagine where the bullets came from that were found in his pocket at the hospital.” As trial counsel could not ascertain which version Cortez would give at the Jackson-Denno hearing, she feared that his testimony might damage his case, counsel testified. The trial court correctly concluded that counsel’s decision in this regard was a matter of sound trial strategy.

(c) Counsel’s failure to object to the state’s failure to prove the chain of custody of the six bullets found in Cortez’s possession poses a closer question. Trial counsel testified that she investigated the chain of custody of the bullets, determined that the state would be able to prove it at trial, and decided not to object as a matter of trial strategy. Trial counsel testified that she reviewed the medical records, which reflected that a hospital staff member found the bullets and turned them over to the police. She could not recall whether she stipulated to the admission of the bullets, but noted that it would have been a simple matter for the state to produce the witnesses.

The standard regarding ineffective assistance of counsel is not errorless counsel and not counsel judged ineffective by hindsight, but counsel rendering reasonably effective assistance. In determining what constitutes ineffective assistance, a critical distinction is made between inadequate preparation and unwise choices of trial tactics and strategy. Particularly in regard to matters of trial strategy and tactic, effectiveness is not judged by hindsight or result.

(Citations and punctuation omitted.) Slade v. State, 270 Ga. 305, 307 (2) (509 SE2d 618) (1998). “[Strategic choices made after thorough investigation are virtually unchallengeable.” (Punctuation omitted.) Stephens v. State, 265 Ga. 120, 121-122 (2) (453 SE2d 443) (1995). Giving counsel the full benefit of presumptively reasonable performance, we conclude that her failure to raise a chain of custody objection to the admission of the bullets did not fall below an objective standard of reasonableness. Moreover, Cortez has failed to show that the outcome of the trial would have been different but for trial counsel’s alleged deficiency. Accordingly, the trial court did not err in refusing to grant Cortez a new trial based on his claim of ineffective assistance of counsel. Rogers v. State, 210 Ga. App. 164 (435 SE2d 457) (1993).

Decided February 13, 2002.

Charles H. Frier, for appellant.

J Tom Morgan, District Attorney, Jeanne M. Canavan, Priscilla E. Carroll, Assistant District Attorneys, for appellee.

Judgment affirmed.

Blackburn, C. J, and Pope, P. J., concur.

        Allen v. United States, 164 U. S. 492 (17 SC 154, 41 LE 528) (1896).


author: MlKELL, Judge.

text:
    A01A2251.
    MARZULLO v. JIM ELLIS MOTORS, INC.
    (560 SE2d 309)
   MlKELL, Judge.

In connection with his purchase of a 1999 Volkswagen Jetta automobile, Anthony J. Marzullo “traded in” a 1992 Ford Mustang. The dealer, Jim Ellis Motors, Inc. d/b/a Jim Ellis Volkswagen/Audi, gave Marzullo a “trade in” allowance of $3,800 for the Mustang. Marzullo signed documents indicating the mileage on the 1992 Mustang was approximately 32,000 miles, although the actual mileage exceeded 132,000 miles. Jim Ellis sold the Mustang to a third party for $5,305.49. Jim Ellis was forced to renegotiate the price on the Mustang when it learned the true mileage on the car and as a result reimbursed the third party $3,210.

Jim Ellis sued Marzullo for negligence, misrepresentation, breach of contract, and violation of OCGA § 40-8-5, which imposes a penalty of three times actual damages for the alteration of an odometer. The jury returned a verdict in favor of Jim Ellis and awarded $12,710 in actual damages, no damages for violation of OCGA § 40-8-5, and found that Jim Ellis was entitled to punitive damages. The trial court entered a judgment against Marzullo for $12,710, plus $3,210 in punitive damages, which was stipulated as to amount only by the parties.

Marzullo appeals the trial court’s order denying his motion for a judgment notwithstanding the verdict, or in the alternative for a new trial. We find that the trial court erred in denying Marzullo’s motion for a new trial on the issue of damages, and we reverse, because the jury’s verdict is not authorized by the evidence.

1. The trial court did not err in denying Marzullo’s motion for j.n.o.v. A directed verdict is appropriate when there is no conflict in the evidence on any material issue and the evidence introduced, with all reasonable deductions therefrom, demands a particular verdict. Jim Ellis introduced evidence which supported each cause of action in its complaint. A directed verdict in favor of Marzullo would have been improper.

2. Marzullo argues that the damages are not authorized by the evidence, and that a new trial is demanded on the issue of damages. As indicated above, we agree.

OCGA § 51-12-12 (b) provides:

If the jury’s award of damages is clearly so inadequate or so excessive as to any party as to be inconsistent with the preponderance of the evidence, the trial court may order a new trial as to damages only, as to any or all parties, or may condition the grant of such a new trial upon any party’s refusal to accept an amount determined by the trial court.

We recognize that as an appellate court “[o]ur role is not to enter the jury box.” Absent compelling evidence, we will defer to the ruling of the trial court on a motion for new trial based on inadequate or excessive damages. “The trial court’s decision on a motion for a new trial will be upheld on appeal unless it was an abuse of discretion.” Nevertheless, a verdict strongly against the weight of the evidence may require that we reverse the trial court’s ruling on a motion for new trial. Our reluctance to interfere is jnost pronounced if assigning damages to an injury requires discretion. For example, “appellate courts should be hesitant to second-guess verdicts where the damage award is based in any significant part on pain and suffering.” However, in the case sub judice, the injury alleged does not include pain and suffering, “discomfort, loss of peace of mind, unhappiness and annoyance,” or any other type of injury which is not easily subject to calculation. Therefore, because the alleged damages do not include pain and suffering and because the record in this case is quite transparent as to what occurred, we will address the motion for new trial regarding damages in this limited context.

The parties agree that, if the case was based only on a breach of contract, the verdict could not stand. “The measure of damages in the case of a breach of contract is the amount which will compensate the injured person for the loss which a fulfillment of the contract would have prevented or the breach of it entailed.” The jury was, however, given the case on theories of breach of contract, negligence, and misrepresentation. In its order denying Marzullo’s motion for a new trial, the trial court stated as a reason for denying the motion that “the plaintiffs case went to the jury on several different legal theories, and . . . it is unclear upon which theories the jury found for the plaintiff.”

Nevertheless, this verdict is no more sustainable under a claim for negligence or misrepresentation than it is under a claim for breach of contract. In tort, the rule remains that damages are compensatory in nature.

If special damages resulted from the tortious act, the plaintiff would be entitled to recover this class of damages, if [it] alleged and proved this. General damages may be recovered without proof of any amount. This does not mean that the jury, in giving general damages for a tortious act, shall be permitted to act arbitrarily in the matter and find any amount, but they must observe the cardinal rule of law, which is that damages are given only as compensation for the injury done.

Similarly, in an action for deceit, the measure of damages is compensatory: “If the aggrieved party sues in tort, the measure of damages remains the difference between what the property is actually worth and what it would have been worth if the property had been as represented.” While additional damages might be available for an intentional misrepresentation, these damages would be punitive in nature, and the jury was restricted by the trial court and the special verdict form from including punitive damages in its award for actual damages.

The jury verdict under consideration is one for “actual damages,” not for punitive damages or for treble damages under OCGA § 40-8-5. The only actual damages shown are monetary damages. Jim Ellis sold the 1992 Mustang for $5,305.49 based on it having 32,000 miles on the odometer, but was forced to return $3,210 to the third-party purchaser to reflect the true mileage on the car. Under the jury’s verdict, Jim Ellis retains the $2,095.49 it ultimately gained from the sale of the car, plus $12,710 in actual damages.

Decided February 13, 2002.

Dupree, Johnson, Poole & King, Michael S. Kimbrough, Downey & Cleveland, Joseph C. Parker, Robert C. Harrison, for appellant.

McCurdy & Stone, Douglas J. Hassinger, for appellee.

No matter how these figures are viewed, the verdict, which is intended to be compensatory in nature, leaves Jim Ellis in a better position, and by a factor of three or four times, than if the 1992 Mustang was what Marzullo represented it to be and no tort or breach of contract had occurred. Even assuming the damages are general in nature, and therefore not subject to exact calculation and traditionally within the enlightened conscience of the jury, the amount of the award cannot be considered compensatory in nature. If the damages are considered special damages, then the damages were not proven in the amount awarded.

Jim Ellis points to the testimony of general manager William Farmer to show that it incurred additional special damages. Jim Ellis refers us to Farmer’s testimony that he conducted business with an interest in maintaining the “dignity” of the dealership, and that he was embarrassed that the dealership mistakenly sold the Mustang as a lower mileage vehicle. We fail to see that this testimony, without more, can be an appropriate basis for awarding damages.

We can only conclude that the jury’s verdict was in gross excess of the damages authorized by the preponderance of the evidence. The trial court’s order denying Marzullo’s motion for a new trial on the issue of damages must be reversed.

As a new trial must be held on the issue of damages, the jury will need to revisit the issue of punitive damages, and Marzullo’s claim regarding the appropriateness of punitive damages is moot.

Judgment reversed.

Blackburn, C. J., and Pope, P. J., concur.

        Joiner v. Lane, 235 Ga. App. 121, 122 (1) (508 SE2d 203) (1998).

       (Punctuation omitted.) Moody v. Dykes, 269 Ga. 217, 222 (6) (496 SE2d 907) (1998).

       Id.

        Lisle v. Willis, 265 Ga. 861, 864 (3) (463 SE2d 108) (1995).

        Moore v. TCI Cablevision &c., 235 Ga. App. 796, 798-799 (2) (510 SE2d 96) (1998).

        Joiner v. Lane, 235 Ga. App. at 127 (5).

       (Punctuation omitted.) Roddenbery Farms v. Leverich, 192 Ga. App. 153 (384 SE2d 243) (1989).

       (Punctuation omitted.) Crawford & Assoc. v. Groves-Keen, Inc., 127 Ga. App. 646, 650 (194 SE2d 499) (1972).

       (Citation omitted.) Batson v. Higginbothem, 7 Ga. App. 835, 837-838 (68 SE 455) (1910).

       Hertz and Bergethon, Ga. Law of Damages (2000 ed.), § 30-10, p. 536.

       See OCGA § 51-12-5.1 (b).

       OCGA § 51-12-2 (a). See Myrick v. Stephanos, 220 Ga. App. 520, 521 (2) (472 SE2d 431) (1996).

       OCGA § 51-12-2 (b). See Hughes v. Rhodes, 111 Ga. App. 389, 393 (1) (141 SE2d 841) (1965) (special damages must be alleged and proven).


text:
    A01A2478.
    MOSLEY v. THE STATE.
    (560 SE2d 305)
   Mikell, Judge.

A jury convicted Phillip L. Mosley of violating the Georgia Racketeer Influenced & Corrupt Organizations (RICO) law by committing 22 predicate acts of theft by taking and of violating the Georgia Securities Act of 1973. On appeal, Mosley asserts that the evidence was insufficient to support his convictions and that the admission of certain expert testimony rendered the trial fundamentally unfair. We disagree and affirm.

Viewed in the light most favorable to the verdict, the evidence adduced at trial shows that Mosley was registered in Georgia as a securities salesperson from February 21, 1985, until July 14, 1995. Shortly before his registration lapsed, Mosley approached his longtime clients for money. One such client, Christine Roberts, testified that Mosley prepared an account review for her on May 24, 1995, showing her total portfolio value to be $41,747.25. Mosley advised Roberts to liquidate one of the accounts and invest the funds in an offshore trust fund called Greystone Securities. Mosley told her the investment would prove extremely lucrative within six months, so she agreed to his recommendation. Mosley prepared a liquidation letter for Roberts to sign and instructed her to wire the funds she obtained to a bank in Jamaica. Roberts signed all the documents, obtained the funds, and took the money to her bank. A bank officer filled out the form authorizing the wire transfer of $16,570.02 to a bank in Jamaica. Roberts testified that when she asked Mosley about getting her money back, he told her the fund was having problems but assured her he was working on it. Roberts never got her money back.

The next year, in May 1996, Mosley asked Roberts for a loan. Roberts balked initially, explaining that she was preparing to retire. But Mosley said he had an investment coming through and would return the money to her fivefold within six months. Roberts agreed to give Mosley $21,000, and he promised to repay her $105,000. The transaction was memorialized in a promissory note stating that “in the event that the business transaction that this loan is securing does not materialize,” Roberts would be repaid $21,000 plus ten percent interest. Roberts testified that the deal was “not exactly a personal loan,” but rather she expected to be repaid based on the money Mosley was expecting. At Mosley’s urging, Roberts liquidated another account in order to secure the funds, which she gave him on May 24, 1996. Mosley never repaid Roberts, and he ultimately disappeared.

Another of Mosley’s former clients, Edna Louise Coffee, testified that Mosley began asking her and her late husband, Dan, for money in late 1995. Mosley indicated that he needed money to pay his employees, his rent, and his telephone bill. As evidenced by promissory notes and cancelled checks, they made him four loans totaling $63,000. The notes permitted 90-day extensions, and each loan was extended for that period; however, no payment was ever made. The Coffees were not able to locate Mosley, and he never returned their telephone calls.

Mosley’s next victim, Timothy Campbell, owned a shoeshine business. Campbell testified that he first began shining Mosley’s shoes in 1982. Mosley bragged that his investment business was doing so well that he planned to retire when he reached the age of 50. He urged Campbell to give him money to invest. Finally, in 1996, Campbell decided to invest $7,000 of his savings with Mosley. Campbell testified that Mosley explained that he had an overseas deal in the works, and he showed Campbell “a bunch of papers” regarding the investment. The men executed a promissory note on May 8, 1996, reflecting that Campbell would be repaid $35,000 on his $7,000 investment or, if the “business transaction that this loan is securing does not materialize,” $7,000 plus ten percent interest. The note permitted two 180-day extensions. After taking Campbell’s money, Mosley never reappeared at the shoeshine shop. Campbell called Mosley, but ultimately Mosley’s telephone was disconnected. Campbell hired a private investigator but was never able to find Mosley.

Two experts with the securities division of the secretary of state’s office, Duane Fry, the director of enforcement, and Greg Hubler, a senior investigator, testified at length concerning how the office processes complaints of securities violations. Each witness explained the meaning of a security. Hubler testified that the Campbell note could be construed as an investment contract, that the product in which Campbell invested was a security, and that it should have been registered with the secretary of state’s office. Fry, in turn, explained why the Roberts note met the definition of a security. Fry testified that Greystone Securities was not a registered dealer in Georgia. Finally, Fry testified that in his opinion, the promissory notes signed by the Coffees were securities as well.

1. To prove a RICO violation, the state must show that the defendant committed two or more predicate criminal acts of the type included in the RICO statute as part of an enterprise engaging in a pattern of racketeering activity. Mosley argues that the state failed to prove that he committed the requisite predicate criminal acts.

The indictment charged Mosley with committing twenty-two predicate acts: seven acts of theft by taking (nos. 4, 8, 12, 13, 17, 18, and 22), five violations of OCGA § 10-5-5 (a) (1) (nos. 1, 5, 9, 14, and 19), five violations of OCGA § 10-5-3 (nos. 2, 6, 10, 15, and 20), and five violations of OCGA § 10-5-12 (a) (2) (nos. 3, 7,11,16, and 21). We note that a RICO conviction requires proof that a defendant has committed two or more offenses of the kind included in the RICO statute; it does not require the state to prove all of the alleged predicate offenses. The evidence in this case supports the jury’s determination beyond a reasonable doubt that Mosley committed at least two predicate offenses as charged in the indictment.

OCGA § 10-5-5 (a) (1) prohibits the sale of unregistered securities. The evidence is clear that the product in which Roberts and Campbell invested was not registered. The evidence is equally clear that the promissory notes which reflect those transactions are securities. The Georgia Securities Act classifies “any note” as a “security.” However,

the label placed on the instrument by the parties or by the courts does not determine whether the instrument is a security. Instead, the characteristics of the instrument and the underlying economic reality are the significant factors for a court to consider in classifying an instrument as a security.

The test for determining if an instrument is a security is whether it shows “an investment in a common venture premised on a reasonable expectation of profits to be derived from the entrepreneurial or managerial efforts of others.” The evidence as to Roberts and Campbell fits this definition. Each made what was represented to them as “an investment by which [they] may reasonably have expected to profit,” based on Mosley’s repeated assurances. Finally, these victims were required to rely on the management of others to achieve the profit. Accordingly, as to these victims, the evidence was sufficient to establish securities transactions rather than loans. It follows that the state proved at least two predicate offenses in support of Mosley’s RICO conviction.

Decided February 13, 2002.

Phyllis V. Harris, for appellant.

Phillip L. Mosley, pro se.

James R. Osborne, District Attorney, Thomas J. Melanson, Assistant District Attorney, Thurbert E. Baker, Attorney General, for appellee.

2. In his second enumeration of error, Mosley argues that the state’s expert witnesses should not have been allowed to testify that the promissory notes at issue were securities, as that testimony constituted an opinion on the ultimate issue in the case. However, Mosley voiced no objection to this testimony at trial and may not do so for the first time on appeal. “All evidence is admitted as of course, unless a valid ground of objection is interposed, the burden being on the objecting party to state at the time some specific reason why it should not be admitted. A failure to make such objection will be treated as a waiver.”

Judgment affirmed.

Blackburn, C. J., and Pope, P. J., concur.

       The jury also convicted Mosley of three separate counts of violating the Georgia Securities Act of 1973, but the court merged those convictions with the RICO conviction for sentencing purposes.

       See OCGA § 10-5-3.

        Brannon v. State, 243 Ga. App. 28, 30 (1) (530 SE2d 761) (2000).

        Bethune v. State, 198 Ga. App. 490, 491 (1) (402 SE2d 276) (1991).

       OCGA§ 10-5-2(26).

        Dunwoody Country Club &c. v. Fortson, 243 Ga. 236, 238 (253 SE2d 700) (1979).

       (Punctuation omitted.) Tech Resources v. Estate of Hubbard, 246 Ga. 583, 584 (272 SE2d 314) (1980), citing United Housing Foundation v. Forman, 421 U. S. 837, 852 (95 SC 2051, 44 LE2d 621) (1975).

        Huggins v. Chapin, 227 Ga. App. 340, 342 (1) (489 SE2d 109) (1997).

       See Moss v. State, 209 Ga. App. 486, 487 (1) (433 SE2d 692) (1993).

       (Citations and punctuation omitted.) Hawkins v. State, 230 Ga. App. 627, 629 (2) (497 SE2d 386) (1998).