text:
    A11A2142.
    A11A2143.
    GILMORE v. THE STATE. YOUNG v. THE STATE.
    (726 SE2d 584)
   PHIPPS, Presiding Judge.

In connection with two home invasions in Louisville, Jefferson County, Kyle Gilmore and Christopher Young were tried, along with two other individuals, on multiple counts of an indictment. A fifth individual, B. M., sixteen years old at the time of the break-ins, was charged also in the indictment, but accepted a plea deal that allowed him to be treated as a juvenile. Thereupon testifying as a state’s witness at the joint trial of his co-indictees, B. M. confessed that he had participated in the criminal incidents and identified as participants the four co-defendants. The jury found each co-defendant guilty of numerous offenses. In Case Nos. A11A2142 andAllA2143, respectively, Gilmore and Young appeal their convictions. Because B. M.’s identification testimony of them, however, was not corroborated as required pursuant to OCGA § 24-4-8, the evidence was insufficient to support the verdicts. Gilmore’s and Young’s judgments of conviction are therefore reversed.

Testimony of the victims and police investigators showed the following. At about 3:00 a.m. on July 2, 2007, at least five male individuals — with their faces concealed — broke into a residence. The intruders encountered a woman in one bedroom, pointed guns at her, and demanded money. When she told them that she did not know where any money was, the intruders began searching the room. Several of them went to another bedroom, where they encountered a man and a woman. The intruders pointed guns at the couple and demanded money. One intruder used his gun to strike the man about his head, then other intruders dragged the man out of the bedroom and into another room. One of them continued to point a gun at the man’s head, as the intruders again demanded money. Because the man insisted that he did not know where any money was, an intruder used his gun to strike him again about the head, causing the man to fall. The intruders began fleeing the residence, and one of them fired a shot. The intruders took with them cash that belonged to the man and a cell phone that belonged to the second woman they encountered.

The mayhem had lasted about ten minutes, during which time, the male resident recognized B. M. when his facial covering slipped down. The male resident had recognized two others as his cousins (neither cousin was Gilmore or Young). The remaining intruders, however, the male resident had not recognized. The women at the residence had recognized none of the intruders. The guns used by the intruders were never recovered, and the state adduced no evidence regarding whether any property taken from the victims was ever recovered.

Within an hour of that home invasion, several individuals broke into a different residence. No one was home, so the intruders began to ransack the home. The resident and his friend arrived, however, while the intruders were still inside. When the resident walked through the back door, shots were fired, striking the resident in the leg. The intruders ran away. Neither the resident nor his friend was able to identify any of the perpetrators; and no gun used by any perpetrator was ever recovered.

At trial, B. M. testified that he had been one of five intruders at both home invasions, and he identified as his cohorts the four co-defendants: Gilmore, Young, and the two cousins of the male victim at the first residence. B. M. testified that they had gone to the first residence to commit robbery; they were looking specifically for drugs and money. He acknowledged at trial, also, that he previously had said that their purpose for going to that residence was to collect a debt, adding at trial that they had planned to do so by force. B. M. testified that they had gone to the second residence also looking for drugs and money.

None of the four co-defendants testified.

Case No. A11A2142

Regarding the crimes committed during the first home invasion, Gilmore was convicted of burglary; one count of attempted armed robbery, with respect to the first woman encountered after the intrusion; two counts of armed robbery, with respect to the couple; and three counts of aggravated assault, by pointing a gun at the three occupants. Regarding the crimes committed during the second home invasion, Gilmore was convicted of burglary.

1. Gilmore contends that the evidence was insufficient, pointing out that none of the victims was able to identify him as a perpetrator and further asserting that his felony convictions rested solely on the uncorroborated testimony of an accomplice, B. M., in violation of OCGA § 24-4-8.

“That Code section provides that the uncorroborated testimony of an accomplice is insufficient to support a felony conviction.” And as the Supreme Court of Georgia has further noted, “the corroboration rule of OCGA § 24-4-8 is made more stringent by the requirement, not contained in the statute, that the state must provide corroboration of an accomplice’s testimony regarding the identification and participation of the defendant.”

Under [OCGA § 24-4-8], testimony which concerns the identity of other participants must be corroborated by some means independent of the testimony of the accomplice. . . . Therefore, a distinction must be made between evidence which tends to prove the truth of the accomplice’s general testimony and that which tends to prove the identity and participation of the accused____[I]nsofar as the participation and identity of the accused is concerned, there must be independent corroborating evidence which tends to connect the accused with the crime. Simply because an accomplice’s testimony is corroborated in most details, it does not follow that his testimony alone as to the identity and participation of the accused is sufficient to justify conviction.

As set forth above, B. M. was the state’s sole witness who identified Gilmore (or Young) as a participant of the crimes committed at the residences. And although the state presented several witnesses who corroborated numerous particulars of B. M.’s account of the crimes committed there, the state failed to adduce evidence required to corroborate B. M.’s testimony identifying Gilmore (or Young) as a participant therein.

[S] light evidence of a defendant’s identity and participation from an extraneous source is all that is required to corroborate the accomplice’s testimony and thus support the verdict. Moreover, the corroborating evidence itself need not be sufficient to warrant conviction, but only tend to connect and identify defendant with the crime. The corroborating evidence may consist entirely of circumstantial evidence and may include defendant’s conduct before and after the crime was committed.

But in this case, the state presented no such corroborating facts or circumstances; nor did the state adduce any evidence of Gilmore’s (or Young’s) conduct, before or after the crimes were committed, that tended to connect and identify him with the crimes.

(a) On appeal, the state first asserts that testimony by the victims provided the requisite corroboration. But no victim could identify Gilmore as one of the perpetrators.

(b) Second, the state asserts that corroboration was supplied by Gilmore’s statement to police. The state elicited a police investigator’s recollection of a portion of Gilmore’s statement:

Q: Who did Kyle Gilmore say he was with during the early morning hours or the night of July 2d, 2007?
A: Kyle stated that he, along with [B. M.] and another, went to the park.

The investigator’s testimony — merely that, at some point on the night or early morning in question, for some unknown duration, at a park of unspecified location and with no reference to either residence burglarized, Gilmore was in the company of B. M. and another — did not tend to connect and identify Gilmore with any crime at issue. Nothing in the testimony either placed Gilmore at one of the crime scenes or otherwise connected him to any crime committed at those locations; the investigator’s testimony revealed nothing about Gilmore’s conduct at the time Gilmore and another were in B. M.’s company; and it showed nothing about Gilmore’s conduct either before or after either home invasion. “Testimony which shows nothing more than the defendant was ... in the company of the accomplice at [even] the approximate time of the offense charged is insufficient corroboration.”

(c) Third, the state cites evidence of a redacted confession of Gilmore’s co-defendant, Merkeith Lane. A second accomplice may corroborate testimony of another accomplice, but only where both accomplices testify and thus are available for cross-examination. Because Lane did not testify, the cited evidence was not admissible as against Gilmore (as the trial court instructed), and consequently contributed no corroboration for B. M.’s testimony.

(d) Finally, the state cites evidence that, one night about a week before the underlying criminal incidents, Gilmore had an encounter with Isaac Thompson, who lived at the first residence burglarized. (Thompson was not at home at the time of the burglary.) Thompson testified that Gilmore, whom he knew “by face,” and several other guys were shooting dice on the sidewalk in front of his (Thompson’s) grandmother’s house and making a lot of noise, so he told them to move. Thompson recalled that, when Gilmore “got a little smart out of the mouth[,] ... I just told him, this ain’t what you want.” Gilmore and the others left — although none appeared happy to do so, according to Thompson.

This episode, the state asserts in its brief, motivated Gilmore to commit the crimes the following week at Thompson’s residence. But even where — unlike in this case — “[t]here is considerable evidence in the record tending to show that the defendant... had ample motive to commit the crime with which he was charged,... mere motive is not sufficient corroboration.” Furthermore, no fact or circumstance of that episode tended to connect and identify Gilmore with the crimes committed about a week later, or lead to an inference that he was guilty thereof.

The rule is well established that, to sustain a conviction in a felony case upon the testimony of an accomplice, there must be corroborating facts or circumstances, which, in themselves and independently of the testimony of the accomplice, directly connect the defendant with the crime, or lead to the inference that he is guilty, and are more than sufficient to merely cast on the defendant a grave suspicion of guilt.

“[T]he sufficiency of the corroboration evidence is peculiarly a matter for the jury to determine. If the verdict is founded on slight evidence of corroboration connecting a defendant with the crime, the verdict is legally sufficient.” Here, evidence that Gilmore was with B. M. and another at some point during the night or early morning of July 2, together with evidence of Gilmore’s prior encounter with Thompson, did not tend to directly connect Gilmore with any crime at issue. And without going to that extent, such evidence could merely cast a grave suspicion upon Gilmore. Because the state did not introduce even slight evidence corroborating B. M.’s testimony identifying Gilmore as a participant in the crimes, the verdicts returned against him were not legally supported. Viewed in the light most favorable to the prosecution, the evidence was insufficient, and consequently, Gilmore’s convictions cannot stand.

2. Gilmore’s remaining claims of error — that the trial court erred under Bruton v. State and its progeny by allowing in evidence his co-defendant’s redacted confession; that the trial court erred by not instructing the jury on the law regarding corroboration of accomplice testimony in felony cases; and that his trial counsel was ineffective because, inter alia, the lawyer withdrew a request to instruct the jury on the law regarding corroboration of accomplice testimony in felony cases •— are moot. We therefore do not reach them.

Case No. A11A2143

Regarding the crimes committed during the first home invasion, Young was convicted of burglary; one count of attempted armed robbery, with respect to the first woman encountered after the intrusion; two counts of armed robbery, with respect to the couple; two counts of aggravated assault, by pointing a gun at the couple; and another count of aggravated assault, by using a gun to strike the male resident about the head. Regarding the crimes committed during the second home invasion, Young was convicted of burglary.

3. Young challenges the sufficiency of the evidence to support his convictions, arguing that they all rested solely on the uncorroborated testimony of an accomplice, B. M., in violation of OCGA § 24-4-8.

The state cites: (i) the victims’ testimony; (ii) the redacted confession of his co-defendant, Merkeith Lane; and (iii) evidence of Young’s police statement. Regarding the latter, the state elicited a police investigator’s recollection of a portion of Young’s statement:

Decided March 22, 2012

Jimmonique R. S. Rodgers, for appellant (case no. A11A2142). Harrison & Harrison, Samuel H. Harrison, for appellant (case no. A11A2143).

S. Hayward Altman, District Attorney, John A. Fitzner III, Kelly A. Jenkins, Assistant District Attorneys, for appellee.

Q: Did Christopher Young tell you who he was with during the morning of July 2nd, 2007?
A: Yes, ma’am, he did.
Q: Who did Christopher Young tell you that he was with?
A: He said that he, [B. M.], and others went to the park.

Under our analysis set forth in Division l, the evidence admissible against Young did not tend to directly connect him with any crime at issue here. Thus, the verdicts returned against him were not legally supported. Viewed in the light most favorable to the prosecution, the evidence was insufficient, and consequently, Young’s convictions cannot stand.

4. Young’s remaining claims of error — complaining of a ruling upon an objection during closing argument and complaining that certain counts were not merged with others for purposes of sentencing — are moot. We therefore do not reach them.

Judgments reversed.

Andrews and McFadden, JJ., concur.

        Parkerson v. State, 265 Ga. 438 (2) (457 SE2d 667) (1995) (footnote omitted).

       Id. at 439 (2) (footnote omitted). The Parkerson Court expressly declined to review the propriety of this additional, nonstatutory requirement for separate corroboration of the identification and participation. Id. at n. 4.

        Hill v. State, 236 Ga. 831, 833-834 (225 SE2d 281) (1976) (citations and punctuation omitted; emphasis supplied).

       But see Caldwell v. State, 227 Ga. 703, 706-707 (182 SE2d 789) (1971) (“Corroboration of the accomplice as to the time, place and circumstances of the transaction, if there be nothing to show any connection of the defendant therewith except the testimony of the accomplice, is not sufficient to support a conviction.”) (citations and punctuation omitted).

       See Hill, supra.

        King v. State, 268 Ga. App. 811, 813 (1) (603 SE2d 88) (2004) (citations and punctuation omitted).

       See Moore v. State, 245 Ga. App. 641, 643 (1) (537 SE2d 764) (2000) (the accused’s own statement can serve to corroborate his accomplice’s inculpatory testimony).

       Compare, e.g., Jones v. State, 271 Ga. 433-434 (520 SE2d 690) (1999) (corroboration supplied for accomplice’s testimony to sustain felony murder conviction, where state adduced defendant’s own post-arrest statement, in which he admitted being present when his accomplice^) committed the murder, and the defendant’s statement was replete with details that only a participant in the crime would know); Parkerson, supra at 439 (2) (corroboration for accomplice’s testimony to sustain murder conviction was supplied by defendant’s own testimony, placing himself at the scene and as a participant in disposing of some of the evidence, including the murder weapon); Solomon v. State, 161 Ga. App. 566 (288 SE2d 342) (1982) (corroboration supplied for accomplice’s testimony to sustain school burglary by appellant’s timely presence at the scene of the crime and the circumstances of finding him there — police officers discovered appellant crouched behind one of the school’s air conditioning units).

       Compare, e.g., Jupiter v. State, 308 Ga. App. 386, 391-392 (2) (707 SE2d 592) (2011) (corroboration supplied in prosecution for armed robbery and related crimes, where articles of clothing — that appeared recently worn and matched descriptions of those worn by suspect — were found discarded just inside the entrance of an exterior crawl space of appellant’s mother’s home, which was a quarter-mile from where police stopped getaway car and suspect fled on foot in the direction of appellant’s mother’s home); Cox v. State, 243 Ga. App. 790-792 (534 SE2d 464) (2000) (in prosecution for armed robbery at a store by two men, where one of the men had a towel wrapped around his face and removed $6,000-$7,000 from a safe, corroboration was supplied by evidence, inter alia, that within 45 minutes of the crime, appellant was seen running out of a dirt path that led from the store and carrying a gun which he tried to conceal in a towel; footprints on that path led directly to the vacant apartment where appellant’s mother had lived before she died three weeks before; and within two hours of robbery, appellant was seen with “folded up, knots of money”).

       Compare, e.g., Parkerson, supra; Bradford v. State, 262 Ga. 512-513 (421 SE2d 523) (1992) (corroboration supplied for accomplice’s testimony to sustain convictions for armed robbery and murder of a convenience store clerk, where appellant admitted in his statement to police that he was driving his brother’s white BMW the night the crimes were committed, that he was in need of money, and that he dropped off and later picked up his brother and a man who matched the description of the accomplice and who was wearing a holster clip; an eyewitness to the convenience store crimes saw appellant’s brother and the accomplice leave the convenience store and enter the passenger side of a white car; police found in the appellant’s bedroom .22 caliber bullets of the same brand used in the shooting); Sparks v. State, 234 Ga. App. 11, 12 (1) (505 SE2d 555) (1998) (sufficient corroboration for accomplice’s testimony in burglary prosecution and firearm possession, where several witnesses who were not accomplices testified that defendant and accomplice were in park smoking and drinking when they started talking about robbing someone; that defendant and accomplice started walking toward victim’s house; that after gunshot was heard, defendant and accomplice were seen running from scene; and that on night in question, defendant had asked another for a gun to use in a robbery).

       Compare, e.g., Drake v. State, 245 Ga. 798, 803 (4) (267 SE2d 237) (1980) (defendant’s attempts to conceal his own participation in an offense can corroborate his accomplice’s testimony regarding the defendant’s participation), overruled on other grounds, Harwell v. State, 270 Ga. 765, 770 (2) (512 SE2d 892) (1999); Johnson v. State, 275 Ga. App. 161,162 (620 SE2d 433) (2005) (defendant’s possession of boat, as well as his flight from the scene where boat had been taken, was sufficient to corroborate accomplice’s testimony regarding defendant’s participation in the theft of boat); Blair v. State, 246 Ga. App. 533-534 (541 SE2d 120) (2000) (accomplice’s testimony corroborated by defendant’s unexplained recent possession of stolen items); Cox, supra.

        Adams v. State, 140 Ga. App. 621 (231 SE2d 547) (1976) (citations omitted); see generally Wiggins v. State, 80 Ga. App. 258, 260-262 (3) (55 SE2d 842) (1949) (in prosecution for larceny of a car, where accomplice testified that he, the defendant, and two others conspired to steal the car, there was insufficient corroborative evidence where “the only other positive testimony is that of the witness who saw the defendant riding in the car with [the accomplice] and the others said by [the accomplice] to have participated in its theft”) (physical precedent only).

        See Gallimore v. State, 264 Ga. App. 629,630 (591 SE2d 485) (2003) (where an additional accomplice provides testimony to corroborate that of the first accomplice, evidence can suffice to sustain conviction); Reeves v. State, 244 Ga. App. 15, 18 (1) (c) (534 SE2d 179) (2000) (where two witnesses swear to the same facts, the circumstance that one is an accomplice does not render the evidence insufficient as uncorroborated under OCGA § 24-4-8).

         See Bridges v. State, 279 Ga. 351, 355 (4), n. 12 (613 SE2d 621) (2005) (hearsay has no probative value). See generally Bruton v. United States, 391 U. S. 123 (88 SC 1620, 20 LE2d 476) (1968) (admission of a powerfully incriminating extrajudicial statement of a nontestifying co-defendant can pose a substantial threat to a defendant’s rights under the Confrontation Clause that cannot be cured by a limiting instruction), and its progeny.

       See OCGA § 24-3-52 (“The confession of one joint offender or conspirator made after the enterprise is ended shall be admissible only against himself.”); Brooks v. State, 271 Ga. 698 (1) (523 SE2d 866) (1999).

        Nix v. State, 133 Ga. App. 417, 419 (211 SE2d 26) (1974), cited in Reaves v. State, 242 Ga. 542, 543 (1) (250 SE2d 376) (1978) (“Evidence of motive is not, in itself, sufficient corroboration of the testimony of an accomplice.”), overruled on other grounds, Felker v. State, 252 Ga. 351, 366 (2) (a) (314 SE2d 621) (1984).

       Compare, e.g., Edmond v. State, 267 Ga. 285, 287 (2) (476 SE2d 731) (1996) (accomplice’s testimony sufficiently corroborated on murder and burglary counts, where offenses were committed while murder victim’s son was asleep upstairs; son had previously broken into appellant’s home on several occasions and had stolen various items, including jewelry, guns, cash, and narcotics; appellant had warned son’s father that if the burglaries and thefts did not cease, appellant would retaliate against son; and after the murder, appellant was observed celebrating and offered to provide appellant’s accomplice with an alibi after accomplice was arrested).

        Bradford v. State, 261 Ga. 833, 834 (1) (412 SE2d 534) (1992); see Caldwell, supra at 706.

        Bradford, 261 Ga. at 834 (1) (citation and punctuation omitted); see Brookshire v. State, 230 Ga. App. 418, 419 (496 SE2d 757) (1998) (“The sufficiency of the corroborating testimony is a jury question, but whether the evidence actually amounts to corroboration of guilt is a question of law for the court.”) (emphasis in original) (physical precedent only).

       See Jackson v. Virginia, 443 U. S. 307, 319 (III) (B) (99 SC 2781, 61 LE2d 560) (1979); Hill, supra; Adams, supra; Nix, supra.

       Supra.

       See OCGA § 24-4-8; Council of Superior Court Judges of Georgia, Suggested Pattern Jury Instructions, Vol. II: Criminal Cases (4th ed.) § 1.31.90.

       Supra.

       See Jackson v. Virginia, supra; Hill, supra; Adams, supra; Nix, supra.


source: Caselaw Access Project

author: Dillard, Judge.

license: Public Domain

text:
    A11A2349.
    WOODS v. HALL et al.
    (726 SE2d 596)
   Dillard, Judge.

In this civil tort action, Mell Woods, acting pro se, sued Bruce Hall and several unknown defendants, alleging that Hall’s filing a simple battery charge against him constituted malicious prosecution. Following the trial court’s grant of summary judgment in Hall’s favor, Woods appeals, arguing that (1) genuine issues of material fact exist as to his malicious prosecution claim, and that the trial court erred in (2) excluding his affidavit from consideration because it was not timely filed, (3) awarding attorney fees to Hall’s counsel, and (4) exhibiting prejudice toward Woods. For the reasons set forth infra, we vacate the grant of summary judgment and the award of attorney fees to Hall’s counsel, and we remand the case to the trial court for further proceedings consistent with this opinion.

Viewed in the light most favorable to the nonmoving party, the record shows that Woods and Hall were neighbors, who, in late 2001 or early 2002, became involved in a heated dispute based on Hall’s alleged failure to control his large and less-than-friendly dog. This dispute ultimately culminated in Woods shooting and killing the dog. As a result, Hall swore out an arrest warrant for Woods in the Superior Court of Liberty County. Woods eventually pleaded guilty to a misdemeanor charge stemming from that incident and received a probated sentence.

On February 1, 2002, not long after the dog-shooting incident, Woods and Hall’s ongoing neighborhood dispute led to an altercation in which Woods allegedly hit Hall. Consequently, on April 8, 2002, Hall swore out another arrest warrant for Woods in the Magistrate Court of Liberty County, which charged Woods with simple battery. The warrant was signed that same day by a magistrate court judge. Woods was bonded out immediately on his own recognizance, and thereafter, he retained counsel, who filed various motions related to the case, including a demand for a jury trial.

The case then languished for several years. But on August 2, 2006, Woods’s defense counsel filed a motion to dismiss, which stated:

(1) Per the agreement, the State agreed that in the event that the Defendant completed his Superior Court probation without incident that the State Court charges would be dismissed. (2) The Defendant completed his Superior Court case probation without further incident. Wherefore, Defendant moves the Court to dismiss the charges.

The proposed order attached to that motion was not signed by the trial court. Nevertheless, on January 30,2007, the State moved for an entry of nolle prosequi on the charge, which the trial court accepted.

Two years later, Woods sued Hall and several “John Doe” defendants in the State Court of Glynn County, alleging that the warrant charging Woods with simple battery constituted malicious prosecution. Hall filed an answer, denying the allegations and asserting that the Superior Court of Liberty County was the proper venue for the matter. Additionally, Hall’s answer contained a counterclaim against Woods for abusive litigation. Subsequently, the case was transferred to the State Court of Liberty County.

Following discovery, Hall filed a motion for summary judgment, arguing that Woods failed to show that Hall was liable for malicious prosecution as a matter of law. And on December 27, 2010, the trial court held a status conference to schedule a hearing date for argument on Hall’s motion. During that conference, Hall’s counsel informed the trial court that Woods had, on that day, filed a motion to add counsel as a party defendant but had not sought the court’s permission to do so. Perplexed by Woods’s actions, the trial court informed him that if he failed to provide a legal basis for adding Hall’s counsel as a defendant by the time the hearing on Hall’s motion for summary judgment was held, Woods would be subject to sanctions.

On January 28, 2011, the trial court held a hearing on Hall’s counsel’s motion to dismiss himself as a defendant and Hall’s motion for summary judgment. After first hearing argument on the motion to dismiss, the trial court granted it and awarded $1,500 in attorney fees to Hall’s counsel. The court then heard argument on Hall’s motion for summary judgment, after which it granted Hall’s motion. Thereafter the trial court issued separate orders granting the motion by Hall’s counsel and assessing $1,500 in attorney fees against Woods and granting Hall’s motion for summary judgment. This appeal follows.

Before we address the merits of Woods’s claims of error, we note that contrary to Court of Appeals Rule 25 (c) (2), none of Woods’s enumerated errors is supported by citations to the record or argument, and only one is followed by a citation of authority. We recognize that Woods is acting pro se; nevertheless, “that status does not relieve [him] of the obligation to comply with the substantive and procedural requirements of the law, including the rules of this Court.” Specifically, Woods’s claims that the trial court erred in excluding from consideration Woods’s affidavit, awarding attorney fees to Hall’s counsel, and exhibiting prejudice toward Woods are not supported by either citation of authority or argument and therefore run afoul of Court of Appeal Rule 25 (c) (2). Furthermore, .Woods’s remaining claim that the trial court erred in granting summary judgment in Hall’s favor is merely an assertion of error followed by a single case citation. But “[a]n assertion of error followed by a case citation is not legal argument, which requires, at a minimum, a discussion of the appropriate law as applied to the relevant facts.” Given Woods’s nearly complete failure to comply with this Court’s rules, we are authorized to treat his claims as abandoned. Nevertheless, we exercise our discretion to review Woods’s enumerations of error on the merits.

1. We first address Woods’s contention that the trial court erred in refusing to consider Woods’s affidavit filed in opposition to Hall’s motion for summary judgment on the ground that the affidavit was not timely filed. Because we agree that the trial court erred in refusing to consider Woods’s affidavit, we vacate the grant of summary judgment and remand the case for further proceedings consistent with this opinion.

On January 25,2011, three days before the scheduled hearing on Hall’s motion for summary judgment, Woods filed an amended response to Hall’s summary judgment motion. Attached to the amended response was Woods’s own affidavit, in which he disputed Hall’s claims that the battery charge filed against him was supported by probable cause and the claim that the criminal case was not terminated in his favor. During the January 28, 2011 hearing on Hall’s motion for summary judgment, Hall argued that the trial court should not consider Woods’s affidavit because it was not timely filed pursuant to Uniform Superior Court Rule 6.2. The trial court agreed and refused to consider Woods’s affidavit.

However, in doing so, the trial court erred. OCGA § 9-11-56 (c) provides that a party adverse to a motion for summary judgment may serve an opposing affidavit “prior to the day of hearing.” Indeed, the statute “requires the trial court to consider opposing affidavits filed at anytime prior to the hearing.” And while Uniform Superior Court Rule 6.2 appears to contradict OCGA § 9-11-56 (c), “[t]he statute controls the rule, and the trial court should have considered [Woods’s] affidavit[ ].” Because the trial court failed to do so, we are constrained to vacate the grant of summary judgment and remand for the trial court to reconsider Hall’s motion for summary judgment after taking Woods’s affidavit into consideration.

2. Woods also contends that the trial court erred in awarding attorney fees to Hall’s counsel as a sanction for Woods’s abusive litigation. We agree.

As noted supra, during the hearing on Hall’s motion for summary judgment, the trial court first heard argument from Hall’s counsel that Woods had improperly added him as a party defendant without seeking permission from the court to do so. The trial court agreed, dismissed counsel as a defendant, and awarded $1,500 in attorney fees to counsel as a sanction for what it characterized as Woods’s abusive litigation. However, in doing so, the trial court did not specify during the hearing or in its written order the statutory basis for this award.

Our Supreme Court has held that “[gjenerally, an award of attorney fees is not available in Georgia unless authorized by statute or contract.” Although it appears based on Hall’s counsel’s arguments and the trial court’s ruling that the attorney fees were assessed pursuant to OCGA § 9-15-14, “[w]hen a trial court exercises its discretion in assessing attorney fees and costs of litigation under OCGA§ 9-15-14, it is incumbent upon the court to specify the conduct upon which the award is made.” Indeed, “[a] judgment devoid of such findings must be vacated and the case must be remanded for reconsideration.” Furthermore, “an order awarding attorney fees pursuant to this statute must specifically state whether the award is made under OCGA § 9-15-14 (a) or (b).”

And here, the trial court’s order fails to make express findings of fact or conclusions of law as to the statutory basis for its award of attorney fees to Hall’s counsel. More importantly, the court’s order fails to even specify whether the attorney fees were awarded under OCGA § 9-15-14 at all, much less which subsection of the statute supports the award. Accordingly, “we must vacate this award and remand this case to the trial court for reconsideration of the grant of attorney fees and to make express findings of fact and conclusions of law as to the statutory basis for any such award and the conduct which would authorize it.”

Decided March 22, 2012.

Mell Woods, pro se.

Charles D. Gatch, for appellees.

3. Given our holdings in Divisions 1 and 2, supra, Woods’s remaining enumerations of error need not be addressed.

Judgment vacated and case remanded.

Mikell, P. J., and Boggs, J., concur.

        See McCaskill v. Carillo, 263 Ga. App. 890, 890 (589 SE2d 582) (2003).

        See Valdosta Hotel Props., LLC v. White, 278 Ga. App. 206, 209 (1) (628 SE2d 642) (2006) (“In order for an additional party to be added to an existing suit by amendment pursuant to OCGA§ 9-11-15, leave of court must first be sought and obtained pursuant to OCGA § 9-11-21.” (punctuation omitted)).

        See Court of Appeals Rule 25 (c) (2) (“Any enumeration of error which is not supported in the brief by citation of authority or argument may be deemed abandoned.”).

        Guilford v. Marriott Internat’l, Inc., 296 Ga. App. 503, 504 (675 SE2d 247) (2009) (punctuation omitted).

        See supra note 3.

        Id. at 505 (punctuation omitted).

        See id.

        See Janet Ricker Builder, Inc. v. Gardner, 244 Ga. App. 753, 754 (536 SE2d 777) (2000).

        See Uniform Superior Court Rule 6.2 (“Unless otherwise ordered by the judge, each party opposing a motion shall serve and file a response, reply memorandum, affidavits, or other responsive material not later than 30 days after service of the motion.”).

        See OCGA § 9-11-56 (c); see also Kirkland v. Kirkland, 285 Ga. App. 238, 240 (2) (645 SE2d 626) (2007) (holding that an affidavit opposing a motion for summary judgment that was filed one day before the scheduled hearing on the motion was timely).

        Bell v. Norfolk S. R. Co., 222 Ga. App. 788, 789 (1) (476 SE2d 3) (1996).

        Id.

        See An v. Active Pest Control S., Inc., 313 Ga. App. 110, 116-17 (720 SE2d 222) (2011).

        Ward v. Ward, 289 Ga. 250, 251 (2) (710 SE2d 555) (2011) (punctuation omitted).

        Ga. Dep’t ofTransp. v. Douglas Asphalt Co., 295 Ga. App. 421, 424 (671 SE2d 899) (2009) (punctuation omitted).

        Id. (emphasis in original; punctuation omitted).

        Id.

        Id. at 425 (punctuation omitted).


author: Boggs, Judge.

text:
    A11A1859.
    THE STATE v. SAULS.
    (728 SE2d 241)
   Boggs, Judge.

The State appeals from the trial court’s grant of James Sauls’s motion to suppress evidence of his refusal to submit to State-administered chemical testing following his arrest for DUI. The trial court granted the motion because the arresting officer omitted the portion of the implied consent notice informing Sauls that his refusal to submit to testing could be offered as evidence against him at trial. For the following reasons, we reverse.

“When an appellate court reviews a trial court’s grant or denial of a motion to suppress, the trial court’s findings as to disputed facts will be upheld unless clearly erroneous and the trial court’s application of the law to undisputed facts is subject to de novo review.” (Citation omitted.) State v. Nash, 279 Ga. 646, 648 (2) (619 SE2d 684) (2005). As the facts here are undisputed, and the trial court ruled as a matter of law that the officer’s failure to read the entire implied consent notice required suppression of Sauls’s refusal to submit to chemical testing, we review the trial court’s ruling de novo. See Lockett v. State, 257 Ga. App. 412, 415 (3) (571 SE2d 192) (2002).

The following facts are undisputed and were adduced at the hearing on the motion to suppress. An officer received a report about “a driver that was driving all over the — all over Post Road[.]” The officer located the vehicle and executed a traffic stop. Following several field sobriety tests, the officer arrested Sauls for driving under the influence to the extent he was a less-safe driver, open container, and driving with a suspended license.

After placing Sauls under arrest, the officer began reading to Sauls the implied consent notice from his “Implied Consent” card. See OCGA§ 40-5-67.1 (b). While the officer was reading the notice, Sauls continually interrupted the officer. A video recording of the stop reveals, and the parties do not dispute, that the officer omitted the line of the notice informing Sauls that his refusal to submit to testing could be used against him at trial. See OCGA § 40-5-67.1 (b) (2). The officer stated that he was not aware at the time he read the notice that he omitted this line and was only made aware of the omission two days before the hearing on the motion to suppress.

The trial court concluded that the implied consent notice read to Sauls was incomplete and that therefore the substance of the notice was materially altered. The court ruled that because Sauls was not properly informed of his implied consent rights, his failure to submit to testing must be suppressed.

OCGA § 40-5-67.1 (b) (2) sets forth the implied consent notice that an officer must read to a person over the age of 21 who has been arrested for driving in violation of OCGA § 40-6-391 (driving under the influence). It provides in part: “Your refusal to submit to the required testing may be offered into evidence against you at trial.”

We have found no Georgia precedent or statutory provision explicitly addressing the effect of the failure to inform a DUI arrestee that such a refusal could be used against him at trial. In South Dakota v. Neville, 459 U. S. 553, 564-566 (III) (103 SC 916, 74 LE2d 748) (1983), however, the United States Supreme Court compared the implied consent notice with the right to silence under Miranda and concluded: “Respondent’s right to refuse the blood-alcohol test, by contrast, is simply a matter of grace bestowed by the South Dakota Legislature.” Id. at 565 (III). The court held further that the “failure to warn [that the test results could be used against the defendant] was not the sort of implicit promise to forgo use of evidence that would unfairly ‘trick’ respondent if the evidence were later offered against him at trial,” and concluded that “the use of evidence of refusal after these warnings comported with the fundamental fairness required by due process.” Id. at 566 (III).

In Neville, as in the present case, the officer did inform the appellant that the failure to take the test would result in the loss of driving privileges for one year. Id. The Neville court held:

It is true the officers did not inform respondent of the further consequence that evidence of refusal could be used against him in court, but we think it unrealistic to say that the warnings given here implicitly assure a suspect that no consequences other than those mentioned will occur. Importantly, the warning that he could lose his driver’s license made it clear that refusing the test was not a “safe harbor,” free of adverse consequences.

(Footnote omitted.) Id.

Neville was relied upon by the Supreme Court of Georgia in Chancellor v. Dozier, 283 Ga. 259, 260-261 (1) (658 SE2d 592) (2008). There, the defendant complained that he was denied due process because the implied consent notice read to him failed to inform him that his refusal to submit to chemical testing would result in his lifetime disqualification from having a commercial driver’s license. Id. at 260 (1). The court, quoting Neville, concluded that “due process does not require that the arresting officer inform the driver of all the consequences of refusing to submit to testing because the officer has ‘made it clear that refusing the test was not a safe harbor, free of adverse consequences.’ [Cit.]” Id. at 261 (1). See also Chancellor v. State, 284 Ga. 66, 67 (1) (663 SE2d 203) (2008).

In light of the United States Supreme Court’s holding in Neville, and the Supreme Court of Georgia’s holding in Dozier, we must conclude that the trial court erred in granting Sauls’s motion to suppress evidence of his refusal to submit to chemical testing.

Judgment reversed.

Mikell, P. J., and Dillard, J., concur.

Decided February 8, 2012

Reconsideration denied March 23, 2012

Brian K. Fortner, Solicitor-General, Sherrill Britt, Assistant Solicitor-General, for appellant.

Allen M. Trapp, Jr., for appellee.

       OCGA § 40-5-67.1 (b) (2) provides in full:
      Georgia law requires you to submit to state administered chemical tests of your blood, breath, urine, or other bodily substances for the purpose of determining if you are under the influence of alcohol or drugs. If you refuse this testing, your Georgia driver’s license or privilege to drive on the highways of this state will be suspended for a minimum period of one year. Your refusal to submit to the required testing may be offered into evidence against you at trial. If you submit to testing and the results indicate an alcohol concentration of 0.08 grams or more, your Georgia driver’s license or privilege to drive on the highways of this state may be suspended for a minimum period of one year. After first submitting to the required state tests, you are entitled to additional chemical tests of your blood, breath, urine, or other bodily substances at your own expense and from qualified personnel of your own choosing. Will you submit to the state administered chemical tests of your (designate which tests) under the implied consent law?
      (Emphasis in original.)


author: BARNES, Presiding Judge.

text:
    A11A1860.
    HERRINGTON v. THE STATE.
    (726 SE2d 625)
   BARNES, Presiding Judge.

Ryan D. Herrington appeals from the trial court’s denial of his plea in bar and plea of former jeopardy, alleging that the trial court erred in finding that jeopardy had not attached upon his mistrial and in concluding that the State could add additional charges that arose from the same actions under a new indictment. For the reasons that follow, we reverse.

“The appellate standard of review of a grant or denial of a double jeopardy plea in bar is whether, after reviewing the trial court’s oral and written rulings as a whole, the trial court’s findings support its conclusion.” (Citation and punctuation omitted.) Wilson v. State, 229 Ga. App. 455 (494 SE2d 267) (1997).

The record reveals that Herrington was involved in an incident on April 20, 2009 with a victim who testified that, after she gave Herrington a ride to his house, he dragged her inside and sexually assaulted her. In contrast, Herrington maintained that he and the victim used methamphetamine together, after which she robbed him, they fought, and the victim stabbed him. Police obtained a search warrant for Herrington’s house to look for weapons, evidence of recent occupants, and “any items used to store, manufacture or use methamphetamine,” and, upon executing the search, discovered methamphetamine and items used to manufacture methamphetamine, as listed in the warrant return. Herrington was indicted for kidnapping, three counts of aggravated assault, three counts of possession of a knife during the commission of certain crimes, and possession of methamphetamine, all allegedly occurring on April 20, 2009. He was also indicted the same day for attempting to manufacture methamphetamine and possession of ephedrine with the intent to distribute, allegedly occurring between February 22, 2009 and July 1, 2009.

During trial on the eight counts in the first indictment, the trial court granted Herrington’s motion for mistrial, agreeing that a police officer’s comment that he knew Herrington from an unrelated pseudo-ephedrine investigation had improperly placed Herrington’s character directly into issue. The State re-indicted Herrington on the previous eight charges and added two more, for trafficking in methamphetamine and for criminal attempt to commit trafficking in methamphetamine, both allegedly having occurred on April 20,2009.

Herrington filed a “plea in bar and plea of former jeopardy,” asserting that the State was procedurally barred from prosecuting him for the added drug trafficking and attempted trafficking charges per OCGA§ 16-1-7 (b), which provides that multiple offenses arising from the same conduct and known to the prosecution must be prosecuted in a single proceeding. Following a hearing, the trial court denied the motion, finding that jeopardy had not attached and that therefore the State was not barred from prosecuting the additional charges.

Herrington contends that the trial court erred in denying his plea in bar based on procedural double jeopardy, because jeopardy had attached. He further argues that because the trafficking and attempted trafficking charges allege the same date, April 20, 2009, and involve the “same circumstances, locations and times,” the State could not increase the charges after jeopardy had attached. We agree jeopardy had attached and that the State is prohibited by OCGA § 16-1-7 (b) from adding new charges to the indictment.

1. The Fifth Amendment to the United States Constitution and the Georgia Constitution prohibit the government from placing a defendant in jeopardy twice for the same offense once he has been convicted or acquitted, and also prohibit multiple punishments for the same offense. Ga. Const. of 1983, Art. I, Sec. I, Par. XVIII; Garrett v. State, 306 Ga. App. 429, 430 (702 SE2d 470) (2010). Georgia has by statute extended the prohibition of double jeopardy beyond those substantive constitutional limits by placing procedural bars on multiple prosecutions arising out of the same criminal conduct. OCGA §§ 16-1-6, 16-1-7, 16-1-8; Stone v. State, 166 Ga. App. 245 (1) (304 SE2d 94) (1983).

“A defendant is placed in jeopardy when, in a court of competent jurisdiction with a sufficient indictment, he has been arraigned, has pled and a jury has been impaneled and sworn.” (Citations and punctuation omitted.) Turner v. State, 152 Ga. App. 354, 355 (1) (262 SE2d 618) (1979). “The absence of a prior conviction or acquittal on the accusation is not dispositive as to appellant’s rights under OCGA § 16-1-7 (b).” Cochran v. State, 176 Ga. App. 58, 59 (335 SE2d 165) (1985). Thus, Herrington was placed in jeopardy when his jury was sworn in the first trial. The trial court erred in holding that jeopardy had not attached on the previous charges because of the mistrial.

2. The fact that jeopardy attached on the previous charges when the jury was sworn, however, does not end the analysis. OCGA § 16-1-7 (b) provides: “If the several crimes arising from the same conduct are known to the proper prosecuting officer at the time of commencing the prosecution and are within the jurisdiction of a single court, they must be prosecuted in a single prosecution” unless the trial court severs the trial on separate counts in the interest of justice. OCGA§ 16-1-7 (c).

In determining whether two offenses arise from the same conduct or transaction, Georgia courts have considered whether the two crimes involve the same “parties, circumstances, locations, and times.” State v. Hulsey, 216 Ga. App. 670, 671 (455 SE2d 398) (1995). The courts also consider whether “evidence of the other offenses could be presented without permitting evidence of the [first offense] or vice versa.” (Citations and punctuation omitted.) Harrell v. State, 196 Ga. App. 101, 103 (2) (395 SE2d 598) (1990). Further, in determining whether the prosecuting attorney had knowledge of the proceedings, our Supreme Court in Baker v. State, 257 Ga. 567, 569 (361 SE2d 808) (1987), held that OCGA § 16-1-7 (b) applies “only to such crimes which are actually known to the prosecuting officer actually handling the proceedings.”

The State does not contest that it knew about the alleged trafficking crimes when it obtained the first indictment. It argues instead that Herrington was not placed in jeopardy on these charges when the first jury was sworn because the trafficking and attempted trafficking charges arose from “distinct and independent criminal conduct.” It also argues that the re-indictment “merely combined the charges contained in two existing indictments ... in an effort to prevent any future evidentiary problems.” But the charges in the previous two-count indictment that was handed down on September 21, 2009 were for different offenses than the ones the State added to the re-indictment. The two-count indictment charged Herrington with attempting to commit the manufacturing of methamphetamine and possession of ephedrine with the intent to distribute, and covered a different time period, alleging the offenses occurred between February 22, 2009 and July 1, 2009.

The trafficking counts included in the re-indictment alleged that Herrington and a co-defendant “knowingly manufacture[d] less than 200 grams of methamphetamine” on April 20, 2009. The attempted trafficking count alleged that Herrington and a co-defendant attempted to commit the crime of trafficking methamphetamine on April 20, 2009, by “knowingly and intentionally performing] acts which constituted a substantial step toward the commission of said crime, to wit: assembled necessary components for the manufacture of methamphetamine ” The two counts added to the re-indictment are not the same counts from the previous two-count indictment, but increase the charges against Herrington based on conduct that, according to the indictment, arose from misconduct occurring on April 20, 2009.

Decided March 23, 2012.

Gillen, Withers & Lake, Thomas A. Withers, for appellant.

Further, all of the crimes were actually known to the prosecutor when he commenced the first prosecution. Before the first trial, Herrington moved to exclude from the trial any evidence related to the manufacture of methamphetamine that was found on April 20, 2009 at Herrington’s house. The State argued in response that “items used for the manufacture [of] methamphetamine” were found in Herrington’s kitchen and outside the house, and commented that “theoretically we could have charged [Herrington] with conspiracy or criminal attempt or something like that.” After the mistrial, the State did charge Herrington with criminal attempt to manufacture methamphetamine, which it acknowledged on the record it could have done previously.

OCGA§ 16-1-7 (b) is a procedural double jeopardy provision which is designed to protect an accused against the harassment of multiple prosecutions arising from the same conduct. Thus, the prosecuting officer must avoid jeopardy from attaching as to the less than all charges arising out of defendant’s “same conduct” where, at the time he commences the prosecution by filing an accusation or achieving return of an indictment, he actually knows of the other charges.

(Citation and punctuation omitted.) Smith v. State, 190 Ga. App. 246, 247-248 (378 SE2d 493) (1989).

In this case, jeopardy attached to less than all the charges arising on April 20, 2009, all of which were known to the prosecutor then. Accordingly, the trial court erred in denying Herrington’s plea in bar as to the trafficking in methamphetamine and criminal attempt to manufacture methamphetamine charges.

Judgment reversed.

Adams, J., concurs. Blackwell, J., concurs in the judgment only.

Richard A. Mallard, District Attorney, Michael T. Muldrew, Assistant District Attorney, for appellee.


author: Adams, Judge.

text:
    A11A1902.
    EMERSON v. THE STATE.
    (726 SE2d 600)
   Adams, Judge.

Omyri Emerson appeals the trial court’s denial of his motion for new trial after a jury found him guilty of aggravated assault, unlawful possession of a firearm, obstruction of an officer and carrying a concealed weapon. We affirm for the reasons set forth below.

Viewed in the light most favorable to the verdict, the evidence showed that in the early morning hours of January 3, 2009, Emerson told his three co-defendants that he “wanted to go out and look for somebody to rob” because he was mad that he had lost money gambling. Emerson and the others got into a gold Lexus belonging to a friend and traveled to the intersection of Chamblee-Dunwoody Road and West Hospital Road where they saw Jesus Mendez riding his bike to work. Mendez was wearing a black backpack containing his lunch and some prescription medicine. The car pulled up next to Mendez, striking him and causing him to fall over. All four men exited the car, and one of them held the “long part” of a gun to Mendez’s head while two others tried to turn him over and go through his pockets. Chamblee Police Officer Nick Nixon, who was patrolling in the area, saw the gold Lexus stopped in the middle of the road and approached the scene. When the men saw the police car, they returned to the Lexus, with one man carrying the backpack and Emerson carrying a shotgun, which he placed in the front passenger section of the car.

As Nixon approached, the Lexus drove off “at a high rate of speed.” Nixon saw Mendez down in the intersection along with his bike, but when Mendez saw the police car, he started pointing back at the Lexus and screaming. Nixon then made a U-turn and followed the Lexus, with his blue lights and siren activated. During the short, high-speed chase that ensued, the Lexus hydroplaned off the road and crashed in the adjacent woodline. Emerson and the other men then jumped out of the car and ran, even though police instructed them to stop. Nixon and other officers who had joined in the car chase pursued the men, and Emerson and the others were eventually apprehended. Police located Mendez’s backpack in the Lexus, along with several prescription pill bottles with Mendez’s name on them. A sawed-off shotgun was found laying across the front passenger seat. When Emerson was searched after his arrest, the police also found a set of brass knuckles in his right rear pants pocket.

1. Emerson argues that the trial court erred in failing to grant his motion for a mistrial after the trial court gave supplemental jury instructions he claims rose to the level of judicial coercion. ‘Whether a verdict was reached as the result of coercion depends on the totality of the circumstances.” Sears v. State, 270 Ga. 834, 837 (1) (514 SE2d 426) (1999). Accordingly, we must determine whether, considering all the circumstances, the charge was “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.” McMillan v. State, 253 Ga. 520, 523 (4) (322 SE2d 278) (1984). An examination of the totality of circumstances in this case leads us to the conclusion that the verdict in this case was not coerced by the trial court.

Because Emerson’s trial counsel raised repeated, cumulative objections and motions for mistrial to various aspects of the jury charge, we must examine the course of the trial in some detail. The record reflects that during the first afternoon of its deliberations, the jury sent the trial judge two separate requests for further instruction. The trial court responded to the first request by re-reading a portion of the earlier charge. Emerson’s counsel took exception, arguing that re-reading a portion of the charge unduly and prejudicially emphasized that aspect of the law. He moved for a mistrial based on the re-charge, but the trial court denied the motion. After the second question, the trial court instructed the jury only that they had the law, the indictment and the evidence and they were to decide the case on the law and evidence presented at trial. Emerson’s counsel objected to the trial court’s wording of this instruction.

At that point, the trial judge decided to send the jury home because he did not give them “advance notice about staying beyond what I call daycare or childcare hours.” He asked the jurors to make arrangements to stay late for the next two days “if necessary.” The judge then instructed the jurors as to the schedule going forward, with details as to starting and ending times, as follows:

We’re going to start at eight-thirty tomorrow. Lunch is going to be between twelve and one. Dinner will be tomorrow between six and seven. The way I operate, the day doesn’t end until midnight. Friday, we’ll go at eight-thirty on Friday. Lunch will be from twelve to one on Friday. Dinner will be from six to seven on Friday. We will do Saturday and Sunday if necessary. The schedule on Saturday will be very similar. We will start at eight-thirty on Saturday and we will convene on Sunday at eight-thirty if needed. Now, with that instruction, you have tonight to make whatever arrangements you need to make. . . .

After the jury was excused, the trial court asked counsel for any exceptions based upon the instructions he had just given. The State raised no objection, and Emerson’s counsel “incorporated” the arguments and objections he had made earlier, re-asserting his motion for a mistrial. The trial court again denied the motion. Emerson’s counsel raised no objection, however, to the trial court’s instructions regarding scheduling.

But the next day Emerson filed a written motion for a mistrial based upon these scheduling instructions, arguing that the charge had the effect of telling the jury that they had to stay until they reached a verdict, which was “tantamount to charging that even in the event of any conscientious and irreconcilable difference of opinion between the jurors, one or more jurors would be required to surrender his view in order to reach a verdict.”

As an alternative to a mistrial, Emerson requested curative instructions to clarify that the trial court was not threatening to confine the jurors until they reached a verdict. The trial judge indicated that he would give a curative instruction, stating “when I do bring them out and give them their additional charges, I will let them know in no uncertain terms they are under no obligation to — strike that — they have to reach a verdict. I mean, obviously, I think that’s the intent of the law.” The trial judge then stated for the appellate record that he had outlined the schedule for the jurors, as a matter of “basic courtesy,” to allow them to make any arrangements they need to make if the deliberations extended past regular working hours. Emerson’s counsel raised no further objection to the trial court’s statement regarding the law or the scheduling instruction he had given. The judge and counsel then turned to a discussion of the jury’s third request for additional instruction, and Emerson’s counsel excepted to the trial judge’s statement of what he intended to charge the jury in response to that request.

When the jury returned to the courtroom, the trial court gave the following curative instructions regarding the prior day’s scheduling notice:

[J]ust to give some other clarity, I just want to make sure — the purpose of giving you a timeframe on things [was] just for you to arrange your, for lack of a better term, your personal affairs so you would know where you would be. Not to necessarily — you can make any decision that you make. But I just wanted to give you some timeframe, because some of you may have child care issues and arrangements so that you could make those. That’s the only purpose of that. With that said — and also, let me just say any decision that you make is purely your decision as a jury.

And as discussed more thoroughly in Division 2, infra, the court also gave the jury the supplemental instruction in response to the third question, as to which Emerson’s counsel had previously excepted. Afterward, the trial judge asked counsel for any exceptions. The State had none, but Emerson’s counsel replied, “Judge, just incorporating by reference all my other objections, I’ll for the record move for mistrial at this point, for the same reasons I’ve already put on the record.” The trial court again denied the motion. The jurors continued deliberating until the judge sent them home for the evening. The jury announced the verdict after returning the next day, and each juror affirmed the verdict when the jury was polled.

In denying Emerson’s motion for new trial on this ground, the trial court found that Emerson waived any issue regarding the scheduling instructions by failing to raise a contemporaneous objection. Under OCGA § 17-8-58, Emerson was required to raise his objection before the jury retired to deliberate, and the failure to do so precludes appellate review of the issue unless the charge constitutes plain error. Here, the jury arrived the next day, and presumably began deliberations, one hour before the lawyers were scheduled to arrive and court began for the day, so the written motion for mistrial presumably was made after deliberations had already begun.

But pretermitting whether Emerson waived this argument by failing to raise a timely objection, we find no error, plain or otherwise, in the trial court’s scheduling charge. The charge merely set out the court’s time schedule for conducting jury deliberations, so the jurors could plan ahead. The charge made clear that the schedule would be followed only if necessary, and the trial judge further clarified in the curative instruction that he in no way intended to influence the jurors’ deliberations. Thus,

[n]othing in the charge constituted a form of “verdict urging,” and the charge contained no express or implied threats to the jury either that they might be held captive for days until a verdict was reached or that a mistrial might be forthcoming if a verdict was not promptly announced. The trial court exercises wide discretion in controlling and regulating the business of the court, and appellate courts should never interfere with the exercise of this discretion unless it is plainly apparent that wrong has resulted from the abuse.

(Citation omitted.) Williams v. State, 205 Ga. App. 445, 447 (3) (422 SE2d 309) (1992). See also Williams v. State, 217 Ga. App. 347, 348 (1) (457 SE2d 257) (1995) (jury charge stating that “[y]ou are going to get down to some serious deliberations tomorrow, and you’re going to resolve this case. Okay? I don’t have a thing to do tomorrow. I don’t have a thing to do Saturday. I don’t have a thing to do Sunday, and I’ll be back up here Monday having court again. Okay?” found not to be coercive under totality of circumstances); Dean v. State, 205 Ga. App. 512 (422 SE2d 569) (1992) (statement that “we can’t stay much longer... we can give you until 5:00 o’clock” held not error where trial judge also indicated jury could reconvene the following day). After the trial court announced the schedule, the jury returned the next day and deliberated for a full day, before entering a verdict the following day that acquitted Emerson of two of the six charges. We find nothing under these circumstances to support a finding of coercion or abuse.

Emerson argues, however, that the trial court’s statement to counsel outside the presence of the jury that the “intent of the law” was that the jurors were required to reach a verdict showed the coercive nature of his scheduling charge given the day before. But even if that statement reflects a belief on the part of the trial judge that the jury had to reach a verdict, nothing in the language of the charge conveyed that to the jurors. Compare Jenkins v. United States, 380 U. S. 445 (85 SC 1059, 13 LE2d 957) (1965) (charge that jury “ha[d] to reach a verdict in this case” improperly coercive); McMillan v. State, 253 Ga. at 523 (4) (judge’s statement that “I feel like there is enough evidence in this case for you to reach a verdict” found to be coercive). Moreover, at no point did the jury indicate that it was deadlocked and unable to reach a verdict. Accordingly, we find no basis for reversal on this ground.

2. Emerson also contends that the trial court erred in instructing the jury on alternative ways that the State could prove its case “after deliberations had started, after questions had been asked by the jury and after the jury was subjected to judicial coercion.” He asserts that the trial court’s supplemental charge to the jury in response to their second question “allowed them to consider ways for the crimes to be completed that were not charged in the indictment.” We find no merit to this argument for multiple reasons: (1) we have found that no judicial coercion occurred; (2) Emerson’s argument fails to accurately reflect the events at trial; (3) Emerson failed to raise the objection below that he now raises on appeal; and (4) in any event, the charge was not error because it represents an accurate statement of the law.

With regard to the crimes of aggravated assault, obstruction of an officer and unlawful possession of a firearm, the indictment charged Emerson “individually and as parties concerned in the commission of a crime.” Emerson points us to the jury’s second question to the judge on the first day of trial, which was as follows:

In Count Two, according to the wording of the jury instructions, the evidence must show beyond a reasonable doubt that the defendant attempted to . . . however, according to the wording of the indictment, Emerson “individually and as parties concerned in the commission of a crime.” One asks about just the defendant and one considers as party to. Which do we consider? Please reconcile.

Emerson’s counsel proposed that in response the judge charge the jury as follows:

Ladies and gentlemen of the jury, you have been given the law, the indictment and the evidence in this case. It is your duty to apply the law contained in the entirety of the charge of law to the facts in evidence in this case as you deem them to be or not be.

(Emphasis supplied.) The trial judge gave the jury Emerson’s proposed charge, but changed the last sentence to read “It is your duty to apply the law contained in the entirety of the charges of law to the facts and evidence as presented during trial” Emerson’s counsel objected to the words “as presented during trial” as being too affirmative, which he argued undermined the jury’s function to decide what evidence had been presented; he asked to change the language to “evidence presented or not presented” at trial, but the trial court declined the request. Emerson’s counsel raised no further objection to the charge.

The next day, the jury requested additional copies of the jury instructions, the indictment and highlighters, and asked the following question, “Isn’t there a jury charge that and equals or?” Emerson’s counsel had no objection to providing the extra copies and highlighters to the jury, and the trial court did so.

But after giving the curative instruction regarding scheduling discussed in Division 1, the trial court gave the following charge, which Emerson contends was error, in response to the jury’s third question:

When an indictment alleges a crime was committed in more than one way, proof beyond a reasonable doubt that the crime was committed in one of the separate ways alleged is sufficient.

The trial court also went through each count in the indictment instructing the jury as to each count that if they believed the defendant was guilty beyond a reasonable doubt, they should find him guilty of that charge, but if they did not believe the defendant was guilty or if they had a reasonable doubt, it was their duty to acquit him.

Emerson represents on appeal that the contested charge was given in direct response to the jury’s second question, but the record demonstrates that the charge, in fact, was given the next day in answer to the jury’s third question. The record shows that Emerson’s counsel objected to the contested charge on the following grounds: (1) the jury’s question “seems to go more to an understanding of conjunctive and disjunctive wording” and not to the level of the charge given; (2) the State did not submit the charge during the charge conference and giving it now would “influence the character” of the jury deliberations; (3) it echoes the State’s closing argument and giving such an additional charge “almost is tantamount to the State now getting an extra little closing argument that the Defense has no opportunity to match or rebut”; and (4) it was not a pattern charge. Emerson’s counsel also asked that the trial court add language reiterating that proof must be beyond a reasonable doubt, and the trial court complied. Finally, Emerson’s attorney objected to the trial court’s further supplemental instruction enumerating each count, because he argued that doing so would be telling the jury that the contested charge applied to each one of the counts even though they did not ask about each count. Emerson does not address any of these arguments on appeal, however, and at no time did Emerson’s attorney object on the basis he does raise on appeal, i.e., that the charge would allow the jury to convict Emerson in a way not alleged in the indictment.

Accordingly, Emerson is not entitled to appellate review on this ground unless the charge constituted plain error. OCGA § 17-8-58. In determining whether the charge was plain error, “[t]he proper inquiry ... is whether the instruction... was erroneous, whether it was obviously so, and whether it likely affected the outcome of the proceeding.” (Citation and punctuation omitted.) Guajardo v. State, 290 Ga. 172, 176 (4) (718 SE2d 292) (2011). Moreover, we must consider the charge as a whole in making our determination, id., and, in fact, the trial judge instructed the jury that the supplemental instruction must be considered “in the entirety of the legal instructions I have given you up to this point.”

We find that the contested charge was not erroneous as this Court has previously upheld such a charge as reflecting a correct statement of the law. Johnson v. State, 212 Ga. App. 190 (1) (441 SE2d 508) (1994). And when considered with the jury charges given as a whole and the evidence in the case, we find no indication that this charge improperly affected the outcome of the proceeding.

3. Emerson argues that the evidence was insufficient to support his conviction for aggravated assault because he asserts that the State presented no evidence identifying the shotgun as the weapon used during the crime as alleged in the indictment. The indictment charged Emerson and his co-defendants with the offense of aggravated assault by making “an assault upon the person of Jesus Mendez with a deadly weapon, to-wit: a shotgun.” But we find that the evidence supported Emerson’s conviction on the charge as indicted.

One of Emerson’s co-defendants, the driver of the car, testified that the four men went out in the car that night because Emerson wanted to rob someone. The evidence showed that all four men got out of the car after they struck Mendez and knocked him down. Mendez testified that one of the four men held the long part of a gun to his head. When the men returned to the car after the incident, Emerson was carrying a shotgun. Emerson got into the front passenger seat with the shotgun and left it there, where it was found after the car crashed and Emerson fled and was later apprehended. The co-defendant testified that he saw no other weapons in the car, and the police found none.

While it is true that under Georgia law, a defendant may not be convicted solely upon the uncorroborated testimony of an accomplice, OCGA§ 24-4-8,

it is well established that slight evidence of corroboration connecting the defendant to the crime satisfies the corroboration requirement, and that evidence may be entirely circumstantial. . . . The amount of corroborative extraneous evidence necessary to connect the accused with the commission of the offense lies peculiarly within the province of the factfinder.

(Citations and punctuation omitted.) Daniels v. State, 306 Ga. App. 577, 581 (1) (703 SE2d 41) (2010). And “evidence of the defendant’s conduct before and after the crime was committed may give rise to an inference that he participated in the crime.” (Punctuation omitted.) Jones v. State, 302 Ga. App. 147, 149 (1) (a) (690 SE2d 460) (2010). Although the only evidence of the shotgun at the scene of the crime came from Emerson’s co-defendant, other evidence from the victim and the police served to corroborate it. Cf. Prins v. State, 246 Ga. App. 585, 586 (1) (539 SE2d 236) (2000) (presence of weapon for weapon possession charge “may be established by circumstantial evidence, and a conviction ... may be sustained even though the weapon itself was neither seen nor accurately described by the victim. Some physical manifestation of a weapon is required, however, or some evidence from which the presence of a weapon may be inferred. [Cit.]”) (emphasis in original), disapproved on other grounds, Miller v. State, 285 Ga. 285, 287, n. 1 (676 SE2d 173) (2009). And contrary to Emerson’s contention, this evidence was sufficient to show more than Emerson’s mere presence at the crime scene. See Harrelson v. State, 312 Ga. App. 710, 714 (a) (719 SE2d 569) (2011) (“Mere presence at the scene is not sufficient to convict one of being a party to a crime, but criminal intent may be inferred from conduct before, during, and after the commission of a crime.”) (Footnote omitted.); Green v. State, 298 Ga. App. 17, 21 (1) (679 SE2d 348) (2009) (accomplice testimony regarding defendant’s participation in crime corroborated by loaded pistol found at defendant’s feet and black bag used in crime within reach of defendant).

We conclude, therefore, that the evidence was sufficient to authorize the jury’s determination that Emerson was guilty beyond a reasonable doubt of aggravated assault.

Decided March 23, 2012.

Derek M. Wright, for appellant.

4. Emerson further argues that insufficient evidence supported his conviction for aggravated assault because the evidence did not exclude every reasonable hypothesis other than his guilt. “To warrant a conviction on circumstantial evidence, the proved facts shall not only be consistent with the hypothesis of guilt, but shall exclude every other reasonable hypothesis save that of the guilt of the accused.” OCGA § 24-4-6. But that rule is applicable only where the evidence is entirely circumstantial. Lowe v. State, 288 Ga. 662, 664 (2) (706 SE2d 449) (2011); Harkins v. State, 281 Ga. App. 512, 515 (1) (636 SE2d 698) (2006). Here the State presented direct evidence of Emerson’s participation in the events at issue, including his co-defendant’s testimony that it was Emerson’s idea to commit the robbery and that Emerson carried a shotgun from the scene of the assault. The State also presented direct evidence that Emerson rode away with the weapon near him in the car, and that Emerson fled from police, along with the others, both in the car and on foot. Accordingly, the reasonable hypothesis rule was not applicable in this case. See Green v. State, 298 Ga. App. at 21 (2) (accomplice’s testimony containing direct evidence of defendant’s participation in the crime excluded application of reasonable hypothesis rule).

In any event, “[w]hether the circumstantial evidence is sufficient to exclude every reasonable hypothesis save that of defendant’s guilt is a question for the jury unless the verdict is insupportable as a matter of law.” (Footnote omitted.) Carter v. State, 261 Ga. App. 204, 206 (1) (583 SE2d 126) (2003). And we have already found that the evidence was sufficient to support Emerson’s conviction for aggravated assault beyond a reasonable doubt. See also McCombs v. State, 306 Ga. App. 64, 66 (2) (701 SE2d 496) (2010) (the mere possibility that an individual other than the defendant committed the crime is not such a “reasonable hypothesis” that must be excluded for circumstantial evidence to authorize a guilty verdict).

5. Emerson’s argument that we should reverse because the jury’s verdict is inconsistent is without merit. The Supreme Court of Georgia abohshed the rule against inconsistent verdicts in criminal cases over 20 years ago, Milam v. State, 255 Ga. 560, 562 (2) (341 SE2d 216) (1986), and this Court is without the power to reinstate it as Emerson urges.

Judgment affirmed.

Barnes, P. J., and Blackwell, J., concur.

Robert D. James, Jr., District Attorney, Leonora Grant, Assistant District Attorney, for appellee.

       The jury acquitted Emerson of charges of armed robbery and illegal use of a specific weapon during a crime.

       “On appeal from a criminal conviction, the evidence must be viewed in the light most favorable to the verdict, and the appellant no longer enjoys the presumption of innocence... (Footnote omitted.) Brown v. State, 274 Ga. App. 302 (1) (617 SE2d 227) (2005).

       Emerson does not raise any argument regarding either of these supplemental charges on appeal.

       We note that Emerson’s counsel never objected to the trial court’s curative instructions. And at this point, Emerson’s counsel previously had raised motions for mistrial on at least four occasions, so it is unclear what he intended as the basis for this motion for mistrial. It is unclear, therefore, whether he renewed his written motion for mistrial based upon the scheduling instructions and thus whether he waived appellate review of the issue on this ground. See Reese v. State, 289 Ga. 446, 449 (4) (a) (711 SE2d 717) (2011). But we need not reach this issue because we find no error in the scheduling charge.

       In the interim, the jurors had sent the judge a note stating that they had made sufficient progress, but due to “the gravity of the charges,” they wanted to go home for the night to allow them “ample time to renegotiate and solidify their thoughts.” The trial court became concerned that the jury’s use of the phrase “gravity of the charges” meant they were impermissibly considering the issue of punishment. He then charged them that their job was to determine guilt or innocence, not punishment, and sent them back to deliberate a while longer. Emerson once again objected and once again moved for a mistrial on “the grounds aforementioned.” His motion was again denied. Emerson raises no objection to this charge on appeal.


author: DOYLE, Presiding Judge.

text:
    A11A1963.
    BROWN v. THE STATE.
    (726 SE2d 612)
   DOYLE, Presiding Judge.

A Barrow County jury found Jerry Brown guilty of one count of aggravated sexual battery, two counts of rape, two counts of possession of a firearm/knife during the commission of a crime, and one count of aggravated child molestation. Brown appeals, arguing that the trial court erred by (1) failing to strike a juror for cause; (2) charging the jury on a manner of rape not alleged in the indictment; (3) charging the jury on a manner of aggravated sexual battery not alleged in the indictment; and (4) charging the jury on a manner of possession of a weapon during the commission of a crime not alleged in the indictment. For the reasons that follow, we affirm.

“On appeal, we view the evidence in the light most favorable to the jury’s verdict and determine whether any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt.”

So viewed, the evidence at trial established that at the end of January 2008, when K. B. was in second grade, she made an outcry of sexual abuse against Brown, whom she knew as her father (although he was the former husband of her grandmother, who was granted custody of K. B. when she was less than a year old). In her initial outcry to a school counselor, K. B. stated that Brown touched her private parts with a gun, which body parts she explained to be her breasts, buttocks, and vaginal area, and Brown had threatened to harm her if she disclosed the abuse.

At trial, K. B. testified that Brown repeatedly touched her private parts with a gun; she also testified that Brown touched her private parts with a pair of scissors, a knife, his mouth, and his private part.

1. Brown contends that the trial court erred by failing to strike for cause a juror who was biased by his familial experiences with rape and child molestation. We disagree.

[Bjefore a juror can be disqualified for cause, it must be shown that an opinion held by the potential juror is so fixed and definite that the juror will be unable to set the opinion aside and decide the case based upon the evidence or the court’s charge upon the evidence. And we will affirm a trial court’s decision not to strike a prospective juror unless that court has abused its discretion in so ruling.

Brown primarily relies upon Walls v. Kim, in which this Court determined that the trial court abused its discretion by denying a motion to strike a juror for cause in a medical malpractice action when the juror worked with the defendant physician and hoped that the case would come out in the doctor’s favor.

As this Court previously explained in Doss v. State, however, “[n]o thing in Walls v. Kim, or its progeny, changed the traditional Georgia rules that a prospective juror’s doubt about his or her impartiality does not demand as a matter of law that he or she be excused for cause.”

In this case, the juror in question stated that several family members were victims of unwanted sexual attacks, which had an emotional impact on his life. The following exchange then occurred between the trial court and the juror:

[THE COURT]:... But then if you do figure out the facts, or at least determine what the facts are, is your history with the child — with the sexual offenses, is that going to override your evaluation of the evidence?”
[JUROR]: If I feel the acts were committed, my choice would be guilty.
[THE COURT]: But only if the facts were presented?
[JUROR]: Only if the facts indicated —
[THE COURT]: Nothing about [your family members’] experiences or —
[JUROR]: No, no, no. No. I’m just telling you I have an emotional reaction to folks that have had to go through that.. ..
[T]here is a legal difference between (a) a potential juror who, because of life experiences, expresses doubt that he or she can be impartial if evidence triggers those experiences, and (b) a juror who, because of life experiences, cannot listen to the evidence before forming a judgment. While the former category may or may not merit a peremptory strike, the latter category does merit a strike for cause.

Based on the record of voir dire, we cannot say that the trial court abused its discretion by denying Brown’s motion to strike the juror for cause. The juror in question expressed his opinion that based on his life experiences, he was emotional about the subject matter of the case, and it is unlikely that any juror would not be emotional about this type of subject matter. Nevertheless, the juror explained to the trial court that he would make his decision about guilt or innocence based on the facts presented and not based on his prejudgment of the subject matter. Accordingly, this enumeration is without merit.

2. Brown also argues that the trial court erred by charging the jury with elements of rape, aggravated sexual battery, and possession of a weapon during the commission of a crime — which elements were not charged in the indictment — and allowing the jury to convict Brown for acts he was not accused of committing.

“It is a fundamental rule in Georgia that jury instructions must be read and considered as a whole in determining whether the charge contained error.” Although it is error for a trial court to instruct a jury that a crime may be committed in a manner not alleged in the indictment, “[t]here is no error where it is unlikely that the instructions considered as a whole would mislead a jury of ordinary intelligence.”

(a) Rape

Brown argues that the trial court erred by instructing the jury that he could be convicted of rape by having carnal knowledge of a female under the age of ten, which is a manner of committing rape Brown contends was not alleged in the indictment.

Pursuant to OCGA § 16-6-1 (a), “[a] person commits the offense of rape when he has carnal knowledge of: (1) A female forcibly and against her will; or (2) Afemale who is less than ten years of age.” The indictment charged Brown with having “carnal knowledge of the person of [K. B.], a child under the age of sixteen, forcibly and against her will.” Brown contends that because the indictment did not allege that K. B. was under ten, the trial court’s failure to charge rape pursuant to the statutory language of subsection (a) (1) requires reversal of this verdict. We disagree.

“[S]exual intercourse with a child under ten years of age is a forcible act constituting rape as a matter of law.” Here, the evidence supported a determination that K. B. was under ten years old at the time of the incident, and “the fact that the indictment in this case failed to state the age of the victim did not trump the precept that” sexual intercourse between a man and a female under the age of ten is always forcible and against her will. Brown does not challenge the sufficiency of the evidence presented to establish that K. B. was under ten. Accordingly, this argument is without merit.

(b) Aggravated Sexual Battery

Brown contends that the trial court erred by instructing the jury that aggravated sexual battery could be committed by penetration of the sexual organ or the anus because the indictment only alleged that Brown committed the offense by penetrating K. B.’s vagina with a pair of scissors.

Pursuant to OCGA § 16-6-22.2 (b), “[a] person commits the offense of aggravated sexual battery when he or she intentionally penetrates with a foreign object the sexual organ or anus of another person without the consent of that person.”

Although Brown is correct that the evidence presented at trial authorized the jury to convict him of violating OCGA § 16-6-22.2 (b) by penetrating K. B.’s vagina or anus with a pair of scissors, no error occurred in this instance because the trial court correctly issued a limiting instruction that authorized the jury to convict Brown only for the offense as charged in the indictment.

Decided March 23, 2012

William D. Healan III, for appellant.

J. Bradley Smith, District Attorney, Robin R. Riggs, Assistant District Attorney, for appellee.

(c) Possession of a Weapon during the Commission of a Crime

Finally, Brown contends that the trial court erred by instructing the jury that to find him guilty of these charges it would have to determine that he possessed a firearm and knife “during the commission of... a felony,” which the court went on to define as “any crime against the person of another, rape, aggravated sexual battery, and aggravated child molestation.” Brown contends that this was an erroneous charge requiring reversal of his conviction because he was only indicted for possessing a knife and firearm “while assaulting” K. B., and the jury charge therefore allowed him to be convicted for crimes he was not indicted for committing.

Brown’s contention, however, amounts to a special demurrer to the indictment, which he did not file and has therefore waived the right to assert. The trial court’s instructions, when taken as a whole, adequately charged the jury that they could only convict Brown of these counts if they determined that he possessed a knife or possessed a firearm while committing one of the previously defined predicate felony crimes against K. B. Thus, his argument is without merit.

Judgment affirmed.

Ellington, C. J., and Miller, J., concur.

       OCGA§ 16-6-22.2 (b).

       OCGA§ 16-6-1 (a) (2).

       OCGA§ 16-11-106 (b) (1).

       OCGA § 16-6-4 (a) (1). The jury returned a not guilty verdict on two remaining counts of aggravated sexual battery.

        Vanwinkle v. State, 263 Ga. App. 19, 19-20 (1) (587 SE2d 142) (2003), citing Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560) (1979).

       (Punctuation and footnote omitted.) Cowan v. State, 279 Ga. App. 532, 535 (3) (631 SE2d 760) (2006).

       250 Ga. App. 259 (549 SE2d 797) (2001), affirmed in part and disapproved in part by Kim v. Walls, 275 Ga. 177 (563 SE2d 847) (2002).

       See Walls, 250 Ga. App. at 260-261.

       (Footnotes omitted.) Doss v. State, 264 Ga. App. 205, 211 (4) (f) (590 SE2d 208) (2003).

       (Punctuation omitted.) Id. at 212-213 (4) (f).

       See id.

       We note that Brown failed to file any demurrers to the indictments and therefore waived any arguments related thereto. See Flournoy v. State, 299 Ga. App. 377, 380-381 (2) (682 SE2d 632) (2009).

       (Punctuation omitted.) Alexander v. State, 308 Ga. App. 245,246 (707 SE2d 156) (2011).

       (Citation and punctuation omitted.) Garrett v. State, 271 Ga. App. 646, 650 (2) (610 SE2d 595) (2005). See Boone v. State, 250 Ga. App. 133, 144 (16) (549 SE2d 713) (2001).

       (Punctuation omitted.) State v. Lyons, 256 Ga. App. 377, 379 (568 SE2d 533) (2002). See also Brewer v. State, 271 Ga. 605, 607 (523 SE2d 18) (1999) (“[T]he General Assembly . . . amended the forcible rape statute to require either force or a victim who is less than ten years old.”). Compare Jenkins v. State, 259 Ga. App. 87, 88 (1) (576 SE2d 68) (2003) (rape occurred prior to the amendment of OCGA § 16-6-1 to include requirement of showing force and against the will or that the victim was younger than ten, and therefore, the State was required to establish that the defendant used force against the victim even though she was younger than ten during the incident).

        Roebuck v. State, 261 Ga. App. 679,681-682 (2) (583 SE2d 523) (2003), overruled on other grounds by Reynolds v. State, 285 Ga. 70, 71 (673 SE2d 854) (2009).

       See Lester v. State, 278 Ga. App. 247, 252 (4) (628 SE2d 674) (2006).

       To the extent that Brown argues that the State failed to charge a crime in the indictment with regard to the two counts of possession of a weapon during the commission of a crime because the only alleged underlying crimes were misdemeanors rather than felonies, we will not review the argument. See Kohlhaas v. State, 284 Ga. App. 79, 85 (2) (e) (643 SE2d 350) (2007) (“On appealf,] an enumeration of error cannot be enlarged by brief to give appellate viability to an issue not contained in the original enumeration.”) (citation and punctuation omitted).

       See Dasher v. State, 285 Ga. 308, 309 (2) (676 SE2d 181) (2009) (“contention that the felony murder indictment was deficient because it did not contain all the essential elements of the underlying crime of aggravated assault is, in essence, a special demurrer seeking greater specificity with regard to the predicate felony”).