text:
    A10A2283.
    HALL COUNTY BOARD OF TAX ASSESSORS v. AVALON HILLS PARTNERS, LLC et al.
    (705 SE2d 674)
   PHIPPS, Presiding Judge.

The Hall County Board of Tax Assessors (BTA) contends that the superior court erred by denying its motion to dismiss the tax appeals of three companies: (i) Avalon Hills Partners, LLC; (ii) Elrod Road Development, LLC; and (iii) Clermont Station Development Partners, LLC (collectively hereinafter “LLCs”). The BTA acknowledges that the LLCs complied with the statutory procedure for filing returns of their real property for tax year 2009; however, the BTA argues that, upon receiving the resulting 2009 notices of assessment, the LLCs failed to satisfy a separate statutory requirement for effectuating the distinct procedure of appealing from those assessments to the Hall County Board of Equalization (BOE). Specifically, the BTA points out that the LLCs failed to comply with OCGA § 48-5-311 (e) (2) (A)’s mandate of mailing or filing a notice of appeal within 30 days from the date of the assessment mailings. Consequently, the BTA asserts, the LLCs lost their right to appeal further to the superior court.

The LLCs counter that they did not lose that right. They point out that, in addition to filing tax returns, they communicated their disagreement with their property assessments through both written and oral communications with personnel of the Hall County Tax Assessors’ Office.

We agree with the BTA. Notwithstanding the measures taken by the LLCs, their failure to satisfy the cited statutory requirement barred any further right to appeal. Accordingly, we reverse the superior court’s denial of the BTA’s motion to dismiss the LLCs’ appeals.

The underlying properties at issue here are subdivision land lots owned by the LLCs. In January and early February 2009, the Hall County Tax Assessors’ office received three letters from the LLCs’ representative, Robbie Robison, each “requesting that you reduce our assessment^].” In the letter written on Avalon’s behalf, Robi-son stated further that he was “authoriz[ed] ... to appeal the property taxes.” Along with the letters for the Elrod and Clermont properties, Robison submitted to the tax assessors’ office on February 6, returns for tax year 2009 proposing lower values.

Thereafter, the BTA issued notices dated April 8, 2009 to each LLC that each of their respective properties at issue was being assessed for tax year 2009 based on the value stated on the notice. The BTA’s values were significantly higher than those proposed by the LLCs. Each one-page notice advised, in a prominent box on the bottom half of the page, that the notice was provided pursuant to OCGA § 48-5-306; that the LLC had the right to file an appeal with the BOE by giving written notice within 30 days; and that: “If you wish to file an appeal, you must do so in writing no later than 30 days after 04/08/2009 which is on or before 05/08/2009.” Each notice cautioned: “If you do not file an appeal by this date, your right to file an appeal will be lost.”

It is undisputed that none of the LLCs filed a written appeal within the specified 30-day period. Nevertheless, Robison thereafter requested and was granted a hearing for the LLCs before the BOE. At the hearing, the LLCs argued that they should not be barred from pursuing appeals to the BOE and proceeded to complain about their 2009 property assessments. The BTA countered that the LLCs had lost their right to appeal because they had not filed notices of appeal as statutorily mandated. The BOE decided that “No Change” would be made to the valuations.

The LLCs appealed to the superior court. The BTA moved to dismiss the appeals, maintaining that the LLCs had failed to comply with statutory mandates to obtain a tax appeal. After a hearing, the superior court denied the motion. We granted interlocutory review thereof.

OCGA § 48-5-306, which was expressly cited in the assessment notices to the LLCs, requires each county board of tax assessors to examine all the returns of real property of each taxpayer, and “if in the opinion of the board any taxpayer . . . has failed to return any of such taxpayer’s property at its fair market value, the board shall correct the returns.” That Code section further provides that, when any such correction has been made by the board, the board shall give written notice to the taxpayer of any such changes made in such taxpayer’s returns; and that the notice must include a “statement of the taxpayer’s right to an appeal” and an admonition that, if the taxpayer wishes to file an appeal, the taxpayer must do so in writing within a specified number of days.

OCGA § 48-5-311 (e), governing a taxpayer’s appeal from an assessment by a board of tax assessors to the board of equalization as to matters of value, instructs, “Appeals to the county board of equalization shall be conducted in the manner provided in paragraph (2) of this subsection.” That paragraph pertinently sets forth:

An appeal shall be effected by mailing to or filing with the county board of tax assessors a notice of appeal within [30 ] days from the date of mailing the notice pursuant to Code Section 48-5-306. ... A written objection to an assessment of real property received by a county board of tax assessors stating the location of the real property and the identification number, if any, contained in the tax notice shall be deemed a notice of appeal by the taxpayer. . . ,

The LLCs conceded at the hearing that no such objection was submitted to the BTA within 30 days from the date of the assessment mailings. Notwithstanding, the LLCs argued at the hearing on the dismissal motion that their letters and returns — although received by the tax assessors’ office two or more months before the assessment notices were mailed — should serve as substitutes for the timely notices of appeal contemplated by OCGA § 48-5-311 (e). In support of that position, Robison testified that he had believed that he had appealed by submitting the January and February letters. Two of the letters, Robison recounted, he had personally delivered to the tax assessors’ office and informed a clerk at a window that he was “appealing my taxes.” Robison further recounted that he also had handed that clerk the tax returns at issue in this case. Having done so, Robison testified, “I thought I was appealing,” even though the pre-printed tax return forms were captioned, “TAXPAYER’S RETURN OF REAL PROPERTY.” Copies of the submitted returns introduced in evidence contained handwritten notations: “Appealing value Several lots.” But Robison testified that he had not written the notations, did not know who wrote them, and speculated they were added by that clerk.

Robison further testified that, also before the notices of assessment were sent, he had at least two conversations with an appraiser at the tax assessors’ office. While he acknowledged at the hearing, “I never talked to him about the appeals process[,]” Robison insisted at the hearing, “I was led to believe that I would be going in front of the Board of Appeals . . . and that I would receive a letter.” Robison therefore had waited for “[s]ome type of letter saying when my appeals date would be.” When he instead received the notices of assessment, Robison admitted, “I didn’t pay attention to [any such notice]. It’s not a tax bill, so I felt like I had already appealed my taxes. I didn’t read the fine print down at the bottom.”

Having considered the evidence and argument presented by the parties, the superior court ruled that the LLCs’ right to appeal had not been lost for failure to timely file notices of appeal. It found that the letters and returns that Robison had submitted — albeit before the 2009 assessments were mailed — had given the BTA “ample notice of [the LLCs’] desire to appeal the 2009 assessed values of [their] properties.” The superior court determined that the BTA was therefore not prejudiced because “[it] was on notice of [the LLCs’] desire to appeal the assessed values.” And the superior court concluded that the record showed “premature appeals filed by [the LLCs that] became effective when the assessment notices were sent to [the LLCs].”

But under similar circumstances, the Supreme Court of Georgia held that the failure to file timely a notice of appeal extinguished the taxpayers’ right to appeal, even though the taxpayers had indicated disagreement with valuations before receiving the formal notices of assessment. In Peagler v. Georgetown Assoc., the taxpayers received notices of proposed new valuations of their properties from a company that apparently had been authorized to determine fair market value. The taxpayers contacted the company by letter requesting an appointment to discuss the valuations and thereafter placed at least two telephone calls requesting information as to a hearing date. No date was ever set, and when the board of tax assessors sent formal notices of assessment, the taxpayers failed to file a timely appeal therefrom. The Court held:

The [taxpayers] failed to file a notice of appeal within the time provided by law from the official and only notice from the board of tax assessors. Regardless of the prior communications with the firm apparently employed by the Board of Tax Assessors to assist them in making valuations the appellees were not excused from complying with the provisions of the law relative to filing a notice of appeal from the official notice given by the Board of Tax Assessors.

While there are distinctions between the facts of that case and those here — e.g., Robison’s letters (and returns) were received directly by the tax assessors’ office, not a hired third party — we are guided by Peagler. Accordingly, we hold that the letters and returns submitted by Robison months before the assessment notices were mailed did not excuse the LLCs from complying with OCGA § 48-5-311 (e) (2) (A)’s requirement that a taxpayer mail or file a notice of appeal within 30 days “from the date of mailing the notice pursuant to Code Section 48-5-306.”

This holding accords with the plain language, as well as the intent of OCGA § 48-5-311, which is “to ensure proper and timely notice to parties in tax appeals and to provide procedures which expedite the tax appeal process.” As the BTA asserts in its appellate brief, to hold otherwise would place an unintended and “impossible burden on the tax assessor’s office to interpret what might constitute an appeal of a [future] tax assessment.” And as the BTA argued at the hearing, the LLCs’ position conflates two statutorily distinct procedures: returning property and appealing assessments.

The LLCs assert that “[i]t is undisputed that [they] submitted notices indicating their desire to appeal the value assessment of their respective properties.” But the only assessments of their properties at the time they “submitted notices” were those for tax year 2008, and it was far too late to appeal from those assessments to the BOE. And as discussed above, construing the “submitted notices” as notices of appeal with respect to 2009 assessments contravenes the intent and plain language of OCGA § 48-5-311.

Finally, the LLCs argue that the letters and returns should be construed as premature notices of appeal from the 2009 tax assessments, citing the non-tax case, In the Interest of J. D. A. Given the statutory framework governing tax returns and tax appeals, together with the fact that at the time the letters and returns were submitted and received by the tax assessors’ office, the 2009 assessments for the properties had not yet been made, we reject the LLCs’ argument. Because the factual, procedural, and statutory underpinnings of the instant case render it inapposite from In the Interest ofJ D. A., that case does not provide for an outcome in the LLCs’ favor.

Decided December 30, 2010

Fox, Chandler, Homans, Hicks & McKinnon, Joseph A. Homans, for appellant.

Smith, Gilliam, Williams & Miles, Steven P. Gilliam, Keith J. Whitaker, for appellees.

The LLCs failed to comply with OCGA § 48-5-311 (e) so as to effectuate an appeal to the BOE; consequently, their appeals to the superior court should have been dismissed.

Judgment reversed.

Miller, C. J., and Johnson, J., concur.

       See, e.g., OCGA §§ 48-5-15 (requiring that real property subject to taxation be returned by the property owner or his or her agent or attorney to the tax receiver or tax commissioner of the county where the property is located); 48-5-18 (requiring each tax commissioner and tax receiver to open his or her books for the return of taxes on January 1 and to close those books on April 1 of each year). See generally OCGA § 48-5-20 (a) (1) (a taxpayer who fails to return taxable property in a given year is deemed to have returned it at the same valuation as applied the preceding year).

       See OCGA § 48-5-311 (g) (concerning appealing decisions of the county board of equalization to the superior court); Hooten u. Thomas, 297 Ga. App. 487, 489 (677 SE2d 670) (2009) (taxpayer must first file an administrative appeal with the board of equalization or submit the appeal to arbitrators; an adverse decision from either the board of equalization or arbitrators may then be appealed to the superior court; if taxpayer has failed to exhaust his or her administrative remedies in accordance with OCGA § 48-5-311, however, the superior court is without subject matter jurisdiction to decide the appeal).

       See OCGA § 48-5-311 (e) (2) (A).

       Avalon’s letter stated that its lots were last assessed at a value of $55,000 and that it was requesting assessments at “the current fair market price or less than $30,000 per lot”; Elrod’s letter stated that its lots were last assessed at an average value of $38,584 and that it was requesting assessments at “the current fair market price or less than $25,000 per lot”; Clermont’s letter stated that its lots were last assessed at an average value of $41,418.38 and that it was requesting assessments at “the current fair market price or less than $30,000 per lot.”

       The parties agree that the values for tax year 2009 were set at the 2008 amounts.

       While the LLCs appealed to the superior court in three separate actions, the actions were later consolidated by the trial court upon joint motion of the parties.

       “[Statutory limitation on the period of time in which an appeal from a judicial decision may he taken is jurisdictional.” Camden County Bd. of Tax Assessors v. Proctor, 155 Ga. App. 650, 651 (271 SE2d 902) (1980) (citations and punctuation omitted); see Fulton County Bd. of Tax Assessors v. CPS Four Hundred, 213 Ga. App. 1, 2 (1) (443 SE2d 645) (1994) (whether notice of appeal was timely is jurisdictional in nature). And “[w]e apply a de novo standard of review to purely legal questions such as whether a trial court has jurisdiction over a matter.” Walker v. Dept, of Transp., 279 Ga. App. 287, 288 (1) (630 SE2d 878) (2006) (citation and footnote omitted).

       OCGA § 48-5-306 (a).

       Id.

       OCGA § 48-5-306 (b) (2).

       Id.

       OCGA § 48-5-311 (e) (1) (A).

       OCGA § 48-5-311 (e) (1) (C).

       While the statute sets forth that a notice of appeal shall be mailed or filed within either 30 or 45 days, there is no dispute that the 30-day time period applied in the instant case.

       OCGA § 48-5-311 (e) (2) (A) (emphasis supplied).

       232 Ga. 848 (209 SE2d 186) (1974) (concerning former Code Ann. § 92-6912 (5) (C), which required a notice of appeal be filed within a specified number of “days from the date of giving the notice” from the board of tax assessors).

       Id.

       Id.

       Id.

       Id. at 848-849.

       Id. at 849.

        CPS Four Hundred, supra at 2 (1).

       (Emphasis in original.)

       Accord Gwinnett County Bd. of Tax Assessors v. Gwinnett I Ltd. Partnership, 265 Ga. 645-646 (458 SE2d 632) (1995) (concluding that the legislature intended the two distinct procedures — (i) the appeal process under OCGA § 48-5-311, and (ii) a refund action under OCGA § 48-5-380 — to serve two distinct purposes).

       See OCGA § 48-5-311 (e).

       267 Ga. App. 103-104 (598 SE2d 842) (2004) (concerning termination of parental rights) (citing Gillen v. Bostick, 234 Ga. 308 (215 SE2d 676) (1975), for the proposition that a prematurely filed notice of appeal is treated as effective upon the filing of the order or judgment appealed).

       Cf. Gillen, supra at 309-311 (1) (although filed before entry of contested order, notice of appeal was nevertheless effective to vest jurisdiction in Supreme Court of Georgia, where the filing of the notice of appeal was after the date of the contested order; finding persuasive the proposition that “[t]he purpose of requiring the filing of a timely notice of appeal is to advise the opposing party that an appeal is being taken from a specific judgment, and such notice should therefore contain sufficient information so as not to prejudice or mislead the appellee” and proposing liberal construction of the Appellate Practice Act so as to bring about a decision on the merits of cases appealed) (citation and punctuation omitted; emphasis supplied).

       Supra.

       See OCGA § 48-5-311 (e) (2) (A) (explaining procedure for effectuating an appeal to a county board of equalization); Peagler, supra; CPS Four Hundred, supra at 3 (2) (holding that an appeal by a county hoard of tax assessors under OCGA § 48-5-311 is initiated by giving notice to the taxpayer within the statutory period and that jurisdiction will not otherwise lie).

       See Tift v. Tift County Bd. of Tax Assessors, 234 Ga. 155-156 (215 SE2d 3) (1975) (finding no error in hoard of tax assessors’ refusal to certify taxpayer’s notice of appeal to board of equalization, where notice of appeal was filed outside time fixed by statute for effecting an appeal from assessment of the hoard of tax assessors); CPS Four Hundred, supra at 2 (1) (superior court correctly dismissed board of tax assessors’ appeals for failure to effect its appeals in a timely fashion); Proctor, supra at 651-652 (taxpayer’s appeal should have been dismissed, where notice of appeal to superior court was not timely filed under the applicable statutory provision).


source: Caselaw Access Project

author: Dillard, Judge.

license: Public Domain

text:
    A08A2143.
    DZIWURA v. BRODA.
    (705 SE2d 873)
    Decided January 5, 2011.

      Rodney S. Shockley, for appellant.

      Fried, Rogers & Goldberg, Michael L. Goldberg, Harper, Waldon & Craig, John B. Craig, Goodman, McGuffey, Lindsey & Johnson, Stephanie F. Glickauf, for appellee.
   Dillard, Judge.

In Broda v. Dziwura, 286 Ga. 507 (689 SE2d 319) (2010), the Supreme Court of Georgia reversed the judgment of this Court in Dziwura v. Broda, 297 Ga. App. 1 (696 SE2d 400) (2009). Therefore, we vacate our earlier opinion and adopt the opinion of the Supreme Court as our own.

Judgment affirmed.

Andrews and Doyle, JJ., concur.


author: Blackwell, Judge.

text:
    A09A2405.
    MILLER v. THE STATE.
    (705 SE2d 874)
   Blackwell, Judge.

Terry Lynn Miller pled guilty to possession of cocaine and was sentenced to serve 15 years on probation. The trial court later found that Miller had violated the terms of his probationary sentence and revoked two years of his probation. In its order of revocation, however, the trial court ordered that, upon Miller completing a substance abuse treatment program, the revocation of his probation would be suspended and he would return to “regular probation supervision under all original conditions.” After granting his application for discretionary appeal, we rejected Miller’s claims that the trial court erred when it revoked his probation and denied his motion for a State-provided transcript of his probation revocation hearing, and we affirmed the judgment below. Miller v. State, 301 Ga. App. 706 (689 SE2d 46) (2009).

Decided January 5, 2011.

Timothy L. Eidson, James C. Bonner, Jr., for appellant.

Denise D. Fachini, District Attorney, Cheri L. Nichols, Assistant District Attorney, for appellee.

The Supreme Court of Georgia then granted certiorari to review our decision. According to the Supreme Court, it is “undisputed that Miller’s partial sentence revocation was suspended when he successfully completed a substance abuse treatment program on July 13, 2009, two days before his application for appeal was granted by the Court of Appeals,” and for this reason, Miller’s claims were moot when this Court granted his application for appeal. Miller v. State, 288 Ga. 153 (702 SE2d 137) (2010). The Supreme Court vacated our earlier decision in this case and remanded to us for further proceedings. We now adopt the judgment of the Supreme Court as our own and dismiss the appeal as moot.

Appeal dismissed as moot.

Adams and Doyle, JJ., concur.


author: Mikell, Judge.

text:
    A10A1698.
    PRESLEY v. THE STATE.
    (705 SE2d 870)
   Mikell, Judge.

Following a jury trial in 2006, Larry Presley was convicted of aggravated stalking and acquitted of making terroristic threats. Pursuant to the grant of an out-of-time appeal, Presley argues that his trial counsel rendered ineffective assistance and that the trial court’s jury charge on aggravated stalking was unconstitutionally burden-shifting. We disagree and affirm.

1. Presley contends that the trial court erred in denying his motion for new trial on the ground that counsel was ineffective for failing to secure the attendance of a witness at trial and for failing to file a “proper” motion for a continuance.

In order to prevail on an ineffective assistance claim, “a convicted defendant must show that counsel performed deficiently and that the deficient performance prejudiced the defendant such that a reasonable probability exists that, but for counsel’s errors, the outcome of the trial would have been different.”

To meet the first prong of the required test, the defendant must overcome the strong presumption that counsel’s performance fell within a wide range of reasonable professional conduct, and that counsel’s decisions were made in the exercise of reasonable professional judgment. The reasonableness of counsel’s conduct is examined from counsel’s perspective at the time of trial and under the particular circumstances of the case.

On appellate review, we accept the trial court’s factual findings and credibility determinations unless they are clearly erroneous, while we independently apply the legal principles to the facts.

Applying these guidelines, we hold that the trial court did not err in denying Presley’s motion for new trial. Trial counsel testified at the new trial hearing that he had represented Presley on a 2004 case as well as the instant case; that they had made several court appearances on both cases; that when the 2004 case was dead-docketed, the 2006 case was placed on a trial calendar; that Presley told counsel, “don’t worry about it. It’s just like the 04 case, nobody is going to come to testify because I’m not guilty.” After counsel emphasized that trial was imminent, Presley informed him about a witness. Counsel proceeded with Presley to the witness’s work address and interviewed her. He did not have time to obtain and serve a subpoena that day, and trial began the next day. Counsel testified that the witness supported Presley’s version of events, and she agreed to come to court. Counsel stated that he would give her a subpoena at that time.

When it became apparent that the witness would not appear voluntarily, counsel filed a motion for a continuance in open court when the case was called for trial, on October 10, 2006. The trial court denied the motion. On October 12, counsel renewed the motion, informing the court that he had been unable to subpoena the witness, that her testimony was critical, and that counsel required additional time to secure her attendance. The trial court did not grant this request. At the new trial hearing, counsel testified that the witness would have challenged the testimony of the victims to the extent that the verdict on the aggravated stalking charge may have been different. Presley testified that he did not know where the witness was located, and the witness did not testify at the hearing.

Examining counsel’s conduct from his perspective at the time of the trial and under the particular circumstances of the case, we conclude that Presley has not shown that trial counsel failed to exercise reasonable professional judgment in failing to secure the attendance of the witness. Counsel had already announced ready for trial based on Presley’s assurance that no witness would come forward for the state, and Presley did not inform counsel of the witness’s existence until the eve of trial. Counsel immediately proceeded to interview the witness but did not have sufficient time to procure and serve a subpoena before trial the next day. “A claim of ineffective assistance of counsel is judged by whether counsel rendered reasonably effective assistance, not by a standard of errorless counsel or by hindsight.” Moreover, Presley cannot demonstrate that his defense was prejudiced by counsel’s failure to secure the witness’s attendance at trial because the witness did not testify at the new trial hearing, and no substitute was offered for her testimony.

Finally, Presley argues that counsel was deficient because his motion for continuance did not comply with OCGA § 17-8-25. As a result, Presley asserts that the denial of his motion was not preserved for appellate review. We note, however, that the statute requires that the motion show that the witness has been subpoenaed. As the witness in question had not been subpoenaed, counsel could not comply with the statute. In any event, “a motion for continuance predicated upon a claim of insufficient time to prepare for trial is addressed to the sound discretion of the trial court, and will not be interfered with unless it is clearly shown that the court abused its discretion.” Presley has not shown that the trial court’s denial of the motion for continuance was reversible error and has not demonstrated ineffective assistance of counsel.

2. Presley argues that the trial court’s jury charge on aggravated stalking was unconstitutionally burden-shifting. We disagree.

A person commits the offense of aggravated stalking when such person, in violation of a . . . temporary protective order. . . , follows, places under surveillance, or contacts another person at or about a place or places without the consent of the other person for the purpose of harassing and intimidating the other person.

After instructing the jury in accordance with the foregoing and defining the “harassing and intimidating” element of aggravated stalking, the trial court charged the jury as follows: “Georgia’s aggravated stalking statute requires proof of a court order restricting contact by the defendant with the victim and a violation by the defendant of that order. The existence of a written order is presumptive evidence of notice to the defendant in an aggravated stalking case.”

Presley contends that the second sentence unconstitutionally shifted the burden of proof to him. Presley, however, failed to object to this charge or reserve exceptions to the charge and has thus waived this claim for appellate review. He relies on the exception to this rule for cases in which there is a substantial error in the charge that is harmful as a matter of law. “Under this standard, a defendant must show that the allegedly erroneous charge was blatantly apparent and prejudicial to the extent that it raises a question whether he has been deprived, to some extent, of a fair trial.” Presley has not made this showing. The record contains an ex parte temporary protective order issued against Presley, which was served on him personally by the sheriffs office, as well as a 12-month protective order issued against him following a hearing. A defendant’s receipt of actual notice of the order is not an element of the offense of aggravated stalking, and even if it were, “proof of the written order alone is sufficient to prove notice to [the defendant] based on the presumption of regularity in judicial proceedings.” Based on the evidence in this case and the applicable law, the court’s instruction that “the existence of a written order is presumptive evidence of notice to the defendant” was not harmful as a matter of law.

Decided January 5, 2011.

Kenneth D. Kondritzer, for appellant.

Paul L. Howard, Jr., District Attorney, Bettieanne C. Hart, Assistant District Attorney, for appellee.

Judgment affirmed.

Smith, P. J., and Adams, J., concur.

       (Citation omitted.) Coleman v. State, 286 Ga. 291, 297 (6) (687 SE2d 427) (2009).

       (Citation and punctuation omitted.) Adams v. State, 283 Ga. 298,299 (3) (658 SE2d 627) (2008).

       Id. Accord Suggs v. State, 272 Ga. 85, 88 (4) (526 SE2d 347) (2000).

        Adams, supra. See also Savior v. State, 284 Ga. 488, 492 (3) (668 SE2d 695) (2008).

       (Citation omitted.) Hooks v. State, 280 Ga. 164, 165 (3) (626 SE2d 114) (2006).

        Dickens v. State, 280 Ga. 320, 322 (2) (627 SE2d 587) (2006). Compare Richardson v. State, 189 Ga. App. 113, 114 (375 SE2d 59) (1988) (prejudice shown where alibi witnesses testified at the new trial hearing that they were with defendant at the time of the armed robbery).

       (Citation and punctuation omitted.) Gibbs v. State, 213 Ga. App. 117, 119 (3) (443 SE2d 708) (1994).

       OCGA § 16-5-91 (a).

        Anderson v. State, 262 Ga. 331, 332 (2) (418 SE2d 39) (1992).

       OCGA § 5-5-24 (c).

       (Punctuation and footnote omitted.) Nichols v. State, 288 Ga. App. 118, 120 (1) (653 SE2d 300) (2007).

       (Citations omitted.) Revere v. State, 277 Ga. App. 393, 395 (1) (b) (626 SE2d 585) (2006).


text:
    A10A1856.
    MUSCOGEE COUNTY BOARD OF TAX ASSESSORS v. PACE INDUSTRIES, INC.
    (705 SE2d 678)
   Mikell, Judge.

The Muscogee County Board of Tax Assessors (the “Board”) appeals from the trial court’s grant of summary judgment to Pace Industries, Inc. (“Pace”), in an ad valorem tax dispute concerning the availability of the freeport exemption for inventory held by Pace in Georgia. Pace applied for the freeport exemption for the tax year 2006 for its inventory of barbecue grill bodies stored in the Columbus warehouse that it leased. The Board ruled that the inventory in question was not exempt from ad valorem taxes under OCGA § 48-5-48.2 (b) and denied the freeport exemption. After that ruling was affirmed by the board of equalization, Pace appealed to the Superior Court of Muscogee County. The parties filed cross-motions for summary judgment, and the court granted summary judgment in favor of Pace and against the Board. The trial court concluded that Pace’s inventory of grill bodies qualified for the freeport exemption found in OCGA § 48-5-48.2 (b) (3) (a “Category 3” exemption), because the grill bodies are destined for shipment to “a final destination outside this state.” The Board appeals from this order. We conclude that the freeport exemption does not apply to the grill bodies at issue here, and we reverse.

On appellate review of the grant or denial of a motion for summary judgment, we conduct a de novo review of the law and the evidence, and we view the evidence in the light most favorable to the nonmovant. “When a question of law is at issue, as here, we owe no deference to the trial court’s ruling and apply the ‘plain legal error’ standard of review.”

The facts in this case are undisputed. Pace, a wholly-owned subsidiary of Leggett & Platt, Inc., operates a manufacturing facility in Arkansas. There Pace manufactures barbecue grill bodies, which are die-cast aluminum bodies for gas and charcoal barbeque grills. Pace ships the grill bodies from its Arkansas plant to a warehouse it leases in Columbus, where they are stored until they are needed by Char-Broil, a producer and distributor of barbecue grills located in Columbus. Char-Broil is one of Pace’s major customers for the grill bodies, and Pace manufactures the grill bodies to Char-Broil’s specifications. Pace sells and delivers the grill bodies to Char-Broil at Char-Broil’s Columbus plant. Char-Broil incorporates the grill bodies into finished barbecue grills, which Char-Broil then ships to its customers, mainly large retail stores. The record reflects that during calendar year 2003, Char-Broil shipped 94.4 percent of its completed grills to customers outside the state of Georgia.

Pace argues that the grill bodies qualify for the freeport exemption because they are sold to Char-Broil, which then ships them out of state once they are incorporated into finished barbecue grills. The trial court accepted this argument, ruling that the grill bodies are “destined for shipment to a final destination outside this state,” as contemplated by OCGA § 48-5-48.2. We disagree, because as far as Pace is concerned, the final destination of the grill bodies is CharBroil’s Columbus plant. Thus, we conclude that the grill bodies do not qualify for the freeport exemption.

The Category 3 freeport exemption, at issue here, applies generally to “inventory of finished goods held for shipment outside the state.” Category 3 inventory is described at OCGA § 48-5-48.2 (b) (3), and includes:

Inventory of finished goods which, on January 1, are stored in a warehouse, dock, or wharf, whether public or private, and which are destined for shipment to a final destination outside this state and inventory of finished goods which are shipped into this state from outside this state and stored for transshipment to a final destination outside this state. The exemption provided for in this paragraph shall be for a period not exceeding 12 months from the date such property is stored in this state.

Thus, to qualify for a Category 3 freeport exemption, the inventory in question must be (1) “finished goods”; (2) in Georgia for less than 12 months; and (3) “destined for shipment to a final destination outside this state.” Pace records the grill bodies as “finished goods” for inventory accounting purposes on its books and records, and the Board concedes that Pace’s inventory of grill bodies constitutes “finished goods,” as defined in OCGA § 48-5-48.2 (a) (2). The Board also concedes that Pace stores the grill bodies in Georgia for less than the 12-month statutory maximum, based on an average inventory turnover rate of 47.1 days for tax year 2004. The Board contends, however, that the grill bodies do not meet the third test necessary to qualify for the Category 3 freeport exemption. Thus, the issue presented here is whether the grill bodies are “destined for shipment to a final destination outside this state.”

OCGA § 48-5-48.2 (a) (1) provides that inventory “[d]estined for shipment to a final destination outside this state” includes “that portion or percentage of an inventory of finished goods which ... is reasonably anticipated to be shipped to a final destination outside this state.” That goods are “reasonably anticipated” to be shipped out of state must be established by the taxpayer “through a historical sales or shipment analysis, either of which utilizes information from the preceding calendar year, or other reasonable, documented method.”

We note that this is a case of first impression, and disposition of this appeal requires construing the statutes authorizing the freeport exemption. “[L]aws granting an exemption from taxation must be construed strictly in favor of the taxing authority, and all doubts must be resolved against the taxpayer. Consequently, no exemption will be allowed unless the exemption is clearly and distinctly intended by the legislature.” At the same time, “[i]n construing a legislative act, a court must first look to the literal meaning of the act. If the language is plain and does not lead to any absurd consequences, the court simply construes it according to its terms and conducts no further inquiry.” Our interpretation of the statute “must square with common sense and sound reasoning. ... In this sense, a statute should be read according to its natural and most obvious import of the language without resorting to subtle and forced constructions for the purpose of either limiting or extending its operation.”

Pace contends that the grill bodies are “destined for shipment to a final destination outside this state” because they are sold by Pace to Char-Broil and then sold by Char-Broil to customers outside Georgia. Pace concludes that “nothing in the statute makes it relevant that the grill bodies are first sent to Char-Broil before being shipped outside the state.” However, this argument does not take into account the facts of this case. Pace does not merely send the grill bodies to Char-Broil; Pace sells them to Char-Broil. Pace argues that the change in title does not make any difference, but in light of the statutory scheme, this argument cannot stand. “Statutes are not to be construed in a vacuum, but in relation to other statutes of which they are a part, and all statutes relating to the same subject-matter are to be construed together, and harmonized wherever possible.”

Unless exempted, Georgia law imposes ad valorem tax on all personal property. The tax is charged against the owner of the property. The taxpayer is obligated to make tax returns of the property; and the return covers “property held and subject to taxation on January 1 next preceding each return.” The tangible personal property exemption known as the freeport exemption is available for certain business inventory described in OCGA § 48-5-48.2 (b). Under OCGA § 48-5-48.1 (a), the entity seeking the freeport exemption is required to file a written application and schedule of the property for which the exemption is sought. Thus, the statutory scheme looks to the property, that is, the inventory, held by the taxpayer; what becomes of the inventory in the hands of a purchaser from the taxpayer is not relevant to the determination of the availability of the freeport exemption. As far as Pace is concerned, the “final destination” of the grill bodies constituting the inventory here at issue is the Columbus plant of Char-Broil.

Decided January 5, 2011.

Page, Scrantom, Sprouse, Tucker & Ford, Travis C. Hargrove, Kirsten C. Stevenson, for appellant.

Alston & Bird, Mary T. Benton, Timothy J. Peaden, for appellee.

Our decision in Aircraft Spruce is instructive. There, we held that the freeport exemption did not apply to the inventory of a retailer engaged in the business of selling aircraft parts to customers outside Georgia over the internet, because the sales occurred in Georgia. We noted that “in determining whether a retail sale is made in this [s]tate, we must look to the location and conduct of the seller, rather than the location of the buyer.” Similarly, here we look to the conduct of Pace, the seller. Pace’s involvement with the grill bodies ends when Pace sells them to Char-Broil, and therefore the “final destination” of the grill bodies is the Char-Broil plant located in Columbus. It follows that the grill bodies sold to Char-Broil do not fall within the Category 3 freeport exemption found in OCGA § 48-5-48.2 (b) (3). Char-Broil incorporates the grill bodies into finished barbecue grills, and it is these completed barbecue grills that Char-Broil eventually ships out of state.

For the reasons stated above, we reverse the decision of the trial court.

Judgment reversed.

Smith, P. J., and Adams, J., concur.

       See OCGA §§ 48-5-48.1; 48-5-48.2.

       See OCGA § 48-5-48.2 (a) (1), (b) (3).

        Clayton County Bd. of Tax Assessors v. City of Atlanta, 286 Ga. App. 193, 194 (648 SE2d 701) (2007).

        Delta Air Lines v. Clayton County Bd. of Tax Assessors, 246 Ga. App. 225, 226 (539 SE2d 905) (2000).

       (Citation and punctuation omitted.) City of Atlanta, supra. Accord Delta Air Lines, supra.

       The instant case concerns tax year 2006. By agreement, the parties submitted cross-motions for summary judgment and related briefing which had been filed in a companion case pending before the superior court, relating to tax year 2004. The sole difference between the two cases was the amount of exemption claimed.

       (Footnote omitted.) Delta Air Lines, supra at 227.

       OCGA § 48-5-48.2 (b) (3).

       Under OCGA § 48-5-48.2 (a) (2), “[flinished goods” includes “goods, wares, and merchandise of every character and kind but shall not include unrecovered, unextracted, or unsevered natural resources or raw materials or goods in the process of manufacture or production or the stock in trade of a retailer.”

       OCGA § 48-5-48.2 (a) (1), (b) (3).

       OCGA § 48-5-48.2 (a) (1).

       Id.

       See Delta Air Lines, supra at 226.

       (Citation omitted.) Aircraft Spruce &c. Co. v. Fayette County Bd. of Tax Assessors, 294 Ga. App. 241, 243 (669 SE2d 417) (2008).

       (Citation and punctuation omitted.) Apollo Travel Sues. v. Gwinnett County Bd. of Tax Assessors, 230 Ga. App. 790, 791-792 (3) (498 SE2d 297) (1998).

       (Citations and punctuation omitted.) Id. at 792 (3). Accord Aircraft Spruce, supra.

       (Citations and punctuation omitted.) Fulton County Tax Commr. v. Gen. Motors Corp., 234 Ga. App. 459, 464 (1) (507 SE2d 772) (1998).

       OCGA § 48-5-3 (“all personal property shall be liable to taxation and shall be taxed, except as otherwise provided by law”).

       OCGA § 48-5-9 (“Taxes shall be charged against the owner of property if the owner is known”).

       OCGA § 48-5-10 (“All property shall be returned by the taxpayers for taxation to the tax commissioner or tax receiver as provided by law”).

       Id.

       See OCGA § 48-5-48.1 (a).

       Cf. Aircraft Spruce, supra at 242 (“Under Georgia law, a retailer may be assessed ad valorem taxes based on the value of its inventory as of January 1”) (emphasis supplied).

       Id.

       Id. at 244.

       Id. at 243 (retail sales occurred at taxpayer’s warehouse in Georgia, where orders were received, processed and filled) (id. at 243-244).


text:
    A10A1706.
    FLAT SHOALS LAND HOLDING, LLC et al. v. DECATUR FIRST BANK.
    (705 SE2d 311)
   Mikell, Judge.

The DeKalb County Superior Court entered an order that denied confirmation of a nonjudicial sale of property conducted by appellee Decatur First Bank (the “Bank”), but permitted resale of the real property involved. The court also denied the motion to dismiss the Bank’s petition for confirmation filed by appellants Flat Shoals Land Holding, LLC (“Flat Shoals”); Jeffrey M. Notrica; Inman Park Properties, Inc.; Inman Park Properties of East Atlanta, LLC; and 1620 Piedmont Avenue, LLC. Appellants appeal from the denial of their motion to dismiss the Bank’s petition, contending in their sole enumeration of error that the trial court erred in denying their motion to dismiss, because the Bank failed to report the foreclosure sale within 30 days to the judge of the superior court, as required by OCGA § 44-14-161 (a). We disagree and affirm.

In a confirmation proceeding, the trial court sits as the trier of fact, and its findings will not be disturbed on appeal if there is any evidence to support them. Further, on appellate review, “we do not determine witness credibility or weigh the evidence and we view the evidence in the light most favorable to the trial court’s judgment.”

Properly viewed, the record reflects that the property at issue was sold to the Bank for $175,000 on May 5, 2009, pursuant to a power of sale contained in a deed to secure debt from Flat Shoals in favor of the Bank. On May 13, 2009, the Bank filed a petition for confirmation of the foreclosure sale under OCGA § 44-14-161 with the clerk of the DeKalb County Superior Court. The petition was denominated “Report of Foreclosure Sale under Power of Sale and Petition for Confirmation of Such Foreclosure Sale.” On the same day that the petition was filed, Nicole Robben, legal assistant to the Bank’s counsel, delivered a file-stamped copy of the petition to the court’s receptionist at the central reception desk on the floor where the chambers of the assigned judge, Judge Daniel M. Coursey, Jr., were located. According to the affidavit of Cathy W. McCumber, the superior court administrator, attorneys and persons acting for attorneys routinely deliver packages and envelopes to the receptionist sitting at the reception desk on the floor where the judges’ offices are located. Periodically, the receptionist alerts the judge’s office that a delivery has been left for the judge; and staff members to the judges routinely stop by to check for packages left for their judge.

At the hearing on appellants’ motion to dismiss, Judge Coursey noted that the file-stamped copy of the petition was delivered by the receptionist to his calendar clerk, Heather Nicholson, “who was authorized to accept it and signed the rule nisi,” which was filed on May 14, 2009, well within the 30-day statutory period. The judge further stated from the bench that due to security concerns at the DeKalb County Courthouse, no one is allowed to proceed past the receptionist without special permission. The judge also stated that “Ms. Nicholson is my calendar clerk and she handles all these matters for me.”

As Judge Coursey correctly observed, this case is controlled by our decision in Cornelia Bank v. Brown. In that case, the bank seeking confirmation of a foreclosure sale presented its petition within 30 days of the sede at the chambers of the superior court judge in the proper county, but the judge was not there, so his secretary, acting upon authority given to her by the judge, affixed the judge’s signature stamp to the order scheduling a hearing on the petition. The judge ruled that the bank had not complied with the reporting requirement of OCGA § 44-14-161 (a), because the petition had not been presented to the judge personally. We reversed on the ground that the bank had presented its petition to the office of the superior court judge in the manner authorized by the judge.

Similarly, in the case before us, the petition reached the judge’s chambers in the manner authorized by the judge and within the time period allowed by the statute. Although “the confirmation statute is in derogation of the common law and must be strictly construed,” we conclude that the manner in which the Bank reported the sale in this case complied with the statute. Accordingly, we find no error in the trial court’s denial of appellants’ motion to dismiss the Bank’s petition.

Judgment affirmed.

Smith, B J., and Adams, J., concur.

Decided January 6, 2011

Robbins, Freed & Ross, Gary S. Freed, Chamberlain, Hrdlicka, White, Williams & Martin, Fletcher B. Howard, for appellants.

Fred R. Slotkin, Jr, for appellee.

       In order to seek a deficiency judgment following a foreclosure sale, OCGA § 44-14-161 (a) requires that “the person instituting the foreclosure proceedings shall, within 30 days after the sale, report the sale to the judge of the superior court of the county in which the land is located for confirmation and approval and shall obtain an order of confirmation and approval thereon.” '

        Nash v. Compass Bank, 296 Ga. App. 874, 875 (676 SE2d 28) (2009); Wilson v. Prudential Indus. Properties, 276 Ga. App. 180-181 (1) (622 SE2d 890) (2005).

       (Punctuation and footnote omitted.) Wilson, supra at 181 (1).

       The deed to secure debt was granted by Flat Shoals in order to secure a promissory note from Flat Shoals to the Bank, executed on August 29, 2008, in the original principal amount of $606,786.55. The promissory note was guaranteed by appellants Jeffrey M. Notrica; Inman Park Properties, Inc.; Inman Park Properties of East Atlanta, LLC; and 1620 Piedmont Avenue, LLC.

       166 Ga. App. 68 (303 SE2d 171) (1983).

       Id.

       Id.

       Id. at 69.

       Compare Lanier Bank &c. Co. v. Nix, 221 Ga. App. 323, 324 (471 SE2d 229) (1996) (bank did not comply with reporting requirement where bank made no attempt to present petition to judge or even to judge’s office, but relied solely on filing petition with clerk of court, distinguishing Cornelia, supra).

       (Citation omitted.) Hernandez v. Resolution Trust Corp., 210 Ga. App. 538 (1) (436 SE2d 534) (1993).


author: MlKELL, Judge.

text:
    A10A1743.
    BACALLAO v. THE STATE.
    (705 SE2d 307)
   MlKELL, Judge.

After a bench trial, Denise Bacallao was convicted of driving under the influence per se and driving under the influence to the extent that it was less safe. On appeal, Bacallao challenges the trial court’s denial of her motion to suppress. Discerning no error, we affirm.

When reviewing a trial court’s order on a motion to suppress, we are guided by three principles with respect to the trial court’s judgment of the facts:

First, when a motion to suppress is heard by the trial judge, that judge sits as the trier of facts. The trial judge hears the evidence, and his findings based upon conflicting evidence are analogous to the verdict of a jury and should not be disturbed by a reviewing court if there is any evidence to support it. Second, the trial court’s decision with regard to questions of fact and credibility must be accepted unless clearly erroneous. Third, the reviewing court must construe the evidence most favorably to the upholding of the trial court’s findings and judgment.

“Because there was testimonial evidence in this case, we do not apply a de novo standard of review.”

Construed in favor of the trial court’s judgment, the record shows that Georgia State Patrol Post 32 conducted a roadblock in Oconee County for the purpose of checking driver’s licenses, seat belts, driver impairment, and vehicle fitness. Trooper Charles Parker testified that he was one of the screening officers working the roadblock; that he observed Bacallao driving a white van; and that the van turned right headed toward the checkpoint then made an immediate left into the second entrance of the gas station parking lot that was just south of the checkpoint. Parker testified that he approached Bacallao as she exited her vehicle to question her because he did not know if she was going to the gas station or attempting to avoid the roadblock. Parker advised Bacallao that they were conducting a license check and asked to see Bacallao’s license. Bacallao gave Parker her license, and as they talked, he detected the odor of alcohol on her breath. Parker asked Bacallao how much alcohol she had consumed that day, and she told him that she had three glasses of wine, the last of which she had drunk recently in her home.

Parker asked Bacallao to take a horizontal gaze nystagmus test, during which she displayed six of six clues. Parker then asked her to perform a breath test, and the breath test results were positive for alcohol. Because Bacallao had recently consumed a glass of wine, Parker waited 20 more minutes then administered the breath test again, and the second test also was positive for alcohol. Parker then arrested Bacallao for driving under the influence. Parker testified that he read Georgia’s implied consent warning to Bacallao, then walked Bacallao to the alcohol testing trailer to administer another breath test, utilizing the Intoxilyzer 5000. Bacallao gave two breath samples, and the lower test result indicated a blood alcohol level of 0.106.

Bacallao testified that she lived within a half mile of the checkpoint and that she had gone to the gas station to buy some milk, not to avoid the roadblock. Additionally, Bacallao testified that she answered Parker’s questions because he was a police officer, and she thought that she was required to do so. In its order denying the motion to suppress, the trial court concluded that Parker’s initial interaction with Bacallao was a “first-tier” encounter that did not involve coercion or detention and that Parker had a reasonable and articulable suspicion that Bacallao had committed a crime after talking with her and was justified in detaining Bacallao further.

In her single enumeration of error, Bacallao argues that the trial court erred when it denied her motion to suppress because Parker’s detention of her was illegal. Specifically, Bacallao maintains that there was neither probable cause nor articulable suspicion to support the stop.

At least three types of police-citizen encounters exist: (1) verbal communications involving no coercion or detention; (2) brief “stops” or “seizures” that require reasonable suspicion; and (3) “arrests,” which can only be supported by probable cause. A first-tier encounter never intrudes upon any constitutionally protected interest, since the purpose of the Fourth Amendment is not to eliminate all contact between police and citizens, but simply to prevent arbitrary and oppressive police interference with the privacy and personal security of individual citizens. On the other hand, a second-tier encounter may violate the Fourth Amendment if the officer briefly “stops” or “seizes” a citizen without an articulable suspicion. Articulable suspicion requires a particularized and objective basis for suspecting that a citizen is involved in criminal activity. Moreover, a “seizure” within the meaning of the Fourth Amendment only occurs when, in view of all the circumstances surrounding the incident, a reasonable person believes that he is not free to leave.

Bacallao’s position that the stop required articulable suspicion or probable cause presumes that the initial interaction between she and Parker was a second- or third-tier encounter. However, the evidence supports the trial court’s determination that it was a first-tier encounter.

In support of her argument, Bacallao relies on Jorgensen v. State. In that case, we reversed a DUI conviction where the officer stopped the defendant, who was driving normally, based solely on his intuition that the defendant was avoiding a roadblock when he turned into an apartment complex before reaching the roadblock. The officer pursued the vehicle into the apartment complex, parked behind the defendant, and told him that he was not free to leave. Jorgensen is inapposite because there is no evidence in the instant case that Bacallao was initially detained or was told that she was not free to leave. Rather, Parker approached and questioned Bacallao as she exited her parked car.

It is well established that an officer’s approach to a stopped vehicle and inquiry into the situation is not a “stop” or “seizure” but rather clearly falls within the realm of the first type of police-citizen encounter. . . . Even when officers have no basis for suspecting a particular individual, they may generally ask questions of that individual; ask to examine the individual’s identification; and request consent to search — as long as the police do not convey a message that compliance with their requests is required.

Decided January 6, 2011.

McArthur, McArthur & Overend, John J. McArthur, for appellant.

Kenneth W Mauldin, District Attorney, James V Chafin, Assistant District Attorney, for appellee.

Accordingly, Parker was authorized to approach Bacallao and ask to examine her driver’s license. Thus, the trial court’s conclusion that Parker and Bacallao’s interaction was a first-tier encounter that did not require articulable suspicion was supported by the evidence. Furthermore, once Parker smelled alcohol on Bacallao’s breath, he had the required articulable suspicion to investigate further. Therefore, we affirm the trial court’s denial of Bacallao’s motion to suppress.

Judgment affirmed.

Smith, P. J., and Adams, J., concur.

       OCGA § 40-6-391 (a) (5).

       OCGA §40-6-391 (a) (1).

       (Footnote omitted.) Taylor v. State, 249 Ga. App. 733 (549 SE2d 536) (2001).

       (Footnote omitted.) Butler v. State, 303 Ga. App. 564, 565 (694 SE2d 168) (2010).

       (Citations, punctuation and footnotes omitted.) State v. Causey, 246 Ga. App. 829, 831 (1) (540 SE2d 696) (2000).

       207 Ga. App. 545 (428 SE2d 440) (1993).

       Id. at 545-546.

       Id.

       (Citations and punctuation omitted.) Stokes v. State, 238 Ga. App. 230, 232 (518 SE2d 447) (1999).

       See State v. Kaylor, 234 Ga. App. 495, 497-498 (507 SE2d 233) (1998) (first-tier encounter where officer did not create impression that defendant could not leave, after officer approached defendant as he returned to his parked car). See also Carrera v. State, 261 Ga. App. 832, 834 (584 SE2d 2) (2003) (first-tier encounter where police approached defendant’s parked car and asked for consent to search but did not give impression that defendant could not leave).

        Blankenship v. State, 301 Ga. App. 602, 604 (2) (a) (688 SE2d 395) (2009) (“[t]he alcoholic smell provided the officer reasonable grounds to conduct a second-tier investigatory detention”) (citations, punctuation and footnotes omitted).


author: MIKELL, Judge.

text:
    A10A2154.
    In the Interest of D. C., a child.
    (705 SE2d 313)
   MIKELL, Judge.

Following a hearing on March 17, 2010, D. C., a juvenile, was adjudicated delinquent after admitting to the designated felony offenses of theft by taking — motor vehicle (two acts) and violation of probation. D. C. was sentenced to restrictive custody for 24 months, pursuant to OCGA § 15-11-63 (b). Acting pro se, D. C.’s father filed a notice of appeal from the juvenile court’s order, asserting ineffective assistance of counsel. We remand for a hearing on this issue.

Construed in favor of the juvenile court’s adjudication of delinquency, the evidence shows that on November 9, 2009, D. C. was charged with three acts constituting a designated felony, theft by taking — motor vehicle, in connection with the theft of three golf carts in Peachtree City on October 26, November 4, and November 6, 2009. At the detention hearing held on November 19, 2009, D. C. admitted to one of the three offenses. The juvenile court entered an order placing D. C. on probation for two years. As a special condition of probation, D. C. was required to attend and complete an Outdoor Therapeutic Program (OTP) in Warm Springs. D. C. acknowledged at the hearing that he understood that the other two charges against him were not being dismissed, and that if he failed to complete the OTP, he could face one to five years on the other charges.

D. C. did not complete the OTP; he was unsuccessfully discharged from it on March 8, 2010. A new petition of delinquency was filed based on the violation of probation. The two outstanding theft by taking charges, as well as the violation of probation charge, were presented to the juvenile court for adjudication at a hearing on March 17, 2010. At that hearing, D. C., who was represented by counsel, admitted to both charges of theft by taking — motor vehicle, as well as to the violation of probation. The juvenile court adjudicated him delinquent based on both theft by taking charges and the probation violation. The juvenile court then found that restrictive custody was necessary and committed D. C. to such custody for a period of 24 months. D. C. appeals, asserting that trial counsel rendered ineffective assistance.

The state argues that this matter should be remanded for an evidentiary hearing on the issue of effectiveness of trial counsel. We agree. Because trial counsel did not file a motion for new trial, this issue was not raised in the trial court. “Generally, when the appeal presents the first opportunity to raise an ineffective assistance claim, we remand the case to the trial court for an evidentiary hearing on the issue.” We are aware that “remand is not necessary when it appears as a matter of law that the appellant cannot satisfy the two-prong test to establish ineffectiveness of counsel.” In this case, however, D. C.’s arguments, especially that counsel rendered ineffective assistance in connection with D. C.’s admissions of guilt, cannot be adequately addressed as a matter of law on the existing record.

Decided January 6, 2011.

Errol Demesme, pro se.

Scott L. Ballard, District Attorney, Christy R. J indr a, Robert W.

Smith, Jr., Assistant District Attorneys, for appellee.

Accordingly, we remand this case to the juvenile court for an evidentiary hearing and determination on the ineffective assistance claims raised by D. C.

Case remanded with direction.

Smith, P. J., and Adams, J., concur.

       OCGA§ 15-11-63 (a) (2) (E) defines a “designated felony act” to include “an act which . . . [clonstitutes a second or subsequent violation of Code Sections 16-8-2 through 16-8-9, relating to theft, if the property which was the subject of the theft was a motor vehicle.”

       See OCGA § 15-11-63 (b).

       See In the Interest ofJ. L. B., 280 Ga. App. 556,558 (2) (634 SE2d 514) (2006) (as parties to a delinquency action, parents, acting pro se, had right to appeal juvenile court’s adjudication of delinquency of their son).

        In the Interest of J. L. H., 289 Ga. App. 30 (656 SE2d 160) (2007). Accord In the Interest of D. S., 302 Ga. App. 873 (691 SE2d 897) (2010).

       (Citation and punctuation omitted.) Pinkston v. State, 277 Ga. App. 432, 433 (2) (626 SE2d 626) (2006). Accord Bynum v. State, 300 Ga. App. 163, 168 (7) (684 SE2d 330) (2009).

       (Citation and punctuation omitted.) In the Interest ofj. B., 223 Ga. App. 429, 432 (2) (477 SE2d 874) (1996) (whole court). Accord In the Interest ofD. £>., supra at 875 (2) (“when the record is sufficient, an appellate court may decide ineffectiveness issues without remanding the case when the remand would waste judicial and legal resources and serve no useful purpose”) (citation and punctuation omitted).


text:
    A10A1896.
    ENGLISH v. THE STATE.
    (705 SE2d 667)
   Dillard, Judge.

Robert English pled guilty to two counts of burglary and one count of entering an automobile with intent to commit theft. Acting pro se, he now appeals the trial court’s denial of his motion for an out-of-time appeal of his guilty plea, arguing that no factual bases support the charges to which he pled guilty and that his plea was not knowingly and intelligently entered. Mr. English further contends that his former counsel’s alleged failures to ensure that he knowingly and intelligently entered into the plea and to inform him of his right to appeal constituted ineffective assistance. For the reasons set forth infra, we affirm the trial court’s decision.

The undisputed record shows that Mr. English was charged in 2001 (via accusation) with two counts of burglary, one count of entering an automobile with the intent to commit theft, and one count of possession of cocaine. He agreed to plead guilty to the two burglary charges and the entering an automobile charge in return for the State agreeing to nolle pros the possession charge. Prior to his plea hearing, English, with assistance from counsel, completed and signed an “Advice and Waiver of Rights” form that informed him of the charges to which he was pleading guilty, and advised him that in doing so he was waiving certain federal and state constitutional rights — including the right to trial by jury, the presumption of innocence, the right to confront his accusers, the right to subpoena witnesses, the right to testify and offer other evidence, the right to assistance of counsel, and the right not to incriminate himself.

At his March 8, 2001 guilty plea hearing (which his counsel attended), the trial court discussed the charges and potential sentences with Mr. English and went over the plea form to ensure that he understood the constitutional rights he was waiving by pleading guilty. Thereafter, English confirmed that he was satisfied with his counsel’s representation and that he still wanted to plead guilty to the charges. Consequently, the trial court found that English’s plea was freely and voluntarily given.

At the same hearing, the State gave the trial court the following factual bases for the pleas. On December 8, 2000, Mr. English entered a trailer that belonged to a construction company, stealing a nail gun and a miter saw. On June 13, 2000, English entered a private residence and stole a shotgun, as well as several other personal items belonging to the homeowner. Finally, on December 23, 2000, English broke into a truck and stole several tools from the truck owner’s toolbox. After the recitation of English’s criminal actions by the State, the trial court sentenced English to twenty years, with five years to serve in confinement, and informed him that he had the right to appeal the sentence.

On November l, 2007, Mr. English filed a pro se motion for an out-of-time appeal, in which he claimed that there were no factual bases supporting the charges to which he pled guilty, that his plea was not knowingly and intelligently entered, and that his counsel’s failures to ensure that he knowingly and intelligently entered into the plea and to inform him of his right to appeal constituted ineffective assistance. The trial court denied English’s motion, and this direct appeal follows.

1. In two separate enumerations of error, Mr. English contends that the trial court erred in denying his motion for an out-of-time appeal because (1) there were no factual bases supporting the charges to which he pled guilty in 2001, and (2) his plea was not knowingly and intelligently entered. We disagree.

It is well established that a criminal defendant has “no unqualified right to file a direct appeal from a judgment of conviction and sentence entered on a guilty plea,” and that “an appeal will lie from a judgment entered on a guilty plea only if the issue on appeal can be resolved by facts appearing in the record.” And the Supreme Court of Georgia has held that this principle is likewise applicable when a criminal defendant seeks to file an out-of-time appeal from a judgment entered on a guilty plea. Put another way, the ability to decide the appeal based on the existing record is the determining factor in assessing the availability of a direct or out-of-time appeal when the defendant has entered a guilty plea.

Once a determination has been made that the state of the record is such that the criminal defendant had the right to file a direct appeal from his guilty plea, we then consider whether the record, nevertheless, “shows that those issues must be resolved against him.” If such a showing is evident from the record, then this is the end of our inquiry. If, on the other hand, the evidentiary posture of the record is such that the issues in question cannot be resolved dispositively against the criminal defendant, we must then consider whether the defendant’s “right to appeal was frustrated by the ineffective assistance of counsel.” Finally, we note that “[t]he denial of a motion for an out-of-time appeal is a matter within the discretion of the trial court and the court’s decision will not be reversed absent an abuse of that discretion.”

Decided December 16, 2010

Reconsideration denied January 7, 2011.

Robert English, pro se.

Plez H. Hardin, District Attorney, Daniel P. Bibler, Assistant District Attorney, for appellee.

Here, the record shows that (1) Mr. English completed and signed a waiver-of-rights form prior to the hearing on his plea, (2) the trial court confirmed that English understood he was waiving certain constitutional rights by pleading guilty, (3) the trial court verified that English understood what he was doing and that he was entering his plea of guilt freely and voluntarily, and (4) the State provided the factual bases for the charges against English during the hearing on his guilty plea.

Based on the foregoing, we are satisfied that the record before us demonstrates that there were factual bases supporting the charges to which Mr. English pled guilty, and that he “freely and voluntarily entered his plea with a full understanding of what the plea connotes and of its consequence.” In sum, the record shows that the issues English sought to appeal must be resolved against him, and therefore, the trial court did not abuse its discretion in denying his motion for an out-of-time appeal.

2. Mr. English also contends that the trial court should have granted his motion for an out-of-time appeal because his plea counsel’s failures to ensure that he knowingly and intelligently entered into the guilty plea and to inform him of his right to appeal constituted ineffective assistance. However, given that the record shows English’s proffered claims of error to be wholly without merit (as explained supra), we need not consider whether his right to appeal was “frustrated by the alleged ineffective assistance of his counsel.”

3. In light of our holdings in Divisions 1 and 2 of this opinion, the State’s motion to dismiss Mr. English’s appeal is moot.

Judgment affirmed.

Barnes, E J., and Blackwell, J., concur.

       OCGA § 16-7-1 (a).

       OCGA § 16-8-18.

       OCGA § 16-13-30 (a).

       The denial of a motion for an out-of-time appeal is directly appealable when the criminal conviction at issue has not been the subject of direct appeal. See, e.g., Simmons v. State, 276 Ga. 525, 525, n.2 (579 SE2d 735) (2003). The record here indicates that Mr. English’s convictions have not been the subject of a direct appeal.

       We note that the record includes the transcript of a December 19, 2006 hearing, in which Mr. English pled guilty to a burglary charge from that year. English did not address that guilty-plea hearing in his motion for an out-of-time appeal, and he has not addressed it in this appeal. Accordingly, our review is limited to English’s 2001 guilty plea.

        Barlow v. State, 282 Ga. 232, 233 (647 SE2d 46) (2007) (citations and punctuation omitted); see also Moore v. State, 304 Ga. App. 105, 105-106 (695 SE2d 661) (2010) (same).

        See, e.g., Morrow v. State, 266 Ga. 3, 3 (463 SE2d 472) (1995).

        See, e.g., Barlow, 282 Ga. at 233.

        Golden v. State, 299 Ga. App. 407, 407 (683 SE2d 618) (2009).

       See, e.g., Smith v. State, 287 Ga. 391, 403, n.5 (697 SE2d 177) (2010) (holding that “the defendant must first show that the claim he wants to raise on appeal can be resolved on the face of the existing record, and would not be resolved against him,” and that “if even a timely direct appeal would have been unsuccessful, then plea counsel’s failure to advise the defendant to file such an appeal was not professionally deficient, nor did any prejudice result” (citations omitted)).

        Moore, 304 Ga. App. at 105; see also Morrow, 266 Ga. at 3 (“An out-of-time appeal is occasionally appropriate where, due to ineffective assistance of counsel, no appeal has been taken.”); Harwood v. State, 303 Ga. App. 23, 24 (692 SE2d 665) (2010) (“Issues regarding the effectiveness of counsel are not reached unless the requirement that the appeal be resolved by reference to the facts on the record is met.” (citation omitted)).

        Moore v. State, 285 Ga. 855, 856 (1) (684 SE2d 605) (2009) (citation omitted).

        Johnson v. State, 286 Ga. 432, 433 (687 SE2d 833) (2010) (punctuation omitted).

        See, e.g., Moore, 285 Ga. at 858 (1).

        Johnson, 286 Ga. at 434 (citation and punctuation omitted); see also Harwood, 303 Ga. App. at 25-26 (holding that because the record showed that claims of error the defendant could have raised in a direct appeal lacked merit, the defendant’s claims of ineffective assistance of counsel need not be considered on appeal).


author: Andrews, Judge.

text:
    A10A1689.
    McPHERSON v. McPHERSON et al.
    (705 SE2d 314)
   Andrews, Judge.

Eric McPherson brought this action for breach of duty against his father Howard McPherson (the settlor of the McPherson Family Trust), his three adult siblings (three of the four current trustees), and his father’s longtime counsel (the fourth current trustee). On appeal from the trial court’s grant of summary judgment to all five defendants, Eric argues that the trustees abused their discretion when they made distributions from the trust between 2005 and 2008 and when they withheld the amount of fees spent to defend against an earlier version of his suit from his 2005 distribution. Eric also asserts that his father did not have the power to remove him as a trustee. We find no error and affirm.

On appeal from a grant of a motion for summary judgment, we review the evidence de novo, viewing it in the light most favorable to the nonmovant, to determine whether a genuine issue of fact remains and whether'the moving party is entitled to judgment as a matter of law. Rubin v. Cello Corp., 235 Ga. App. 250 (510 SE2d 541) (1998).

The relevant facts are not in dispute. In 1990, Howard E. McPherson established an irrevocable trust. At that time, Howard had four adult children from his first marriage: Scott, Lisa, Robin, and Eric. The trust instrument provided that during Howard’s lifetime,

[t]he Trustee shall . . . have the discretion to pay out of income, if any, or principal or both of this trust such amount or amounts, whether equal or unequal and whether the whole or a lesser amount, to the Trustor’s children ... as may be needed for their support, maintenance, education and medical needs in reasonable comfort, taking into consideration any other means of support they or any of them may have to the knowledge of the Trustee.

(Emphasis supplied.) Apart from the trustees’ duty to consider “any other means of support” the children might have, the trust limited what it continued to describe as their “discretion” in only two respects: at Howard’s death, and concerning the beneficiaries’ power to withdraw small amounts equal to or less than the federal gift exclusion after each transfer to the trust by Howard. The trust also included a so-called “exculpatory clause” to the effect that “the receipt [of any trust payment of income or principal] of the person to whom payment is made or entrusted shall be a complete discharge of the Trustee in respect thereof.” Finally, the trust provided Howard with “the right at any time, and from time to time, to remove any trustee for reasonable cause and thereafter appoint another,” with the limitation that Howard could not appoint himself as a trustee.

In 1992, Scott McPherson consented to the addition of his three siblings as co-trustees. In the years following, Howard remarried, had one son (also named Howard) by his second wife, and transferred his ownership interest in assets including three highly profitable real estate companies to the trust. Between 1992 and 2005, while he was a trustee, Eric participated in and received his equal share of distributions from the trust. These distributions, which are not at issue, were made in accordance with Howard’s wish that his children be treated equally.

In June 2004, Howard warned Eric that he was considering removing Eric as a co-trustee because of his difficult behavior, including refusing to sign legal documents after verbally promising to do so, placing his girlfriend on the company payroll, and threatening to sue his siblings. A few months after he received this letter, Eric sued his siblings for the first time. In March 2005, Howard removed Eric and replaced him with Frank Hendrick, Howard’s lawyer.

In July 2005, the trustees elected to distribute $300,000 of trust income per stirpes to each McPherson child. $50,000 of Eric’s share was given to sub-trusts created for the benefit of Eric’s children. One of the trustees’ motives in establishing the sub-trusts was to create additional resources for Eric’s children after his submission of a false affidavit in support of a request to reduce his child support obligations in Florida. Of the $250,000 remaining to Eric from this 2005 distribution, the trustees directed that $157,000 be deducted to account for the expense of defending the trust from his first suit. The resulting check for $93,000 was sent to Eric, who negotiated the check without objection. Between August 2005 and December 2008, Scott, Lisa, Robin, and the minor Howard received $2,240,000 per stirpes from the trust. Eric received $1,553,000 and his two children $265,000 each for a per stirpes total of $2,083,000 — precisely $157,000 less than his siblings.

Eric brought this version of his action in July 2006. In his amended petition, filed in April 2009, Eric alleged that the trustees’ distributions from 2005 through 2008, and in particular their 2005 withholding of the $157,000 spent to defend them from his suit, violated their fiduciary duties under the trust. Eric also sought an injunction against Howard for removing him as co-trustee as well as an accounting. The trustees moved for summary judgment on grounds including that they did not abuse their discretion in making their distributions. Howard moved for summary judgment concerning his appointment power. Although the trial court indicated at a hearing that it would grant Eric summary judgment on his breach-of-trust claim because the trustees had failed to make any inquiry into each beneficiary’s resources and needs, it later asked for and obtained additional briefing on the issue of Eric’s waiver and then ruled for the defendants on all counts.

1. Eric first argues that the trustees abused their discretion in making the 2005-2008 distributions because they were required to take account of the needs of each of Howard’s children — the youngest of whom, for example, was a minor still living at home with his father. We disagree.

We will affirm a grant of summary judgment if it is right for any reason raised below. City of Gainesville v. Dodd, 275 Ga. 834, 836-837 (573 SE2d 369) (2002). Pretermitting whether Eric waived his objections to the 2005-2008 distributions, we first consider whether the trial court should have granted summary judgment to the trustees on the primary ground urged below: that is, that they did not abuse their discretion or act in bad faith when they made these distributions.

(a) Effective on July 1, 2010, after this case was docketed in this Court, the Revised Georgia Trust Code, OCGA § 53-12-1 et seq., applies “to any trust regardless of the date such trust was created,” with two exceptions: “to the extent it would impair vested rights,” and “as otherwise provided by law.” OCGA § 53-12-1 (b); see also former OCGA § 53-12-3, Ga. L. 1991, p. 810, § 1 (providing the same concerning the Georgia Trust Act of 1991); Woodruff v. Trust Co. of Ga., 233 Ga. 135, 140-141 (2) (210 SE2d 321) (1974) (a statute is impermissibly retroactive when it “creates a new obligation on transactions or considerations already past, or destroys or impairs vested rights,” with such rights having vested “when there is an immediate right of enjoyment or a present fixed right of future enjoyment”).

Although the Revised Trust Code does not require a trustee to consider “the resources of any beneficiary when determining whether to distribute trust property,” OCGA § 53-12-245, the trust instrument before us affirmatively directs the trustees to do so, with this and other variances authorized by the Revised Trust Code itself. See OCGA § 53-12-7 (specifying those provisions, not including OCGA § 53-12-245, which a trust instrument may not vary). Like the common law before it, moreover, the Revised Trust Code mandates that a trustee’s discretionary powers be exercised “in good faith.” OCGA § 53-12-260; see also OCGA § 53-12-7 (a) (4) (trust instrument may not vary this good faith requirement); C & S Nat. Bank v. Haskins, 254 Ga. 131,141 (9) (327 SE2d 192) (1985). Even assuming that past distributions under the Trust amount to “vested rights,” then, Eric cannot show that the Revised Trust Code creates any new trustees’ obligations or impairs those rights in any relevant way. We therefore proceed under the Revised Trust Code as supplemented by the common law. See Jordan v. Caswell, 264 Ga. 638, 639-640 (2) (450 SE2d 818) (1994) (applying Trust Act of 1991 to trust created before effective date of that Act where appellant failed to show how such application would deprive him of vested rights); OCGA § 53-12-3 (common law and equity principles survive under the Revised Trust Code “[e]xcept to the extent that [they] are modified by this chapter or another provision of law”).

(b) For a fuller understanding of the scope of a trustee’s discretion, the Revised Trust Code directs us to the common law, including the Restatements of the law of trusts. See Comment to former OCGA § 53-12-190 (citing Restatement (Second) of Trusts concerning extent of trustee’s powers); Woodruff, 233 Ga. at 138-140 (1) (citing Second Restatement concerning settlor’s power to revoke a trust); SunTrust Bank u. Merritt, 272 Ga. App. 485, 489 (1), n. 14 (612 SE2d 818) (2005) (citing Restatement (Third) of Trusts concerning trustee’s duties).

The Third Restatement § 50 (2003) circumscribes a trustee’s discretionary power as follows:

(1) A discretionary power conferred upon the trustee to determine the benefits of a trust beneficiary is subject to judicial control only to prevent misinterpretation or abuse of the discretion by the trustee.
(2) The benefits to which a beneficiary of a discretionary interest is entitled, and what may constitute an abuse of discretion by the trustee, depend on the terms of the discretion, including the proper construction of any accompanying standards, and on the settlor’s purposes in granting the discretionary power and in creating the trust.

(Emphasis supplied.) Thus, as the common law has long had it, a court may interpose its judgment on the performance of a trustee vested with discretion to make payments to a beneficiary only when the trustee “arbitrarily declines to make any payment” or when the trustee “is acting from improper motives in exercising discretion.” C & S Nat. Bank, 254 Ga. at 141 (9). “The question of motives and conflict of interest arises when the trust gives discretionary powers to make payments to a trustee who is also the beneficiary of such payments.” Id.

As we have noted, the trust instrument at issue here directed the trustees to consider the resources of the beneficiaries even as the trustees retained “some discretion in the matter.” (Third) of Trusts § 50, Comment e. In such cases, Restatement

the presumption is that the trustee is to take the beneficiary’s other resources into account in determining whether and in what amounts distributions are to be made, except insofar as, in the trustee’s discretionary judgment, the settlor’s intended treatment of the beneficiary or the purposes of the trust will in some respect be better accomplished by not doing so.

(Emphasis supplied.) Id. And when, as here, “multiple beneficiaries or groups” are “concurrent discretionary distributees,” “there is an inference of priorities per stirpes, that is, that the various lines are entitled to similar, impartial (but not necessarily equal) treatment, with disparities to be justified on a principled basis consistent with the trust purposes.” (Citation omitted; emphasis supplied.) Id., Comment f.

Eric has not shown this Court evidence that the trustees ignored the beneficiaries’ means of support. But even if he had done so, these trustees could, in their discretion, exclude the beneficiaries’ resources from their consideration on the basis of both (i) the trust instrument’s grant to distribute “either equal or unequal” amounts to each of Howard’s children, making no distinction between those from a first or a subsequent marriage, and (ii) the trustees’ personal knowledge concerning Howard’s intended treatment of them. And the result of this exercise of discretionary power was equal per stirpes distributions, keeping in reserve their capacity (as they later testified) to meet any “extraordinary need” on “a case-by-case basis.”

“In trust law, the cardinal rule is that the trustor-settlor’s intention be followed.” Griffith v. First Nat. Bank & Trust Co., 249 Ga. 143, 146 (1) (287 SE2d 526) (1982). As the Revised Trust Code and the common law agree, moreover, a court may interfere with an exercise of discretion by a trustee only if that discretion is “infected with fraud or bad faith, misbehavior, or misconduct, arbitrariness, abuse of authority or perversion of the trust, oppression of the beneficiary, or want of ordinary skill or judgment.” (Citation and punctuation omitted.) C & S Nat. Bank, 254 Ga. at 142 (9); OCGA § 53-12-260 (trustee must act “in good faith”). Without some evidence of bad faith, of which this record provides none, we cannot authorize judicial intervention into the trustees’ consistent decisions to treat all beneficiaries, including themselves, equally in the form of per stirpes distributions.

(c) Eric also argues that the trustees’ 2005 withholding of $157,000 — less than one-tenth of the total disbursements to Eric and his children over a period of only four years — amounted to an abuse of discretion. But the apparent demise of his 2004 suit, taken with what we hold to be the unsuccessful result of its successor, provide evidence of these claims’ lack of merit sufficient to justify the trustees’ decision to pass these defense costs on to Eric alone. The trustees reduced Eric’s 2005 per stirpes share, in other words, on a “principled basis” (Restatement (Third) of Trusts § 50, Comment f) — these principles being Howard’s intention to treat his children equally and the preservation of trust assets for the use of all its beneficiaries. See Griffith, 249 Ga. at 146 (1) (affirming trustee’s discretionary but unequal distribution to beneficiaries).

Decided January 7, 2011

Perrell & Wright, Charlotte K. Perrell, for appellant.

Doffermyre, Shields, Canfield, Knowles & Devine, Everette Doffermyre, Sheryl L. McCalla, Ford & Harrison, John L. Monroe, Jr., Kilpatrick Stockton, Alexander S. Clay, Susan A. Cahoon, William R. Poplin, Jr., for appellees.

For all these reasons, the trial court did not err when it granted the trustees summary judgment on Eric’s claims for breach of trust and breach of fiduciary duty.

2. Nor did the trial court err when it granted Howard summary judgment on Eric’s claim against his father concerning his removal as a co-trustee. Eric has not disputed the trustees’ evidence that before his removal as trustee, Eric refused to sign legal documents after verbally promising to do so, placed his girlfriend on the company payroll, and threatened to sue his siblings. This evidence gave Howard what the trust instrument described as “reasonable cause” to remove Eric. See OCGA § 53-12-221 (a) (1), (2) (trustee may be removed “[i]n accordance with the provisions of the trust instrument” or on a showing of “good cause”); Davis v. Walker, 288 Ga. App. 820, 821 (1) (655 SE2d 634) (2007) (reviewing and affirming trial court’s removal of trustee for reasonable cause under an abuse of discretion standard).

Judgment affirmed.

Ellington, C. J., and Doyle, J., concur.


author: BARNES, Presiding Judge.

text:
    A10A1912.
    WHITLEY v. THE STATE.
    (707 SE2d 375)
   BARNES, Presiding Judge.

A Cherokee County jury found Timothy Wayne Whitley guilty of aggravated assault with a deadly weapon and battery. Whitley appeals from the denial of his motion for a new trial, contending that the evidence was insufficient to enable the trier of fact to reject his claim of self-defense and convict him of the charged offenses. 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 defendant no longer enjoys the presumption of innocence; moreover, an appellate court does not weigh the evidence or determine witness credibility but only determines whether the evidence is sufficient under the standard of Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560) (1979).

(Citation and punctuation omitted.) Buice v. State, 281 Ga. App. 595 (636 SE2d 676) (2006).

So viewed, the evidence showed that Whitley and the victim had been involved in an “off and on” romantic relationship spanning several years. On July 22, 2007, Whitley and the victim were living together at a motor lodge in Cherokee County. Both had been drinking alcohol that day, and they got into an argument that escalated into a physical altercation in which they exchanged blows. During the altercation, Whitley struck the victim in her face and mouth with his fist. The victim attempted to leave, but Whitley grabbed her by the hair, jerked her backward, forced her to the ground, got on top of her, and began to choke her while screaming that he wanted her to die. When the victim lost consciousness, Whitley began kicking her and accusing her of faking her condition. Ultimately, the victim was able to escape from the rented room.

Another person staying at the motor lodge called 911 when she saw the victim run from the room holding the back of her head and calling out for help. After learning that someone had called 911, Whitley fled from the motor lodge before the police arrived.

The responding police officer interviewed the victim at the scene, and she described the altercation to him. The officer observed that the victim had red marks on both sides of her neck consistent with choking, two knots on her forehead, and blood around the areas of her scalp where her hair had been jerked back. Photographs were taken of the victim’s injuries that were later admitted into evidence at trial and published to the jury.

Whitley subsequently was apprehended and indicted on charges of aggravated assault with a deadly weapon and battery. See OCGA §§ 16-5-21 (a) (2); 16-5-23.1 (a). A defendant is guilty of an assault if he “[ajttempts to commit a violent injury to the person of another” or “[cjommits an act which places another in reasonable apprehension of immediately receiving a violent injury.” OCGA § 16-5-20 (a). If the assault is committed with a deadly weapon, the defendant is guilty of aggravated assault, OCGA § 16-5-21 (a) (2), and “[t]he use of hands to choke a victim satisfies the deadly weapon . . . element of the aggravated assault statute.” (Citation, punctuation and footnote omitted.) Hall v. State, 292 Ga. App. 544, 546-547 (1) (664 SE2d 882) (2008). In turn, a defendant is guilty of battery if he “intentionally causes substantial physical harm or visible bodily harm to another.” OCGA § 16-5-23.1 (a). Here, the indictment averred that Whitley had committed aggravated assault by using his hands as deadly weapons to choke the victim, and had committed battery by grabbing the victim and throwing her to the ground, causing her substantial physical and visible bodily harm.

At trial, the victim testified that she still loved Whitley and that she hoped to recommence her relationship with him after the legal proceedings were resolved. On the one hand, the victim denied remembering certain aspects of her physical altercation with Whitley, testified that she started the altercation by pushing him, and stated that there were prior instances in which she had struck Whitley. On the other hand, the victim conceded that Whitley hit her in the face and mouth, threw her to the ground, and began choking her while urging her to die, causing her to pass out. The victim also testified regarding several other incidents in which Whitley had physically injured her over the course of their relationship, including incidents occurring after the altercation at issue in this case.

In addition to the victim’s testimony, the responding officer testified concerning his observations of the victim’s injuries, and other witnesses who were staying at the motor lodge at the time of the altercation corroborated the officer’s observations. The officer also related what the victim had said to him immediately after the altercation, including that Whitley had grabbed her by the hair as she attempted to leave the rented room and had thrown her to the ground before choking her with his hands. Additionally, the State presented testimony corroborating the victim’s account of her prior and subsequent difficulties with Whitley as well as similar transaction evidence that Whitley had physically attacked his previous girlfriend. Whitley did not testify or call any defense witnesses.

Following the close of evidence, the trial court, at Whitley’s request, charged the jury on the law relating to affirmative defenses in general and on the affirmative defense of self-defense in particular. After hearing all of the testimony, the jury rejected Whitley’s claim of self-defense and convicted him of the charged offenses.

In his sole enumeration of error, Whitley argues that the evidence was insufficient to support his convictions because he was acting in self-defense. “A person is justified in threatening or using force against another when and to the extent that he or she reasonably believes that such threat or force is necessary to defend himself or herself. . . against such other’s imminent use of unlawful force[.]” OCGA § 16-3-21 (a). If the amount of force used by a person is excessive, however, it does not qualify as self-defense. Richards v. State, 288 Ga. App. 814 (655 SE2d 690) (2007). “Once evidence of self-defense is presented, the burden is on the [S]tate to disprove that defense beyond a reasonable doubt.” (Footnote omitted.) In the Interest of A. D., 295 Ga. App. 750, 751 (673 SE2d 116) (2009). Whether the defendant acted in self-defense is normally a question for the jury’s determination. Holmes v. State, 273 Ga. 644, 645 (1) (543 SE2d 688) (2001).

We conclude that the State presented more than ample evidence that Whitley’s use of force was not justified. Based upon the victim’s testimony and her prior statement to the responding officer, the jury clearly was authorized to find that Whitley’s acts of grabbing the victim by the hair, throwing her to the ground, and choking her to the point of unconsciousness constituted excessive force. See Black-ford v. State, 251 Ga. App. 324, 325-326 (1) (554 SE2d 290) (2001) (jury entitled to find that defendant’s choking of victim during physical altercation constituted excessive force). See also Richards, 288 Ga. App. at 814-815; In the Interest of A. M., 248 Ga. App. 241, 242 (1) (545 SE2d 688) (2001). To the extent that there were inconsistencies in the victim’s testimony, it was the jury’s responsibility to resolve them and to judge the credibility of the witness. See Daniel v. State, 296 Ga. App. 513, 516 (1) (675 SE2d 472) (2009). Moreover, the prior and subsequent difficulties evidence and the similar transaction evidence presented by the State supported the jury’s decision to give little credence to Whitley’s self-defense claim. See Dixon v. State, 267 Ga. 136, 140 (4) (475 SE2d 633) (1996) (evidence of similar transaction in which defendant attacked third party “tended to show a bent of mind and intent in initiating the attack that rebutted [the defendant’s] claim of self-defense”); Buice, 281 Ga. App. at 596 (1) (evidence of prior difficulties between defendant and victim “most certainly demonstrated the state of the relationship between [the defendant] and victim, and was highly relevant to show his abusive bent of mind toward her”) (citation and punctuation omitted). For these reasons, the evidence plainly was sufficient to authorize a rational trier of fact to find Whitley guilty beyond a reasonable doubt of aggravated assault with a deadly weapon and battery. Jackson, 443 U. S. 307. See OCGA §§ 16-5-21 (a) (2); 16-5-23.1 (a).

Decided January 19, 2011.

H. Maddox Kilgore, for appellant.

Garry T. Moss, District Attorney, Cliff Head, Assistant District Attorney, for appellee.

Judgment affirmed.

Blackwell and Dillard, JJ., concur.

       A testifying victim’s prior inconsistent statements to a police officer constitute substantive evidence upon which a jury can rely in reaching a verdict of guilty Buice, 281 Ga. App. at 596 (1).