text:
    A12A2087.
    HYMAN v. THE STATE.
    (739 SE2d 395)
   MILLER, Presiding Judge.

Following a jury trial, Antonio Dexter Hyman was convicted of armed robbery (OCGA § 16-8-41 (a)), possession of a firearm during the commission ofa felony (OCGA § 16-11-106 (b)(1)), escape (OCGA § 16-10-52 (a) (2)), aggravated assault on a correctional officer (OCGA § 16-5-21 (a) (2)), and obstruction of an officer (OCGA § 16-10-24 (a)). Hyman filed a motion for new trial, which the trial court denied. On appeal, Hyman contends that his trial counsel provided ineffective assistance in (i) failing to file a motion to sever his trial from that of his co-defendant and (ii) failing to object to hearsay testimony. We discern no error and affirm.

Viewed in the light most favorable to the verdict, Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560) (1979), the trial evidence shows that on July 18, 2008, after 11:00 p.m., Hyman and his brother, Bernard Jackson, entered a convenience store in Morgan County and approached the store’s cashier. Hyman was wearing a white t-shirt covering his face, except for his eyes, plaid shorts, and red shoes. Hyman was armed with a handgun. Jackson was wearing a white t-shirt covering half of his face from the nose down, a white sock covering a tattoo on his right arm, a black t-shirt, blue shorts, and black shoes. Hyman pointed the gun at the cashier and demanded that she give him the cash from the register and Newport cigarettes. The cashier complied, and handed Hyman and Jackson approximately $300 from the register and several packs of Newport cigarettes. After obtaining the items, Hyman and Jackson fled from the store on foot.

While the armed robbery was in progress, the cousin of Hyman and Jackson was riding through the store’s parking lot and observed them perpetrating the crime. The cousin testified that she immediately recognized the perpetrators as being Hyman, whom she identified by his nickname “Yayo,” and Jackson, whom she identified by his nickname “Hard Nard.” The cousin called her sister and directed her to report the incident to the police.

Officers responded to the scene and spoke to the cashier. The officers obtained the cashier’s statement describing the incident and the perpetrators. The officers also obtained the store’s surveillance videotape, which depicted the armed robbery incident.

The cousin who had observed the armed robbery incident agreed to speak with the officers. The cousin gave the officers a written statement regarding her observations and identifying Hyman and Jackson as the perpetrators. The cousin advised that she recognized Hyman and Jackson since they were her relatives.

During the course of the investigation, the officers discovered that Jackson had an outstanding probation warrant. Approximately one hour and twenty minutes after the armed robbery had occurred, the officers went to the residence where Hyman and Jackson lived with their mother in order to serve the warrant on Jackson. The mother allowed the officers to enter the residence. While searching for Jackson inside the residence, the officers entered Hyman’s bedroom and observed clothing and shoes that matched those worn by the perpetrators at the time of the armed robbery. In addition, the officers observed an unopened pack of Newport cigarettes that matched the sequence number of those in stock at the convenience store.

Another witness testified that on the evening of the armed robbery, he had overheard Hyman and Jackson “loud talking” and bragging about the armed robbery that they had committed. The witness also observed Hyman and Jackson passing out Newport cigarettes to the visitors who had gathered at their residence.

Hyman’s ex-girlfriend also provided information regarding Hyman’s commission of the armed robbery. She testified that on the day after the armed robbery incident, Hyman had given her some cash and Newport cigarettes. She further stated that it was unusual for Hyman to have cash since he was unemployed. Hyman’s ex-girlfriend also watched the videotape depicting the armed robbery incident, and she positively identified Hyman and Jackson as the perpetrators. She testified that she recognized Hyman and Jackson because she had stayed with Hyman every night, and she was familiar with their clothing, shoes, and mannerisms.

Hyman was subsequently arrested and transported to the Morgan County jail for booking in connection with the armed robbery offense. During the booking process, Hyman physically fought with an officer and managed to escape from the jail. Hyman disobeyed the officers’ commands to stop, and he continued to run away from the jail facility.

Hyman was later apprehended, charged, tried, and convicted of the offenses related to the armed robbery and escape incidents.

On appeal, Hyman’s sole contention of error is that his trial counsel provided ineffective assistance.

Under Strickland v. Washington, 466 U. S. 668 (104 SC 2052, 80 LE2d 674) (1984), to succeed on an ineffective assistance claim, a criminal defendant must demonstrate both that his trial counsel’s performance was deficient and that there is a reasonable probability that the trial result would have been different if not for the deficient performance. There is a strong presumption that the performance of trial counsel falls within the wide range of reasonable professional assistance. The reasonableness of the conduct is viewed at the time of trial and under the circumstances of the case. If an appellant fails to meet his burden of proving either prong of the Strickland test, the reviewing court need not examine the other prong. When reviewing the trial court’s decision, this Court will accept the trial court’s factual findings and credibility determinations unless clearly erroneous; however, we review legal principles de novo.

(Citations and punctuation omitted.) May v. State, 316 Ga. App. 403, 404-405 (2) (729 SE2d 545) (2012). Applying this standard, we turn to address Hyman’s claims.

1. Hyman first contends that trial counsel erred in failing to file a motion to sever his trial from that of his co-defendant Jackson. We discern no error.

“The decision regarding whether to file a motion to sever is a matter of trial tactics and strategy, and the fact that such a motion was not filed does not require a finding that trial counsel was ineffective.” (Citations and punctuation omitted.) Ross v. State, 313 Ga. App. 695, 696 (1) (a) (722 SE2d 411) (2012). At the motion for new trial hearing, trial counsel testified that a motion to sever was not filed because she did not believe that a motion would have been meritorious. Indeed, Hyman has not shown that a motion to sever would have been granted.

When the death penalty is not sought, the severance of defendants’ trials is within the sound discretion of the trial court and its decision will not be disturbed unless there is an abuse of that discretion. The burden is on the defendant moving for severance to demonstrate more than the possibility that a separate trial would provide him with a better chance of acquittal; he must establish a clear showing of prejudice. In exercising its discretion, the trial court must consider the following factors: (1) whether the number of defendants creates confusion as to the law and evidence to be applied to each; (2) whether a danger exists that evidence admissible against one defendant mightbe considered against the other notwithstanding instructions to the contrary; and (3) whether the defenses are antagonistic to each other or each other’s rights.

(Citations and punctuation omitted.) Jones v. State, 315 Ga. App. 427, 431 (2) (727 SE2d 216) (2012). In this case, Hyman has failed to show that the evidence may have been confusing to the jurors, especially since there were only two co-defendants involved in the case. See id. at 431-432 (2). Notably, there is no merit to Hyman’s claim that the most damaging evidence was relevant only to co-defendant Jackson. To the contrary, both Hyman’s cousin, who was an eyewitness to the incident, and his ex-girlfriend, who reviewed the store’s surveillance videotape, specifically identified Hyman as the principal actor in the armed robbery. In addition, a witness testified that he had heard Hyman bragging about the armed robbery, and had seen Hyman passing out the Newport cigarettes. The aforementioned evidence specifically related to Hyman and overwhelmingly established his guilt of the armed robbery offense. See id. (ruling that the trial court did not err in denying a motion to sever since there were only two co-defendants, and there was no prejudice since eyewitnesses specifically identified the defendant in question as the principal actor in the armed robbery incident). Since Hyman has shown neither deficient performance nor prejudice based on the decision not to file a motion to sever, he has failed to establish a claim of ineffective assistance of counsel. See, e.g., id. at 431 (2); Ross, supra, 313 Ga. App. at 697 (1) (a).

Decided March 5, 2013.

Amanda S. Morris, for appellant.

FredricD. Bright, District Attorney, Alison T. Burleson, Assistant District Attorney, for appellee.

2. Hyman further contends that trial counsel erred in failing to object to the cousin’s hearsay testimony regarding a harassing telephone call that she had received. The cousin testified that she received a telephone call from someone who identified himself by Hyman’s nickname ‘Yayo,” asking why she had reported the crime. On cross-examination, trial counsel challenged the cousin’s testimony, and the cousin conceded that she did not recognize the caller’s voice. At the motion for new trial hearing, trial counsel explained that rather than objecting to the testimony, she elected to cross-examine the cousin regarding the matter in efforts to show the cousin’s inability to recognize and identify Hyman.

“Not objecting to testimony but instead subjecting it to cross-examination may be part of a reasonable trial strategy.” (Citation and punctuation omitted.) Damerow v. State, 310 Ga. App. 530, 537-538 (4) (a) (ii) (714 SE2d 82) (2011). The trial court was authorized to find that trial counsel made a reasonable strategic decision to forego an objection and to instead pursue cross-examination on the matter in accordance with the defense theory. See id.; see also Alexis v. State, 313 Ga. App. 283, 288-289 (3) (a) (721 SE2d 205) (2011) (ruling that trial counsel was not ineffective when he elected to forego an obj ection to alleged hearsay and instead pursued the issue on cross-examination). Consequently, Hyman’s ineffective assistance claim fails.

Judgment affirmed.

Ray and Branch, JJ., concur.

       Hyman wasalsochargedwithpossessionofafirearmbyaconvictedfelon (OCGA § 16-11-131 (b)). Hyman entered a negotiated guilty plea to this charge during bifurcated post-trial proceedings.

       Hyman also complains that trial counsel failed to seek cautionary instructions regarding evidence that was admissible only as to co-defendant Jackson. In this regard, Hyman claims that he was prejudiced by the “spillover” effect of evidence that the cashier identified co-defendant Jackson as a perpetrator in a pretrial lineup, but was unable to identify Hyman; that co-defendant Jackson gave the officers a custodial statement appearing to concede his participation in the armed robbery, but denying that he had the gun; that co-defendant Jackson had encouraged someone to “jump on” the cousin for reporting the crime; and that co-defendant Jackson had made statements to a fellow inmate that he and Hyman had robbed the store. Notably, however, the trial court instructed the jury that it was required to determine the guilt or innocence of each defendant separately. Hyman has not shown that the evidence was so convoluted that the jury was unable to separate the evidence during its consideration. More importantly, as explained above, Hyman’s conviction was supported by overwhelming evidence that independently established his guilt of the offenses.


source: Caselaw Access Project

author: Boggs, Judge.

license: Public Domain

text:
    A12A2109.
    HANEY et al. v. CAMP.
    (739 SE2d 399)
   Boggs, Judge.

Brenda Haney and Ronald Womack, as executor and co-executor of the estate of Rachel Kenerly (hereinafter “the Executors”), appeal from a trial court order denying their motion for sanctions and request for attorney fees after they successfully moved to enforce a consent order against Carolyn Camp. Because the trial court issued inconsistent rulings with respect to the Executors’ request for attorney fees pursuant to the consent order, and applied the incorrect standard in denying the Executors’ request for attorney fees pursuant to OCGA § 9-15-14 (a) and (b), we vacate the trial court’s order and remand this case for further proceedings consistent with this opinion.

The record reveals that litigation between Camp and Brenda Haney, personally and as executor of the estate of Rachel Kenerly, and others, was resolved in a consent order entered in December 2009, which provided that Camp “dismisses her claims against all parties with prejudice” and “waives and releases any and all claims against the Estate or the Executors except in the enforcement of this Order,” and required the estate to convey certain real property to Camp.

In October 2010, however, Camp filed a “Petition for Contempt and for Damages” alleging that the Executors breached their fiduciary duty to preserve the property conveyed to her pursuant to the consent order. Camp complained that the Executors allowed waste of the property and the removal of fixtures, reducing the property’s market value, and that the Executors “knew or should have known” of the waste and neglect at the time the property was transferred to Camp. Camp sought “an offset against amounts due and payable to” the Executors.

The Executors moved to dismiss Camp’s petition and simultaneously filed an answer and a counterclaim to enforce the consent order. Following a hearing, the trial court denied the Executors’ motion to dismiss.

After engaging in some discovery, the Executors moved for summary judgment on both Camp’s petition for contempt and their counterclaim to enforce the consent order. In their motion, the Executors requested “an award of attorney [ ] fees,” and in their brief in support of the motion they requested “that attorney[ ] fees be awarded as required under the Consent Order.”

About a month after the Executors filed their motion for summary judgment, Camp filed an affidavit that the Executors claimed directly contradicted her earlier deposition testimony concerning whether she was aware of the appraised value of the property prior to settlement and whether she relied on that value in agreeing to settle. As a result, the Executors immediately filed a motion for sanctions in which they requested attorney fees pursuant to OCGA § 9-15-14, and also requested the court to “enter an Order awarding attorney [ ] fees and costs in defending this litigation, in addition to other sanctions.”

The trial court made no ruling on the motion for sanctions, but did hold a hearing in February 2012 on the Executors’ motion for summary judgment. The court granted the motion, finding that the consent order barred Camp’s claim because, pursuant to the order, Camp waived and released any and all claims against the Executors and took the property “as is.” The court found further that Camp’s fraud claim failed because she “ ‘could have learned the truth of the matter’ ” and made no effort to inspect the property or determine its value until after the consent order was entered. While the court made no specific ruling regarding attorney fees, it granted the Executors’ motion for summary judgment.

Fourteen days later, the trial court entered a rule nisi setting a hearing on the Executors’ earlier-filed “counterclaim for attorney[ ] fees and motion for sanctions” (in which the Executors sought attorney fees pursuant to OCGA § 9-15-14). At the hearing, the Executors again pointed to the provision of the consent order requiring the court to award attorney fees incurred by a party seeking to enforce the consent order. Following the argument of counsel, the court concluded:

I have no problem with the nature of the amount of attorney[ ] fees you’ve turned in and the backing you have for it. I have no problem with that at all.... I don’t know what it is about this case but everybody seems to be intent on continuing to kick a hornets’ nest both back and forth. It’s got to end somewhere. And I don’t doubt that some of this is probably justified. In fact, most of it maybe, but still, I don’t — I can’t imagine that [Camp] did this totally in bad faith. She did this because she felt like she’d been misled. I don’t know whether that’s anybody’s fault.
And I don’t — I agree with you that she had no claim. That’s why I granted the [summary judgment] motion. But his explanation of it makes sense in terms of what he was told and then what he told her.
So, relying on actually having seen the appraisal is one thing, but relying on what is, I guess, a hearsay description of an appraisal, is something else.
So, the short answer is, I don’t think it’s done totally in bad faith. I don’t think it’s done totally for frivolous reasons, even though I’ve ruled against the claim. And the short answer is, I’m not going to make an award of attorney[ ] fees.

The following colloquy then took place between the court and the Executors’ counsel:

[Executors’ counsel]: Despite the fact that the Consent Order says that the Court should award —
The Court: (Interposing) I know.
[Executors’ counsel]: — attorney[ ] fees?
The Court: Yeah. Anything else? Somewhere it’s got to end.

The court issued a very brief final order summarily denying the Executors’ motion for “Sanctions and for Attorney [ ] Fees.” It is from this order that the Executors appeal.

1. The Executors contend that the trial court erred in denying attorney fees as required under the consent order. The consent order provided: “The Court shall award reasonable attorney[ ] fees and costs incurred by any party seeking to enforce any provision herein.” (Emphasis supplied.) There is no dispute that the Executors sought to enforce the consent order through their answer and counterclaim to Camp’s petition for contempt. While the trial court granted the Executors’ motion for summary judgment in which it requested attorney fees pursuant to the consent order, the court appeared to deny attorney fees on this ground in its colloquy with the Executors’ counsel at the hearing on the motion for sanctions. Because of the court’s inconsistent actions, we cannot properly consider whether the court erred in denying the Executors’ request. We therefore remand this case for the trial court to clarify its ruling with respect to the Executors’ request for attorney fees pursuant to the consent order.

2. The Executors contend that the trial court erred in denying their request for attorney fees pursuant to OCGA § 9-15-14 (a) and (b). OCGA § 9-15-14 (a) provides:

In any civil action in any court of record of this state, reasonable and necessary attorney[ ] fees and expenses of litigation shall be awarded to any party against whom another party has asserted a claim, defense, or other position with respect to which there existed such a complete absence of any justiciable issue of law or fact that it could not be reasonably believed that a court would accept the asserted claim, defense, or other position. Attorney[ ] fees and expenses so awarded shall be assessed against the party asserting such claim, defense, or other position, or against that party’s attorney, or against both in such manner as is just.

(Emphasis supplied.) OCGA § 9-15-14 (a) therefore provides for a mandatory award upon a finding of the absence of any justiciable issue of law or fact. Haggard v. Bd. of Regents of the Univ. System of Ga., 257 Ga. 524, 527 (4) (c) (360 SE2d 566) (1987).

OCGA § 9-15-14 (b) provides:

The court may assess reasonable and necessary attorney[ ] fees and expenses of litigation in any civil action in any court of record if, upon the motion of any party or the court itself, it finds that an attorney or party brought or defended an action, or any part thereof, that lacked substantial justification or that the action, or any part thereof, was interposed for delay or harassment, or if it finds that an attorney or party unnecessarily expanded the proceeding by other improper conduct, including, but not limited to, abuses of discovery procedures available under Chapter 11 of this title, the “Georgia Civil Practice Act.” As used in this Code section, “lacked substantial justification” means substantially frivolous, substantially groundless, or substantially vexatious.

(Emphasis supplied.) The award of attorney fees pursuant to this subsection (b) is discretionary based upon a finding that a party lacked substantial justification or that the action was interposed for delay or harassment. Haggard, supra.

Although the court stated that it did not believe that Camp filed her petition “totally for frivolous reasons,” it repeatedly stated that it found that Camp did not act in bad faith in filing her petition. But a finding of bad faith, required to determine an award of expenses of litigation pursuant to OCGA § 13-6-11, for example, is not required for an award of attorney fees pursuant to OCGA § 9-15-14 (a) and (b). See Haggard, supra, 257 Ga. at 527 (4) (c), n. 3. While the trial court is not required to make findings of fact in denying an award of attorney fees, see Evers v. Evers, 277 Ga. 132, 132-133 (2) (587 SE2d 22) (2003), it appears from the trial court’s oral ruling here that it applied an incorrect legal standard for analyzing the award of attorney fees pursuant to OCGA § 9-15-14 (a) and (b). See, e.g., The Lamar Co. v. State of Ga., 256 Ga. App. 524, 525-526 (2) (568 SE2d 752) (2002) (case remanded in part because trial court incorrectly believed bad faith was prerequisite for attorney fees pursuant to OCGA § 9-15-14); The Claxton Enterprise v. Evans County Bd. of Commrs., 249 Ga. App. 870, 877-878 (5) (549 SE2d 830) (2001) (court awarded fees simply because party was in violation of Georgia Open Meetings Act; award vacated and case remanded for court to determine if party acted “without substantial justification” pursuant to OCGA § 50-14-5 (b)); cf. Coffey v. Fayette County, 279 Ga. Ill, 112 (610 SE2d 41) (2005) (remand required where trial court applied incorrect legal standard in denying request for injunctive relief).

Decided March 5, 2013.

Roach, Caudill & Gunn, Ernest L. Gunn IV, for appellants.

James M. Money, for appellee.

Therefore, in addition to our holding in Division 1 remanding this case for clarification of the trial court’s ruling with regard to attorney fees pursuant to the consent order, we also remand this case for the court to apply the proper standards to determine if the Executors are entitled to an award of attorney fees pursuant to OCGA § 9-15-14 (a) and (b).

Judgment vacated and case remanded.

Miller, P. J., and Ray, J., concur.

       In this affidavit, Camp claimed, inter alia, that she was fraudulently induced into agreeing to the consent order.


author: Ray, Judge.

text:
    A12A2163, A12A2164.
    RIVER FOREST, INC. et al. v. UNITED BANK (two cases).
    (739 SE2d 403)
   Ray, Judge.

In these consolidated appeals, appellants River Forest, Inc. and David Aldridge challenge the trial court’s orders confirming the nonjudicial foreclosure sale of several properties that appellee United Bank (the “Bank”) held as security for a commercial loan to appellants. In Case No. A12A2163, appellants contest the foreclosure of four lots adjacent to the river in the River Forest subdivision in Monroe County (the “Four River Lots”). Appellants contend that the trial court’s finding that the Four River Lots sold for their true market value is not supportedby any evidence. In Case No. A12A2164, appellants contest the foreclosure of eight commercial lots located just outside the entrance of River Forest subdivision in Monroe County and one residential lot, identified as Lot R-34, located within the River Forest subdivision (collectively, the “Nine Lots”). Appellants contend that the trial court erred in confirming the foreclosure of the Nine Lots, arguing that the Bank did not prove that the eight commercial properties sold for “at least their true market value under the usual market conditions of sales of commercial property.” The appeals have been consolidated for disposition in a single opinion, and finding no error, we affirm.

In confirming a nonjudicial foreclosure sale under OCGA § 44-14-161, the trial court “shall require evidence to show the true market value of the property sold under the powers and shall not confirm the sale unless it is satisfied that the property so sold brought its true market value on such foreclosure sale.” The trial judge in a confirmation proceeding “sits as the trier of fact, and [his] findings and conclusions have the effect of a jury verdict.” Thus, “witness credibility and the weight of the evidence proffered by the parties at a confirmation hearing are to be judged by the trial court, and not this Court on appeal.” For this reason, we will not disturb the trial court’s decision if there is any evidence to support it, and “we view the evidence in the light most favorable to the trial court’s judgment.”

So viewed, the record shows that in 2009, River Forest and David Aldridge, as a personal guarantor, executed a promissory note (the “Note”) in favor of the First National Bank of Barnesville, United Bank’s predecessor-in-interest. The Note was secured by two security deeds, the first secured by the Nine Lots at issue in Case No. A12A2164, and the second secured by the Four River Lots at issue in Case No. A12A2163. River Forest defaulted on the Note, and the Bank elected to declare the outstanding debt immediately due and payable.

The Bank then foreclosed on the Nine Lots and the Four River Lots under power of sale provisions contained in the deeds to secure debt. At the foreclosure sale, the Bank purchased the Four River Lots for $121,500, and the Nine Lots for $105,000. The Bank reported the sales to a judge in the Superior Court of Monroe County and applied for confirmation of the sales pursuant to OCGA § 44-14-161. After a consolidated hearing, the trial court confirmed the sales.

1. In Case No. A12A2163, the appellants’ sole enumeration of error is that the trial court erred in finding that the Four River Lots sold for their true market value when the written appraisal of the Bank’s expert exceeded the amount bid by the Bank at the foreclosure sale. This argument is without merit.

At the hearing, the parties presented competing expert testimony as to the value of the Four River Lots at the time of the foreclosure sale. Appellants’ appraiser opined that the property’s true market value was $250,000. The Bank introduced written appraisal reports as well as expert testimony from Ken Fletcher, their real estate appraisal expert. Fletcher concluded in his amended written appraisal and in his testimony at trial that the property’s value was $123,000. Previously, however, Fletcher had informed the Bank in his initial written appraisal that the true market value of the Four River Lots was $121,500, and the Bank relied upon this initial valuation when determining the purchase price of the property at the foreclosure sale. Fletcher explained the $1,500 difference by testifying that, in preparing for the hearing, he noticed a mathematical error in his calculations, which he corrected in the revised version of his appraisal report.

Appellants argue that the Bank presented no evidence that the Four River Lots sold for their true market value because the Bank purchased the Four River Lots for $121,500, the amount reflected in Fletcher’s original written appraisal, and not the $123,000 reflected in the amended appraisal. However, Fletcher testified at the hearing that the $1,500 difference between the values was within the range of the true market value of the property because “anywhere within a few thousand dollars indeed is accurate.” He explained that when appraising a property, it is possible to “get into a rounding situation” and that “[w]e’re not that accurate in this business.” Thus, contrary to appellants’ argument, there is some evidence to support the trial court’s finding that the property sold for at least its true market value.

On appellate review, the test is not whether this [C]ourt would have accepted appellant’s expert appraisals as the most reliable and accurate, but whether the record contains any evidence to support the findings of the trial court that the property brought its true market value at the foreclosure sale.

The case cited by appellants, Wheeler v. Coastal Bank is inapposite. In Wheeler, this Court reversed confirmation of a foreclosure sale where the evidence presented was insufficient for the trial judge to ascertain that the foreclosure sale price represented at least the true market value of the property when both appraisers testified that the value of the property significantly exceeded the purchase price. Unlike in Wheeler, the Bank’s appraiser in the present case agreed that the $121,500 purchase price would be “within the range of true [market] value” of the property.

2. In Case No. A12A2164, appellants contend that the trial court erred in confirming the foreclosure sale of the Nine Lots because the Bank failed “to prove that the [e]ight [c]ommercial [l]ots sold for at least their true market value under the usual market conditions for sales of commercial property.”

As stated above, the Nine Lots are comprised of one residential lot, subject to several restrictive covenants, located within the River Forest subdivision, and eight commercial lots, not subject to those covenants, located just outside the subdivision. At the confirmation hearing, appellants’ expert appraiser opined that the Nine Lots had a true market value of $265,000. Fletcher, the Bank’s appraisal expert, testified that he prepared an appraisal report for the Nine Lots and found that their true market value was $105,000.

Fletcher testified that he concluded that the “highest and best use for [the eight commercial] lots [is] to be residential,” and that the zoning laws in the area would allow residential usage of those lots. Fletcher explained that the market for commercial property in that area had not ripened yet, that the eight commercial lots had been on the market since 2004 without a buyer, and that “people would be apt to buy [the property for residential uses] way before it will sell as a commercial lot.” Based upon these conclusions, Fletcher testified that, utilizing the sales-comparison approach, he determined the retail value of the Nine Lots was $255,000 and then, to determine the true market value, applying the discount cash-flow methodology, he discounted that value to $105,000 because of market conditions.

In contrast, appellants’ expert determined that the best use of the eight commercial lots would be as commercial property, and utilizing the sales comparison approach, he determined that the retail value of the Nine Lots was $265,000. Appellants’expert further testified that it was not necessary to discount that value further to reach the property’s true market value.

Appellants argue that Fletcher inappropriately used only residentially zoned lots within the River Forest subdivision as comparable sales when appraising the Nine Lots. However, OCGA § 44-14-161 (b) “does not preclude any specific method of property appraisal.” And, as stated above,

[o]n appellate review, the test is not whether this [Cjourt would have accepted appellants’ expert appraisals as the most reliable and accurate, but whether the record contains any evidence to support the findings of the trial court that the property brought its true market value at the foreclosure sale. Where the evidence is in conflict as to the market value of the property, the trial court’s findings will be affirmed if they are supported by any evidence and are not clearly erroneous.

Thus, the trial court’s decision to adopt Fletcher’s determination that the highest and best use of the Nine Lots would be for residential use, and his valuation method of calculating the retail value of the property by utilizing the sales comparison approach and then discounting that value to achieve the property’s true market value, is not in error.

3. Appellants’ final enumeration is that the trial court erred in confirming the foreclosure sale of the Nine Lots because “the underlying debt was consolidated and otherwise inextricably intertwined with the January 3, 2012 foreclosure sale of the Four River Lots and that the Bank failed to prove that the Four River Lots sold for at least their true market value.” However, this enumeration is rendered moot by our holding in Division 1 affirming the confirmation of the Four River Lots.

Decided March 5, 2013.

Wilson, Brock & Irby, Kyler L. Wise, for appellants.

Arnall, Golden & Gregory, James A. Gober, for appellee.

Judgment affirmed.

Miller, P. J., and Branch, J., concur.

       OCGA § 44-14-161 (b). True market value “is the price which the property will bring when it is offered for sale by one who desires, but is not obliged, to sell it, and is bought by one who wishes to buy, hut is not under a necessity to do so.” (Citation and punctuation omitted.) Gutherie v. Ford Equip. Leasing Co., 206 Ga. App. 258, 259 (1) (424 SE2d 889) (1992).

       (Footnote omitted.) The Hudson Trio, LLC v. The Buckhead Community Bank, 304 Ga. App. 324, 325 (696 SE2d 372) (2010).

       (Footnote omitted.) Atreus Communities of America v. KeyBank Nat. Assn., 307 Ga. App. 716, 717 (706 SE2d 107) (2011).

        Trefren v. Freedom Bank of Ga., 300 Ga. App. 112, 113 (684 SE2d 144) (2009).

       (Punctuation and footnote omitted.) The Hudson Trio, LLC, supra.

       (Citation and punctuation omitted.) Eayrs v. Wells Fargo Bank, N. A., 311 Ga. App. 504, 508 (5) (716 SE2d 561) (2011).

       182 Ga. App. 112 (354 SE2d 694) (1987).

       Id. at 114 (1).

       As stated above, the ninth lot foreclosed in Case No. A12A2164 was a residential lot located within the subdivision.

       (Punctuation and footnote omitted.) Battle Properties v. Branch Banking and Trust Co., 310 Ga. App. 217, 219 (712 SE2d 625) (2011).

       (Punctuation and footnotes omitted.) Id. at 220.

       Id. at 220.

       Compare Ward v. Pembroke State Bank, 212 Ga. App. 322, 324 (441 SE2d 691) (1994) (finding that two debts, held by the same creditors, and owed by the same debtor were “inextricably intertwined,” and thus, “a foreclosure of one affects the other”).


author: ANDREWS, Presiding Judge.

text:
    A12A2276.
    PIPER v. THE STATE.
    (739 SE2d 407)
   ANDREWS, Presiding Judge.

Randy Piper appeals from the trial court’s order denying his plea in bar in which he contended that the State was prosecuting him out of spite and vindictiveness. For the following reasons, we affirm.

The record shows that Piper was charged on December 8, 2008 with possession of methamphetamine and possession of a drug-related object (Case No. 08-CR-1027-J). On February 16, 2009, Piper was indicted for theft by conversion, theft by receiving, and theft by taking (Case No. 09-CR-086-A). In return for a guilty plea in Case No. 09-CR-086-A, the State entered a nolle prosequi in Case No. 08-CR-1027-J.

Piper was sentenced to probation in the 2009 case but was arrested in November 2010 for violating his probation. Piper served several months in jail and petitioned for a writ of habeas corpus, which was granted on June 24, 2011. The superior court granted the writ because it could not determine whether Piper signed the necessary paperwork in connection with the plea or whether he was even aware that the plea was being taken.

On December 15, 2011, the State charged Piper with possession of methamphetamine and possession of drug-related objects, the offenses that were nolle prossed in connection with the plea agreement. Piper filed a plea in bar claiming that he had already served seven months under a plea agreement in which these charges were nolle prossed and the State was only prosecuting this case out of vindictiveness for his having prevailed on his petition for habeas corpus. The prosecutor responded at the hearing on the plea in bar, stating that this was not a case of retribution; but rather that, because the habeas petition was granted, “[w]e are simply moving back to the point we were prior to the plea.”

The trial court, in denying the plea in bar, concluded that there was no evidence of vindictiveness. The court’s order stated that the State offered to nolle prosse certain charges if Piper pled guilty to certain other charges. Because it had been determined that there was no valid plea, the State was now going to prosecute him on those charges that were nolle prossed. The trial court found this case similar to Bordenkircher v. Hayes, 434 U. S. 357 (98 SC 663, 54 LE2d 604) (1978), in which the Supreme Court held that due process was not violated when the prosecutor carried out a threat made during plea negotiations to reindict the defendant on more serious charges if he did not plead guilty. Id. at 365.

On appeal, Piper cites to North Carolina v. Pearce, 395 U. S. 711 (89 SC 2072, 23 LE2d 656) (1969), as authority for his claim that this is a constitutionally impermissible vindictive prosecution. Pearce involved the defendant’s exercise of a procedural right that caused a complete retrial after he had been once tried and convicted. The Supreme Court held that the Due Process Clause of the Fourteenth Amendment “requires that vindictiveness against a defendant for having successfully attacked his first conviction must play no part in the sentence he receives after a new trial.” Id. at 725.

The same principle was later applied to prohibit a prosecutor from reindicting a convicted misdemeanant on a felony charge after the defendant had invoked an appellate remedy, since in this situation there was also a “realistic likelihood of vindictiveness.” (Punctuation omitted.) Blackledge v. Perry, 417 U. S. 21,27 (94 SC 2098, 40 LE2d 628) (1974).

Pursuant to North Carolina v. Pearce, a trial court is limited in its ability to increase a defendant’s sentence upon resentencing. To avoid a presumption that the trial court has acted vindictively, the record must affirmatively show “objective information justifying the increased sentence.” However, the application of the Pearce presumption should be limited to circumstances “in which there is a reasonable likelihood that the increase in sentence is the product of actual vindictiveness on the part of the sentencing authority. Where there is no such reasonable likelihood, the burden remains upon the defendant to prove actual vindictiveness.”

(Footnotes omitted.) Adams v. State, 299 Ga. App. 39, 42-43 (681 SE2d 725) (2009), citing Alabama v. Smith, 490 U. S. 794, 799-800 (109 SC 2201, 104 LE2d 865) (1989). Further, “ ‘a mere opportunity for vindictiveness is insufficient to justify the imposition of a prophylactic rule.’ United States v. Goodwin, 457 U. S. 368, 384 [(102 SC 2485, 73 LE2d 74)] (1982); Bordenkircher v. Hayes, [supra at 357].” Alabama v. Smith, supra at 800, n. 3.

Accordingly, while the prosecutor’s charging decision is presumptively lawful, and the prosecutor is not required to sustain any burden of justification for an increase in charges, the defendant is free to tender evidence to the court to support a claim that enhanced charges are a direct and unjustifiable penalty for the exercise of a procedural right. Of course, only in a rare case would a defendant be able to overcome the presumptive validity of the prosecutor’s actions through such a demonstration.

United States v. Goodwin, supra at 384, n. 19. In Goodwin, the court noted that “the only evidence respondent is able to marshal in support of his allegation of vindictiveness is that the additional charge was brought at a point in time after his exercise of a protected legal right.” Id. at 382, n. 15.

In the case before us, the prosecutor stated “[w]e are simply moving back to the point we were prior to the plea.” Piper has come forward with no actual evidence of vindictiveness to refute this, arguing only that any sentence will be an increase and therefore vindictiveness is presumed. This is not sufficient under the authority set out above. Accordingly, we conclude that the trial court correctly denied Piper’s plea in bar seeking to have the indictment dismissed. See Lopez v. State, 267 Ga. App. 178, 179 (598 SE2d 898) (2004) (defendant claimed that prosecutor reindicted him and increased the severity of the charges because he filed a § 1983 claim in federal court; but State gave sufficient reasons for the decision to reindict to show that it was not made with any vindictive motive). See also Jones v. State, 290 Ga. 670, 676 (725 SE2d 236) (2012) (defendant’s contention that after plea negotiations failed, and a more severe sentence was included in a reindictment, did not raise a presumption of prosecutorial vindictiveness in the absence of actual evidence thereof); Brandeburg v. State, 292 Ga. App. 191, 200 (663 SE2d 844) (2008) (State’s increase of severity of charges after defendant refused to plead guilty did not raise presumption of prosecutorial vindictiveness).

Judgment affirmed.

Doyle, P. J., and Boggs, J., concur.

Decided March 5, 2013.

Banks & Stubbs, Rafe Banks III, for appellant.

Lee Darragh, District Attorney, Randall C. Schonder, Assistant District Attorney, for appellee.

       The State is also pursuing a trial of the case that was the subject of the guilty plea. That case is being appealed separately and is not before us.


author: MCFADDEN, Judge.

text:
    A12A1878.
    BUFFORD v. THE STATE.
    (739 SE2d 421)
   MCFADDEN, Judge.

After a jury trial, Robert Austin Bufford was convicted of child molestation and aggravated child molestation. He argues that the trial court erred in admitting evidence regarding his appearance at the time of his arrest and that his trial counsel was ineffective because she did not object to this evidence. Because Bufford has waived appellate review of the admission of the evidence, and because he has not met his burden of demonstrating that his counsel’s failure to object to the evidence constituted deficient performance, we affirm.

1. Facts.

The incident at issue in this case occurred in the early morning of January 1, 2007. R. B., then five years old, and her family celebrated New Year’s Eve at the house of a family friend, who was Bufford’s stepfather. Bufford was present, as well.

During the night, R. B. and her teenaged brother tried to go to sleep on couches in the living room. Bufford entered the room and R. B. went to sit next to him in a chair. R. B. testified that Bufford then pulled down her panties and touched and kissed her “privacy,” scaring her. R. B.’s brother testified that he saw Bufford enter the room and R. B. sit next to him in a chair. The brother saw Bufford lean toward R. B. with “his hand inside of her leg.” He then saw Bufford get on his knees and place his head near the girl’s “private area.”

After Bufford left the room, R. B.’s brother reported what he had seen to the children’s parents. The family left the friend’s house and drove home. Subsequently, R. B. told her mother that Bufford had “touched her in her privacy” •— referring to her vagina — and “kissed her privacy.” R. B.’s parents notified the police, and R. B. and her brother gave forensic interviews to a social worker. Those interviews corroborated the children’s trial testimony and were published to the jury.

2. Admission of evidence about Bufford’s appearance.

Bufford argues that the trial court erred in admitting evidence of his appearance at the time of his arrest, specifically a booking photograph (or “mug shot”) and testimony from witnesses regarding differences between Bufford’s appearance at the time of arrest and at the time of trial. But Bufford did not object to either the testimony or the admission of the photograph during trial and does not argue on appeal that admitting that evidence was plain error. Consequently, Bufford has waived appellate review of this claim of error. See Brooks v. State, 281 Ga. 514, 516 (2) (640 SE2d 280) (2007) (failure to object to admission of evidence at trial generally constitutes waiver of appellate review); see also OCGA § 24-1-103 (a) (1), (d) (error shall not be predicated upon ruling admitting evidence unless substantial right of party is affected and timely objection or motion to strike appears of record; however, court may take notice of plain errors affecting substantial rights although such errors were not brought to court’s attention).

3. Ineffective assistance of counsel.

Bufford argues that his trial counsel was ineffective in failing to object to the evidence concerning his appearance, which he contends was irrelevant and should have been excluded under DeCastro v. State, 221 Ga. App. 83 (470 SE2d 748) (1996) (physical precedent only). The record shows that trial counsel instead questioned witnesses on whether the booking photograph reflected Bufford’s regular appearance.

Bufford’s reliance upon DeCastro is flawed. Under Court of Appeals Rule 33 (a), DeCastro is not binding precedent but is merely physical precedent, because one judge concurred only in the judgment. And the record belies Bufford’s assertion that, as in DeCastro, his identity was not at issue in the case. See DeCastro, 221 Ga. App. at 86. Instead, at several points during trial, his counsel posed questions to witnesses which suggested that R. B.’s brother could have been the perpetrator. The admission of the evidence was not an abuse of the trial court’s discretion. See Fortson v. State, 280 Ga. 376, 379 (2) (628 SE2d 104) (2006) (“[t]he admission of relevant evidence that is challenged on the basis that its probative value is outweighed by its prejudicial impact is within the sound discretion of the trial court”) (citation omitted); Smith v. State, 291 Ga. App. 545, 547 (2) (662 SE2d 323) (2008) (“[u]nless the potential for prejudice in the admission of evidence substantially outweighs its probative value, the Georgia rule favors the admission of any relevant evidence, no matter how slight its probative value”) (citation and punctuation omitted). Cf. OCGA § 24-4-403 (effective January 1, 2013) (allowing for the admission of relevant evidence unless “its probative value is substantially outweighed by the danger of unfair prejudice, confusion of the issues, or misleading the jury or by considerations of undue delay, waste of time, or needless presentation of cumulative evidence”).

Assuming arguendo that Bufford had a valid objection to the admission of the evidence regarding his former appearance, he did not show that his trial counsel was ineffective in failing to object.

To prevail on his claim of ineffective assistance of trial counsel, [an] appellant must show counsel’s performance was deficient and that the deficient performance prejudiced him to the point that a reasonable probability exists that, but for counsel’s errors, the outcome of the trial would have been different.

(Citation and punctuation omitted.) Pruitt v. State, 282 Ga. 30, 34 (4) (644 SE2d 837) (2007). In reviewing a trial court’s determination on a claim of ineffective assistance of counsel, we uphold the trial court’s factual findings unless they are clearly erroneous and review the trial court’s legal conclusions de novo. Badie v. State, 317 Ga.App. 712, 717 (2) (732 SE2d 553) (2012).

In denying Bufford’s motion for new trial, the trial court determined that “[t]rial counsel’s actions regarding the booking photo and related issues were ones of reasonable trial strategy.” Bufford argues that the court had no basis for this determination because his trial counsel did not testify at the hearing on his motion for new trial. To the extent he suggests that the state was required to present evidence on the issue of trial counsel’s strategy, however, Bufford misapprehends the burden of proof. See McClarity v. State, 234 Ga. App. 348, 350 (3) (506 SE2d 392) (1998). Instead,

[t]here is a strong presumption that a trial attorney’s performance falls within a wide range of reasonable professional assistance. When trial counsel does not testify at the motion for new trial hearing, the defendant has an extremely difficult task to overcome the presumption. Judicial review of trial counsel’s performance is highly deferential, and trial counsel’s strategy was not unreasonable merely because appellate counsel would have pursued a different strategy.

(Citations omitted.) Anderson v. State, 274 Ga. 871, 873-874 (4) (560 SE2d 659) (2002).

Generally, whether to object to irrelevant evidence is a tactical and strategic decision. See Anderson v. State, 206 Ga. App. 354, 355 (2) (426 SE2d 6) (1992). And “[i]n the absence of contrary evidence, defense counsel’s actions are presumed to be part of trial strategy.” (Citations and punctuation omitted.) McClarity, 234 Ga. App. at 351 (3). There is no evidence in this case showing that trial counsel’s actions were not part of her trial strategy; to the contrary, her attempts to explain Bufford’s appearance through the questioning of witnesses suggests that she made a strategic decision about how to handle the state’s evidence about Bufford’s appearance.

Decided March 6, 2013.

McCracken Poston, for appellant.

Herbert E. Franklin, Jr., District Attorney, Christopher A. Amt, Assistant District Attorney, for appellee.

Of course, “[t]actics and strategy provide no talismanic protection against an ineffective assistance of counsel claim.” (Citation and punctuation omitted.) Benham v. State, 277 Ga. 516, 518 (591 SE2d 824) (2004). There are sometimes decisions that no reasonable trial counsel would make under the circumstances. See, e.g., Hall v. McPherson, 284 Ga. 219, 232 (4) (663 SE2d 659) (2008); Benham, 277 Ga. at 518. But Bufford has not established that his counsel’s decision to question witnesses about changes in his appearance rather than object to the state’s evidence on that point was a decision that no reasonable trial counsel would make under the circumstances of this case. “[Bjecause [Bufford] did not question trial counsel concerning this decision, [he] has failed to carry [his] burden to demonstrate that trial counsel provided deficient performance.” (Citation and punctuation omitted.) Smith v. State, 288 Ga. 348, 353 (8) (d) (703 SE2d 629) (2010). See also Morgan v. State, 276 Ga. 72, 77 (9) (575 SE2d 468) (2003) (affirming trial court’s denial of motion for new trial on ineffective assistance ground, where trial counsel’s action could have been a matter of reasonable trial strategy and trial counsel did not testify at motion for new trial hearing).

Furthermore, there is no merit in Bufford’s argument that, under Belt v. State, 225 Ga. App. 813 (485 SE2d 39) (1997), he was not allowed to call his trial counsel as a witness to establish that counsel’s ineffectiveness. Belt concerned the prohibition against trial counsel asserting his or her own ineffectiveness while still representing the defendant. Id. at 814-815 (2) (a). Bufford, in contrast, was represented by new, post-conviction counsel at the hearing on his motion for new trial.

Judgment affirmed.

Barnes, P. J., and McMillian, J., concur.


author: RAY, Judge.

text:
    A12A2038.
    TEW v. THE STATE.
    (739 SE2d 423)
   RAY, Judge.

Ian David Tew pled guilty to the offense of statutory rape. He appeals the trial court’s ruling that he was not legally eligible for first offender treatment. Because the trial court did not err in finding that the law did not permit Tew to be sentenced as a first offender, we affirm.

Tew was indicted on nine counts, including one count of statutory rape, based upon a sexual encounter that occurred when Tew was 22 years old and the victim was 14 years old. On April 18, 2012, Tew entered a plea of guilty to statutory rape, admitting that he picked the victim up from her house, drove her to his house, had sex with her, and then drove her to Nashville. At the sentencing hearing, Tew requested that he receive first offender treatment and argued that he should not have to register as a sexual offender. The trial court concluded that Tew was not legally eligible for first offender treatment; required him to register as a sexual offender; sentenced him to ten years to be served on probation; and imposed sexual offender conditions on probation. This appeal ensued.

In his sole enumeration of error, Tew contends that the trial court erred in ruling that he was not legally eligible for first offender consideration. Specifically, Tew argues that OCGA § 17-10-6.2, which governs the sentencing of persons convicted of sexual offenses, including statutory rape, allows the trial court to exercise its discretion to grant Tew first offender status under OCGA § 42-8-60.

As an initial matter, we note that whether or not to sentence a defendant under the First Offender Statute, OCGA § 42-8-60 et seq., lies entirely within the discretion of the trial court. However, “that discretion is abused if the court refuses to consider first offender treatment based upon an erroneous expression of belief that the law does not permit the exercise of such discretion.” Because whether or not the trial court abused its discretion turns on the proper interpretation of OCGA § 17-10-6.2, it is “a question of law, which is reviewed de novo on appeal.” Further, the defendant seeking first offender treatment has the burden on appeal to establish upon the record that the trial court based its decision upon an erroneous expression of belief, and absent “evidence in the record demonstrating error, the trial court is presumed to have acted properly in imposing [the] sentence.”

OCGA § 17-10-6.2 (b) sets forth the mandatory sentence guidelines for persons convicted of a sexual offense. It provides:

Except as provided in subsection (c) of this Code section, . . . any person convicted of a sexual offense shall be sentenced to a split sentence which shall include the minimum term of imprisonment specified in the Code section applicable to the offense. No portion of the mandatory minimum sentence imposed shall be suspended, stayed, probated, deferred, or withheld by the sentencing court and such sentence shall include, in addition to the mandatory imprisonment, an additional probated sentence of at least one year. No person convicted of a sexual offense shall be sentenced as a first offender pursuant to Article 3 of Chapter 8 of Title 42, relating to probation for first offenders, or any other provision of Georgia law relating to the sentencing of first offenders.

Subsection (c) (1) of OCGA § 17-10-6.2 further provides that “[i]n the court’s discretion, the court may deviate from the mandatory minimum sentence as set forth in subsection (b) of this Code section, or any portion thereof, provided that” the defendant satisfied all six requirements set forth in subsection (c) (1) (A)-(F).

Ultimately the trial court ruled that Tew satisfied all six requirements of the statute and deviated from the mandatory sentence guidelines of OCGA § 17-10-6.2 (b) for the purpose of sentencing Tew to a probated sentence. However, it found that Tew was not eligible for first offender status, finding that the phrase “or any portion thereof” in subsection (c) (1) applied only to the first two sentences of subsection (b) setting forth mandatory minimum sentence guidelines, and not to the final sentence of subsection (b), which precludes defendants convicted of certain enumerated sexual offenses from receiving first offender status.

Tew argues that the phrase “or any portion thereof” in subsection (c) (1) refers to the entirety of subsection (b) and not simply to the first two sentences referring to the mandatory minimum sentence guidelines. We disagree.

When considering the meaning of a statute, we apply the following analysis:

First, courts should construe a statute to give sensible and intelligent effect to all of its provisions and should refrain, whenever possible, from construing the statute in a way that renders any part of it meaningless. Second, a court’s duty is to reconcile, if possible, any potential conflicts between different sections of the same statute, so as to make them consistent and harmonious. Third, in construing language in any one part of a statute, a court should consider the entire scheme of the statute and attempt to gather the legislative intent from the statute as a whole.

With these principles in mind, we find that it is clear from the grammatical construction and the punctuation of OCGA § 17-10-6.2 (c) (1) that the legislature intended the “or any portion thereof” language of subsection (c) (1) to modify the entire phrase directly preceding it, which states, “the court may deviate from the mandatory minimum sentence as set forth in subsection (b) of this Code section.” The mandatory minimum sentence is set forth only in the first two sentences of subsection (b) and is not discussed in the final sentence, which addresses first offender status. This legislative intent is further clarified upon a close reading of the first two sentences of subsection (b), which, mirroring the “portion” language of subsection (c) (1), state, in part, that “[njo portion of the mandatory minimum sentence imposed shall be suspended, stayed, probated, deferred, or withheld by the sentencing court... ,” Accordingly, we find that the most sensible interpretation of the “any portion thereof” language in subsection (c) (1) indicates that the legislature’s intent was not to allow the trial court to deviate from the entirety of subsection (b), but rather to grant the trial court discretion to deviate only from the mandatory minimum sentence guidelines set forth in the first two sentences.

Decided March 6, 2013

Angela M. Coggins, for appellant.

George H. Hartwig III, District Attorney, Marie R. Banks, Assistant District Attorney, for appellee.

Moreover, “a statute must be construed in relation to other statutes of which it is a part, and all statutes relating to the same subject-matter, briefly called statutes in pari materia, are construed together, and harmonized wherever possible, so as to ascertain the legislative intendment and give effect thereto.” When OCGA § 17-10-6.2 (c) (1) is construed in pari materia with the First Offender Statute, OCGA § 42-8-60, Tew’s interpretation of the “or any portion thereof” language in a manner that grants the trial court discretion to award first offender status to Tew becomes untenable. OCGA § 42-8-60 specifically states, without exception, that no person convicted of a sexual offense may be given first offender treatment. This conclusion is further supported by case law. Interpreting OCGA § 17-10-6.2 and OCGA § 42-8-60, this Court in Planas v. State held that a defendant over the age of 21 at the time of the offense of statutory rape is excluded from first offender consideration.

Judgment affirmed.

Miller, P. J., and Branch, J., concur.

       OCGA § 16-6-3 (a).

       Tew was indicted with the following charges: two counts of aggravated child molestation, child molestation, statutory rape, interference with custody, contributing to the delinquency of a minor, interstate interference with custody, theft by receiving stolen property, and theft by taking. After Tew pled guilty to statutory rape, the remaining eight charges were dismissed by the State.

       OCGA § 16-6-3 (a) provides:
      A person commits the offense of statutory rape when he or she engages in sexual intercourse with any person under the age of 16 years and not his or her spouse, provided that no conviction shall be had for this offense on the unsupported testimony of the victim.

       OCGA § 16-6-3 (b) provides that if a person convicted of statutory rape is 21 years of age or older, “such person shall be punished by imprisonment for not less than ten nor more than 20 years. Any person convicted under this subsection of the offense of statutory rape shall, in addition, be subject to the sentencing and punishment provisions of Code Section 17-10-6.2.”

        Camaron v. State, 246 Ga. App. 80, 82 (1) (539 SE2d 577) (2000).

       (Citation omitted.) Planas v. State, 296 Ga. App. 51, 52 (1) (673 SE2d 566) (2009).

       (Citation and punctuation omitted.) Nunnally v. State, 311 Ga. App. 558, 559 (1) (716 SE2d 608) (2011).

       (Citations omitted.) Camarón, supra.

       (Emphasis supplied.)

       (Emphasis supplied.)

       (Citation omitted.) Fulton County v. Colon, 316 Ga. App. 883, 887 (2) (730 SE2d 599) (2012).

       OCGA § 17-10-6.2 (c) (1).

       (Emphasis supplied.)

       (Footnote omitted.) Aimwell, Inc. v. McLendon Enterprises, 318 Ga. App. 394, 397 (1) (734 SE2d 84) (2012).

       OCGA § 42-8-60 (d) (2) provides: “The court shall not sentence a defendant under the provisions of this article who has been found guilty of or entered a plea of guilty or a plea of nolo contendere for . . . [a] sexual offense as such term is defined in Code Section 17-10-6.2.” OCGA § 17-10-6.2 (a)’s definition of “sexual offense” includes “[statutory rape, as defined in Code Section 16-6-3, if the person convicted of the crime is 21 years of age or older.” OCGA § 17-10-6.2 (a) (4).

       Supra.

       Id. at 52 (1). Accord Ailara v. State, 311 Ga. App. 862, 863, n. 3 (717 SE2d 498) (2011).


author: Ellington, Chief Judge.

text:
    A12A2196.
    GEORGIA FARM BUREAU MUTUAL INSURANCE COMPANY v. FRANKS.
    (739 SE2d 427)
   Ellington, Chief Judge.

Thomas Franks filed this action in the Superior Court of Floyd County, seeking benefits under his homeowner’s policy from Georgia Farm Bureau Mutual Insurance Company (“GFB”). The trial court denied the parties’ cross-motions for summary judgment. Pursuant to a granted application for interlocutory review, GFB appeals, contending that the trial court erred in concluding that questions of material fact remain. For the reasons explained below, we affirm.

To prevail on a motion for summary judgment, “the moving party must demonstrate that there is no genuine issue of material fact, so that the party is entitled to judgment as a matter of law[.]” (Citations and punctuation omitted.) Cowart v. Widener, 287 Ga. 622, 623 (1) (a) (697 SE2d 779) (2010). In moving for summary judgment, “a defendant who will not bear the burden of proof at trial need not affirmatively disprove the nonmoving party’s case, but may point out by reference to the evidence in the record that there is an absence of evidence to support any essential element of the nonmoving party’s case.” (Citation and punctuation omitted.) Id. The court must view the evidence, and all reasonable inferences drawn therefrom, in the light most favorable to the nonmovant. Id. at 624 (1) (a). “Summary judgments enjoy no presumption of correctness on appeal[.]” (Citations and punctuation omitted.) Id. Rather, the appellate court is to determine whether there exists a genuine issue of material fact by conducting a de novo review of the evidence. Benton v. Benton, 280 Ga. 468, 470 (629 SE2d 204) (2006).

The record establishes the following undisputed facts. In August 2000, Franks purchased the subject property, 2877 Cedartown Highway, Rome. Prior to the closing on August 14,2000, as required by the lender, Franks applied for homeowner’s insurance with GFB. The application, and the policy GFB issued, listed Franks as the only insured. In addition, in the policy’s “Conditions” section, it provided that, “[e]ven if more than one person has an insurable interest[] in the property covered, [GFB] will not be liable in any one loss .. . [t]o the insured for more than the amount of the insured’s interest at the time of loss[.]” After the closing, and on the same day, Franks executed a warranty deed, conveying the property to himself and to his domestic partner, Sterling Morrison, “as joint tenants with survivorship and not as tenants in common.”

Franks renewed his policy with GFB annually. In the fall of 2002, Franks told GFB’s agent, Todd Blankenship, that Morrison was on the deed as a co-owner and asked whether Morrison needed to be added to the homeowner’s policy as an insured. Blankenship told Franks that it was not necessary to name Morrison as an insured in the policy because only Franks was liable on the debt secured by the property, and Franks remained the sole named insured.

In part because of improvements Franks and Morrison made to the property over the next decade, including a large addition to the house, the policy’s coverage for the “dwelling” was increased over time from $60,000 in 2000 to $246,000 for the period August 14,2009, to August 10, 2010.

During the night of July 15 to 16,2010, the house was completely destroyed by fire. Franks filed a claim against his homeowner’s policy. At that time, the property was encumbered by two secured loans, totaling $104,175.65. GFB issued checks to discharge both of the loans. GFB informed Franks that, because the insured property was owned by Franks and Morrison as “a tenancy in common with the right of survivorship,” Franks’ “insurable interest in the property is calculated by taking the total amount of insurance coverage [for the dwelling], subtracting the amount owed to the mortgagee [s] as of the date of loss, and taking one-half (1/2) of the remaining balance.” Based on this calculation, GFB issued a check to Franks for $70,912.18, one-half of the difference between the policy limits for the dwelling ($246,000) and the amount paid to discharge the secured debts ($104,175.65). In his action, Franks contends that he is entitled to the entire difference between the policy limits for the dwelling and the amount paid to discharge the secured debts, rather than a one-half share.

1. GFB contends that Franks’ “one-half undivided interest in the [p]roperty as a joint tenant” with Morrison means that Franks’ “interest in the [p]roperty is fifty percent.” Further, GFB contends that under Georgia’s Insurable Interest Statute, OCGA § 33-24-4, and other applicable law, an insured whose legal ownership interest in insured property is less than 100 percent has an insurable interest only to the same extent as the insured’s fractional ownership interest. Consequently, GFB argues, Franks can recover no more than 50 percent of the policy limits less amounts paid to the secured lenders. In addition, GFB contends that, given the policy’s explicit insurable interest condition, evidence that GFB had imputed knowledge of Morrison’s co-ownership does not create a material question of fact regarding Franks’ rights under the contract.

(a) Originally, “[t]he statutory requirement of insurable interest was intended to prevent wagering on human lives.” (Citation and punctuation omitted.) Wood v. New York Life Ins. Co., 255 Ga. 300, 303 (336 SE2d 806) (1985). The concept was soon expanded to property insurance. See OCGA § 33-24-4 (b) (“No insurance contract on property or of any interest therein or arising therefrom shall be enforceable except for the benefit of persons having, at the time of the loss, an insurable interest in the things insured.”).

Insurable interest is a keystone of the concept of insurance, safeguarding the insurer against the risk that arises if one who will receive the monetary benefit from loss of the insured property (or life, [in the case of life insurance,]) has no interest in the property not being destroyed.

Woods v. Independent Fire Ins. Co., 749 F2d 1493, 1496 (11th Cir. 1985). It is well settled that having title or an ownership interest is not the sole basis for having an insurable interest in property. Brown v. Ohio Cas. Ins. Co., 239 Ga. App. 251, 253 (2) (519 SE2d 726) (1999). Rather,

[t]he test of insurable interest in property is whether the insured has such a right, title, or interest therein, or relation thereto, that he will be [benefitted] by its preservation and continued existence, or suffer a direct pecuniary loss from its destruction or injury by the peril insured against.

(Citation and punctuation omitted.) Id. Thus, Georgia law defines an “insurable interest” in property as “any actual, lawful, and substantial economic interest in the safety or preservation of the subject of the insurance free from loss, destruction, or pecuniary damage or impairment.” OCGA § 33-24-4 (a). Under OCGA § 33-24-4, therefore, having title or legal ownership is not the sine qua non of having an insurable interest, so long as the insured has some lawful interest which “maybe slight or contingent, legal or equitable.” (Punctuation and footnote omitted.) Conex Freight Systems v. Ga. Ins. Insolvency Pool, 254 Ga. App. 92, 97 (1) (b) (561 SE2d 221) (2002) (An insured’s leasehold was an insurable interest.).

Although GFB concedes that Franks had an insurable interest in the subject property, it contends that the measure of his ownership interest, being less than sole and undivided, limits his recovery to a fraction of the policy limits. See OCGA § 33-24-4 (c) (“The measure of an insurable interest in property is the extent to which the insured might be damnified by loss, injury, or impairment of such interest in such property.”). Although the Insurable Interest Statute requires that an insured have an insurable interest, however, once such an insurable interest is shown to exist, it is the policy at issue, and not the statute, that determines the amount the insured is entitled to recover. Amalgamated Transit Union Local 1324 v. Roberts, 263 Ga. 405,409 (2) (434SE2d450) (1993); American Ins. Co. v. Bateman, 125 Ga. App. 189, 193 (2) (186 SE2d 547) (1971). GFB contends, however, that as a matter of law the amount of Franks’ interest was 50 percent of the value of the dwelling, less debt secured by the property.

Although one who owns property with another as joint tenants with right of survivorship is commonly (and confusingly) referred to as having a “one-half undivided interest,” this is not in all ways the equivalent of each having a 50 percent ownership interest. See Sams v. McDonald, 117 Ga. App. 336, 340-341 (1) (b) (160 SE2d 594) (1968).

The properties of a joint estate are derived from its unity, which is fourfold: the unity of interest, the unity of title, the unity of time, and the unity of possession; or, in other words, joint-tenants have one and the same interest, accruing by one and the same conveyance, commencing at one and the same time, and held by one and the same undivided possession. . . . The principal distinguishing characteristic of estates in joint-tenancy is, that on the death of one the right in the estate survives to the other to the exclusion of the heirs and representatives of the deceased joint-tenant.

(Citations and punctuation omitted.) Id. Thus, although ownership is shared, the title and interest are not divided into fractional shares. Id. It follows that, although Morrison also had the same rights as Franks to use and possess the property, Franks’ title and interest in the insured property was undivided, that is, 100 percent. Id. Consequently, GFB’s argument that Franks had a 50 percent ownership interest in the property, and that such limits his recovery to a fraction of the policy limits, fails. Allstate Ins. Co. v. Ammons, 160 Ga. App. 257, 259 (1) (286 SE2d 765) (1981) (“Ammons F) (Where an insured conveyed “a one-half undivided interest” in a house to his ex-wife, the trial court correctly rejected the insurer’s argument that the insured had a 50 percent ownership interest in the property and therefore had an “insurable interest” limited to 50 percent of the policy limits.); see alsolntegon Gen. Ins. Corp. v. Gibson, 226 Ga. App. 152, 154 (1) (485 SE2d 576) (1997) (The insurable interest of one of two co-owners of an automobile, who under terms and conditions of note secured by the vehicle was jointly and severally liable for the entire debt, was not limited to his one-half ownership; rather the insured’s insurable interest equaled 100 percent of the vehicle’s value.).

(b) Because, as noted earlier, once any insurable interest is shown to exist, as has been done in this case, it is the policy at issue, and not the Insurable Interest Statute, that determines the amount the insured is entitled to recover, we turn now to the terms of Franks’ homeowner’s policy. The policy provided that, “[e] ven if more than one person has an insurable interest in the property covered, [GFB] will not be liable in any one loss . . . [t]o the insured for more than the amount of the insured’s interest at the time of loss[.]” The term “the amount of the insured’s interest” is not defined in the policy, but GFB equates “the amount of [Franks’] interest” with the supposed fractional nature of Franks’ ownership interest. As explained in Division 1 (a), supra, however, Franks’ ownership interest, though shared, is not fractional, but, rather, undivided; accordingly, GFB’s construction cannot stand. Because Franks is not, by virtue of his joint ownership of the insured property, limited to recovering one-half of the difference between the policy limits for the dwelling and the amount paid to discharge the secured debts ($246,000 minus $104,175.65 divided by 2, equaling $70,912.18), as GFB contends, the trial court did not err in denying GFB’s motion for summary judgment.

(c) We must take this opportunity to clarify certain cases relied upon by GFB for the formula it applies to insureds who are joint tenants. In Ammons I, cited earlier, we considered the issue of whether an insured had an insurable interest in his former marital residence in which, together with his ex-wife, he had “a one-half undivided interest.” 160 Ga. App. at 257-258. The policy insured the house in the amount of $37,000. Id. Pursuant to the divorce decree, the house was to be sold for no less than $45,000, or as agreed by the parties, with the money from the sale to be allocated to payment of the outstanding mortgage, which was in the insured’s name only, then to payment of taxes on the property, and then to payment of the expenses of sale, with the remainder divided equally between the insured and his ex-wife. Id. at 258. The house was destroyed by fire, and the insured filed a claim for the policy limits of $37,000. The insurer asserted that the insured “owned no more than a 50 [percent] interest in the property at the time of loss[,]” that the insured’s “insurable interest” was less than the insured’s existing mortgage debt of $25,000, and that “this was the total amount owed by the [insurer] under the insurance policy.” Id. The insured then moved for summary judgment on the grounds that he had an insurable interest in the property for the full policy amount of $37,000. Id. The trial court granted the insured’s motion for summary judgment “only to the extent of ruling that he does have an insurable interest.” Id. at 258-259. On appeal, this Court determined that, “as a result of the fire, the [insured] did suffer a pecuniary loss in excess of the sum owed on the mortgage. To that extent he [had] an insurable interest in the property [,] and the trial judge correctly so ruled.” Id. at 259 (1). Thus, contrary to GFB’s characterization of our holding in Ammons I, we did not hold that an insured with a one-half undivided interest in the insured property has a qualified “insurable interest” that serves to limit the insured’s recovery under the policy; rather, as a matter of law the insured in that case had an insurable interest in the insured property and was not precluded from pursuing an amount up to the full policy limits. Id.

After remand of that case, a jury awarded the insured, inter alia, 100 percent of the difference between the maximum limits of the policy and the amount paid to the secured lender. See Allstate Ins. Co. v. Ammons, 163 Ga. App. 385, 386 (294 SE2d 610) (1982) (”Ammons II”) (physical precedent only). Upon appeal of the jury verdict, this Court held that the verdict improperly gave the named insured compensation for his ex-wife’s right to use and possess the property. Id. at 386 (1). We held that the jury’s award was “at least twice as much as [the insured] would have been entitled to under the formula set forth in [Ammons I]” and reversed. Id. at 386. In a case that soon followed Ammons I and Ammons II, this Court again considered the extent of an insured’s allowable recovery after a fire destroyed his former marital residence, which he co-owned with his ex-wife pursuant to a divorce decree. See Allstate Ins. Co. v. Thompson, 164 Ga. App. 508 (297 SE2d 520) (1982) (“Thompson”) (“[P]ursuant to the divorce decree, [the insured] conveyed to [his ex-wife] one-half of his interest in the house”). In that case, the insurer initially paid the insured $15,500, which was half of the policy limits of $31,000; out of that amount, the insured paid $11,000 to a secured lender. Id. The insured then brought suit for the balance of the policy amount, $15,500, and the jury returned a verdict in his favor. Id. On appeal, we characterized the insured’s demand as being for compensation for his ex-wife’s “one-half interest in the property.” Id. at 509. We determined that Ammons I and Ammons II set out the following “formula” in such cases of co-ownership: the insured is entitled to recover one-half of the difference of the policy limits less “expenses,” in that case, the outstanding debt secured by the property. Id. at 510. Because under that formula the insured was entitled to recover $10,000 ($31,000 minus $11,000 divided by 2), but had netted only $4,500 after paying the outstanding debt himself, we calculated that he was entitled only to an additional $5,500 and reversed the jury’s verdict for $15,500. Id.

On the issue of a co-owner insured’s insurable interest, our decisions in Ammons II and Thompson misstate and misapply our holding in Ammons I and other applicable law, as explained above. In Shield Ins. Co. v. Kemp, 117 Ga. App. 538, 539-540 (2) (160 SE2d 915) (1968) (“Kemp”), we similarly held that an insured who owned a one-half undivided interest in the insured property, in that case, a service station, would be entitled under the policy to recover for only one-half of the insured loss. Our decisions in Ammons II, Thompson, and Kemp fail to set out sufficient detail regarding the conveyances or the terms of the policies at issue for this Court now to determine whether we erred in reversing the juries’ verdicts in those cases. See Division 1 (b), supra. Accordingly, although we disapprove of the enunciations of the applicable “formula” in Ammons II and Thompson, and the analysis in Kemp, to the extent with the foregoing, we need not overrule those decisions.

2. GFB contends that, given the policy’s explicit insurable interest condition, evidence that GFB had imputed knowledge of Morrison’s interest does not create a material question of fact regarding Franks’ rights under the insurance contract. GFB has not shown, however, that it would be entitled to judgment if a finder of fact determined that GFB did not have actual or imputed knowledge of Morrison’s interest. See Division 1 (a), (b), supra. Accordingly, this argument is moot.

3. GFB contends that Franks’ reliance on Georgia’s Valued Policy Statute, OCGA § 33-32-5, is misplaced. Generally, the gravamen of Valued Policy Statutes is that, in defined circumstances, the amount of a property insurance policy is conclusive as to the value of the subject property and may not be contested after loss, either by the insured or by the insurer. Franks contends that another effect of Georgia’s Valued Policy Statute is that, when the conditions of the statute are met, the named insured(s) is (or are), despite any partial or qualified ownership interest, entitled to 100 percent of the insurance proceeds. This appears to be a matter of first impression in Georgia; Franks cites as persuasive authority decisions from other jurisdictions which have, in most cases, Valued Policy Statutes with much broader application. Because GFB has not attempted to show that on the date of loss the insured dwelling was worth less than the policy limits of $246,000, and because the trial court’s denial of GFB’s motion for summary judgment was correct for the reasons explained in Division 1, supra, this interesting question is not ripe for our review.

Judgment affirmed.

Phipps, P. J., concurs. Ray, J., concurs in judgment only.

Decided March 6, 2013.

Swift, Currie, McGhee & Hiers, Mark T. Dietrichs, for appellant.

Burkhalter, Pierce & Burkhalter, Albert F. Burkhalter, Jr., Crystal N. Burkhalter, for appellee.

       See OCGA § 9-11-56 (c) (Summary judgment is proper “if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law”).

       The term “insurable interest” is not defined in the policy.

       Deeds and other instruments of title, including any instrument in which one person conveys to himself and one or more other persons, any instrument in which two or more persons convey to themselves or to themselves and another or others, and wills, taking effect after January 1, 1977, may create a joint interest with survivorship in two or more persons. Any instrument of title in favor of two or more persons shall be construed to create interests in common without survivorship between or among the owners unless the instrument expressly refers to the takers as “joint tenants,” “joint tenants and not as tenants in common,” or “joint tenants with survivorship” or as taking “jointly with survivorship.” Any instrument using one of the forms of expression referred to in the preceding sentence or language essentially the same as one of these forms of expression shall create a joint tenancy estate or interest that may be severed as to the interest of any owner by the recording of an instrument which results in his lifetime transfer of all or a part of his interest; provided, however, that, if all persons owning joint tenant interests in a property join in the same recorded lifetime transfer, no severance shall occur.
      OCGA § 44-6-190 (a).

       Although GFB questions the credibility of Franks’ and Morrison’s description of the conversation with Blankenship, GFB does not dispute that Blankenship was its agent and handled Franks’ policy, and it points to no evidence to dispute Franks’ contention that he disclosed to Blankenship Morrison’s joint ownership of the insured property and inquired into adding Morrison as a named insured.

       This case is limited to the policy’s coverage for the “dwelling,” and does not concern personal property, other structures, or loss of use.

       We note that GFB initially misstated the nature of Franks’ interest, which was that of a “joint tenant[ ] with survivorship and not [a] tenant[ ] in common.” See OCGA §§ 44-6-120 (“Unless otherwise specifically provided by statute and unless the document or instrument provides otherwise, a tenancy in common is created wherever from any cause two or more persons are entitled to the simultaneous possession of any property.”); 44-6-121 (“Every tenant in common shall have the right to possess the joint property.”); 44-6-140 et seq. (procedures for partition of tenancies in common). GFB now concedes that Franks’ interest is that of a joint tenant with right of survivorship.

       See OCGA § 33-24-3 (a) (“An insurable interest, with reference to personal insurance, is an interest based upon a reasonable expectation of pecuniary advantage through the continued life, health, or bodily safety of another person and consequent loss by reason of such person’s death or disability or a substantial interest engendered by love and affection in the case of individuals closely related by blood or by law.”).

       See also Brown v. Ohio Cas. Ins. Co., 239 Ga. App. at 253-254 (2) (Despite relinquishing title to the insured property to his estranged wife, the husband remained liable under a mortgage assumption agreement and a security deed and, therefore, retained an insurable interest in the property.); Whitaker v. Ranow, 173 Ga. App. 746, 746-747 (327 SE2d 855) (1985) (An insured who was the guarantor of a commercial bank loan obtained by another to finance the purchase price of a truck had an insurable interest in the truck.); E. C. Long, Inc. v. Brennan’s of Atlanta, 148 Ga. App. 796, 800 (1) (b) (252 SE2d 642) (1979) (Abuilding contractor, who enters into a contract for construction, alteration, or repair of a building, has an insurable interest in the building.).

       “Damnify” means “[t]o cause loss or damage to; to injure[.]” Black’s Law Dictionary (9th ed. 2009).

       See, e.g., Shaw v. Shaw, 290 Ga. 354, 355 (1) (720 SE2d 614) (2012); Bird v. Trapnell, 149 Ga. 767, 769 (102 SE 131) (1920); see also Wilson v. Brown, 221 Ga. 273, 278 (3) (144 SE2d 332) (1965) (“undivided one-half interest”).

        Amalgamated. Transit Union Local 1324 v. Roberts, 263 Ga. at 409; American Ins. Co. v. Bateman, 125 Ga. App. at 193 (2).

       Whether a condition that expressly limits an insured’s liability for any one loss to the available coverage, after payment of secured debts, divided by the total number of persons having an insurable interest would be enforceable is not presented by the case before this Court.

       In the absence of a cross-appeal, the issue of whether the trial court erred in denying Franks’ cross-motion for summary judgment is not before this Court.

       When a panel judge concurs in the judgment only, a case serves as physical precedent only, which is not binding in subsequent cases. Ghrist v. Fricks, 219 Ga. App. 415, 420 (465 SE2d 501) (1995); Court of Appeals Rule 33 (a).

       OCGA § 33-32-5 (a) provides, in pertinent part:
      Whenever any policy of insurance is issued to a natural person or persons insuring a specifically described one or two family residential building or structure located in this state against loss by fire and the building or structure is wholly destroyed by fire without fraudulent or criminal fault on the part of the insured or one acting in his behalf, the amount of insurance set forth in the policy relative to the building or structure shall be taken conclusively to be the value of the property, except to the extent of any depreciation in value occurring between the date of the policy or its renewal and the loss, provided that, if loss occurs within 30 days of the original effective date of the policy, the insured shall be entitled to the actual loss sustained not exceeding the sum insured. . . .

       See generally Michael J. Skeary, ‘Valued Policy Laws: A Comparative Analysis,” 44 Tort Trial & Insurance Law Journal 1067, Spring/Summer 2009; Laura Dietz et al., “[Valued Policies] Generally; Total Loss,” 44 Am. Jur. 2d Insurance § 1500 (November 2012); Laura Dietz et al., “Allowance of Recovery in Full — Valued Policies,” 44 Am. Jur. 2d Insurance § 1507 (November 2012); Francis C. Amendola et al., “Agreed Valuation — Under Valued Policy Statutes,” 46 C. J. S. Insurance, § 1574 (December 2012); Lee R. Russ et al., “[Recovery Allowed in Full:] Valued Policies,” 12 Couch on Insurance § 175:62 (December 2012); Lee R. Russ et al., “[Valued Policies or Statutes] Generally; Purpose,” 12 Couch onlnsurance § 175:103 (December 2012); Christopher T. Conway, “As Hurricanes End, Legal Storms Begin: The Insurance Battle Under State Valued Policy Laws,” 24 Ga. St. U. L. Rev. 1043 (Summer 2008).

        See, e.g., Dewitt v. American Family Mut. Ins. Co., 667 SW2d 700, 707 (Mo. 1984); Smith v. Nationwide Mut. Fire Ins. Co., 564 FSupp. 350, 351-352 (N.D. Fla. 1983); Holden v. Hanover Fire Ins. Co., 128 FSupp. 527, 530-531 (W.D. S.C. 1955); Tedford v. Security State Fire Ins. Co., 278 SW2d 89, 91 (Ark. 1955); Bd. of Trustees v. Cream City Mut. Ins. Co., 96 NW2d 690, 695 (3) (Minn. 1959); Hight v. Maryland Ins. Co., 10 NW2d 285, 288 (S.D. 1943).


author: McFADDEN, Judge.

text:
    A12A1808.
    THE STATE v. ZETH.
    (739 SE2d 443)
   McFADDEN, Judge.

Hazel Zeth was charged by accusation with driving under the influence of alcohol with a blood alcohol concentration greater than 0.08 grams, driving under the influence of alcohol to the extent she was a less safe driver, driving with an open container of alcohol and failing to maintain a single lane. She filed a motion to suppress, which the trial court granted, finding that the officer who had stopped her did not have reasonable suspicion for the stop. The state appeals, challenging the suppression ruling. Because the undisputed facts show that the officer did have a reasonable suspicion to stop Zeth for a traffic violation, we reverse.

On appeal from a ruling on a motion to suppress, we must construe the evidence most favorably to affirming the trial court’s factual findings and judgment. We accept the trial court’s factual and credibility determinations unless they are clearly erroneous, and the factual findings will be upheld if they are supported by any evidence. The trial court’s application of the law to undisputed facts, however, is subject to a de novo standard of review.

(Citation omitted.) Davis v. State, 303 Ga. App. 785 (694 SE2d 696) (2010).

So construed, the evidence shows that on July 14,2010, Zeth was driving her car southbound on a road in Nashville, Georgia. As she negotiated a sharp curve in the road, she veered left into the opposite northbound side of the road and continued driving on that left side of the road around the curve. Police officer Robert Owens was driving behind Zeth’s car, and upon seeing her veer into and drive on the far left side of the road, the officer turned on his blue lights and stopped the vehicle.

An officer may conduct a brief investigative stop of a vehicle if the stop is justified by specific and articulable facts which, taken together with rational inferences from those facts, reasonably warrant that intrusion. A court must consider whether, under the totality of the circumstances, the police officer had a particularized and objective basis for suspecting the particular person stopped of criminal activity. However, the stop of a vehicle is also authorized merely if the officer observed a traffic offense. Under OCGA § 40-6-40, vehicles are required to be driven on the right side of the road.

(Citations omitted.) Parker v. State, 317 Ga. App. 93, 95 (1) (a) (730 SE2d 717) (2012).

Here, the undisputed facts are that Officer Owens observed Zeth veer into and drive on the wrong side of the road.

As driving on the wrong side of the road is itself a traffic offense [under] OCGA § 40-6-40, the officer had reasonable articulable suspicion that a traffic offense had occurred.... Based on the observation by the officer of [Zeth’s] rounding the curve on the wrong side of the road, the officer was authorized to perform a traffic stop[.]

Dunbar v. State, 283 Ga. App. 872, 874 (1) (643 SE2d 292) (2007).

In concluding otherwise, the trial court noted that although the officer initially charged Zeth with failure to maintain lane under OCGA § 40-6-48, which pertains to driving on roads laned for traffic, it is undisputed that the road in question does not have clearly marked lanes. The court further reasoned that Zeth’s driving on the left side of the road did not pose a danger to oncoming traffic because the driver of an approaching vehicle could have seen Zeth’s headlights. Similarly, Zeth argues that, for various reasons, she did not actually violate OCGA § 40-6-40. However, the reasoning of both Zeth and the trial court misses the mark and does not support a legal conclusion that the officer lacked reasonable suspicion to perform a traffic stop. Even if it is eventually found that Zeth did not violate any specific traffic provision, in determining whether a traffic stop was supported by reasonable suspicion

we have rejected the notion that the police officer must know with certainty that each element of a particular crime could be established[.] If the officer acting in good faith believes that an unlawful act has been committed, his actions are not rendered improper by a later legal determination that the defendant’s actions were not a crime according to a technical legal definition or distinction determined to exist in the penal statute. It is not the officer’s function to determine on the spot such matters as, e.g., jurisdiction or the legal niceties in definition of a certain crime, for these are matters for the courts. The question to be decided is whether the officer’s motives and actions at the time and under all the circumstances, including the nature of the officer’s mistake, if any, were reasonable and not arbitrary or harassing.

Decided March 7, 2013.

Richard L. Perryman III, District Attorney, Catherine H. Helms, Jennifer D. Hart, Assistant District Attorneys, for appellant.

Bennett & Connell, Matthew B. Bennett, for appellee.

(Citations and punctuation omitted.) State v. Armstrong, 223 Ga. App. 350, 352 (2) (477 SE2d 635) (1996). Thus, “[e]ven if the driver’s actions do not amount to a per se traffic violation, an officer may have a reasonable, articulable suspicion that a traffic offense was being committed. [Cit.]” State v. Calhoun, 255 Ga. App. 753, 755 (566 SE2d 447) (2002).

As recounted above, the undisputed facts of this case establish that the officer saw Zeth driving on the wrong side of the road. “The officer was clearly authorized to stop the vehicle and investigate this apparent violation of the traffic laws.” State v. Bute, 250 Ga. App. 479, 481 (552 SE2d 465) (2001). See also Parker, supra; Dunbar, supra. Accordingly, the stop was legal and “[t]he trial court erred in granting [the] motion to suppress.” Bute, supra at 482.

Judgment reversed.

Barnes, P. J., and McMillian, J., concur.