text:
    A11A0308.
    GILMER COUNTY BOARD OF TAX ASSESSORS v. SPENCE.
    (711 SE2d 51)
   Andrews, Judge.

After the Gilmer County Board of Equalization valued Lois Spence’s property at $117,711 for purposes of the 2006 tax year, Spence appealed to the superior court, where a jury returned a verdict valuing the property at $52,000. On appeal from the superior court’s entry of judgment on the verdict, the Board argues that the trial court erred when it denied the Board the right to opening and closing argument and when it disallowed one of the Board’s experts from testifying as such. We reverse because the Board, having the burden of proof in the appeal to the superior court, had the right to opening and closing argument, and because the evidence did not demand the jury’s verdict.

1. The record shows that on the opening day of trial, the court ruled that Spence had the burden of proof because she had initiated the appeal to the superior court. As a result, the trial court denied the Board the right to opening and closing argument, but granted it a continuing objection on the issue.

(a) Appeals from a tax board’s valuation decisions to the superior court are governed by OCGA § 48-5-311 (g), as amended in 1999, which provides in relevant part:

(3) The appeal shall constitute a de novo action. The board of tax assessors shall have the burden of proving their opinions of value and the validity of their proposed assessment by a preponderance of evidence. Upon a failure of the board of tax assessors to meet such burden of proof, the court may, upon motion or sua sponte, authorize the finding that the value asserted by the taxpayer is unreasonable and authorize the determination of the final value of the property.

(Emphasis supplied.) See also Ga. L. 1999, p. 1043, § 3. Compare OCGA § 48-5-311 (g) (3) (1998) (stating only that “[t]he appeal [to superior court] shall constitute a de novo action”); Weeks v. Gwinnett County Bd. of Tax Equalization, 139 Ga. App. 37, 37-39 (1) (227 SE2d 865) (1976) (establishing the pre-1999 rule that the burden of proof is on the party bringing the appeal to the superior court).

As the trial court and the parties noted, some recent cases have continued to suggest that the taxpayer has the burden of proof in appeals to the superior court. Each of these has relied on case law predating the 1999 amendment to OCGA § 48-5-311 (g) (3), however. We therefore disapprove them to the extent that they contradict the plain language of OCGA § 48-5-311 (g) (3), and confirm that “[rjegardless of which party initiates the tax appeal, the tax assessors are charged with the burden of proving ‘their opinions of value and the validity of their proposed assessment by a preponderance of evidence.’ ” Fulton County Bd. of Tax Assessors v. Nat. Biscuit Co., 296 Ga. App. 884, 885 (676 SE2d 41) (2009), quoting OCGA § 48-5-311 (g) (3); see also Bd. of Tax Assessors of Ware County v. Baptist Village, 269 Ga. App. 848, 854-855 (4) (605 SE2d 436) (2004); Lamad Ministries v. Dougherty County Bd. of Tax Assessors, 268 Ga. App. 798, 801 (1) (602 SE2d 845) (2004).

The trial court erred when it ruled that Spence had the burden of proof in her appeal to the superior court.

(b) As the Supreme Court of Georgia has confirmed, “[t]he party on whom the burden of proof rests has the right to open and conclude the cause before the jury.” Hussey v. Hussey, 273 Ga. 735, 736 (1) (545 SE2d 880) (2001), quoting Standridge v. Standridge, 224 Ga. 102, 103 (160 SE2d 377) (1968); see also OCGA § 9-10-186 (where the burden of proof rests on a civil plaintiff, that plaintiff is entitled to opening and concluding arguments unless the defendant presents no evidence or admits a prima facie case). Our Supreme Court has held that even the denial of the right to make a closing argument to the trial court in a bench trial can amount to reversible error. Wilson v. Wilson, 277 Ga. 801, 801-804 (596 SE2d 392) (2004).

A new trial based on the denial of the right to open and close argument is not warranted if there is “an absence of any conflict in the evidence.” Wilson, 277 Ga. at 803 (1); see also Ruskell, Davis & Shulman’s Georgia Practice and Procedure (2008 ed.), § 19:22, pp. 896-897. Here, the Board presented expert testimony that the assessed value of Spence’s property for the tax year 2006 was at least $117,711, while three witnesses for Spence, including Spence herself, valued the property at $52,000 or less. Because the evidence was in conflict, the trial court’s denial of the Board’s right to open and close argument was not harmless, and a new trial must be ordered. Wilson, 277 Ga. at 803-804 (1) (ordering new trial where the party with the burden of proof had been denied closing argument, and where there was a conflict in the evidence before the factfinder).

Decided May 4, 2011.

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

John J. Capo, for appellee.

2. Our grant of a new trial moots the Board’s remaining assertion of error.

Judgment reversed.

Ellington, C. J., Smith, P. J., Barnes, P J., Miller, P. J., Phipps, E J., Mikell, Adams, Doyle, Blackwell, Dillard and McFadden, JJ., concur.

       See City of Atlanta v. Clayton County Bd. of Tax Assessors, 306 Ga. App. 381 (702 SE2d 704) (2010); Smith v. Elbert County Bd. of Tax Assessors, 292 Ga. App. 417, 418 (2) (664 SE2d 786) (2008); Aircraft Spruce &c. Co. v. Fayette County Bd. of Tax Assessors, 294 Ga. App. 241, 243 (669 SE2d 417) (2008); Clayton County Bd. of Tax Assessors v. City of Atlanta, 286 Ga. App. 193, 195 (648 SE2d 701) (2007); City of Atlanta v. Clayton County Bd. of Tax Assessors, 284 Ga. App. 871, 873 (1) (645 SE2d 42) (2007); Hill v. Hall County Bd. of Tax Assessors, 275 Ga. App. 504, 505 (621 SE2d 517) (2005).

       See, e.g., Inland Container Corp. v. Paulding County Bd. of Tax Assessors, 220 Ga. App. 878, 881 (1) (470 SE2d 702) (1996); Apollo Travel Svcs. v. Gwinnett County Bd. of Tax Assessors, 230 Ga. App. 790, 791 (1) (498 SE2d 297) (1998).


source: Caselaw Access Project

author: McFadden, Judge.

license: Public Domain

text:
    A11A0158.
    DUNSON v. THE STATE.
    (711 SE2d 53)
   McFadden, Judge.

A jury found Joshua Dunson guilty of kidnapping with bodily injury, aggravated child molestation, aggravated anal sodomy, child molestation, enticing a child for indecent purposes, and cruelty to children. Dunson appeals, raising numerous claims of error. He challenges the sufficiency of the evidence supporting the verdicts, but we find the evidence sufficient. He also claims that the trial court erred in admitting statements he made to police before he received Miranda warnings. The trial court, however, properly found that Dunson was not in custody when he made the statements and thus was not entitled to Miranda warnings. Dunson further argues that the trial court erred in admitting alleged hearsay, allowing the State to bolster a witness, and instructing the jury. Again, we find no reversible error. Finally, although Dunson claims that he received ineffective assistance of counsel at trial, the record shows that the claimed deficiency in trial counsel’s performance caused no prejudice. Accordingly, we affirm.

1. On appeal from a criminal conviction, we view the evidence in the light most favorable to the jury’s verdict, and the defendant no longer enjoys a presumption of innocence. See Phanamixay v. State, 260 Ga. App. 177, 178 (1) (581 SE2d 286) (2003). We do not weigh the evidence or resolve issues of witness credibility, but merely determine whether the evidence was sufficient to find the defendant guilty of the crimes charged beyond a reasonable doubt. See id.

So viewed, the evidence shows that on the evening of December 17, 2005, a motorist saw a young boy running down the road, crying. The motorist stopped to help the boy, who had on a shirt and coat, but no pants, underwear, or shoes. The boy told her that a man had taken him into the woods, “stuck his pee-pee in his butt,” and threatened to kill him if he reported the incident. The motorist thought the boy referred to the man as “Tracen” or “Tracey,” but the boy was upset and difficult to understand.

The boy was taken to a hospital, where he again reported that his assailant had “put something in [his] butt.” A medical examination of the boy revealed a rectal tear, blood in his rectum, abrasions on his body, and other evidence of trauma. The boy also tested positive for chlamydia.

Earlier that day, the boy had spent time at his uncle’s home with several other individuals, including Dunson. The boy later told his uncle that the man who assaulted him had brown skin, drove a gray car, and had been at the uncle’s house. Noting that Dunson was the only person at his home that afternoon who fit the boy’s description, the uncle asked the boy whether Dunson had hurt him. The boy indicated that Dunson was the perpetrator.

The police interviewed Dunson, who admitted that he had assaulted the boy by placing a bottle in the boy’s anus. Dunson also told an officer that he was “sorry for what happened to the little boy.” The police arrested Dunson following the interview. While in jail, he was prescribed medication used to treat sexually transmitted diseases such as chlamydia.

Based on the evidence presented, the jury found Dunson guilty of numerous sex-related offenses. Dunson challenges the verdicts on appeal, arguing that the State failed to prove that he was the man who assaulted the boy. He notes that the boy referred to his assailant as “Tracen” or “Tracey,” and he questions the reliability of other testimony linking him to the crimes. The State, however, offered significant evidence connecting Dunson to the assault, including Dunson’s confession to police, the uncle’s testimony that Dunson was the only individual who fit the boy’s description, and evidence that both Dunson and the boy were treated for a sexually transmitted disease. Such evidence was more than sufficient to support the jury’s conclusion that Dunson committed the crimes. See Phanamixay, supra at 178-179; Pinckney v. State, 259 Ga. App. 316, 320 (2) (576 SE2d 677) (2003).

2. Dunson argues that the trial court erred in admitting incriminating statements he made to police during his pre-arrest interview. He asserts that the statements should have been excluded because police did not inform him of his rights under Miranda v. Arizona, 384 U. S. 436 (86 SC 1602, 16 LE2d 694) (1966). He further arpes that he gave the statements for a “hope of benefit,” rendering them involuntary and inadmissible. We disagree.

(a) Miranda warnings are a prerequisite to admission of evidence of interrogations conducted after a person has been “taken into custody or otherwise deprived of his freedom of action in any significant way.” (Punctuation omitted.) Axelburg v. State, 294 Ga. App. 612, 613 (1) (669 SE2d 439) (2008). Whether a person is “in custody” for purposes of Miranda is a mixed question of law and fact, and we will not reverse the findings of fact that underlie the trial court’s legal conclusion if there is any evidence to support them. Hendrix v. State, 230 Ga. App. 604, 605 (1) (497 SE2d 236) (1997). Ultimately, a court must determine if, under the totality of the circumstances, “a reasonable person — one neither overly apprehensive because of criminal conduct nor insensitive to the seriousness of the circumstances — would have felt he or she was not at liberty to terminate the interrogation and leave.” (Punctuation and footnote omitted.) Axelburg, supra.

Dunson argues that the police circumvented Miranda using the two-stage or question-first interrogation procedure identified, extensively documented, and condemned by the United States Supreme Court in Missouri v. Seibert, 542 U. S. 600 (124 SC 2601, 159 LE2d 643) (2004). Our Supreme Court has summarized Seibert as follows:

The [United States] Supreme Court’s decision in Seibert deals with what the Court referred to as a “two stage” or “question first” interrogation procedure, in which police first question a suspect without administering Miranda warnings, gain a statement from the suspect, then administer Miranda warnings, and have the suspect repeat that which the suspect has already related, often with little interruption in time. The Court noted that in such circumstances, it is unlikely that the Miranda warnings will effectively advise a suspect of his rights. The Court discussed its prior opinion in Oregon v. Elstad, 470 U. S. 298, 307 (105 SC 1285, 84 LE2d 222) (1985). Elstad allowed admission of a statement that followed Miranda warnings that had not been given the suspect until after a statement was made in violation of Miranda, provided that, under all the circumstances, the subsequent statement was determined to be knowingly and voluntarily made. The Seibert opinion distinguished Elstad, and essentially established an “effective warning” test, requiring an examination of circumstances to determine if the Miranda warnings given were effective; the opinion found that the warnings given to Seibert were ineffective to advise her of her rights, and thus her postwarning statements had to be suppressed. Although the Court observed that the interrogation strategy employed in Seibert was deliberate, and even was admitted to be so by the police, the Court specifically noted that a police policy “will rarely be as candidly admitted as it was here,” and declared that “the focus is on facts apart from intent that show the question-first tactic at work.” As the Court found that the warning given could not effectively advise Seibert of her right to remain silent, her postwarning statements were inadmissible. In applying that analysis, “the trial court’s findings as to disputed facts will be upheld unless clearly erroneous and the trial court’s application of the law to undisputed facts is subject to de novo review.”

(Citations, punctuation and footnotes omitted.) State v. Pye, 282 Ga. 796, 799-800 (653 SE2d 450) (2007).

Pye had been convicted for participating in a murder that arose out of retaliation for the theft of a set of wheel rims. “Pye voluntarily went to the police station to discuss the theft of his wheel rims, and that is all that was discussed initially. Shortly after Pye was confronted about killing [the victim], he was told to stand up, his bag was searched, and his person was patted down.” Pye, supra at 801. The State conceded, and our Supreme Court “ agree [d] that a reasonable person in Pye’s position would not believe that he was free to leave once the detectives began questioning him about the murder, and that he was in custody at that point.” (Citation omitted.) Id.

Our Supreme Court later distinguished Pye in State v. Folsom on the basis that the pre-Miranda questioning in Folsom was not related to “Folsom’s connection to the crime” at issue. State v. Folsom, 286 Ga. 105, 110 (2) (686 SE2d 239) (2009).

This court distinguished Pye in Axelburg, supra, on the basis that in Pye, “the state conceded that the defendant was not free to leave during questioning,” while Axelburg had been assured “he was free to leave if at any point in the interview he did not like what was being asked.” Axelburg, supra at 614-615.

The present case is indistinguishable from Axelburg. Like Axel-burg, Dunson was assured that, although he was a suspect, he was not under arrest and could leave at any time. The credibility of such assurances must be evaluated in light of the admonitions from our Supreme Court and the Supreme Court of the United States that the two-stage or question-first interrogation procedure “will rarely be as candidly admitted” as it was in Seibert. Seibert, supra at 616, n. 6; Pye, supra at 800. As in Axelburg, however, we find that there was some evidence to support the trial court’s determination that the police were not employing that improper procedure and that a reasonable person in Dunson’s place would have believed that he was free to leave.

The investigating officers did not inform Dunson of his Miranda rights prior to the pre-arrest interview. Instead, they told him that he was a suspect, but that he was not under arrest and could leave at any time. Dunson agreed to speak with the officers, who transported him to the police station because he did not have other transportation. During the interview, which took place in an administrative office, the officers again assured him that he could leave if he wished. Dunson continued speaking with police and eventually made several incriminating statements.

After hearing the evidence, the trial court determined that these statements were not subject to Miranda. We find no error. Given the totality of the circumstances, including that Dunson was not formally arrested, agreed to talk to the police, and was advised that he could leave the interview if he wished, the trial court was authorized to conclude that Dunson was not “in custody” at the time. See Axelburg, supra at 614-615.

The fact that Dunson knew before the interview that he was a suspect is not determinative, particularly in light of the officers’ assurances that Dunson could leave the interview. See Axelburg, supra at 615. The testimony of one officer that he thought Dunson should be arrested if he tried to leave is likewise not determinative. See Hardin v. State, 269 Ga. 1, 3 (2) (a) (494 SE2d 647) (1998). An officer’s knowledge or belief impacts the custody issue “only if [it was] somehow manifested to the individual under interrogation.” Stansbury v. California, 511 U. S. 318, 325 (114 SC 1526, 128 LE2d 293) (1994); see also Hardin, supra. The trial court was authorized to conclude that the officer’s belief in this case did not impact custody.

(b) Alternatively, Dunson argues that his pre-arrest statements were involuntary because he made them for a “hope of benefit.” Specifically, he claims that the officers gave him a hope of benefit when, after he disclosed that he had been molested as a child, they offered to secure counseling for him. He also notes that during the interview, an officer asked him what sentence the person who assaulted the victim should receive. Dunson replied: “I think they need about three years, some counseling, and that’s about it.” According to Dunson, this exchange encouraged his belief regarding the amount of prison time that might result from a conviction.

Neither argument has merit. It is true that a confession is only admissible if “made voluntarily, without being induced by another by the slightest hope of benefit or remotest fear of injury.” OCGA § 24-3-50. But the offer to obtain counseling for Dunson did not bear on the question of punishment. It involved a collateral benefit, and promises of a collateral benefit do not impact a statement’s admissibility. See Smith v. State, 281 Ga. App. 91, 94 (3) (635 SE2d 385) (2006); OCGA § 24-3-51 (“The fact that a confession has been made under ... a promise of collateral benefit shall not exclude it.”).

Furthermore, the “hope of benefit” must be induced by another. See OCGA § 24-3-50; Ramos v. State, 198 Ga. App. 65, 66 (1) (400 SE2d 353) (1990). A hope that “originates in the mind of the person making the confession and which originates from seeds of his own planting [will] not exclude a confession.” (Punctuation omitted.) Id. Dunson has offered no evidence that the officers induced him to believe he would receive a three-year sentence. He came up with that scenario on his own. The trial court, therefore, properly found his statements voluntary and admissible. See Smith, supra.

3. Dunson claims that the trial court erroneously allowed the State to bolster the credibility of a prison inmate, who testified that he heard Dunson admit to the sexual assault. Specifically, Dunson challenges the trial court’s decision to admit the inmate’s prior consistent statement to police. Even if the statement was inadmissible, however, Dunson cannot show that the error was harmful or requires reversal. Significant other evidence — including Dunson’s own admissions to police — implicated him in the sexual assault. Under these circumstances, it is highly unlikely that evidence regarding the inmate’s prior statement impacted the verdict. See Character v. State, 285 Ga. 112, 120 (6) (674 SE2d 280) (2009); Howie v. State, 281 Ga. App. 730, 732 (637 SE2d 134) (2006).

4. Dunson also argues that the trial court erred in admitting hearsay evidence regarding his treatment for venereal disease while in jail. Dunson, however, did not object to the evidence at trial and thus has waived this error for purposes of appeal. See Wood v. State, 304 Ga. App. 52, 52-53 (2) (695 SE2d 391) (2010). Furthermore, a nurse who worked at the jail testified that he ordered an antibiotic for Dunson that was used to treat sexually transmitted diseases, including chlamydia. That testimony was not hearsay. See OCGA § 24-3-1 (a) (“Hearsay evidence is that which does not derive its value solely from the credit of the witness but rests mainly on the veracity and competency of other persons.”).

5. Dunson enumerates a portion of the trial court’s jury charge as error. During its instructions, the trial court noted that several of Dunson’s statements to police had been admitted into evidence. The court charged jurors that before they could consider such statements, they had to answer two questions. First, they needed to decide whether Dunson was warned of his constitutional (Miranda) rights, understood those rights, and voluntarily waived them. Second, they had to determine whether Dunson made the statements freely and voluntarily. The trial court concluded:

If you find that all of the warnings as to Defendant’s constitutional rights were given, that the Defendant did clearly understand the meaning of what was said, and knowingly gave up such rights and the statement was voluntary, then you may consider it as evidence.

The State objected to this portion of the charge. It argued that the reference to constitutional rights was improper with respect to the pre-arrest interview because the trial court had found that Dunson was not in custody at the time and thus not entitled to Miranda warnings. The trial court agreed and recharged the jury as follows: “The constitutional charge that I gave you about the constitutional rights whereas that you have a right to remain silent, attorneys, and things of that nature applies only to those statements that would have been made after the formal arrest.”

On appeal, Dunson argues that the trial court’s recharge improperly led jurors to believe that they were not required to assess whether he made the pre-arrest statements freely and voluntarily. We disagree. “In determining whether the recharge contained error, it is fundamental that we must look at not only the recharge but the original charge as well, as jury instructions must be read and considered as a whole in determining whether the charges contain error.” (Punctuation omitted.) Wilcox v. State, 297 Ga. App. 201, 209 (5) (677 SE2d 142) (2009).

The initial charge in this case broke the jury’s analysis into two phases: constitutional rights and voluntariness. Given the trial court’s determination that Dunson was not “in custody” before his formal arrest, the constitutional issues were not before the jury with respect to the pre-arrest interview. The recharge, therefore, appropriately instructed jurors that the constitutional portion of the original charge applied only to post-arrest statements. The recharge did not address — or alter — the original voluntariness instruction. Dunson, therefore, has not demonstrated error in the recharge. See Wilcox, supra.

6. Finally, Dunson argues that he received ineffective assistance of counsel at trial. To prevail on this claim, Dunson must demonstrate that trial counsel’s performance was deficient and that the deficiency prejudiced his defense. See Flemming v. State, 301 Ga. App. 711, 712 (2) (688 SE2d 653) (2009). “The test for prejudice is whether there is a reasonable probability that the outcome of the proceedings would have been different, but for counsel’s deficiency.” (Punctuation omitted.) Id. at 713.

Decided May 5, 2011.

Peter D. Johnson, for appellant.

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

In this case, one of the officers who interviewed Dunson testified that Dunson admitted to having a violent temper and not being satisfied by sex. The officer then characterized Dunson as a person who was “just violent” and had “a problem with sex.” According to Dunson, trial counsel should have objected to the officer’s characterizations. Even if an objection should have been made, however, Dunson cannot show prejudice. Given his admission regarding his violent temper and dissatisfaction with sex, as well as the significant evidence implicating him in the crimes, Dunson cannot demonstrate any likelihood that the outcome of his trial would have been different had the allegedly objectionable characterizations been excluded. Accordingly, his ineffective assistance claim lacks merit. See Flem-ming, supra.

Judgment affirmed.

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


author: ANDREWS, Judge.

text:
    A11A0357.
    FRANCIS-ROLLE v. HARVEY.
    (710 SE2d 659)
   ANDREWS, Judge.

Sonia Francis-Rolle appeals pro se from the final order of the superior court granting Gilbert Cary Harvey Ill’s petition to modify child custody rights awarded to Francis-Rolle in the parties’ prior divorce decree. After a bench trial, the court modified the divorce decree by granting Harvey custody of the parties’ minor child and ordering Francis-Rolle to pay child support. The court also awarded attorney fees to Harvey in the amount of $15,250. For the following reasons, the appeal is dismissed in part; the court’s order is affirmed in part, reversed in part, and vacated in part, and the vacated portion of the order is remanded.

1. Francis-Rolle contends that the court erred by granting custody of the child to Harvey. The child was 17 years old when the court granted custody to Harvey and turned 18 years of age shortly after the appeal was docketed. Because at 18 years the child has reached the age of legal majority and is no longer subject to the custody order, this issue is moot. OCGA § 39-1-1 (a) (age of legal majority is 18 years); OCGA § 19-7-1 (a) (at age 18 child no longer in the custody or control of either parent). To the extent Francis-Rolle claims the custody award was error, the appeal is dismissed.

2. Francis-Rolle contends that the trial court erred by ordering her to pay child support to Harvey after the child reached the age of 18 years. The court ordered Francis-Rolle to pay Harvey child support in the amount of $628 per month “until the child reaches the age of 18 or graduates from secondary school, whichever occurs last.” Under OCGA § 19-6-15 (e),

[t]he duty to provide support for a minor child shall continue until the child reaches the age of majority, dies, marries, or becomes emancipated, whichever occurs first; provided, however, that, in any temporary, final, or modified order for child support with respect to any proceeding for divorce, separate maintenance, legitimacy, or paternity entered on or after July 1, 1992, the court, in the exercise of sound discretion, may direct either or both parents to provide financial assistance to a child who has not previously married or become emancipated, who is enrolled in and attending a secondary school, and who has attained the age of majority before completing his or her secondary school education, provided that such financial assistance shall not be required after a child attains 20 years of age.

“[Ujnder the plain language of the statute, child support obligations may be extended under certain circumstances for ‘a child who has attained the age of majority,’ and that obligation will terminate ‘after a child attains 20 years of age.’ ” Ferguson v. Ferguson, 267 Ga. 886, 887 (485 SE2d 475) (1997). The purpose of the statute is to give the court discretion to recognize continuing parental responsibility to financially assist a child over the age of 18 to complete secondary school education. Draughn v. Draughn, 288 Ga. 734 (707 SE2d 52) (2011). Francis-Rolle does not assert that the child is not enrolled in and attending secondary school. To the extent the court exercised its discretion to extend the child support obligation under OCGA § 19-6-15 (e) after the child attained the age of 18 years, we find no abuse of discretion and affirm. The court’s order, however, requires Francis-Rolle to pay support for this purpose without limit as to age and without recognizing “that such financial assistance shall not be required after a child attains 20 years of age.” OCGA § 19-6-15 (e). We reverse the court’s order to the extent it would impose this support obligation after the child attains 20 years of age.

3. Francis-Rolle contends the court erred in awarding attorney fees to Harvey. Harvey did not state the statutory basis upon which he sought attorney fees, and the court did not set forth any statutory basis or other findings when it awarded Harvey attorney fees in the amount of $15,250 in its final order. Although Harvey’s attorney stated at the bench trial that he submitted an affidavit to the court supporting the award of attorney fees, there is no affidavit in the record and no evidence supporting the court’s award of attorney fees. “Generally an award of attorney fees is not available unless supported by statute or contract.” Cason v. Cason, 281 Ga. 296, 299 (637 SE2d 716) (2006). In orally awarding attorney fees at the bench trial, the court found that Francis-Rolle had engaged in “stubborn litigiousness.” Harvey argues that this authorized the court to award attorney fees under OCGA § 13-6-11, which provides for the award of expenses of litigation to the plaintiff where the defendant has been “stubbornly litigious.” But OCGA § 13-6-11 applies to actions on contract. The court was not authorized to award attorney fees pursuant to OCGA § 13-6-11 because Harvey’s modification petition was not a contract action, but an action on the parties’ divorce decree, which incorporated the parties’ divorce agreement. Waits v. Waits, 280 Ga. App. 734, 736 (634 SE2d 799) (2006).

Alternatively, OCGA § 9-15-14 (b) authorizes a court to award attorney fees if it finds that a party “brought or defended an action, or any part thereof, that lacked substantial justification or . . . was interposed for delay or harassment, or if it finds that ... (a) party unnecessarily expanded the proceeding by other improper conduct.” An order awarding attorney fees under OCGA § 9-15-14 must include findings of conduct that authorize the award.

Cason, 281 Ga. at 300; see Nuckols v. Nuckols, 226 Ga. App. 194 (486 SE2d 194) (1997) (award of attorney fees under OCGA § 9-15-14 in child custody modification petition). Moreover, before awarding attorney fees against a party under OCGA § 9-15-14 (b), the party is entitled to an evidentiary hearing upon due notice that permits an opportunity to confront and challenge the value and need of the claimed legal services. Williams v. Cooper, 280 Ga. 145, 146 (625 SE2d 754) (2006). The means of giving due notice is a motion by the party seeking the fees or other notice that the trial court is considering its own motion. Id. The record shows no proper notice and no opportunity for a hearing given to Francis-Rolle with respect to the award of attorney fees. Accordingly, the award of attorney fees is vacated and the case is remanded to the superior court with direction that a hearing be conducted upon proper notice, and that, if attorney fees are awarded, the award include an explanation of the statutory basis and findings necessary to support the award. Cason, 281 Ga. at 300; Cooper, 280 Ga. at 146-147.

Decided May 5, 2011.

Sonia Francis-Rolle, pro se.

William M. Ordway, for appellee.

4. The remaining enumeration of errors are deemed abandoned because they are not supported by argument, citation of authority, or reference to the record. Court of Appeals Rule 25 (c).

Appeal dismissed in part. Judgment affirmed in part, reversed in part, and vacated in part. Case remanded with direction.

Phipps, P. J., and McFadden, J., concur.

       During the pendency of Harvey’s petition, Francis-Rolle filed a separate “Petition for Modification,” which sought modification of the court’s prior order on Harvey’s petition placing temporary custody of the child with Harvey. The court’s final order was a consolidated ruling on both petitions.


author: MCFADDEN, Judge.

text:
    A11A0493.
    ARROYO v. THE STATE.
    (711 SE2d 60)
   MCFADDEN, Judge.

Jose Roland Arroyo appeals his convictions of trafficking in methamphetamine, illegal window tint, and driving without a license. Arroyo contends that under the equal access doctrine the evidence does not support the convictions, that the trial court erred in denying his motion to suppress, and that trial counsel was ineffective. Because we find that the equal access doctrine does not apply, that the trial court properly denied the motion to suppress, and that Arroyo has abandoned his claim of ineffective assistance of counsel, we affirm.

When reviewing a challenge to the sufficiency of the evidence used to support a conviction, we view the evidence in the light most favorable to the jury’s verdict, and the defendant no longer enjoys the presumption of innocence. Short v. State, 234 Ga. App. 633, 634 (1) (507 SE2d 514) (1998). We do not weigh the evidence or determine witness credibility, but only determine if the evidence was sufficient for a rational trier of fact to find the defendant guilty of the charged offense beyond a reasonable doubt. Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560) (1979).

Viewed in this light, the evidence shows that Deputy Matt Gray of the Douglas County Sheriffs Office was monitoring traffic on 1-20 when he saw a car with darkly tinted windows driving below the speed limit, and slower than other cars, in the center lane. Gray believed the windows to be tinted illegally. He initiated a traffic stop. Arroyo was driving the car, another man was sitting in the front passenger seat, and a woman was sitting in the back.

Arroyo told Gray that they were coming from the airport. Arroyo handed Gray something that Gray took to be an identification card. Gray took the document and returned to his car to attempt to determine whether Arroyo had a driver’s license, to verify the car’s tag, and to write a citation for the window tint violation. Gray could not verify that Arroyo had a valid driver’s license. Gray returned to Arroyo’s car and asked him to exit the vehicle to speak with him while he was completing the citations for the window tint violation and for driving without a driver’s license. Gray asked Arroyo why he had gone to the airport, and Arroyo responded that they had dropped off his uncle, who was flying home to Mexico.

Gray returned to Arroyo’s car to see if either passenger had a valid license in order to drive the car away. He asked the female passenger, Tina Gamble, for her name and date of birth and asked if they were coming back from the airport. Gamble responded yes, they had been to the airport to pick up Arroyo’s cousin who had flown in from Florida, and she pointed to the front seat passenger. Neither Gamble nor the male passenger had a valid driver’s license.

Because of the inconsistent explanations and the fact that the car had been moving slowly, Gray called for backup. After another officer arrived, Gray asked Arroyo and Gamble, whom he had verified co-owned the car, for consent to search the car and Gamble’s purse. Both gave consent. In the trunk Gray found a plastic container that contained 984.93 grams of methamphetamine.

Gamble, Arroyo, and the male passenger were arrested and taken to the jail where they were interviewed. During her interview, Gamble told the investigator that she had concealed some methamphetamine in her vagina at Arroyo’s request. The investigator retrieved what was determined to be 26.4 grams of methamphetamine from Gamble. During his interview, Arroyo admitted that he gave the methamphetamine to Gamble to hide, that he was transporting the larger amount of methamphetamine for another person, and that he had received the smaller amount as payment.

1. Arroyo argues that under the equal access doctrine, the evidence was insufficient to prove that he possessed the methamphetamine found in the car’s trunk and thus to support the methamphetamine trafficking conviction. That doctrine is not applicable, however, because the evidence of Arroyo’s possession of the methamphetamine included more than his mere possession of the car.

The equal access rule, entitling a defendant to acquittal where evidence is presented that others had equal access to a vehicle or that the vehicle had been recently used by others, applies only where the sole evidence of possession of contraband found in the vehicle is the defendant’s ownership or possession of the vehicle. If there is additional evidence of possession of the contraband by the accused — either circumstantial or direct — other than mere ownership, use, or possession of the vehicle, then an issue is made for the jury.

(Citations and punctuation omitted.) Evans v. State, 262 Ga. App. 712, 718 (2) (586 SE2d 400) (2003).

Arroyo’s possession of the methamphetamine found inside the trunk of the car was • established by evidence besides his mere ownership, use, or possession of the car, including his statement that he was transporting the methamphetamine. Thus, the issue of whether the drugs belonged to Arroyo or one of the other occupants was for the jury’s determination, see Evans v. State, 288 Ga. App. 103, 105 (1) (653 SE2d 520) (2007), and the evidence was sufficient for a rational trier of fact to find Arroyo guilty beyond a reasonable doubt of trafficking in methamphetamine. OCGA § 16-13-31 (e); Jackson v. Virginia, supra.

2. Arroyo argues that because the evidence was undisputed that the document he gave Gray was a valid, international driver’s license, he cannot be convicted of driving without a license. In fact, a review of the trial transcript shows that there was no evidence that the document was an international driver’s license. Gray characterized the document as an ID. When defense counsel specifically asked Gray whether Arroyo gave him an international driver’s license, Gray responded, “Not that I recall.” Moreover, Gray was unable to verify that Arroyo had a driver’s license. Gray’s testimony was sufficient to support the jury’s conclusion that Arroyo did not have a valid driver’s license. Keller v. State, 286 Ga. App. 292, 295 (1) (b) (648 SE2d 714) (2007).

3. Arroyo argues that the trial court erred in denying his motion to suppress because Gray impermissibly extended the duration of the traffic stop. “If a driver is questioned and gives consent while he is being lawfully detained during a traffic stop, there is no Fourth Amendment violation.” Salmeron v. State, 280 Ga. 735, 736 (1) (632 SE2d 645) (2006). If, however, the questioning extends the detention beyond the time it takes to issue a citation, then there is a second detention. Id.

Decided May 5, 2011.

Lawrence W. Daniel, for appellant.

David McDade, District Attorney, James A. Dooley, Jeffrey L. Ballew, Assistant District Attorneys, for appellee.

Gray testified at the hearing on the motion to suppress that he asked for Gamble’s and Arroyo’s consent to search while he was completing the citations for the window tint violation and the driving without a license violation. And at the same time he was asking for Gamble’s consent, he was attempting to determine whether Gamble or the male passenger had a valid driver’s license since he could not verify that Arroyo had one. Gray’s testimony supports the conclusion that he asked for consent to search during the time that he was issuing the citations, and his questioning did not extend the duration of Arroyo’s detention. Salmeron, supra at 737 (1). See also Hall v. State, 306 Ga. App. 484, 486 (2) (702 SE2d 483) (2010).

4. Arroyo asserts that trial counsel was ineffective but he does not support his assertion by citation to the record or argument or even a description of the manner in which he alleges trial counsel’s performance was deficient. This enumeration of error, therefore, is deemed abandoned. See Towry v. State, 304 Ga. App. 139, 148, n. 7 (695 SE2d 683) (2010); In the Interest of R. S., 287 Ga. App. 228, 232 (2) (651 SE2d 156) (2007); Court of Appeals Rule 25 (c) (2).

Judgment affirmed.

Phipps, P. J., and Andrews, J., concur.


author: McFADDEN, Judge.

text:
    A11A0556.
    HERNANDEZ v. THE STATE.
    (710 SE2d 658)
   McFADDEN, Judge.

Pedro Hernandez appeals the order denying his motion to dismiss the indictment charging him with theft by receiving stolen property and misdemeanor obstruction of a police officer. Hernandez argues that because he was adjudicated delinquent in juvenile court, his prosecution in superior court is barred by the protections against double jeopardy. Because we conclude that Hernandez was not adjudicated delinquent in juvenile court, we affirm the superior court’s denial of the motion to dismiss.

Hernandez was charged in a juvenile court complaint with misdemeanor obstruction of an officer and theft by receiving stolen property. The delinquency petition filed the following week notified Hernandez that at the hearing on the petition, the juvenile court “will consider the transfer of the offense(s) to the appropriate Adult Criminal Court having jurisdiction.”

The juvenile court conducted the hearing at which Hernandez, his mother, his attorney and an assistant district attorney appeared. The arresting officer testified about the circumstances of Hernandez’s arrest. Hernandez’s attorney cross-examined the officer. When she had completed her cross-examination, she argued in favor of leniency and asked the court to place Hernandez on probation. After the assistant district attorney responded, the court began questioning Hernandez’s mother about whether he was in a gang and where he learned the language he used against the police officers. He then asked whether Hernandez had been notified that his case could be transferred. When the assistant district attorney said yes, the court engaged in another exchange with the mother, asking about Hernandez’s father and his grades. Hernandez’s counsel asked that the case be handled in juvenile court. The court asked, “Can I transfer him to adult court?” The assistant district attorney responded yes.

Hernandez’s mother added that “he’s a good kid,” and then the court began questioning Hernandez, asking him, “Well, why did you do it?” Hernandez asked, “Do what?” The court responded, “Whatever you did.” Hernandez did not answer, and the court concluded that “the best thing I can do is transfer him to adult court.”

Hernandez argues that the hearing was an adjudicatory hearing at which jeopardy attached, so his prosecution in superior court is barred. See Breed v. Jones, 421 U. S. 519 (95 SC 1779, 44 LE2d 346) (1975); Lincoln v. State, 138 Ga. App. 234 (225 SE2d 708) (1976). “[T]he question of whether double jeopardy attaches turns on whether the juvenile court hears the merits of the case.” In the Interest of K. L., 303 Ga. App. 679, 681 (2) (694 SE2d 372) (2010). However, in order to transfer a case to superior court, the juvenile court must determine that “there are reasonable grounds to believe that [t]he child committed the delinquent act alleged.” OCGA § 15-11-30.2 (a) (3) (A). In other words, in order to transfer a case to superior court without jeopardy attaching, a juvenile court cannot hear the merits of the case but must determine that reasonable grounds exist to believe the child committed the act. That is what happened here.

Although the juvenile court heard the testimony of the police officer who arrested Hernandez, it did not reach the merits of the delinquency petition to conclude that Hernandez committed the act alleged. Rather, it considered the testimony for the limited purpose of determining whether reasonable grounds existed to believe that Hernandez committed the act for purposes of transferring his case to superior court. In re M. E. J., 260 Ga. 805, 806 (401 SE2d 254) (1991) (“juvenile court inquired whether [juvenile] admitted the crimes for the limited purpose of determining whether his case should be transferred to superior court, and the court accepted [juvenile’s] admission for that same limited purpose”). Consequently, the superior court did not err in denying Hernandez’s motion to dismiss.

Decided May 5, 2011.

Meredith G. Brasher, for appellant.

J. David Miller, District Attorney, Laura A. Wood, Assistant District Attorney, for appellee.

Judgment affirmed.

Phipps, P. J., and Andrews, J., concur.


text:
    A11A0651.
    FLANIGAN et al. v. RBC BANK (USA) (INC.)
    (711 SE2d 63)
   MCFADDEN, Judge.

George E Flanigan and Pine Road Property, LLC (collectively, “Flanigan”) appeal from the trial court’s order granting summary judgment to RBC Bank. The record shows, however, that Flanigan was not aggrieved by the ruling at issue. Accordingly, we must dismiss this appeal.

The underlying facts are complex. In 2006, Stonemill Church f/k/a the Sugarloaf Community Church (“Stonemill”) obtained a $10 million construction loan from Peachtree Bank to construct a church facility. In conjunction with the loan, Stonemill executed a promissory note and gave Peachtree Bank a security interest in the property.

Later that year, the Hamilton Mill Baptist Church sold Stonemill a separate 17-acre tract of land (the “Hamilton Mill property”) for approximately $200,000. Peachtree Bank allowed Stonemill to draw down its construction loan by $200,000 to fund the transaction. In exchange, Stonemill pledged the Hamilton Mill property as additional collateral for the construction loan. The parties executed a modified loan agreement providing that if Stonemill was not in default and paid Peachtree Bank approximately $192,000, the Hamilton Mill property would be released from the security agreement.

In April 2008, RBC acquired all of Peachtree Bank’s right, title, and interest in the Stonemill construction loan and security agreement. Around this same time, Flanigan became interested in purchasing the Hamilton Mill property, and he offered to buy the tract for $2,800,000 in August 2008. The sale, however, was contingent on Stonemill’s ability to convey clear title. Stonemill asked RBC to release its security interest in the Hamilton Mill property, but the bank refused, and the transaction did not close.

On February 23, 2009, Stonemill and Flanigan entered into another, restructured agreement in an effort to consummate the sale, which once again depended upon release of the RBC lien. The parties closed the sale in escrow pending resolution of the RBC dispute. By that time, however, the bank had declared Stonemill in default of the construction loan, and it began foreclosure proceedings on all property securing the loan, including the Hamilton Mill tract.

Stonemill sued RBC in May 2009 to stop the foreclosure. Citing the bank’s refusal to release the lien on the Hamilton Mill property, Stonemill alleged additional claims for, among other things, breach of contract, specific performance, and tortious interference with contractual relations. Flanigan filed a separate suit one week later, also seeking to stop the foreclosure and asserting tort claims for tortious interference with contract and wrongful foreclosure.

RBC subsequently moved to dismiss both complaints. Considering the two cases together, the trial court converted the motions to dismiss into a summary judgment proceeding and granted summary judgment to RBC on all claims. Flanigan and Stonemill filed separate notices of appeal. At this point, however, the Stonemill appeal has not been docketed, and we are faced only with the Flanigan matter. Moreover, the record shows that after the trial court granted summary judgment to RBC, the parties entered into a consent order regarding the scope of any appeal. Under the order, Stonemill and Flanigan “agreed to limit the issues on appeal to those arising out of the dismissal of Counts III (Breach of Contract), VII (Specific Performance), and VIII (Attorney’s Fees).” The consent order further provides that “all other claims raised, or which could have been raised, by either of the Plaintiffs, are hereby DISMISSED WITH PREJUDICE.”

“A party not aggrieved by the judgment of the trial court is without legal right to except thereto, since he has no just cause of complaint.” (Citations and punctuation omitted.) Cooper Motor Lines v. B. C. Truck Lines, 215 Ga. 195 (1) (109 SE2d 689) (1959). The trial court’s summary judgment order adversely impacted Flanigan’s claims by granting summary judgment to RBC. Following that ruling, however, Flanigan not only agreed to forgo any appeal relating to those claims, he consented to their dismissal. Only Stonemill’s claims for breach of contract, specific performance, and attorney fees remain for purposes of appeal.

Flanigan has not shown — or even argued — that he joined in these contract-based claims or has standing to raise them on appeal. Under these circumstances, we must conclude that Flanigan was not aggrieved by the portion of the trial court’s order now before us. The fact that Flanigan may have a tangential interest in Stonemill’s contract claims does not confer standing or a right to appeal. See Nat. Council of Jewish Women v. Cobb County, 247 Ga. 198, 199 (275 SE2d 315) (1981). Accordingly, Flanigan’s appeal must be dismissed. See Cooper Motor Lines, supra at 195 (2); Wallace v. Scott, 164 Ga. App. 129, 130 (1) (296 SE2d 423) (1982).

Decided May 5, 2011.

Wasson, Sours & Harris, David R. James, for appellants.

Stites & Harbison, J. D. Humphries III, for appellee.

Appeal dismissed.

Phipps, P. J., and Andrews, J., concur.


text:
    A11A0674.
    MASSEY v. THE STATE.
    (711 SE2d 65)
   McFadden, Judge.

A jury found David Anthony Massey guilty of driving under the influence of alcohol, reckless driving, fleeing and attempting to elude, speeding, three counts of passing in a no-passing zone, and two counts of disobeying a traffic control device. Massey appeals, challenging the introduction of similar transaction evidence at trial. Because the evidence was admissible to show bent of mind and course of conduct, we affirm.

Viewed favorably to the jury’s verdict, the evidence shows that around 9:30 p.m. on June 30, 2008, Officer Michael Roach of the Hall County Sheriffs Department observed a Pontiac sports car run a red light, accelerate rapidly through the intersection, and pass several cars in a no-passing zone. Roach activated the lights and siren on his patrol car and chased after the Pontiac. During the pursuit, the Pontiac continued to accelerate, reaching speeds exceeding 100 miles per hour. The car ran through two more red lights, passed additional cars in a no-passing zone, and eventually pulled away from the officer.

Roach stopped his pursuit, but drove along the route taken by the speeding car. Two minutes down the road, he saw a Pontiac just like the one he had chased parked and unoccupied in a shopping center parking lot. Smoke was “rolling off the brakes,” and the hood was extremely hot. Based on the car’s license plate, Roach determined that the vehicle was registered to Massey’s mother, and he learned that Massey had been using the car.

A few minutes later, officers located Massey near a McDonald’s restaurant at the entrance to the shopping center. Massey was belligerent, uncooperative, and unsteady on his feet. His face was flushed, his speech was slurred, his eyes were bloodshot and watery, and he smelled strongly of alcohol. Roach asked Massey to take part in field sobriety tests, but Massey refused. Based on Massey’s behavior and appearance, Roach concluded that he was under the influence of alcohol to the extent he was less safe to drive. Roach arrested Massey, who also refused to take a state-administered chemical test of his blood.

At the scene, Massey told Roach that he had not been driving and rode to the McDonald’s with friends. A witness testified, however, that she spent the day with Massey and other friends at a nearby lake. Massey, who drove the Pontiac to the lake, gave her a ride home that night. During the drive, Massey became angry and sped through a red light, and a police car began to chase them. The witness advised Massey to stop, but Massey continued to accelerate and stated that he did not want to go to jail. Massey’s mother also testified that Massey had possession of her car that day.

In addition to this testimony, the State introduced similar transaction evidence regarding a May 31, 2004 incident. On that date, Massey lost control of his vehicle while driving approximately 90 miles per hour around a curve in a 55 mile-per-hour zone. His car left the roadway and struck several trees. The investigating officer testified that Massey had bloodshot eyes, slurred speech, and the odor of alcohol on his breath following the collision. Concluding that Massey was under the influence of alcohol to the extent he was less safe to drive, the officer arrested him, and Massey later pled guilty to driving under the influence.

The jury found Massey guilty of driving under the influence and other offenses arising out of the June 30, 2008 incident. On appeal, Massey does not challenge the sufficiency of the evidence supporting his convictions. He argues solely that the trial court erred in admitting the similar transaction evidence. We find no error.

The trial court admitted the evidence for the limited purpose of showing Massey’s bent of mind and course of conduct. These are proper purposes for the admission of similar transaction testimony. See Cunningham v. State, 255 Ga. 35, 37 (4) (334 SE2d 656) (1985); Steele v. State, 306 Ga. App. 870, 872 (1) (703 SE2d 5) (2010). According to Massey, however, the issues in this case revolved around identity and who was driving the Pontiac. He further claims that although the State could have sought admission of the similar transaction evidence to prove identity, it did not, and thus the prejudicial impact of the evidence outweighed its probative value.

It is true that Massey’s trial defense focused on his claim that he was not driving the Pontiac. The State, however, was required to prove not only that Massey was driving, but that he drove the car under the influence of alcohol to the extent it was less safe for him to drive. See OCGA § 40-6-391 (a) (1). And “[ejvidence of a prior DUI offense, regardless of the circumstances surrounding its commission, is logically connected with a pending DUI charge as it is relevant to establish that the defendant has the bent of mind to get behind the wheel of a vehicle when it is less safe for him to do so.” (Punctuation and footnote omitted.) Caraway v. State, 286 Ga. App. 592, 596 (4) (649 SE2d 758) (2007).

Decided May 5, 2011.

Leonard C. Parks, Jr., for appellant.

Stephanie D. Woodard, Solicitor-General, for appellee.

The State offered evidence that Massey had previously pled guilty to driving under the influence of alcohol in circumstances that, like the situation here, involved recklessness at a high rate of speed. “Such evidence was relevant to [Massey’s] bent of mind and course of conduct with respect to driving while intoxicated.” Ayiteyfio v. State, 308 Ga. App. 286, 289 (707 SE2d 186) (2011). Accordingly, the trial court properly admitted the similar transaction evidence.

Judgment affirmed.

Phipps, P. J., and Andrews, J., concur.


author: Andrews, Judge.

text:
    A11A0749.
    BUNKER HILL INTERNATIONAL, LTD. et al. v. NATIONSBUILDER INSURANCE SERVICES, INC. et al.
    (710 SE2d 662)
   Andrews, Judge.

In April 2006 and again in June 2008, Kevin Cunningham entered into employment agreements as an executive vice president of NBIS Construction and Transport Services, Inc. (NBIS), an Illinois company. The agreements contained identical covenants not to compete with NBIS and its affiliates and not to solicit the company’s customers or employees. After Cunningham resigned from his position and joined Bunker Hill International, Ltd., a Georgia company, Cunningham and Bunker Hill brought this action for a declaration that the restrictive covenants were unenforceable under Georgia law. NBIS moved to dismiss on the ground that the forum selection and choice-of-law provisions in the contract required Cunningham to litigate his claim in Illinois, and the trial court granted the motion. On appeal, Cunningham repeats arguments made below that he is entitled to litigate his claim in a Georgia court because the covenants at issue contravene Georgia public policy. We agree and reverse.

The record shows that Cunningham began working for the predecessor of NBIS, an insurance underwriter for heavy equipment, in April 2006, at which time he signed the first version of the employment agreement at issue. Soon afterward, NBIS asked Cunningham to move to Georgia for the purpose of overseeing its Atlanta operations. In July 2006, Cunningham agreed and moved to Atlanta. In June 2008, Cunningham signed an amended agreement. Cunningham’s Illinois counsel “crafted” the amended agreement, and Cunningham insisted that NBIS accept the parties’ original version of the covenants without which, as he said, he would not sign the new document.

The amended agreement contained the following noncompetition provision:

(a) During your employment, without the prior written consent of the Company, you shall not, directly or indirectly, accept employment or compensation from, or perform services in any material respect and of any nature for, any business enterprise other than on behalf of the Company and its affiliates.
(b) You understand and agree that you have specialized knowledge and experience related to the affairs and business of the Company as well as numerous contacts in the industry in which the Company [and its successors and affiliates] operate. You further understand that if you were to compete against the Company, . . . the Company ... would suffer serious harm and substantial damage. Consequently, for a period commencing on the date hereof and ending two (2) years after the date hereof, you shall not, directly or indirectly, . . . own or have an ownership interest in, manage, operate, control, render services or advice to, or otherwise be associated or affiliated with or employed or engaged by any Person that conducts or plans to conduct a business that is competitive with the business of the Company. . . .

(Emphasis supplied.) The same clause provided that for two years after Cunningham left NBIS, he could “act solely as a retail producer . . . (but not as a manager, underwriter, [or] employee of an insurance company . . .)” of various types of insurance, including those underwritten by NBIS.

The agreement also included a nonsolicitation provision that “for a period commencing on the date hereof” and ending “two years after the date you cease to be an employee of the Company,” Cunningham would not

(i) induce or attempt to induce any employee ... or other person that has a commercial relationship with [NBIS] . . . to leave the employ of, or otherwise alter the level of service provided to, or change the relationship with [NBIS], or (ii) hire or offer . . . any employment of compensation to any employee of [NBIS]. . . .

For the same period, Cunningham also could not “produce or seek to produce insurance from” or “derive compensation of any kind from, or otherwise establish a commercial relationship with, any now existing employee or customer of [NBIS and its affiliates],... or any of the foregoing that may come into existence on any date on which you were an employee of” NBIS or its affiliates.

The agreement contained the following language concerning the parties’ chosen forum and law:

This Agreement and the rights of the parties hereunder shall be governed by and construed in accordance with the laws of the State of Illinois. The parties agree that any disputes regarding the rights of the parties under this Agreement or the enforceability of this Agreement, whether in law or equity, shall be litigated in either the Circuit Court of Cook County, Illinois or the United States District Court for the Northern District of Illinois. The parties consent and submit to the jurisdiction and venue of such courts and agree to waive and will not assert defenses of lack of jurisdiction or improper venue in any such action filed in either of these courts.

After Cunningham expressed his dissatisfaction with the direction of NBIS, he offered the company a buyout, which was rejected. He resigned from NBIS on May 21, 2010, and began working for Bunker Hill on May 22. This litigation followed.

The question before us is whether the forum selection clause in the employment agreement between Cunningham and NBIS was enforceable such that the trial court properly granted NBIS’s motion to dismiss this Georgia action.

“Under the rule of lex fori, procedural or remedial questions are governed by the law of the forum, the state in which the action is brought.” (Punctuation omitted.) Brinson v. Martin, 220 Ga. App. 638 (469 SE2d 537) (1996). Specifically, and although the contract at issue here specifies that the contract should be construed according to Illinois law, the question of venue is a procedural one to which Georgia law applies. Id. at 638-639 (applying Georgia law to the questions of proper venue even when the contract at issue contained forum-selection and choice-of-law provisions that Nebraska law should apply).

As this Court has held, forum selection clauses “are prima facie valid and should be enforced unless the opposing party shows that such enforcement would be unreasonable under the circumstances.” Iero v. Mohawk Finishing Products, 243 Ga. App. 670, 671 (534 SE2d 136) (2000), citing The Bremen v. Zapata Off-Shore Co., 407 U. S. 1 (92 SC 1907, 32 LE2d 513) (1972).

To invalidate such a clause, the opposing party must show that trial in the chosen forum will be so inconvenient that he will, for all practical purposes, be deprived of his day in court. A freely negotiated agreement should be upheld absent a compelling reason such as fraud, undue influence, or overweening bargaining power.

(Punctuation and footnotes omitted.) Iero, 243 Ga. App. at 671.

A forum-selection or choice-of-law provision may also be invalid, however, where the clause “contravenes ‘a strong public policy of the forum in which the suit is brought, whether declared by statute or by judicial decision.’ ” Iero, 243 Ga. App. at 671, quoting The Bremen, 407 U. S. at 15; see also CS-Lakeview at Gwinnett v. Simon Property Group, 283 Ga. 426, 428 (659 SE2d 359) (2008) (a choice-of-law provision may be held unenforceable if the “application of the chosen law would be contrary to the public policy or prejudicial to the interests of this state”). Thus we have recently invalidated two forum-selection clauses where the contracts at issue violated public policy, although both of these cases involved statutory rather than judicial expressions of such policy. Walker v. Amerireach.com, 306 Ga. App. 658, 660 (1) (703 SE2d 100) (2010) (reversing dismissal of complaint where plaintiffs claims were based on a statutory violation and thus the contractual defense of a forum-selection clause did not apply) (cert. granted, Amerireach.com v. Walker (Case No. S11G0417, March 7, 2011)); Moon v. CSA Credit Solutions of America, 304 Ga. App. 555 (696 SE2d 486) (2010) (physical precedent only).

Given the absence of evidence of “fraud, undue influence, or overweening bargaining power” as between the parties before us, Cunningham can succeed in invalidating the forum-selection clause at issue only if he can show that (a) at least one of the covenants violate Georgia public policy and (b) such a covenant would likely be enforced against him by an Illinois court. Only if these conditions are met could we conclude that an Illinois venue for this dispute would deprive Cunningham of a meaningful opportunity to argue that the covenants were void, thus doing damage to both him and the Georgia public policy against restraint of trade. See Iero, 243 Ga. App. at 671 (to contravene public policy, forum selection clause must “be damaging to the forum itself, not simply damaging to the litigants because of an unfavorable law in the selected forum”).

(a) “Restrictive covenants in employment contracts are in partial restraint of trade and are enforceable only if strictly limited in time and territorial effect and are otherwise reasonable considering the business interest of the employer sought to be protected and the effect on the employee.” (Citation and punctuation omitted.) Fuller v. Kolb, 238 Ga. 602, 603 (234 SE2d 517) (1977). Specifically, a noncompete covenant without any territorial limitation is unenforceable under Georgia law because it provides inadequate notice of its extent to the ex-employee — a fault exacerbated in the case before us by the agreement’s bar on dealings between Cunningham and entities which were NBIS clients at any time during his employment there. See id. at 604 (noting that a restriction on the ex-employee’s dealings with clients who had been such for a year before employee’s departure made the noncompete covenant at issue more onerous). As such, the covenants at issue here are void. Id. at 603-604 (voiding noncompete and nonsolicitation provisions, and disapproving prior precedent “insofar as it intimates that a restrictive covenant in an employment contract is enforceable without an explicit territorial limitation”).

(b) By contrast, Illinois courts have struck down only noncom-pete covenants so broad as to bar an ex-employee’s dealings with “any existing or future customer” of the employer, “from and after the date of execution” of the agreement. Eichmann v. Nat. Hosp. &c. Svcs., 308 Ill. App. 3d 337, 340 (719 NE2d 1141) (1999). Illinois courts take the view that “as the specificity of limitation regarding the class of person with whom contact is prohibited increases, the need for limitation expressed in territorial terms decreases.” (Citation and punctuation omitted.) Id. at 345. Only when a covenant lacks “both a geographic limitation and any qualifying language concerning the particular customers to which it applies,” then, will it be found unreasonable under Illinois law. (Emphasis in original.) Id. at 345.

Thus the Illinois Court of Appeals has recently sustained a noncompete covenant containing no territorial limitation “where the purpose of the restriction was to protect the employer from losing customers to a former employee who, by virtue of his employment, gained special knowledge and familiarity with the customers’ requirements.” Steam Sales Corp. v. Summers, 405 Ill. App. 3d 442, 459 (937 NE2d 715) (2010). In holding the covenant enforceable, the Steam Sales court looked to extrinsic evidence that the employer’s territory was itself geographically limited. Id.

Decided May 5, 2011.

Jackson & Lewis, Brandon M. Cordell, C. Todd Van Dyke, Robert W. Capobianco, for appellants.

Lewis, Brisbois, Bisgaard & Smith, John C. Patton, Thomas C. Grant, for appellees.

The noncompete covenant before us notes that Cunningham had “specialized knowledge and experience related to the affairs and business of the Company as well as numerous contacts in the industry,” meaning that an Illinois court would likely sympathize with an employer seeking to restrain an employee from making use of such knowledge and experience in his new endeavor. See Steam Sales, 405 Ill. App. 3d at 459-460 (finding covenant reasonable and enforceable). The covenants before us are also temporally limited, whereas the covenants struck down in Eichmann were “both temporally and geographically unlimited.” 308 Ill. App. 3d at 344.

(c) Cunningham has thus shown both that the noncompete and nonsolicitation provisions are unenforceable in Georgia and that at least one of them would likely be enforced in an Illinois court.

Georgia courts do not edit or “blue-pencil” employment agreements in order to salvage some provisions when others have been found void. Advance Technology Consultants v. RoadTrac, LLC, 250 Ga. App. 317, 320 (551 SE2d 735) (2001). It follows that the agreement’s forum-selection provision is void because its application would likely result in the enforcement by an Illinois court of at least one covenant in violation of Georgia public policy. The trial court therefore erred when it granted NBIS’s motion to dismiss this action.

Judgment reversed.

Phipps, P. J., and McFadden, J., concur.

       Because the agreement at issue was entered into in 2008, we apply the law of restrictive covenants as it existed before the November 2010 ratification of an amendment to the Constitution of Georgia adopting OCGA § 13-8-2.1 (a) into law. See Cox v. Altus Healthcare &c., 308 Ga. App. 28, 30 (2) (706 SE2d 660) (2011).


author: SMITH, Presiding Judge.

text:
    A11A0041.
    RILEY v. THE STATE.
    (710 SE2d 690)
   SMITH, Presiding Judge.

A jury found Benjamin Riley guilty on two counts of armed robbery and two counts of possession of a firearm during the commission of a felony. Riley appeals, claiming that he received ineffective assistance of counsel and that the trial court erred in limiting his cross-examination of a witness. We find no error and affirm.

1. Riley first argues that the trial court prevented him from exploring any pending charges against a witness, who was the victim of one of the armed robberies, for the purpose of exposing any potential for the witness’s bias. Prior to this witness taking the stand and outside the presence of the jury, defense counsel, the prosecutor, and the court discussed the implications of the witness (who was incarcerated) wearing a jail uniform. During this conference, and after the parties agreed that the witness would not wear the jail uniform, defense counsel argued that the defense has a right “to examine any hope of leniency in this [witness’s] mind. That’s a bias. We can explore bias.” The trial court ruled that the defense could not impeach the witness.

During cross-examination of the witness, defense counsel asked the witness if he had had any discussion with the prosecutor. The State objected, and the trial court sent the jury out and asked defense counsel “where are you going before we get the jury.” Defense counsel explained that she wanted to explore whether the witness “had any conversations concerning [the State] helping him with his case in another county.” The following colloquy then took place between the trial court, defense counsel, and the witness:

The Court: Do you have a deal with him?
The Witness: No.
The Court: Are they going to help you down in Albany or wherever you are?
The Witness: Willacoochee. No.
[Defense Counsel]: Did you ask him about it?
The Witness: No, uh-uh, ask him about it. Mm-mm. Mm-mm. What I did ask was — is a bus token.
[Defense Counsel]: You asked for a bus token?
The Witness: Mm-hmm, mm-hmm.
The Court: A bus token for what?
The Witness: Me to get on the bus for when I leave, when I leave the jail.
[Defense Counsel]: When you leave Willacoochee or leave here?
The Witness: Here.
[Defense Counsel]: Now, you know you’re going back to where you came from?
The Witness: No, I’m not going back . . . They don’t want me in Willacoochee.

The witness then explained that he was taking the bus to a friend’s house, apparently some time after giving his testimony. The trial court ruled that defense counsel could ask the witness about his request for a bus token, and when the jury returned, counsel asked the witness: “And you asked for money for a bus token?” The witness replied: “They said they’d see.”

It is fundamental that

[t]he Sixth Amendment to the U. S. Constitution guarantees the right of an accused in a criminal prosecution to be confronted with the witnesses against him. The main and essential purpose of the right of confrontation is to secure for the opponent the opportunity of cross-examination. An attack on the witness’ credibility is effected by means of cross-examination directed toward revealing possible biases, prejudices, or ulterior motives of the witness as they may relate directly to issues or personalities in the case at hand. The partiality of a witness is subject to exploration at trial, and is always relevant as discrediting the witness and affecting the weight of his testimony. The exposure of a witness’ motivation in testifying is a proper and important function of the constitutionally protected right of cross-examination.

(Citation and punctuation omitted.) Hewitt v. State, 277 Ga. 327, 331-332 (2) (588 SE2d 722) (2003).

The Confrontation Clause, however, does not prohibit all limits on a defendant’s cross-examination into a witness’s bias. Instead, trial judges retain wide latitude insofar as the Confrontation Clause is concerned to impose reasonable limits on such cross-examination based on concerns about, among other things, harassment, prejudice, confusion of the issues, the witness’ safety, or interrogation that is repetitive or only marginally relevant.

(Citations, punctuation and footnote omitted.) Brown v. State, 276 Ga. 192, 194 (3) (576 SE2d 870) (2003).

Decided May 6, 2011.

Samuel F. Little, Jr., for appellant.

Paul L. Howard, Jr., District Attorney, Stephany J. Luttrell, Assistant District Attorney, for appellee.

Here, defense counsel sought to cross-examine the witness concerning possible bias as a result of any deals the witness had with the State. But the record reveals that no deal was made and there was no evidence presented of any pending charges against the witness. Moreover, defense counsel was allowed to ask about the bus token. Riley cannot demonstrate any improper limitation of his rights under the Confrontation Clause. Under these circumstances, the trial court did not err in limiting cross-examination on this issue. See Hewitt, supra, 277 Ga. at 332 (2) (no violation of right to confrontation in trial court’s limit on cross-examination on issue of parole when there was no evidence of deal between defendant and State regarding parole).

2. Riley contends that trial counsel was ineffective in failing to request a severance of his trial from that of his two co-defendants. But the record reveals that Riley’s counsel joined in the severance motion made by counsel for one of his co-defendants and made arguments during the hearing. The motion was denied by the trial court with regard to Riley and the first co-defendant and granted with regard to the second co-defendant. We find no merit in this enumeration because Riley has not supported his claim that trial counsel failed to request a severance.

Judgment affirmed.

Mikell and Dillard, JJ., concur.


author: Mikell, Judge.

text:
    A11A0103.
    BROWN v. THE STATE.
    (710 SE2d 674)
   Mikell, Judge.

Larry Brown was found guilty by a jury of robbery by sudden snatching, a violation of OCGA § 16-8-40 (a) (3), and was sentenced to 20 years in prison. Following a hearing, the trial court denied Brown’s motion for new trial. Brown appeals, challenging the sufficiency of the evidence and enumerating other errors. For the reasons set forth below, we affirm.

1. In separate enumerations, Brown contends that the evidence was insufficient to support his conviction and that the trial court erred in denying his motion for directed verdict of acquittal. We address these enumerations together, because “[i]n reviewing the denial of a directed verdict of acquittal, we employ the same test used to determine sufficiency of the evidence.” Applying that standard, we view the evidence in the light most favorable to the jury’s verdict, and the defendant no longer enjoys the presumption of innocence. We do not weigh the evidence or judge the credibility of witnesses, but determine only if the evidence was sufficient for a rational trier of fact to find the defendant guilty of the offense charged beyond a reasonable doubt. Moreover, “conflicts in the testimony of witnesses, including the [sjtate’s witnesses, are a matter of credibility for the jury to resolve. As long as there is some competent evidence, even though contradicted, to support each fact necessary to make out the [sjtate’s case, the jury’s verdict will be upheld.”

Properly viewed, the evidence adduced at trial shows that Larry Ceminsky was shopping at a Walmart in Cobb County on February 20, 2008, when he walked away from his shopping cart to get dog food. He realized that he had left his wallet in his cart and came back to it “real quickly.” As he turned the corner, he saw Brown at his cart, approximately six feet away. Brown “was moving the cart and picked up the wallet.” Ceminsky testified that he was aware that Brown was stealing his wallet as it happened. He yelled at Brown, “You don’t want to do that, put it down, leave it there.” Brown ran toward the store exit, and Ceminsky ran after him. Ceminsky shouted at the Walmart greeter stationed there, “stop that man, he stole my wallet.” With Ceminsky and the greeter in pursuit, Brown ran outside the store and dropped the wallet. He ran to his car, a blue Cutlass, and drove south on Cobb Parkway. He was apprehended shortly thereafter.

OCGA § 16-8-40 (a) (3) provides that a person “commits the offense of robbery when, with intent to commit theft, he takes property of another from the person or the immediate presence of another . . . [b]y sudden snatching.” Brown contends that the evidence showed at most his guilt of the lesser offense of theft by taking, because the state failed to prove that he took the wallet by force from Ceminsky’s “immediate presence”; that the victim was conscious of the theft at the time it occurred; and that the victim became aware of the theft prior to its occurrence. This contention is without merit.

Citing Franklin v. State, Brown asserts that the state failed to prove the element of force, because the evidence showed that Brown made no aggressive move toward the victim. Franklin, however, did not turn on the lack of evidence of force; instead, the evidence in that case showed that the victim, because he was unconscious, was not aware of the taking as it occurred. As this Court explained in Kendrick u. State, “[floree is implicit in sudden snatching, both as a fact and as a legal proposition, the force being that effort necessary for the robber to transfer the property taken from the owner to his possession.” In the case at bar, the wallet was taken from the victim’s cart while the victim was nearby. This evidence was sufficient to show the force necessary as an element of the crime of robbery by sudden snatching.

Brown cites McNearney v. State in support of his contention that the evidence failed to show that the wallet was taken from the victim’s “immediate presence,” as required by OCGA § 16-8-40 (a). Brown’s reliance on McNearney is misplaced. There, the victim was unaware that her purse had been stolen until a witness alerted her to the theft, by which time the defendant had driven away; for this reason, the defendant’s conviction for robbery by sudden snatching could not stand. The case now before us, however, is distinguished from McNearney by the fact that Ceminsky saw Brown take his wallet from his cart only six feet away. Moreover, the “immediate presence” of the victim “stretches fairly far, and robbery convictions are usually upheld even out of the physical presence of the victim if what was taken was under his control or his responsibility and if he was not too far distant,” as where a store owner ten feet away saw the defendant take a money bag. Here, the evidence was sufficient to show that the wallet was taken from the victim’s “immediate presence” and that the victim was conscious of the robbery as it occurred.

Contrary to Brown’s contention, the victim of a robbery by sudden snatching need not become aware of the taking prior to the taking. It is sufficient if the evidence shows, as it does here, that the victim became aware of the taking as the crime was being committed. We conclude that the evidence adduced at trial was sufficient to authorize the jury to find Brown guilty of robbery by sudden snatching beyond a reasonable doubt.

2. Brown contends that the trial court erred in failing to give a requested jury instruction on the lesser included offense of theft by taking and on the definition of forcible felony. We find no error.

(a) Brown argues that the victim’s testimony was in conflict as to whether he actually saw Brown take the wallet from the cart. Brown contends, therefore, that the victim was not aware of the theft until it was complete; and as a result, Brown claims that he was at most guilty of the lesser included offense of theft by taking. This argument fails.

As this Court explained in Bettis,

[rjobbery by sudden snatching differs from theft by taking because the robbery offense requires proof of two additional elements: the thief must take the property from the victim’s immediate presence, and the victim must be conscious of the theft at the time it is committed, in other words, before the taking is complete.

Even if Ceminsky did not actually see Brown pick up the wallet, it is undisputed that when he saw Brown running toward the exit with the wallet, he gave chase but was unable to stop him. Thus, as we concluded in Division 1 above, the evidence shows that Ceminsky was conscious of the crime as it was being committed. The facts of this case are similar to those in Moore. There, the victim did not see the defendant pick up her purse, but she turned around in time to see him running away with it, and thus she was aware of the crime as it was being committed. Accordingly, we ruled that the offense, if any, was robbery by sudden snatching, so there was no evidence to support a jury charge on theft by taking as a lesser included offense. Similarly, in this case the evidence did not support a charge on theft by taking as a lesser included offense.

(b) Brown asserts error in the trial court’s denial of his request to give the following charge on the definition of a forcible felony: “A forcible felony means any felony which involves the use or threat of physical force or violence against any person.” The trial court did, however, give the pattern charge on robbery by sudden snatching. As this charge covers the principle of law in the requested charge, there was no error. “A trial court is not required to instruct the jury in the exact language of a requested charge, and when the principle of law is covered in another charge, that is sufficient.” Because the jury convicted Brown based on a proper instruction as to how the crime of robbery by sudden snatching may be committed, we find no reversible error resulted from the trial court’s failure to give the charge requested by Brown.

3. Brown contends that the trial court erred in denying his motion for mistrial after one of the jurors made improper comments. We disagree.

After the jury had been selected, but before opening statements, the deputy reported, out of the presence of the jury, the following: as an unidentified prospective juror (who had not been selected) was leaving the building, she told the deputy that she had overheard Madeleine Lowry, one of the selected jurors, say something like “it’s going to be for sure guilty” or “I think this will be quick because he’s guilty,” while speaking to an unknown party on the phone. Brown’s counsel immediately moved for a mistrial. Lowry was called in and questioned by the court and by counsel for both sides, outside the presence of the remaining members of the jury. She first denied making the statement, but, as the trial court noted, later she “danced around what she said.” She admitted that during a break she had spoken on the phone within earshot of other potential jurors, but she stated that she had not talked to any of the other jurors about the case and she asserted that she could still be fair and impartial.

The judge dismissed Lowry from further jury service and replaced her with an alternate. After hearing argument from counsel, the trial court determined that it would question the jurors collectively; if any of the jurors acknowledged overhearing any statement about the case made by Lowry, the court would then question each of those jurors individually. The jury was brought in and the judge asked them to raise their hand if any juror had overheard any comment that Lowry, the dismissed juror, had made “in reference to anything about this case.” When no member of the jury raised a hand, the court instructed the jury that they were to keep an open mind, reach no conclusions about the case until the trial was over, and discuss the case with no one on or off the jury. The court denied the defense motion for mistrial, and the trial went forward.

Brown now complains that his counsel was not given the opportunity to examine the jurors individually. However, the record reflects that counsel never made any such request, so appellate review of this alleged error was waived.

As to the trial court’s denial of Brown’s motion for mistrial, “[t]he decision whether any unauthorized statement, communicated to the jury either individually or as a group, is so prejudicial as to warrant a mistrial is in the discretion of the trial court.” As we explained in Sims v. State,

[t]here is a presumption of prejudice to the defendant when an irregularity in the conduct of a juror is shown and the burden is on the prosecution to prove beyond a reasonable doubt that no harm has occurred. However, a jury verdict will not be upset solely because of such conduct, unless the statements are so prejudicial that the verdict must be deemed inherently lacking in due process.

Thus, “our inquiry focuses on whether there is a reasonable probability that the misconduct contributed to the conviction.” In determining whether the trial court abused its discretion in denying the motion for mistrial, we consider the circumstances of the case, “including] the nature of the statement, the other evidence in the case, and the action taken by the court and counsel concerning the impropriety.”

Examining the surrounding circumstances in their totality, we conclude that the trial court did not abuse its discretion in this case by denying Brown’s motion for mistrial. Here, as in Lawrence, the juror’s improper behavior was brought to the court’s attention immediately after it occurred, that is, immediately after the jury was selected. Upon learning of the improper behavior, the trial court examined the offending juror without delay and subsequently dismissed her from the jury. The remaining jurors were then examined and indicated by their response to the court’s question that they had not overheard any comments on the case by the offending juror. Thus, even though the alleged improper comment involved the ultimate issue in the case, the record reflects no evidence that the jury was tainted or that Brown was harmed by Lowry’s misconduct. In light of the overwhelming evidence adduced against Brown, we conclude that there is no reasonable probability that the dismissed juror’s misconduct contributed to the verdict.

4. Brown asserts that the trial court erred in denying his claim of ineffective assistance of counsel. Brown asserts that his counsel’s performance was deficient because he failed to object on grounds of relevancy to evidence concerning a partially-empty bottle of vodka found in Brown’s car upon his arrest. We find no error.

In order to prevail on a claim of ineffective assistance, Brown must meet the two-part test set forth in Strickland v. Washington: he must show both that trial counsel’s performance was deficient and that the deficient performance so prejudiced him that a reasonable likelihood exists that, but for counsel’s unprofessional errors, the outcome of the trial would have been different. Failure to satisfy either component of this test is fatal to an ineffectiveness claim. Moreover, the court need not address both components if the defendant has made an insufficient showing on one of them. We defer to the trial court’s factual findings on an ineffectiveness claim unless they are clearly erroneous, while “we independently apply the legal principles to the facts.” Further, “we will not reverse on the basis of ineffective assistance of counsel unless trial counsel’s conduct so undermined the proper functioning of the adversarial process that the trial could not reliably have produced a just result.”

The arresting officer, Officer Waldrep of the Marietta Police Department, testified that shortly after he received a lookout for a vehicle in connection with the Walmart incident, he stopped the vehicle driven by Brown. Waldrep testified on direct, without objection, that he observed a partially-empty bottle of vodka on the passenger seat of the car. The state then attempted to admit a photograph of the bottle of vodka, but Brown’s trial counsel objected to the photograph on grounds of relevancy, and the objection was sustained. Waldrep also testified that Brown showed certain signs of intoxication upon exiting his car. On cross-examination, Brown’s counsel questioned Waldrep as to why the officer did not ask Brown to perform field sobriety evaluations at the stop, even though Brown had been driving and the officer found the vodka bottle in the car. On redirect, the state re-tendered the photograph of the vodka bottle, and it was admitted into evidence without further objection from Brown’s counsel. At the hearing on the motion for new trial, Romin Alivi, Brown’s counsel, a criminal lawyer of nine years’ experience, admitted that this evidence was not relevant.

Even assuming that Brown’s counsel was deficient in failing to object to the evidence concerning the vodka bottle found in Brown’s car, Brown has not shown a reasonable likelihood that, but for counsel’s error, the outcome of the trial would have been different. Given the overwhelming evidence in this case, it is highly likely that the evidence concerning the vodka bottle did not contribute to the guilty verdict and was therefore harmless.

Decided May 6, 2011.

Gina A. Smalley, for appellant.

Patrick H. Head, District Attorney, Albert T. Reeves, Jr., Amelia G. Pray, Assistant District Attorneys, for appellee.

Judgment affirmed.

Smith, P. J., and Dillard, J., concur.

        Fluellen v. State, 284 Ga. App. 584 (644 SE2d 486) (2007) (whole court), citing Joyner v. State, 280 Ga. 37, 38 (1) (622 SE2d 319) (2005).

        Al-Amin v. State, 278 Ga. 74 (1) (597 SE2d 332) (2004).

       Id., citing Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560) (1979).

       (Punctuation omitted.) Williams v. State, 287 Ga. 199, 200 (695 SE2d 246) (2010), citing Miller v. State, 273 Ga. 831, 832 (546 SE2d 524) (2001).

       OCGA § 16-8-2 (“A person commits the offense of theft by taking when he unlawfully takes . . . any property of another with the intention of depriving him of the property, regardless of the manner in which the property is taken or appropriated”).

       286 Ga. App. 288 (648 SE2d 746) (2007).

       Id. at 290 (1).

       279 Ga. App. 263 (630 SE2d 863) (2006).

       Id. at 264-265 (1).

       See Kendrick, supra at 265 (1) (sufficient force shown where victim was ten feet away when he saw defendant take money bag); Lawson v. State, 224 Ga. App. 645, 646 (1) (481 SE2d 856) (1997) (defendant took bag from victim’s car while victim stood beside car); Bryant v. State, 213 Ga. App. 301, 302-303 (444 SE2d 391) (1994) (victim turned her back on her grocery cart but turned around in time to see defendant taking her purse).

       210 Ga. App. 582 (436 SE2d 585) (1993).

       Id. at 582-583, 584.

        See Moore v. State, 265 Ga. App. 511, 512-513 (1) (594 SE2d 734) (2004) (conviction for robbery by sudden snatching affirmed where victim heard a noise and turned around to see defendant running toward back of store with her purse).

       (Citation and punctuation omitted.) Kendrick, supra at 264 (1).

       Id. at 265 (1).

       See Sweet v. State, 304 Ga. App. 474, 477 (2) (697 SE2d 246) (2010) (robbery was in victim’s “immediate presence” where victim was ten feet away with her back turned); Moore, supra at 511 (victim, ten feet away, turned to see defendant running off with her purse); Perkins v. State, 256 Ga. App. 449, 450 (568 SE2d 601) (2002) (victim saw her purse taken from another room, about six feet away).

       See Moore, supra at 513 (1). Accord Bettis v. State, 285 Ga. App. 643, 646 (3) (647 SE2d 340) (2007).

       See Sweet, supra.

       Supra.

       Id., citing Moore, supra at 512 (1).

       Supra.

       Id.

       Id. at 513 (2).

       See Byrd v. State, 171 Ga. App. 344, 345 (2) (319 SE2d 460) (1984). Accord Lawson, supra at 646 (1).

       (Punctuation and footnote omitted.) Kirk v. State, 271 Ga. App. 640, 645-646 (4) (610 SE2d 604) (2005) (no error to deny request to charge on force required for armed robbery).

       See Kilpatrick v. State, 274 Ga. App. 645-646 (618 SE2d 719) (2005) (in trial for robbery by intimidation, no error to deny request to charge jury that intimidation involves apprehension of bfe or limb).

       See Smith v. State, 284 Ga. 304, 308-309 (4) (667 SE2d 65) (2008) (failure to request substitution of offending juror waived any error).

       (Citation omitted.) Cooke v. State, 230 Ga. App. 326, 327 (496 SE2d 337) (1998). Accord Mullins v. State, 241 Ga. App. 553, 556 (2) (525 SE2d 770) (1999) (whole court) (jury misconduct was so prejudicial as to warrant mistrial).

       266 Ga. 417 (467 SE2d 574) (1996).

       (Citations and punctuation omitted.) Id. at 419 (3).

       (Punctuation omitted.) Lawrence v. State, 289 Ga. App. 163, 165 (1) (657 SE2d 250) (2008), citing Merritt v. State, 248 Ga. App. 709, 711 (1) (548 SE2d 427) (2001), and Huff v. State, 239 Ga. App. 83, 87-88 (3) (519 SE2d 263) (1999).

       (Citation and punctuation omitted.) Cooke, supra.

       Supra.

       Compare Mullins, supra (jurors’ misconduct involved statement that defendant was guilty).

       466 U. S. 668 (104 SC 2052, 80 LE2d 674) (1984).

        Nichols v. State, 288 Ga. App. 118, 120 (3) (653 SE2d 300) (2007). Accord Miller v. State, 285 Ga. 285, 286 (676 SE2d 173) (2009).

        Massey v. State, 306 Ga. App. 180, 184 (4) (702 SE2d 34) (2010).

        Duvall v. State, 273 Ga. App. 143, 145 (3) (614 SE2d 234) (2005). Accord Higginbotham v. State, 287 Ga. 187, 190 (5) (695 SE2d 210) (2010).

       (Citation and punctuation omitted.) Carey v. State, 281 Ga. App. 816, 818 (2) (637 SE2d 757) (2006).

       (Punctuation and footnote omitted.) Nichols, supra at 121 (3). Accord Miller, supra at 285.

       See Brumelow v. State, 239 Ga. App. 119, 123 (5) (520 SE2d 776) (1999) (no prejudice shown in trial on home invasion robbery charges where detective testified to contraband found in defendant’s possession upon arrest). Accord Opio v. State, 283 Ga. App. 894, 898 (1) (c) (642 SE2d 906) (2007) (“given the overwhelming evidence in this case, even if counsel had successfully moved to exclude the officer’s testimony based on relevancy, Opio has not shown a reasonable likelihood that the outcome of the trial would have been different”) (citation omitted). Accord Parker v. State, 281 Ga. 490, 493-494 (3) (d) (640 SE2d 44) (2007) (no reasonable likelihood that successful exclusion of evidence of defendant’s bad character would have changed outcome of trial).


author: PHIPPS, Presiding Judge.

text:
    A11A0138.
    MOORE v. THE STATE.
    (710 SE2d 692)
   PHIPPS, Presiding Judge.

Willie Moore appeals from the trial court’s order denying his plea in bar and motion to dismiss based upon an alleged violation of his constitutional right to a speedy trial. We vacate the order and remand the case for the entry of an order expressly applying the analysis contained in Barker v. Wingo.

Moore was arrested in 2004 and indicted in 2007 on charges which included statutory rape, aggravated child molestation, and child molestation. He filed a plea in bar, moving to dismiss his indictment based on speedy trial grounds, and a special demurrer (asserting that the indictment was defective). The court denied Moore’s plea in bar as well as his special demurrer. Moore appealed. This court affirmed the denial of Moore’s plea in bar and reversed and remanded the case for a hearing on the special demurrer; the trial court granted the special demurrer. The state subsequently re-indicted Moore on charges of statutory rape, child molestation, and false imprisonment.

Moore then filed a demand for speedy trial, plea in bar and motion to dismiss the second indictment, contending that his constitutional right to a speedy trial had been violated; he claimed the relevant time period began in 2004 and continued through the filing of the second plea in bar and motion to dismiss. In February 2010, after conducting a hearing, the trial court summarily denied Moore’s plea in bar in an order that did not include any findings of fact or conclusions of law.

Decided May 6, 2011.

Jay M. Jackson, for appellant.

Tracy Graham-Law son, District Attorney, Billy J. Dixon, Assistant District Attorney, for appellee.

In Barker v. Wingo, the United States Supreme Court set out a balancing test, in which the conduct of both the prosecution and the defense are weighed, to determine whether a defendant’s constitutional right to speedy trial has been violated. Some of the factors to be considered include: the length of the delay, the reason for the delay, the defendant’s assertion of his right to a speedy trial, and the prejudice to the defendant. None of the factors is either a necessary or sufficient condition to the finding of a deprivation of the right to a speedy trial; rather, they are related factors that must be considered together with other relevant circumstances.

In a case implicating a defendant’s constitutional right to a speedy trial, it is imperative for the trial court to enter findings of fact and conclusions of law consistent with Barker u. Wingo. Because the trial court failed to enter such findings and conclusions, the order is vacated and the case is remanded for the entry of a proper order.

Judgment vacated and case remanded with direction.

Andrews and McFadden, JJ., concur.

       407 U. S. 514 (92 SC 2182, 33 LE2d 101) (1972).

        Moore v. State, 294 Ga. App. 570 (669 SE2d 498) (2008).

         State v. Lessing, 302 Ga. App. 196-197 (690 SE2d 501) (2010) (footnotes omitted).

        Lessing, supra; McGowan v. State, 303 Ga. App. 873, 874 (695 SE2d 328) (2010).

       See Bryant v. State, 265 Ga. App. 234, 236 (593 SE2d 705) (2004).