author: McMillian, Judge.

text:
    A13A1019.
    EDWARDS v. THE STATE.
    (748 SE2d 501)
   McMillian, Judge.

This appeal presents an issue of first impression concerning the application of OCGA § 17-7-50.1 (a), specifically, whether the 180-day time limitation for the State to obtain an indictment is tolled when the accused is released on bond and is therefore no longer detained.

The underlying facts are not in dispute. On or about August 21, 2011, Jerod Edwards was arrested for kidnapping and armed robbery by use of a firearm. Although Edwards was 16 years old at that time, the superior court had exclusive jurisdiction over his case pursuant to OCGA § 15-11-28 (b) (2) (A) (vii) because he allegedly committed armed robbery with a firearm. A detention order was entered on August 25, 2011, and Edwards was initially detained at a Youth Detention Center in Thomasville, Georgia.

Edwards filed a petition to set bond on August 31, 2011, and bond was denied on September 21, 2011. Edwards filed another petition to set bond on December 5, 2011, and Edwards was released on bond on December 18, 2011. Edwards was indicted on June 1, 2012, over 280 days after he was first detained.

On July 2, 2012, Edwards filed a motion to quash the indictment and transfer the case to juvenile court, based on the State’s failure to obtain an indictment within 180 days of his detention as mandated by OCGA § 17-7-50.1. The superior court denied the motion after a hearing, reasoning that because Edwards’ actual incarceration was less than the 180 days prescribed by OCGA § 17-7-50.1, the superior court retained jurisdiction. The superior court granted Edwards’ request for a certificate of immediate review, Edwards filed an application for interlocutory appeal, which we granted, and Edwards then filed the present appeal. We now reverse the superior court’s denial of Edwards’ motion to quash and direct that the case be transferred to the appropriate juvenile court.

OCGA § 17-7-50.1 (a) and (b) provide as follows:

(a) Any child who is charged with a crime that is within the jurisdiction of the superior court, as provided in Code Section 15-11-28 or 15-11-30.2, who is detained shall within 180 days of the date of detention be entitled to have the charge against him or her presented to the grand jury. The superior court shall, upon motion for extension of time and after a hearing and good cause shown, grant one extension to the original 180 day period, not to exceed 90 additional days.
(b) If the grand jury does not return a true bill against the detained child within the time limitations set forth in subsection (a) of this Code section, the detained child’s case shall be transferred to the juvenile court and shall proceed thereafter as provided in Chapter 11 of Title 15.

Our starting mandate in cases involving statutory interpretation and application is well established.

In interpreting a statute, we must give effect to the legislature’s intention, looking diligently for the intention of the General Assembly, keeping in view at all times the old law, the evil, and the remedy. To determine the legislative intent of a statute, we begin with the literal text; where the literal text of a statute is plain and does not lead to absurd or impracticable consequences, we apply the statute as written without further inquiry. The language of a statute is given its most natural and obvious import, without resorting to forced or subtle interpretations to either expand or limit the statute’s operation. We interpret a statute to give effect to the real legislative intent and meaning, however, and not so strictly as to defeat the legislative purpose.

(Citations and punctuation omitted.) Hill v. State, 309 Ga. App. 531, 533 (710 SE2d 667) (2011). Moreover, where, as here, the case involves a criminal statute “if it is open to more than one reasonable interpretation, it must be construed strictly against criminal liability, and in favor of the individual facing criminal liability.” (Citation and punctuation omitted.) Id.

Turning first to the language of the statute, we find that it plainly sets the triggering date for the 180-day time limitation as the “date of detention.” OCGA § 17-7-50.1 (a). And nothing in the statute mandates that the defendant continue to be detained for the entire 180-day period. To the contrary, OCGA § 17-7-50.1 (a) refers to the child “who is detained,” and the use of the present tense supports that the date of detention is a specific point in time, rather than an ongoing condition necessary for the running of the 180-day time limitation. Moreover, this construction is consistent with the apparent intent of the statute, which is to provide a date certain for a detained child charged with specific felonies to expect an indictment. .

Our existing case law also supports this interpretation. Since its enactment in 2006, very few cases have interpreted OCGA § 17-7-50.1, and neither of our appellate courts have addressed the issue of whether the 180-day time limit during which the State must present the case to the grand jury ceases to run if the juvenile is released on bail. But we find a review of these cases to be instructive.

In Hill, which was the first case to interpret OCGA § 17-7-50.1, this Court addressed the issue of when the 180-day time limit commences. We explicitly rejected the State’s contention that the 180 days should be counted from the date of transfer to the superior court rather than the date of detention, finding that “the statute plainly adopts the date of detention, not the date of transfer, as the point from which the time is calculatedf.]... OCGA § 17-7-50.1 (a) "Hill, 309 Ga. App. at 534-535. And because “[t]he statute further provides that the case ‘shall be transferred to the juvenile court’ if an indictment is not obtained within the specified time[,]” (emphasis in original) id. at 533, we further found an indictment returned 300 days after Hill’s detention should have been quashed, his case should have been transferred back to juvenile court and, consequently, the superior court lacked jurisdiction to enter judgment on Hill’s guilty plea. Id. at 533-534.

In Nunnally v. State, 311 Ga. App. 558 (716 SE2d 608) (2011), we extended the same reasoning to the question of whether the sole 90-day extension allowed by the statute must be requested prior to the running of the 180-day period, concluding that because the superior court loses jurisdiction once the 180-day period expires, an indictment returned after that period and the trial court’s after-the-fact grant of an extension were unauthorized and void. Id. at 562 (1).

We confronted another issue of first impression in In the Interest of C. B., 313 Ga. App. 778 (723 SE2d 21) (2012). In that case, as inthe case at hand, the superior court was initially vested with exclusive jurisdiction over the case, see OCGA § 15-11-28 (b), but the case was not presented to the grand jury within 180 days of the juvenile’s detention, and the superior court granted the motion to transfer her case to juvenile court. However, a short time later, the State, invoking the provisions of OCGA § 15-11-30.2, which provides the juvenile court with discretion to transfer a case to the superior court under certain specified circumstances, filed a motion to transfer the case back to the superior court. The juvenile court granted the motion, and C. B. filed a direct appeal to this Court, as she was authorized to do under those circumstances. In the Interest of C. B., 313 Ga. App. at 779, n. 2.

Citing Hill and Nunnally, we reversed, reiterating that the 180-day time limit is “plainly stated and mandatory,” begins to run from the date the juvenile is detained, and applies equally whether the superior court is exercising jurisdiction under OCGA § 15-11-28 (b) or OCGA § 15-11-30.2. In the Interest of C. B., 313 Ga. App. at 780. Thus, we concluded that

[i]t necessarily follows that anytime the superior court loses jurisdiction which was conferred by OCGA § 15-11-28 (b) because the State failed to obtain an indictment within 180 days of the date the juvenile was detained, the time will also have expired within which the State could procure an indictment if the superior court were proceeding under OCGA § 15-11-30.2. Thus, a transfer back to the superior court under those circumstances is pointless since an indictment returned by the grand jury would be void.

Id. at 780.

Somewhat more similar to the case before us, in State v. Armendariz, 316 Ga. App. 394 (729 SE2d 538) (2012), we considered whether the 180 days was tolled when some of the charges pending against the accused were deemed invalid.

It is clear that OCGA § 17-7-50.1 (a)’s 180-day time clock began running when Armendariz was detained, as “the statute plainly adopts the date of detention as the point from which the time is calculated.” Nothing in the statute indicates that the clock stopped running when some charges against him were deemed invalid, an event that preceded the expiration of the 180-day period. The state did not request an extension of time, as allowed by the statute. When the invalid portions of the first indictment were re-indicted out of time, they represented the state’s failure to obtain the timely return of a true bill, as addressed in OCGA § 17-7-50.1 (b), which requires that the case then be transferred back to juvenile court.

(Citation, punctuation and footnotes omitted.) Id. at 396 (1).

In this case, the superior court appears to have concluded that the clock stopped running on the 180-day time limit when Edwards was released on bail. And the State argues that the cases discussed above do not require a different result because in each of those cases the juvenile remained detained during the entire 180-day period. However, in our view, the rationale underpinning those cases is equally applicable here. Thus, just as in those cases, the statute’s 180-day time limit during which the State had to obtain a true bill began to run when Edwards was detained, and there is nothing in the statute that abrogated the time limit once the clock started running. Equally clear, once the 180-day time limit expired without the case being presented to the grand jury and absent a motion to extend the time by the State, the superior court lost jurisdiction over the case. As we explained in Nunnally “in application OCGA § 17-7-50.1 is the same as our other laws that require that action be taken within a specified time or jurisdiction is lost.” Nunnally, 311 Ga. App. at 561 (1). Further, under the plain mandate of subsection (b) of the statute, once the grand jury failed to return a true bill within 180 days of the juvenile’s detention, the only action the superior court was authorized to take was to transfer the case to the juvenile court, and any indictment the grand jury returned after the 180 days was void.

Accordingly, the superior court’s order denying Edwards’ motion to quash the indictment and transfer the case to juvenile court is vacated and the case is remanded to the superior court to transfer the case to the juvenile court for appropriate proceedings.

Judgment vacated and case remanded with direction.

Andrews, P. J., and Dillard, J., concur.

Decided September 13, 2013.

Jason H. Davis, for appellant.

J. David Miller, District Attorney, Jessica W. Clark, Meredith G. Brasher, Assistant District Attorneys, for appellee.

       We use Edwards’ name instead of his initials, which is our usual procedure when deciding cases involving a juvenile because Edwards turned 17 years old prior to the time this case was docketed in this court.

       By that time, Edwards had turned 17 years old and had been transferred to the Lowndes County Jail.

       We note that although this section has been amended effective January 1, 2014, Ga. L. 2013, p. 294, § 4-15/HB 242, to substitute “Code Section 15-11-560 or 15-11-561” for “Code Section 15-11-28 or 15-11-30.2,” that change does not affect our analysis here, as the relevant wording of the statute remains unchanged.

       We note that the issue of what constitutes a “detention” within the meaning of OCGA § 17-7-50.1 was recently raised in an appeal to our Supreme Court, but that Court was required to dismiss the appeal without deciding that issue because the State did not have the right to bring a direct appeal from an order transferring the case to the juvenile court. State v. Johnson, 292 Ga. 409, 410-411 (738 SE2d 86) (2013).


source: Caselaw Access Project

author: McMlLLIAN, Judge.

license: Public Domain

text:
    A13A1319.
    In re ESTATE OF BILLY ROGERS.
    (748 SE2d 505)
   McMlLLIAN, Judge.

Laura Nell Rogers (“mother”) and Mike Wilson (collectively referred to as “appellants”) filed this appeal from an order of the Superior Court of Oglethorpe County dismissing their appeal from an order of the probate court granting letters of administration to appellee Cheryl Ann Rogers. The basis for the dismissal was that appellants were not parties to the probate court proceedings and therefore lacked standing to appeal the probate court’s order. Because the record shows that appellants fully participated in the probate court proceedings and were recognized as parties by that court, we must reverse.

The pertinent facts show that Billy Joel Rogers died intestate on June 23, 2012. Wilson, who is Rogers’ first cousin, filed a petition for temporary letters of administration and was appointed temporary administrator of the estate on July 5, 2012. On July 11, 2012, Rogers’ wife, appellee Cheryl Ann Rogers (“wife”), as Rogers’ surviving spouse and claiming to be his sole heir at law, filed a petition for temporary letters of administration and a separate petition for permanent letters of administration, seeking the expanded powers enumerated in OCGA § 53-12-261.

Notice of the petition for letters of administration was properly published in the appropriate legal organ. That notice specifically provided, inter alia, that all objections to the petition had to be made in writing and filed with the court on or before August 20, 2012. On August 7, 2012, appellants filed an objection to the appointment of the wife as the temporary administrator of the estate, contending, among other things, that the wife had relinquished her right to inherit from Rogers’ estate in a prenuptial agreement. This objection was filed by attorney Lane Fitzpatrick “Attorney for [the mother] and Mike Wilson.” On August 21, 2012, the day after the deadline for filing objections to the wife’s appointment as administrator of the estate, the probate court judge issued a rule nisi, noting an objection had been filed and setting a hearing on the petition for September 14, 2012. Appellants were both listed as persons who should receive a copy of the rule nisi, although it was noted that an address for the mother had not been listed on the objection. On August 30, 2012, the probate court issued an order rescheduling the hearing. Again, this rule nisi provided that each appellant was to be served with notice of the hearing, and service on the mother was directed to “Attorney Lane Fitzpatrick.”

A hearing was held on September 27, 2012. The wife, who was represented by attorney Dennis Helmreich, was present along with her counsel. Wilson was also present, along with attorney Lane Fitzpatrick, hut the mother did not attend the hearing.

At the beginning of the hearing, the probate court judge stated as follows: “We take notice of the objection filed by — that was filed by the mother and the temporary administrator, but we are here on the permanent administration.” Fitzpatrick then made a motion to disqualify Helmreich from representing the wife because Helmreich had been subpoenaed to testify at the hearing. Following argument by both sides, the probate court denied the motion based on “hardship.”

Helmreich then proceeded with his opening statement, arguing that the prenuptial agreement in which Rogers and the wife relinquished their right to inherit had been supplanted by another agreement signed shortly after they were married in which each had been granted the right to inherit from the other’s estate. Helmreich concluded his statement by requesting that the wife’s petition to administer the estate be granted without having to call witnesses or present evidence since no obj ection had been timely filed. The probate court judge stated that the hearing would continue.

Both sides then presented evidence and witnesses, and Helmreich, who had prepared both the prenuptial and post-nuptial agreements, testified. At the conclusion of the hearing, Fitzpatrick moved to have Wilson appointed as administrator, asserting in essence that the original prenuptial agreement in which the parties had waived their inheritance rights should be enforced. Helmreich moved the court to grant the wife’s petition, arguing that the wife was Rogers’ sole heir at law and had the right to be appointed administrator of Rogers’ estate “especially when . . . [tjhere have been no objections filed for her petition for permanent letters of administration.”

Following the hearing, the probate court issued an order granting the wife’s petition to be appointed administrator of Rogers’ estate. The order also recited that the appellants had filed an objection on August 7, 2012. The certificate of service shows that the order was served on Wilson and Fitzpatrick “Attorney for [the mother].”

Appellants filed an appeal to the superior court from the probate court’s order, stating it was filed on behalf of the mother, identifying her as Rogers “sole heir” and Wilson, as temporary administrator of Rogers’ estate. The wife filed a motion to dismiss the appeal in the probate court, asserting that the appellants were not parties to the probate court proceedings and thus lacked standing to appeal the probate court’s order to the superior court. The certificate of service shows that the motion to dismiss was served on the mother and Wilson at street addresses, but was not served on Fitzpatrick. However, the clerk of the probate court certified that the motion had been faxed to Fitzpatrick.

On October 8, 2012, the probate court issued an order indicating that it had read the motion to dismiss and that it was transmitting both the appeal and motion to the superior court. This order was served on Wilson and on Fitzpatrick, as attorney for the mother.

The wife reasserted her motion to dismiss the appeal based on lack of standing after the case was transmitted to the superior court. The superior court granted the motion, finding that, pursuant to well-established Georgia law, the wife, being the sole heir at law, had the right to unanimously select herself to serve as the administrator of Rogers’ estate. Further, the superior court found that no objections to the petition for letters of administration had been filed following proper publication of notice, and that Wilson and the mother were “neither plaintiffs nor defendants, neither petitioners nor caveators, in the Probate Court.” Thus, the superior court concluded that Wilson and the mother lacked standing to appeal the probate court’s order appointing the wife administrator of Rogers’ estate. Accordingly, the court dismissed the appeal with prejudice and awarded the wife her costs, including reasonable attorney fees incurred in the matter.

1. Citing Garren v. Garren, 316 Ga. App. 646 (730 SE2d 123) (2012), and Bruce v. McMullen, 199 Ga. App. 239, 240 (404 SE2d 620) (1991), appellants contend that the superior court erred by dismissing their appeal based on lack of standing because they became parties to the probate court proceeding with standing to appeal the probate court’s ruling when the probate court served them with notice of the proceeding, pointing specifically to the rule nisi orders the probate court issued prior to the hearing on the wife’s petition for letters of administration. Pretermitting whether appellants would have become parties to the probate court proceedings with standing to appeal to the superior court simply by being served with notice of the proceedings, appellants and the probate court did much more here. Appellants also filed an objection, and although that objection was on its face to the wife’s petition for temporary letters of administration, the reason stated for the objection was equally applicable to the wife’s petition to be appointed the permanent administrator of the estate, and the probate court apparently considered but rejected this contention in granting the wife’s petition. The objection was filed by Lane Fitzpatrick, “Attorney for [the mother] and Mike Wilson,” and after the initial rule nisi the probate court directed that all notices and orders be served on Fitzpatrick on the mother’s behalf.

Moreover, Wilson and Fitzpatrick appeared and fully participated in the hearing on the wife’s petition by calling witnesses and introducing evidence to support the assertion that the wife had relinquished her right to inherit from Rogers’ estate and should not be appointed as administrator. Further, the probate court implicitly rejected the wife’s attorney’s argument that the petition should be summarily granted because no objections had been filed when the court went forward with the hearing, and the probate court likewise implicitly denied the wife’s motion to dismiss appellants’ appeal by transmitting the appeal along with the motion to the superior court. In sum, and considering all the circumstances here, we agree with appellants that the probate court clearly, if not explicitly, indicated its intent to treat appellants as parties to the probate proceedings, and clearly, if not explicitly, allowed them to participate in those proceedings as if they were parties thereto. McMullen, 199 Ga. App. at 240.

Further, appellants raised the issue of whether the wife had renounced her right to inherit from Rogers’ estate and this issue was inextricably intertwined with the question of whether the mother or the wife was Rogers’ sole heir at law and entitled to administer his estate, giving the mother at least a potential interest in the estate. Cf. Booker v. Booker, 286 Ga. App. 6, 6-7 (648 SE2d 445) (2007) (mother lacked standing because she was a nonparty to probate proceedings and did not have a legally cognizable interest in the estate).

Accordingly, the superior court’s order dismissing appellants’ appeal based on lack of standing is hereby reversed. Cf. Swift v. Thomas, 101 Ga. 89, 91 (28 SE 618) (1897) (no standing where notified heir does not file caveat or appear to participate in the proceedings either personally or through counsel); see also Samples v. Samples, 194 Ga. 383, 384 (1) (21 SE2d 601) (1942) (same).

2. As stated above, in addition to dismissing appellants’ appeal based on lack of standing, the superior court also found that the wife was Rogers’ sole heir at law, and that she had unanimously selected herself to serve as administrator of Rogers’ estate, “in accord with established Georgia law.” Appellants challenge this ruling, arguing that the superior court erred by making this factual determination without providing them with the requisite notice and an opportunity to be heard.

The effect of an appeal from the [probate] court... to the superior court as permitted under [OCGA § 5-3-2 (a)] places the matter in the superior court for a de novo investigation. It brings up the whole record from the court below, and all competent evidence shall be admissible on the trial thereof, whether adduced on a former [hearing] or not; either party is entitled to be heard on the whole merits of the case. . . . [Further s]uch a case must be tried anew as if no trial had been had. It is not the province of the superior court on such an appeal to review and affirm or review the rulings of the [probate court], but to try the issue anew and pass original judgments on the questions involved as if there had been no previous trial.

(Citations and punctuation omitted.) Knowles v. Knowles, 125 Ga. App. 642, 645 (1) (188 SE2d 800) (1972). See also Garren, 316 Ga. App. at 648-649 (3).

Thus, this portion of the superior court’s order must also be reversed.

3. Appellants also challenge the probate court’s refusal to disqualify Helmreich. However, the superior court has not yet ruled on this issue, and it is not ripe for our review. We do note, however, that the probate court denied the motion because of the hardship arising from the fact that the motion was not made with sufficient time to allow the wife to procure other counsel to represent her at the hearing, a hardship that will no longer exist if the motion is renewed in a timely manner in the superior court de novo proceedings.

Decided September 13, 2013.

Barry L. Fitzpatrick, David F. Ellison, for appellant.

Dennis P. Helmreich, for appellee.

4. Based on the foregoing, the superior court’s determination that the wife is entitled to recover attorney fees and costs from appellants likewise must be reversed.

Judgment reversed.

Andrews, P. J., and Dillard, J., concur.

       We note that appellants did not oppose the motion to dismiss in the superior court. However, after the order was entered, appellants filed separate affidavits averring that they were not served with the motion to dismiss after it was filed in superior court, and that they were unaware that the motion was pending until after the court’s order dismissing the appeal was entered.

        Garren and McMullen held that one becomes a party to a probate court proceedings when the probate court provides notice of the proceeding. But as noted in McMullen, there appear to be conflicting lines of cases in our Supreme Court as to how one becomes a party to a probate proceeding. McMullen, 199 Ga. App. at 240. Compare Samples v. Samples, 194 Ga. 383, 384-385 (1) (21 SE2d 601) (1942) (not a party to the proceeding); Swift v. Thomas, 101 Ga. 89, 91 (28 SE 618) (1897) (same); Booker v. Booker, 286 Ga. App. 6, 6-7 (648 SE2d 445) (2007) (same) with Mitchell v. Pyron, 17 Ga. 416 (1854) (appeal allowed), cited in Underwood v. Stanford, 143 Ga. 325 (85 SE 102) (1915) (same).

       Although it appears that appellants did not respond to the motion to dismiss when the wife re-filed it after the case was transmitted to the superior court, the superior court did not cite this failure as a basis for dismissing appellants’ appeal, and we will not consider that issue for the first time on appeal since it appears that there is some dispute in the record concerning whether they received notice of the motion.


author: BARNES, Presiding Judge.

text:
    A13A1552.
    HAYMER v. THE STATE.
    (747 SE2d 512)
   BARNES, Presiding Judge.

A jury convicted Glenn Elliott Haymer of voluntary manslaughter and aggravated assault, and the trial court denied his motion for new trial. On appeal, Haymer challenges the sufficiency of the evidence. He also contends that the trial court made several impermissible comments during the trial, including a statement during the defense’s cross-examination of a police detective indicating that it was “quite all right” for police officers to provide false information to a suspect during a custodial interview to “test” the suspect. Because the jury could have construed the trial court’s statement as an expression of opinion on the evidence and on the detective’s credibility, we must reverse and remand for a new trial.

Construed in favor of the verdict, the evidence showed that the elderly victim rented an upstairs garage apartment in Floyd County. Haymer knew the victim, sometimes stayed in his apartment, and would smoke crack cocaine with him.

On the afternoon of April 4, 2011, a father and his son were driving down the street in front of the victim’s garage apartment when they heard a loud crash. The father turned in his seat and saw the victim coming head-first through a closed glass window of the apartment. The window was located above a garage door, approximately ten feet from the ground. Upon seeing the victim strike the ground, the father and son immediately stopped their vehicle and ran to render aid. The father called 911 and attempted to speak with the victim, but he was too injured to respond.

Through the apartment windows, the father and son saw someone’s shadow move quickly from one side of the apartment to the other. The son heard a noise coming from the back of the apartment, and he ran around the side of the building to investigate. When he looked around the corner, the son saw a man, who was wearing all black and carrying a black backpack, climbing out of another window of the apartment. The son askedhim, “[W]hy did [you] do that old man like that?” The man responded that he had set the old man on fire and then fled from the scene.

Emergency medical personnel and law enforcement arrived shortly thereafter. The victim’s shirt was wet, and he appeared to be burned around his face and on his chest under his shirt. The victim was transported to a local hospital, where further examination revealed that he had suffered burns to approximately one-third of his body. Because of the severity of his burns, he was transported by helicopter to a burn center later that day. The victim, however, never recovered from his injuries and was unable to speak with the police before his death.

Detectives assigned to the case searched the victim’s garage apartment after securing a search warrant. Although the first responders initially had detected a chemical odor, no flammable liquids were found in the apartment. There was no evidence of an explosion or fire damage, other than a toilet paper roll that appeared slightly burned. While the victim had tested negative for illegal drugs at the hospital, four crack pipes were found in his apartment. A cell phone also was discovered in the apartment, and a display screen on the phone indicated that it belonged to Haymer.

In addition to searching the apartment, the detectives interviewed the father and son who had been at the scene, as well as a woman who contacted them. The woman said that on the day of the incident, she had been smoking crack cocaine in a house located a few doors down from the victim’s apartment. According to the woman, there was a man whom she later identified as Haymer at the house smoking crack cocaine as well. Haymer left the house at one point to get more drugs. He returned about 15 to 30 minutes later, appearing agitated. The woman stated that Haymer, who was wearing dark clothing and had a dark bag with him, said that an old man had stolen his crack but that he “took care of him.” A few minutes later, the woman heard sirens and left the house.

After being arrested and advised of his rights under Miranda v. Arizona, 384 U. S. 436 (86 SCt 1602, 16 LE2d 694) (1966), Haymer agreed to speak with the detectives. During the interview, Haymer gave conflicting accounts of what had transpired. Haymer ultimately admitted that he had been at the apartment that day, but maintained that the victim was already burned when he got there and that the victim, injured and incoherent, dove through the window of his own accord. Haymer said that he then fled from the apartment with his backpack out of concern that he would be falsely accused of causing the victim’s burns and his fall from the window.

Haymer was indicted for multiple offenses, including murder and aggravated assault for burning the victim “with an unknown substance and source of ignition” and causing him to fall from the apartment window. At trial, the State’s theory of the case was that Haymer had gotten into an altercation with the victim over crack cocaine, culminating in Haymer burning the victim with an unknown substance, throwing him out of the window, and then fleeing from the scene with the unknown substance in his backpack. The State relied on several witnesses to support its theory of the case, including the detectives, the father and son, the woman who contacted the detectives, the victim’s treating physicians, and the medical examiner. The State also presented an audio recording of Haymer’s interview with the detectives.

In contrast, the defense’s theory of the case was that the victim was already burned when Haymer arrived at the apartment and then jumped out of the window because he was in a state of cocaine-induced “excited delirium.” The defense presented an expert forensic pathologist who opined that this was a possible explanation of what had occurred. In giving her opinion, the defense expert addressed the negative urinalysis drug test performed on the victim at the hospital and explained why, in her view, it did not eliminate the possibility of cocaine-induced excited delirium. Additionally, the defense argued that the lack of forensic evidence of chemicals or burn marks on the victim’s shirt indicated that the victim had put on his shirt after being burned, which the defense maintained was consistent with its theory that the victim had been injured before Haymer arrived at the apartment. The defense further argued that there was no evidence of a struggle in the apartment and that the father, son, and woman who testified to smoking crack cocaine with Haymer were all convicted felons and thus were not credible witnesses. With respect to Haymer’s conflicting statements to the detectives, the defense argued that both the detectives and Haymer had been playing “the interrogation game,” that both withheld information from each other and were “not showing their hands,” and that for this reason Haymer did not initially “put it all out on the table” upon being interrogated.

After hearing the conflicting testimony, the jury acquitted Haymer of murder but found him guilty of the lesser included offense of voluntary manslaughter and of aggravated assault. Haymer filed a motion for new trial, which the trial court denied, resulting in this appeal.

1. Haymer first contends that the evidence was insufficient to support his convictions for voluntary manslaughter and aggravated assault. We are unpersuaded.

A person commits voluntary manslaughter by causing “the death of another human being under circumstances which would otherwise be murder and if he acts solely as the result of a sudden, violent, and irresistible passion resulting from serious provocation sufficient to excite such passion in a reasonable person.” OCGA § 16-5-2 (a). A person commits aggravated assault, among other ways, by assaulting another “with any object, device, or instrument, which, when used offensively against a person, is likely to or actually does result in serious bodily injury.” OCGA § 16-5-21 (a) (2). In determining whether the evidence was sufficient to support Haymer’s convictions for voluntary manslaughter and aggravated assault,

we view the evidence in the light most favorable to the verdict, with the defendant no longer enjoying a presumption of innocence. We neither weigh the evidence nor judge the credibility of witnesses, but determine only whether, after viewing the evidence in the light most favorable to the prosecution, a rational trier of fact could have found the essential elements of [each] crime beyond a reasonable doubt.

(Citations and punctuation omitted.) Sidner v. State, 304 Ga. App. 373, 374 (696 SE2d 398) (2010).

Applying these principles, we conclude that the evidence presented at trial and summarized above — including the testimony of the father, the son, and the woman who saw Haymer before and after the incident — was sufficient to authorize a rational jury to find Haymer guilty beyond a reasonable doubt of voluntary manslaughter and aggravated assault. See Jackson v. Virginia, 443 U. S. 307 (99 SCt 2781, 61LE2d560) (1979). It was the role of the jury, rather than this Court, to resolve the conflicts in the witness testimony and thus to ascertain which version of events, the State’s or Haymer’s, was true. See Rollins v. State, 318 Ga. App. 311, 312 (733 SE2d 841) (2012). Accordingly, there was sufficient evidence to support the verdict, and the trial court did not err in denying Haymer’s motion for new trial on that asserted ground.

2. Haymer next contends that a remark made by the trial court during the defense’s cross-examination of the lead police detective was an impermissible comment on the evidence and improperly conveyed an opinion regarding the credibility of that witness. Specifically, during the cross-examination of the lead detective who participated in the custodial interrogation of Haymer, defense counsel highlighted the fact that the detectives told Haymer that his fingerprints were on the cell phone found in the victim’s apartment, even though the phone had never been dusted for fingerprints. Defense counsel’s questioning of the detective proceeded as follows:

[DEFENSE COUNSEL]: There were never any fingerprints on the phone.
[LEAD DETECTIVE]: And if there was we didn’t dust for any, no. It was just a tactic to see if he would be honest with us about where his phone was and who had his phone. And it worked.
[DEFENSE COUNSEL]: A dishonest tactic for honesty?
THE COURT: Argumentative. And it’s quite all right for the police officers to do that in order to test a person. So move on.

(Emphasis supplied.) Haymer argues that the trial court’s italicized comment violated OCGA § 17-8-57, necessitating a new trial. We agree.

“One of the trial judge’s most critical duties is to maintain complete impartiality in fact and in appearance throughout the proceedings and, most importantly, in front of the jury.” (Footnote omitted.) Paul S. Milich, Ga. Rules of Evidence § 2:3 (2012-2013 ed.). And “[e] very practitioner knows how eagerly alert jurors are to every utterance from the bench, and how sensitive is the mind of the juror to the slightest judicial expression.” (Citations and punctuation omitted.) Spivey v. State, 38 Ga. App. 213, 216 (143 SE 450) (1928). This concern over impartiality and jurors’ sensitivity to judicial expression is addressed in OCGA § 17-8-57, which provides:

It is error for any judge in any criminal case, during its progress or in his charge to the jury, to express or intimate his opinion as to what has or has not been proved or as to the guilt of the accused. Should any judge violate this Code section, the violation shall be held by the Supreme Court or Court of Appeals to be error and the decision in the case reversed, and a new trial granted in the court below with such directions as the Supreme Court or Court of Appeals may lawfully give.

“It is error to violate even the spirit of this section.” (Citation and punctuation omitted.) Chumley v. State, 282 Ga. 855, 857 (2) (655 SE2d 813) (2008). Furthermore, “[e]ven if defense counsel fails to raise an objection, if the trial court violates this statutory provision, we are required to order a new trial, and there can be no finding of harmless error.” (Citations and punctuation omitted.) Booker v. State, 322 Ga. App. 257, 259 (1) (744 SE2d 429) (2013). See State v. Gardner, 286 Ga. 633, 634 (690 SE2d 164) (2010); Sauerwein v. State, 280 Ga. 438, 439 (2) (629 SE2d 235) (2006).

Given that a new trial is mandated if a trial court violates OCGA § 17-8-57, the central question is what specific type of comments by a court fall within the statutory prohibition. As we have explained,

[t]he purpose of this statute, at least in part, is to prevent the jury from being influenced by any disclosure of the judge’s opinion regarding a witness’s credibility. The credibility of a witness is a material fact in every case, and any questions of credibility are for the jury to decide. Therefore, anything which tends to uphold, to support, to disparage, or to lower the character and the resulting credibility of the witness is vitally connected with the facts of the case.

(Punctuation and footnotes omitted.) Callaham v. State, 305 Ga. App. 626, 627 (1) (700 SE2d 624) (2010). See Murphy v. State, 290 Ga. 459, 460(2)(722 SE2d 51)(2012).Thus, a trial court violates OCGA § 17-8-57 by making a statement which “could have [been] interpreted” by the jury as expressing a favorable opinion on a witness’s credibility. Murphy, 290 Ga. at 461 (2). Furthermore, beyond the issue of witness credibility, a trial court violates the statute by offering an opinion in front of the jury on any disputed issue of material fact involved in the case. See Patel v. State, 282 Ga. 412, 413-414 (2) (651 SE2d 55) (2007); Byrd v. State, 307 Ga. App. 589, 590-592 (705 SE2d 690) (2011).

Applying these principles, the Supreme Court of Georgia in Murphy, 290 Ga. 459, concluded that the trial court violated OCGA § 17-8-57 in responding to an objection to a detective’s testimony. The trial court responded to an objection and commented, “You’re asking this Detective, who is a good detective, what is in... somebody else’s head.” Id. at 460 (2). The trial court further stated, “This [detective] has worked a lot of cases and he’s got a recollection and he’s got a written memorandum and hopefully between the two of those and his good efforts we’re going to find the truth of the matter.” (Punctuation omitted.) Id. The Supreme Court held that the trial court’s comments about the reliability of the detective and his investigatory techniques violated OCGA § 17-8-57 because they could have been construed by the jury as expressing a favorable opinion on the detective’s abilities and thus as bolstering his credibility. Id. at 461 (2).

The trial court’s comment in the present case similarly violated OCGA § 17-8-57. Through its comment, the trial court gave its imprimatur to the interrogation techniques used by the detectives while interviewing Haymer. Consequently, as in Murphy, the trial court’s comment could have been construed by the jury as expressing a favorable opinion on the lead detective’s abilities and thus as bolstering his credibility, which was a disputed material fact in this case.

Furthermore, in Dean v. State, 168 Ga. App. 172, 174-176 (3) (308 SE2d 434) (1983), we held that the trial court’s comment before the jury that a police interrogation complied with constitutional and statutory requirements constituted an impermissible expression of opinion. We reasoned that such a comment, which was made in the context of the trial court ruling on the admissibility of the defendant’s statement to the police, improperly bolstered the credibility of the interrogating officer and invaded the province of the jury, which was charged with ultimately determining what weight, if any, to give to the defendant’s statement. Id. See also Chumley, 282 Ga. at 856-858 (2); Ray v. State, 181 Ga. App. 42, 44 (3) (351 SE2d 490) (1986). Like in Dean, by intimating its approval of the lead detective’s interrogation techniques, the trial court bolstered the credibility of the detective and invaded the province of the jury, which was charged with ultimately determining what weight to afford the conflicting statements made by Haymer.

As the State notes in its brief, it is true that, generally speaking, “[a] trial judge’s explanation for a ruling on an objection neither constitutes an expression of opinion nor amounts to a comment on the evidence.” (Citations and punctuation omitted.) Williams v. State, 303 Ga. App. 222, 232 (8) (692 SE2d 820) (2010). See Paslay v. State, 285 Ga. 616, 618 (3) (680 SE2d 853) (2009) (“The rule set forth in OCGA § 17-8-57 does not generally extend to colloquies between the judge and counsel regarding the admissibility of evidence.”) (citation and punctuation omitted). It follows that OCGA § 17-8-57 is not violated if the trial court simply “inquire [s] as to the direction defense counsel [is] going with a particular line of questioning and encourage[s] counsel to move forward.” Creed v. State, 255 Ga. App. 425, 427 (1) (565 SE2d 480) (2002). But there nevertheless is a line that the trial court cannot cross when explaining the basis for its ruling. As the Supreme Court indicated in Murphy, 290 Ga. at 460-461 (2), gratuitous comments before the jury that go beyond explaining a ruling and plainly intimate the trial court’s opinion on the credibility of a witness or on a disputed issue of material fact are improper under OCGA § 17-8-57. See also Boyd v. State, 286 Ga. 166, 168 (3) (686 SE2d 109) (2009) (“Pertinent remarks made by a trial court in discussing the admissibility of evidence or explaining its rulings do not constitute prohibited expressions of opinion.”) (citations and punctuation omitted; emphasis supplied). Here, the trial court went beyond ruling that defense counsel’s question was argumentative to gratuitously comment on the propriety of the lead detective’s interrogation techniques, and, therefore, the court’s remark comes within the parameters outlined in Murphy.

Lastly, we note that the State relies upon Smith v. State, 292 Ga. 588, 589-590 (2) (740 SE2d 129) (2013), in arguing that there was no violation of OCGA § 17-8-57, but that case is distinguishable from the instant case. In Smith, the trial court, in instructing the prosecutor to narrow the scope of his direct examination of a police detective, referred to the detective as “a very thorough investigator” and stated that not “everything he found that day is relevant to the issues of this case.” Id. at 589 (2). The Supreme Court of Georgia held that the trial court’s comment did not violate OCGA § 17-8-57 because it occurred “solely in the context of explaining the court’s concern for the orderly and efficient presentation of testimony, and to ensure that the State would not require [the investigator] to testify about everything he learned during the investigation.” (Punctuation omitted.) Id. at 590 (2). The Supreme Court distinguished Murphy, 290 Ga. at 460 (2), stating that the trial court’s comment in that case “implicat[ed] witness credibility” and “went beyond explaining a ruling.” Smith, 292 Ga. at 590 (2). The present case is more like Murphy than Smith because the trial court “implicated] witness credibility” and “went beyond explaining a ruling” by gratuitously commenting on the propriety of the lead detective’s interrogation techniques after ruling that defense counsel’s question to the detective was argumentative.

For these reasons, the trial court committed reversible error in commenting to the jury that it was “quite all right” for detectives to provide false information to a suspect during a custodial interview to “test” the suspect. “Given the mandatory nature of OCGA § 17-8-57 and the case law interpreting it, we must reverse [Haymer’s] conviction and remand the case to the trial court for a new trial.” Murphy, 290 Ga. at 461 (2). See Gardner, 286 Ga. at 634; Sauerwein, 280 Ga. at 439 (2).

Decided August 27, 2013

Reconsideration denied September 16, 2013

Robert C. Rutledge for appellant.

Leigh E. Patterson, District Attorney, Suhirjahaan S. Morehead, Assistant District Attorney, for appellee.

3. Given our decision in Division 2, we need not address Haymer’s allegations of other impermissible comments by the trial court.

Judgment reversed and case remanded.

Miller, J., concurs. Ray, J., concurs in judgment only.

       See Bryan v. State, 271 Ga. App. 60 (1) (608 SE2d 648) (2004).

       It is true that the “mere overstatement by ... investigators as to how much inculpatory evidence they presently possessed does not affect the admissibility of a defendant’s statement.” (Emphasis supplied.) Wright v. State, 279 Ga. App. 155, 157 (2) (630 SE2d 656) (2006). But irrespective of whether a defendant’s statement is admissible as a threshold evidentiary matter, it is the role of the jury to ultimately determine what weight, if any, to afford such a statement, see Dean, 168 Ga. App. at 175-176 (3), and the context within which the statement was made would be relevant to the jury’s determination of that issue.


author: ELLINGTON, Presiding Judge.

text:
    A13A0977.
    BARNETT v. GEORGIA DEPARTMENT OF LABOR et al.
    (748 SE2d 688)
   ELLINGTON, Presiding Judge.

After being fired from his job at Sheila J. Butler and Company, Inc. (“the employer”), Danny Barnett applied for unemployment compensation benefits under Georgia’s Employment Security Law, OCGA § 34-8-1 et seq. The employer challenged Barnett’s application for unemployment benefits, contending that he was fired for violating orders, rules, or instructions, or for failing to perform duties of his employment, and was thus disqualified for benefits under OCGA § 34-8-194 (2) (A). A Department of Labor claims examiner determined that Barnett was qualified to receive unemployment benefits, and the employer appealed. After a hearing, an administrative hearing officer determined that Barnett was disqualified for benefits, and this decision was affirmed by the Department’s Board of Review (the “Board”) and then by the Superior Court of Carroll County. Pursuant to a granted application for discretionary appeal, Barnett appeals, contending that there was no evidence that he knew or should have known that the conduct his employer found objectionable could have resulted in termination and, therefore, that the Board erred in finding that his termination was caused by his conscious, deliberate fault. For the reasons explained below, we reverse and remand.

Under OCGA § 50-13-19, which governs judicial review of contested administrative decisions, “[j]udicial review of an administrative decision requires the court to determine [whether] the findings of fact are supported by any evidence and to examine the soundness of the conclusions of law that are based upon the findings of fact.” (Citation and punctuation omitted.) Pruitt Corp. v. Ga. Dept. of Community Health, 284 Ga. 158, 160 (3) (664 SE2d 223) (2008). The reviewing court “accepts the [agency’s] findings of fact if there is any evidence to support the findings, [but] the court may reverse or modify [an] agency decision . . . upon a determination that the agency’s application of the law to the facts is erroneous.” (Citations and punctuation omitted.) Id. at 161 (3). Thus, in reviewing a decision of the Board that an employee is disqualified from receiving unemployment compensation benefits, the reviewing court must affirm the decision of the Board, in the absence of legal error, if the Board’s decision is supported by any competent evidence in the administrative record. Williams v. Butler, 322 Ga. App. 220 (744 SE2d 396) (2013); see also N. Fulton Regional Hosp. v. Pearce-Williams, 312 Ga. App. 388, 390 (718 SE2d 583) (2011) (physical precedent only); Trent Tube v. Hurston, 261 Ga. App. 525 (583 SE2d 198) (2003). However, the Board’s application of the law to the facts is reviewed de novo. Pruitt Corp. v. Ga. Dept. of Community Health, 284 Ga. at 161 (3); N. Fulton Regional Hosp. v. Pearce-Williams, 312 Ga. App. at 390; Trent Tube v. Hurston, 261 Ga. App. at 525.

Because

Georgia, like the other states of the Union, has a strong public policy favoring payment of unemployment benefits to persons unemployed through no fault of their own[,] . . . [t]he burden is on the employer urging [a] disqualification for benefits to show by a preponderance of evidence that [an] applicant for compensation comes within the exception [claimed by the employer].

(Citation, punctuation and emphasis omitted.) Millen v. Caldwell, 253 Ga. 112, 113 (317 SE2d 818) (1984). “Indeed, disqualification is not appropriate unless the employer shows the discharge was caused by the deliberate, conscious fault of the employee.” (Punctuation and footnotes omitted.) Williams v. Butler, 322 Ga. App. at 223. See also McCauley v. Thurmond, 311 Ga. App. 636, 639 (716 SE2d 733) (2011) (“Disqualification is an exception to the statutory scheme for unemployment benefits [,] and the employer must show by a preponderance of the evidence that disqualification is appropriate.”) (citation and punctuation omitted).

In this case, the employer claimed that Barnett came within the exception set out in OCGA § 34-8-194 (2) (A), under which no unemployment benefits are due to an individual who is fired for failing to obey the employer’s rules. The Board adopted the findings of the hearing officer, who found that Barnett “used insubordinate language” in a document he submitted to Sheila Butler, the employer’s president and his supervisor, and that “a tone of disrespect” in that document was “violative of a reasonable standard of conduct.” The Board adopted the hearing officer’s conclusion that “[w]hen an employee violates a standard of conduct, it is the same as violating a rule. Therefore, [Barnett] is at fault in his discharge and a disqualification is required.”

As the decision of the hearing officer implies, the record contains no evidence that the employer had issued any formal order, rule, or instruction forbidding the use of insubordinate language or a tone of disrespect, nor any evidence that the employer made refraining from such conduct an express duty of Barnett’s employment. An employee cannot be disqualified for benefits, however, if

[t]he discharge occurred as a violation of the employer’s rule of which the claimant was not informed by having been made aware thereof by the employer or through common knowledge. Consistency of prior enforcement shall be taken into account as to the reasonableness or existence of the rule and such rule must be lawful and reasonably related to the job environment and job performance[.]

OCGA § 34-8-194 (2) (B) (iv). Furthermore, regulations for administering the Employment Security Law specify that, in showing fault, the employer has the burden of proving that the employee knew or should have known that the violation of the rule, order, or instruction could have resulted in termination. See Ga. Comp. R. & Regs. r. 300-2-1-.01 (9) (c); Davane v. Thurmond, 300 Ga. App. 474, 477 (685 SE2d 446) (2009); Barron v. Poythress, 219 Ga. App. 775, 777 (466 SE2d 665) (1996). Thus, “determination of a disqualifying fault must be made in the context of whether the employee would reasonably expect, under all the circumstances of employment, that sanction would result from a violation.” (Citation omitted.) Davane v. Thurmond, 300 Ga. App. at 477. It follows that in this case, where the alleged disqualification was Barnett’s violation of an unstated standard of reasonable conduct, the employer bore the burden of proving that Barnett knew or should have known that the terminology and tone he used in the document he submitted could result in his termination.

Viewed in the light favorable to Barnett as the employee, the evidence before the hearing officer showed the following. The employer is a health insurance broker that employed Barnett as its large group case manager from June 2, 2008, through January 20, 2012. In January 2012, Sheila Butler was restructuring compensation agency-wide; she informed Barnett that, instead of receiving a traditional salary, his team, which included his wife, would all share in a percentage of commissions earned on work assigned to the team.

Barnett was dissatisfied with this new compensation structure, which he interpreted as being made to pay his wife’s salary out of his own compensation. On January 17, 2012, he submitted a counter-proposal by e-mail, in which he described the percentage increase in his and his wife’s compensation from 2011 to 2012 as “intended to be degrading in nature” and stated that he and his wife appreciated receiving compensation that was “appropriate in structure and not contemptuous.” Barnett proposed a different compensation agreement and stated that, if Butler agreed to transfer to his wife sole responsibility, as well as all of the income, for the work that he and his wife had formerly shared, and agreed to execute an employment agreement with his wife, then he would tender his resignation. In the proposal, Barnett stated that he expected the proposal to bring Butler “tremendous joy” since she felt that he was a “thorn in [her] flesh.”

Contrary to Barnett’s prediction, Butler was offended, wondering “what right does an employee [have] to tell [her] what [she is] going to pay [her] employees and [to say that,] ... if [the employee’s] demand is met,... [he would] resign.” Three days later, Butler called Barnett into her office and handed him a written separation notice. In a notice to the Department, Butler gave as the reason for Barnett’s termination, “unable to negotiate reasonable terms for [further employment].” When asked to “[e]xplain the policy, order, rule or instruction the employee failed to follow,” Butler wrote in: “N/A.”

At the hearing on the employer’s appeal of the claims examiner’s decision, Butler described her interaction with Barnett in the days immediately preceding his termination as a “typical confrontation that took place within our agency any time things like this were discussed that he did not agree with.” Butler also testified that, a few weeks before she fired Barnett, he had removed all of his personal belongings from his office and insisted on communicating with her only via e-mail. According to Butler, in response to Barnett’s suggestion that they communicate only in writing, she went into his office, threw a printout of his e-mail on his desk, and said to him, “I cannot work like this anymore.” After that, Barnett did not speak to Butler for four days. Butler testified that she never advised Barnett that he was in jeopardy of losing his job except by telling him, on January 4, 2012, “I cannot work like this anymore.” She also testified that “in generosity” she paid Barnett two weeks severance pay “because he had no warning” that his employment was about to end and that she paid him for his accrued vacation time “because of his lack of warning.” At the hearing, Barnett testified that he had had no idea that he was in jeopardy of losing his job.

Decided September 17, 2013.

Daniel B. Greenfield, for appellant.

Samuel S. Olens, Attorney General, Kimberly B. Lewis, Assistant Attorney General, for appellee.

The Board’s finding that Barnett used insubordinate language and a tone of disrespect is supported by some evidence. To the extent that Barnett’s language and tone violated a standard of reasonable conduct, however, there was no evidence that the employer ever communicated such a standard to Barnett or enforced such a standard with him or other employees. See Millen v. Caldwell, 253 Ga. at 115. Rather, Butler had tolerated similar conduct by Barnett during more than three years of employment and had never issued any prior warnings that insubordination of that sort would lead to termination. Because the hearing officer apparently concluded that Barnett was disqualified for benefits based solely on his insubordination, without considering his evidence that he did not know that such conduct was likely to result in his termination, this Court is unable to determine whether the employer carried its burden of proving facts which would constitute grounds for denial of unemployment compensation under Georgia law. See id. at 115-116. Accordingly, this case is remanded to the superior court with direction that it remand to the Department for further proceedings consistent with this opinion. Id.; see also Davane v. Thurmond, 300 Ga. App. at 477 (employer failed to carry burden of showing that the employee should have known that her conduct would likely result in termination); Barron v. Poythress, 219 Ga. App. at 777 (accord).

Judgment reversed and case remanded.

Phipps, C. J., concurs. Branch, J., concurs in judgment only.

       Both the Commissioner of the Department of Labor and the employer opted not to participate in Barnett’s appeal to this Court.

       A court reviewing an agency decision
      shall not substitute its judgment for that of the agency as to the weight of the evidence on questions of fact. The court may affirm the decision of the agency or remand the case for further proceedings. The court may reverse or modify the decision if substantial rights of the appellant have been prejudiced because the administrative findings, inferences, conclusions, or decisions are: (1) In violation of constitutional or statutory provisions; (2) In excess of the statutory authority of the agency; (3) Made upon unlawful procedure; (4) Affected by other error of law; (5) Clearly erroneous in view of the reliable, probative, and substantial evidence on the whole record; or (6) Arbitrary or capricious or characterized by abuse of discretion or clearly unwarranted exercise of discretion.
      OCGA § 50-13-19 (h).

       An individual shall he disqualified for unemployment compensation benefits after the individual has been discharged or suspended from work... for failure'to obey orders, rules, or instructions or for failure to discharge the duties for which the individual was employed as determined by the Commissioner according to the circumstances in the case.... Notwithstanding the foregoing, in the Commissioner’s determination the burden of proof of just discharge or suspension for cause as set forth shall be on the employer and the presumption shall be with the employee).]
      OCGA § 34-8-194 (2) (A).

       “Fault” is a failure to follow rules, orders or instructions, or failure to discharge the duties for which the claimant was employed. Fault which is of a disqualifying nature cannot be a technical failing, a minor mistake or the mere inability to do the job. Rather, a breach of duty to constitute fault must take into consideration such factors as length of service, nature of duties, prior warnings, equal enforcement of all progressive discipline programs and any other factors which might be used to establish reasonable expectations that the discharge was imminent. The claimant must have been aware that a discharge would likely result from the violation of the rule. In the case of a discharge due to a violation of an employer’s rule, order or instruction, an employer has the burden of proving that the claimant knew or should have known that the violation of the rule, order or instruction could have resulted in termination.
      Ga. Comp. R. & Regs. r. 300-2-1-.01 (9) (c).

       OCGA § 34-8-194 (2) (A) (For disqualification based on the alleged violation of orders, rules, or instructions, or for failure to perform work duties, “the presumption shall be with the employee[.]”).

       According to Butler, such outbreaks of silence “happen[ed] a lot.” Barnett also removed his personal belongings from his office and offered to resign on other occasions, so that Butler expected him to quit at some point. There are various e-mails contained in the record that reflect a tumultuous atmosphere in the workplace, with conflicts among Butler, Barnett, and other employees alternating with apologies and attempts to interact calmly.


author: Phipps, Chief Judge.

text:
    A13A1274.
    LOCKHART v. THE STATE.
    (748 SE2d 694)
   Phipps, Chief Judge.

Dorina Lockhart was convicted of committing the following offenses against her husband’s nephews: (i) child molestation against D. G., by touching the child’s penis with her vagina; and (ii) statutory rape against that child’s brother, T. G. On appeal, Lockhart challenges the sufficiency of the evidence. We affirm.

When an appellant challenges the sufficiency of the evidence to support the conviction, “the relevant question is whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt.” So viewed, the evidence at the jury trial showed the following.

D. G., the subject of the child molestation charge, was 14 years old at the time of the trial. He recounted that his relationship with Lockhart changed when she began sending him Facebook messages. In one, she had asked him whether he liked her “more than an auntie”; in latter ones, she had added sexual content — asking, for example, about the size of his penis and whether it was big enough for her. Eventually, D. G. had two separate incidents of sexual contact with Lockhart. He testified that the first encounter occurred in a room at his grandparents’ house; Lockhart removed her clothing, pulled down his shorts and boxers, and “grinded” on him by rubbing her vagina against his exposed penis. D. G. testified that the second encounter had occurred in Lockhart’s vehicle; after she parked it one night in the driveway of his residence, Lockhart performed oral sex on him.

T. G., the subject of the statutory rape charge, was 15 years old at the time of the trial. He recounted that he, too, had intimate communications with Lockhart using Facebook, and had two separate instances of sexual contact with Lockhart. The first encounter, T. G. testified, occurred one afternoon in Lockhart’s car after she parked it in a desolate location; Lockhart performed oral sex on him, and they engaged in sexual intercourse. The second encounter, T. G. testified, occurred one evening at Lockhart’s home; they engaged in sexual intercourse.

D. G.’s and T. G.’s mother testified that, when she overheard a conversation between T. G. and another of her sons, she began suspecting inappropriate contact between Lockhart (who was her brother’s wife) and D. G. Subsequently, after T. G. used his mother’s cell phone to access Facebook without logging out, she used her cell phone to read what she discerned were Facebook exchanges between not only D. G. and Lockhart, but also between T. G. and Lockhart. After discussing with D. G. and T. G. what she had read, she reported the matter to police.

Decided September 18, 2013.

Teresa L. Smith, for appellant.

During an ensuing investigation, Lockhart submitted to an interview on May 20, 2011 by a deputy sheriff. After waiving her Miranda rights, Lockhart admitted to having “inappropriate” Face-book exchanges with D. G. and with T. G., and admitted that she had engaged in sexual intercourse with T. G., but denied having had any sexual contact with D. G. She revealed that, during the time in question, she was 22 years old. The jury was presented an audio-video recording of Lockhart’s interview. Lockhart elected not to testify, nor call any witnesses.

On appeal, Lockhart claims that certain of the state’s witnesses were not credible and that the state’s case contained additional weaknesses and inconsistencies. But “we do not . . . judge the credibility of witnesses, a job that rests squarely with the jury.” Moreover,

any evidentiary weaknesses, conflicts, or inconsistencies were for the jury to resolve. We do not speculate which evidence the jury chose to believe or disbelieve. Where as here, there was sufficient evidence, even though contradicted, to support each fact necessary to make out the state’s case, we must uphold the jury’s verdict.

Judgment affirmed.

Ellington, P. J., and Branch, J., concur.

Layla H. Zon, District Attorney, Agatha K. Romanowski, Assistant District Attorney, for appellee.

       OCGA § 16-6-4.

       OCGA § 16-6-3.

        Jackson v. Virginia, (emphasis in original). 443 U. S. 307, 319 (III) (B) (99 SCt 2781, 61 LE2d 560) (1979)

       The indictment alleged that the child molestation was committed between January 1, 2011 and January 31, 2011, and that the statutory rape was committed between February 1, 2011 and February 28, 2011.

        Hammontree v. State, 283 Ga. App. 736, 737 (1) (642 SE2d 412) (2007) (citations omitted).

        Dix v. State, 307 Ga. App. 684, 686 (1) (705 SE2d 903) (2011) (punctuation and footnote omitted). At the time of Lockhart’s trial in 2012, OCGA § 24-4-8 provided that “[t]he testimony of a single witness is generally sufficient to establish a fact”; OCGA § 16-6-3 (a) provided that “no conviction shall be had for [statutory rape] on the unsupported testimony of the victim.” See Williamson v. State, 315 Ga. App. 421, 424 (1) (b) (727 SE2d 211) (2012) (quantum of corroboration needed in a statutory rape case is not that which is in itself sufficient to convict the accused, but only that amount of independent evidence which tends to prove that the incident occurred as alleged; slight circumstances may be sufficient corroboration, and ultimately the question of corroboration is one for the jury); Hammontree, supra (victim’s testimony alone may suffice to establish the elements of child molestation).


text:
    A13A1423.
    PRATT v. THE STATE.
    (748 SE2d 692)
   Phipps, Chief Judge.

John Thomas Pratt was convicted of committing two counts of child molestation against C. F., by: (i) touching her vaginal area; and (ii) touching her breasts. In this appeal, he contends that the evidence was insufficient. We affirm.

When an appellant challenges the sufficiency of the evidence to support the conviction, “the relevant question is whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt.” So viewed, the evidence at the jury trial showed the following.

Pratt met C. F. when she was 13 or 14 years old; she attended the church he and his family attended and where he served as a youth leader. C. F. became close to the Pratts, started dating Pratt’s son, and “looked at [Pratt] as a father figure,” as her own father was then deceased. By February 2007, C. F. had begun spending nights at the Pratts’ residence.

When C. F. was 15 years old, in March 2007, Pratt was hospitalized for heart surgery. One night, C. F. stayed in the hospital room with Pratt, along with his wife. During the night, C. F. voluntarily got into the bed with Pratt. She testified that Pratt started rubbing her stomach, then moved his hand down and touched her pubic hair. C. F. told him to stop, and he complied. The next morning, C. F recounted, she told her boyfriend (Pratt’s son) what Pratt had done, but he responded that he did not believe her.

C. F. testified further that, prior to that night at the hospital, Pratt had broached the subject of the two of them having sex; and before and after that night, Pratt had inappropriately touched her. On one such occasion before that night, they were hugging while alone in his bedroom and he touched her breasts. She told him to stop, and he complied. On another occasion, when she vacationed at the beach with the Pratts in June 2007, Pratt touched her breasts while he was alone with her applying suntan location to her body. She told him to stop, and he complied. C. F. recalled that, around the time of that vacation, Pratt’s son ended their dating relationship.

Sometime after their beach vacation, C. F. told Pratt’s wife in his presence what had happened while she was lying in the hospital bed with Pratt. According to C. F., “Everyone was just mad and they told me not to tell anyone ... [bjecause he could get in trouble.” But later, in August 2007, C. F. told her mother and godmother about the hospital incident, and the police were contacted.

On appeal, Pratt acknowledges that C. F. was 15 years old at the time in question. However, he argues that her claims that he molested her were not credible, in light of other evidence adduced at trial. Pratt took the stand and denied ever molesting C. F, and he gave this version of what happened when C. F. got into his hospital bed:

When she laid back, I tried to scoot over and that was actually the side that the line, the — for my monitor and everything were on. And she laid down on the lines and it started pulling from my chest, and I had told her at that point, I said, “[C. F.j, you can’t lay back on this. Pm — I’m hooked up to all this stuff. You’re not going to be able to do that.”

Pratt testified that, with a sigh, C. F. got off the bed. Then later that night, Pratt recalled further, “I think she did try to attempt one other time, and I told her again, I said you — I stopped her before she had laid down, I said, You can’t lay down over here.’ ”

Additionally, Pratt cites evidence that, when C. F. was in his hospital bed, his body was connected to intravenous tubes and monitoring devices, and he was in pain. Therefore, Pratt argues, it was not reasonable to believe that he had any sexual intent. Moreover, he argues, it was not reasonable for a factfinder to conclude that, after one has been molested, one would thereafter voluntarily get into the perpetrator’s bed.

Pratt cites the testimony of his wife who, that night in his hospital room, sat in a recliner a few feet away from his bed. She testified that she had remained awake all that night; that nurses were entering the room continually; that C. F. had tried to curl up and sleep on Pratt’s bed, but could not because of various medical tubes and devices attached to him; and that she did not see any inappropriate conduct between Pratt and C. F. Pratt points out that, contrary to C. F.’s testimony that she had told Pratt’s son that he had inappropriately touched her when she was lying in his hospital bed, his son took the stand and testified that C. F. had not said anything to him about such an incident. Pratt points out that C. F. made no outcry to any adult that he had inappropriately touched her until months after the hospital stay — which was after his son ended his dating relationship with her. Finally, Pratt cites evidence he elicited that, during the time C. F. was spending time with his family, she was prescribed medication for depression, which she admittedly sometimes failed to take as prescribed; and the testimony of C. F.’s friend who had also taken part in Pratt’s youth ministry, that C. F. was “ballistic” and “wasn’t able to act normal” if “she was off her medicine.”

Notwithstanding, at this appellate juncture, “[Pratt] no longer enjoys the presumption of innocence. Moreover, [this court] does not re-weigh the evidence or resolve conflicts in testimony, but rather defers to the jury’s assessment of the weight and credibility of the evidence.”

We do not speculate which evidence the jury chose to believe or disbelieve. Where as here, there was sufficient evidence, even though contradicted, to support each fact necessary to make out the state’s case, we must uphold the jury’s verdict.

Judgment affirmed.

Ellington, P. J., and Branch, J., concur.

Decided September 18, 2013.

Brown & Gill, Angela B. Dillon, for appellant.

Daniel J. Porter.; District Attorney, Richard A. Vandever, Assistant District Attorney, for appellee.

       OCGA § 16-6-4 (a) (2007) (“Aperson commits the offense of child molestation when he or she does any immoral or indecent act to or in the presence of or with any child under the age of 16 years with the intent to arouse or satisfy the sexual desires of either the child or the person.”). The indictment alleged that Pratt committed the offenses between March 1, 2007 and March 31, 2007.

        Jackson v. Virginia, 443 U. S. 307, 319 (III) (B) (99 SCt 2781, 61 LE2d 560) (1979) (emphasis in original).

       Pratt recites in his brief that “[C. E] . .. was 15 at the time of the incidents.”

        Redd v. State, 232 Ga. App. 666 (1) (502 SE2d 467) (1998) (reiterating that “the test established in Jackson is the proper test for [the appellate court] to use when the sufficiency of the evidence is challenged”) (citation and punctuation omitted).

        Walker v. State, 282 Ga. 406 (651 SE2d 12) (2007) (citations omitted).

        Dix v. State, 307 Ga.App. 684, 686 (1) (705 SE2d 903) (2011) (footnote omitted); see Lackey v. State, 286 Ga. 163, 165 (1) (686 SE2d 112) (2009) (“Criminal intent is a question for the jury and may be inferred from conduct before, during and after the commission of the crime.”) (citation and punctuation omitted); Hammontree v. State, 283 Ga. App. 736, 737 (1) (642 SE2d 412) (2007) (noting that victim’s testimony alone may suffice to establish the elements of child molestation); Gibbs v. State, 256 Ga. App. 559, 560 (568 SE2d 850) (2002) (concluding that evidence that defendant touched victim’s breasts and vaginal area was sufficient to support child molestation conviction); Redd, supra at 666-667 (1) (concluding that evidence was sufficient to sustain child molestation convictions, where the victim, a nine-year-old niece of defendant’s girlfriend, testified that defendant had rubbed her “boobs” and her “privates” beneath her nightgown and panties one night when she slept in the same bed with defendant and defendant’s girlfriend, and where defendant stopped when the victim told him to stop).


author: Branch, Judge.

text:
    A13A0825.
    POLLY v. THE STATE.
    (748 SE2d 696)
   Branch, Judge.

After he pled guilty to fifty-five counts of criminal factoring of financial transaction card records, thirty-nine counts of theft by conversion, four counts of theft by taking, and one count of theft by deception, Randy Lee Polly was sentenced to twenty years, with eight months to serve in confinement and the balance to be served on probation. As a special condition of his probation, Polly was required, among other things, to pay $30,000 in restitution to his victims. The restitution was to be paid in monthly installments of $500 over a period of five years, beginning with Polly’s release from jail. After he violated his probation, the conditions of Polly’s probation were subsequently amended to require him to provide proof of any earned income, a written statement of his monthly expenses, and proof of any child support payments he made. The State petitioned to revoke Polly’s probation after he consistently failed to meet the conditions thereof. Following a hearing, the trial court granted that petition. Polly thereafter filed a motion for an out-of-time appeal from the revocation order, which the trial court granted. Polly then filed what he termed a “second amended motion for new trial,” seeking a new hearing on the issue of his probation revocation. Following an evidentiary hearing, the trial court denied this motion. Polly subsequently filed an application for a discretionary appeal, which we granted.

On appeal from the denial of his motion for a new probation revocation hearing, Polly argues that the trial court illegally increased his sentence when it modified the conditions of his probation so as to require Polly to provide proof of any child support payments he made. He further contends that the trial court erred when it revoked his entire probation for failure to provide proof of child support payments, as that requirement represented a general, rather than special, condition of his probation. Polly also asserts that the trial court erred when it revoked his probation without determining whether Polly had the ability to make both the required monthly restitution payments and his child support payments. Additionally, Polly argues that the trial court should have reduced the amount of restitution he was ordered to pay by the amount of restitution paid to the victims by his co-defendant. Finally, Polly claims that he received ineffective assistance of counsel with respect to his probation revocation. We find no error and affirm.

The record shows that Polly entered his guilty plea in December 2007 pursuant to an agreement he negotiated with the State. At the plea hearing, the State made clear to the trial court and to Polly that the only reason it was not asking to have Polly serve more time in prison was because it wanted his victims to receive restitution.

In June 2008, Polly was arrested for probation violations, including the fact that he was seriously delinquent on his restitution payments. The State thereafter filed a petition to revoke Polly’s probation, and on September 18, 2008, the trial court held a hearing on that petition. At that hearing, Polly admitted the probation violations set forth in the State’s petition. His lawyer, however, argued that Polly was financially unable to pay $500 per month in restitution, in part because Polly had child support obligations of $192 per week. The attorney therefore suggested that the court reduce the amount of the monthly payments. The trial court refused to lower those payments, noting that Polly’s probated sentence was based on his agreement, negotiated with the State, to pay a minimum of $500 per month in restitution. The court explained to Polly that he had committed serious crimes, that he would probably have to work two or three jobs to be able to keep up with his financial obligations, but that meeting the obligation of restitution was the only thing keeping Polly from serving a significant prison sentence. The trial court then revoked Polly’s probation for the amount of time he had been jailed awaiting the revocation hearing and reinstated his probation with all of the original conditions and two new conditions. One of those conditions required Polly to provide his probation officer with proof of any earned income, a written statement of his expenses, and proof of any child support payments he made. The second condition required Polly to provide a copy of his income tax return no later than May 1 of each year.

Following the revocation hearing and his release from jail, Polly did not comply with any of the conditions of his probation. Specifically, he failed to report to his probation officer, to make any payments toward restitution or his court-imposed fines, or to provide a written statement of his expenses and proof of child support payments. In December 2008, therefore, the State filed a second petition to revoke Polly’s probation. Polly testified at the hearing on that petition, and admitted that he had not complied with any of his probation conditions. At the conclusion of his testimony, Polly was asked by his attorney if there was anything else he wanted to say to the court. Polly responded:

Yes .... I’m tired of being on probation. I mean, the bottom line is,... whatever has to be done, I mean I can’t pay $500 a month like y’all are asking. I can’t do it. My kids are starving to death. I’ve been locked up eight months.... I’ve tried every way in my power to pay this and, I’m sorry, if you’re going to take my probation, just take it all, because [revoking] two years ain’t going to do nothing, because I’m going to be right back in here again, because I cannot pay $500 a month.

His lawyer then asked Polly if he understood he was “facing a very long, serious prison sentence,” and Polly stated that he did. Polly’s attorney then asked, ‘You want your entire probation revoked?”; Polly replied, ‘Yes.”

During his closing argument, Polly’s attorney stated that his client could not pay restitution and therefore the court’s only choice was to revoke probation. Polly’s lawyer also told the court, “I’ve gone over this extensively with Mr. Polly. He is very aware that if the court revokes the entire balance, he could literally spend the next... 18 years of his life in prison.” Immediately after this statement, the lawyer turned to Polly and the following exchange took place:

[Attorney]: You [Polly] realize that you would not get out of jail, very possibly, until [you were] 54 years old?
[Polly]: I can’t pay it.
[Attorney]: That’s what you’re asking the court to do here today?
[Polly]: Yes.
[Attorney]: With the full knowledge you could spend, day for day, the next 18 years in prison?
[Polly]: [Nods head affirmatively.]

Following this exchange in open court, the trial judge announced he was revoking the balance of Polly’s probation, explaining:

Probation is a privilege, and when this court is faced with a situation [where the evidence shows that] a probationer has absolutely failed and thus refused ... to perform any term and condition of probation, then the court would be doing a disservice to the public to expect that Mr. Polly would [make] any additional effort to be compliant with probation.

The judge then asked Polly whether he knew the sentence that had just been imposed, and Polly stated that he did. The court then asked Polly, “And that’s the sentence you asked the court to impose, correct?”; Polly replied, “Yes.”

At the hearing on his motion for a new probation revocation hearing, Polly testified that his request that probation be revoked was based on the advice of his attorney, who told him that he would likely serve only two years before being paroled. Additionally, Polly claimed that his failure to comply with the condition that he pay restitution resulted from the trial court’s imposition of the additional condition that he provide proof of any child support payments he made. Polly explained that given this requirement, he felt compelled to make the weekly child support payments. And because he was now compelled to make his child support payments, he could not also make the required restitution payments. Notably, however, Polly did not provide any proof that he had, in fact, made any child support payments.

1. Polly first contends that the trial court erred when it modified the conditions of his probation to require him to provide proof of child support payments, because this new condition constituted an illegal increase in his sentence. We disagree.

Under Georgia law, a trial court has the power to modify or change the conditions of a defendant’s probation at any time, provided the change or modification does not represent an increase in the defendant’s sentence. See Staley v. State, 233 Ga. App. 597, 599 (505 SE2d 491) (1998); OCGA § 42-8-34 (g). Polly asserts that the requirement that he provide proof of the child support payments he made illegally increased his sentence, because it increased the monthly amount he was required to pay as a condition of his probation. See Harris v. State, 261 Ga. 859, 860 (2) (413 SE2d 439) (1992) (trial court illegally increases a defendant’s sentence when, after the defendant has begun serving that sentence, it increases the amount of restitution the defendant must pay). Specifically, Polly argues that the requirement that he provide proof of any child support payments obligated him to make those payments every week, whereas before he had been able to negotiate both the amount and timing of the payments with his ex-wife. We find no merit in this argument.

First, as Polly acknowledged at the hearing below, his obligation to make child support payments was imposed by a different court, at some time before he was convicted and sentenced in this case. He further acknowledged that he was under a court order to make those payments and that if his ex-wife reported to the court which entered that order that he was not paying child support, he would be jailed for contempt. Moreover, the trial court in this case did not require that Polly make his child support payments. Rather, it required that Polly provide proof of any child support payments he did make, together with a written list of his other expenses and proof of any income. And the trial court imposed this condition after Polly represented, during his first probation revocation hearing, that he was delinquent in his restitution payments, at least in part, because of his child support obligations. Thus, it appears that the requirement that Polly provide verification of any child support payments was imposed as part of a condition designed to ensure that Polly was making, at the very least, all of the restitution payments he was financially capable of making. Given that fact, and given that it did not increase the amount Polly was obligated to pay as part of his sentence, the condition did not constitute an illegal increase in that sentence. Staley, 233 Ga. App. at 599 (an additional condition of probation that bears a logical relationship to the rehabilitative scheme of the sentence does not constitute an additional punishment).

2. Georgia law authorizes a trial court to revoke the entire balance of a defendant’s probation only where the defendant has violated a special, rather than a general, condition of that probation. See Jowers v. Washington, 284 Ga. 478, 482 (2) (668 SE2d 703) (2008); OCGA § 42-8-34.1 (e). And for a condition to constitute a “special” condition, the sentencing document must specifically designate it as such and must also state that failure to comply with the condition authorizes the court to require the defendant to serve the balance of the sentence in confinement. Gamble v. State, 290 Ga. App. 37, 39 (1) (658 SE2d 785) (2008); OCGA § 42-8-34.1 (a).

Here, Polly contends that the requirement that he provide proof of any child support payments failed to meet the statutory requirement for a special condition, and therefore must be considered a general condition of his probation. Even assuming that the child support verification requirement represents only a general condition of probation, that fact does not help Polly. The trial court based the revocation of Polly’s probation on his failure to comply with four different terms of his probation, including his failure to comply with the special condition that he make restitution payments. Thus, because Polly admitted he had failed to make the required restitution payments, the trial court did not abuse its discretion in revoking the entire balance of Polly’s probation. See Gray v. State, 313 Ga. App. 470, 471 (722 SE2d 98) (2011) (“[t]his court will not interfere with a revocation unless there has been a manifest abuse of discretion on the part of the trial court”) (citation and punctuation omitted).

3. Relying on the United States Supreme Court’s holding in Bearden v. Georgia, 461 U. S. 660 (103 SCt 2064, 76 LE2d 221) (1983), Polly asserts that the trial court erred when it revoked his probation without determining whether Polly had the financial ability to make both the required monthly restitution payments and his child support payments. We disagree.

Bearden held that where “the State [through the sentencing court] determines a fine or restitution to be the appropriate and adequate penalty for the crime, it may not thereafter imprison a person solely because he lacked the resources to pay it.” 461 U. S. at 667-668 (II). Thus, in revocation proceedings based on a defendant’s failure to pay a fine or restitution imposed unilaterally by the sentencing court, that court “must inquire into the reasons for the failure to pay.” (Emphasis omitted.) Johnson v. State, 307 Ga. App. 570, 571 (707 SE2d 373) (2011). Given its holding, Bearden does not apply to the instant case, as the trial court did not unilaterally impose the restitution payments at issue. Rather, Polly “negotiated and agreed to [all the terms of] his probated sentence,” including the condition requiring him to pay $500 per month in restitution, “to avoid incarceration.” Dickey v. State, 257 Ga. App. 190, 192 (1) (570 SE2d 634) (2002).

In Dickey, the defendant pled guilty to theft by taking over $160,000 from his employer and negotiated a probated sentence that required him to make restitution by a certain date. Id. at 190-191. The defendant had paid only $2 by that date, and the trial court revoked his probation. Id. at 191. The defendant argued on appeal that the trial court erred because there was no evidence that his failure to pay was wilful — i.e., that he had the financial ability to pay the restitution. Id. at 191 (1). We rejected that argument, finding that the defendant’s breach of the plea agreement he made with the State, under which he promised to pay significant restitution by a certain date in exchange for avoiding imprisonment, allowed the trial court to revoke the defendant’s probation. Id. at 192 (1). We reasoned that when Dickey negotiated and entered the plea agreement, he

knew that he would be required to pay $100,000 of restitution by [a certain date]. Dickey also knew, better than the assistant district attorney and the trial judge, whether he had the ability to make this payment. If Dickey had any doubt concerning his ability to make the payment, he should have informed the other parties before everyone agreed to the terms. There is no evidence that he did so. Dickey’s silence, when he should have spoken, and his ultimate breach, make him culpable. He was not without fault.

Id. Thus, the trial court did not err in revoking Dickey’s probation and sentencing him to imprisonment in accordance with the plea agreement, because Dickey had “secure [d] his freedom by negotiating an agreement that require[d] restitution.” Id. at 193 (1).

The same rationale applies in this case. The transcript of the plea hearing shows that Polly secured his freedom from incarceration by negotiating an agreement that required specific restitution payments. If Polly had doubts about his ability to meet these obligations, he should have so informed the State and declined the agreement. He did not do so. “Having breached the plea agreement that he negotiated, [Polly] cannot now insist that he remain on probation and be excused from performance due to indigence.” Dickey, 257 Ga. App. at 194 (1). Accordingly, because Polly failed to comply with a specifically negotiated term of his plea agreement, the trial court acted properly in revoking his probation and sentencing him according to the terms of that agreement. Id.

4. The record shows that Polly was indicted jointly with his co-defendant on 18 of the 99 counts of which he was convicted. His co-defendant also entered into a negotiated plea agreement, under which she agreed to pay $6,697.40 in restitution, and the record shows that she paid at least $5,300 of that amount. Citing OCGA § 17-14-6, Polly argues that the trial court should have reduced the amount of restitution he was ordered to pay by the amount of restitution paid by his co-defendant. We disagree.

The flaw in Polly’s argument is that it assumes he and his co-defendant stole no more than $30,000 from the victims. The evidence shows, however, that Polly and his co-defendant stole more than $43,000 from the victims. Thus, even if both Polly and his co-defendant met their individual restitution obligations in their entirety, the victims would not be made whole. Given these circumstances, the trial court was not obligated to set off any restitution amounts paid by Polly’s co-defendant against the amount of restitution paid by Polly.

5. In his final enumeration of error, Polly asserts that he received ineffective assistance of counsel with respect to his probation revocation. To prevail on a claim of ineffective assistance, Polly bears the burden of proving both that the performance of his lawyer was deficient and that he suffered prejudice as a result of this deficient performance. Strickland v. Washington, 466 U. S. 668, 687 (III) (104 SCt 2052, 80 LE2d 674) (1984). If Polly cannot meet his burden of proving either prong of the Strickland test, then we need not examine the other prong. Battles v. State, 290 Ga. 226, 229 (2) (719 SE2d 423) (20 H).

(a) Polly argues that his attorney performed deficiently at his first probation revocation hearing when the lawyer failed to object to the trial court adding the child support payment verification requirement as a condition of Polly’s probation. As discussed in Division 1, however, that condition did not constitute an illegal increase in Polly’s sentence, and the trial court was therefore authorized to impose that condition. Accordingly, the failure of Polly’s lawyer to object to this condition was not deficient performance and, therefore, does not constitute ineffective assistance of counsel. See Gibson v. State, 291 Ga. App. 183, 188 (3) (661 SE2d 850) (2008) (“[failure to make a meritless or futile objection or motion cannot be evidence of ineffective assistance”) (citation and punctuation omitted).

(b) Polly also claims that his lawyer provided ineffective assistance at his second probation revocation hearing, when the lawyer failed to provide evidence of Polly’s inability to make restitution payments and when he stipulated that the additional probation conditions imposed at the first revocation hearing were special conditions of probation. Pretermitting whether this conduct constituted deficient performance by Polly’s lawyer, Polly cannot show he suffered prejudice as a result of this conduct.

Decided September 20, 2013.

Zachary E. Tumlin, for appellant.

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

With respect to the lawyer’s failure to introduce evidence of Polly’s ability to pay restitution, Polly himself produced no such evidence at the hearing on his motion for a new probation revocation hearing. Given his failure to show either what evidence the lawyer should have introduced or that such evidence would have supported Polly’s claim of financial inability to pay restitution, Polly cannot prove the prejudice prong of the Strickland test. Wynn v. State, 322 Ga. App. 66, 70 (4) (a) (744 SE2d 64) (2013) (where ineffective assistance claim is premised on trial counsel’s failure to present certain evidence, defendant must make a proffer of that evidence and show it would have been favorable to him); Pruitt v. State, 323 Ga. App. 689 (2) (747 SE2d 694) (2013) (“[i]n considering an ineffectiveness claim, there is a strong presumption that counsel’s conduct falls within the wide range of reasonable professional assistance, and if trial counsel does not testify, it is extremely difficult to overcome this presumption”) (citation and punctuation omitted).

Nor can Polly show that he was prejudiced by his lawyer’s stipulation that the additional conditions of probation constituted special, rather than general, conditions of probation. As noted in Division 2, supra, Polly’s failure to make the required restitution payments, without more, supported the trial court’s revocation of his probation. Accordingly, Polly cannot show “a reasonable probability that, but for counsel’s unprofessional errors, the result of the proceeding would have been different.” Strickland, 466 U. S. at 694 (III) (B).

For all of the foregoing reasons, we affirm the trial court’s denial of Polly’s motion for a new probation revocation hearing.

Judgment affirmed.

Phipps, C. J., and Ellington, P. J., concur.

       OCGA § 16-9-36.1.

       OCGA § 16-8-4.

       OCGA § 16-8-2.

       OCGA § 16-8-3.

       The victims were a husband and wife who had previously employed Polly to manage a sporting goods store they owned.

       The State argued that the trial court should revoke only seven or eight years of Polly’s probation and leave the restitution requirement in place.

       Where a defendant is found guilty of violating a general condition of probation, the trial court may revoke no more than two years of the defendant’s probation. OCGA § 42-8-34.1 (c).

       Polly does not contest that the requirement he make the restitution payments is a special condition of his probation.

       That statute provides, in relevant part, “[w]here an offender has made total or partial restitution to a victim, the ordering authority shall set off any such amounts and reduce the amount payable to the victim.” OCGA § 17-14-6 (a).

       The record shows that Polly was charged individually in 81 counts with stealing (by various methods) $29,852.35 from the victims. He was charged jointly with his co-defendant in another 18 counts with stealing an additional $13,191.71 from the victims. Polly pled guilty to all charges.