author: MIKELL, Judge.

text:
    A11A1453.
    RADIO SANDY SPRINGS, INC. v. ALLEN ROAD JOINT VENTURE.
    (715 SE2d 752)
   MIKELL, Judge.

In this dispossessory action, tenant Radio Sandy Springs, Inc. (“RSS”), appeals from the trial court’s order granting summary judgment to landlord Allen Road Joint Venture (“Allen Road”); awarding a money judgment to Allen Road; and denying RSS’s motion for summary judgment. The trial court’s order was entered on April 29, 2010; RSS filed its notice of appeal on May 27, 2010. In its brief, Allen Road argues that this Court lacks jurisdiction to hear the appeal because RSS failed to follow the requirement of OCGA § 44-7-56 that an appeal in a dispossessory proceeding be filed within seven days of the entry of judgment. We agree and dismiss the appeal.

Although Allen Road has not filed a motion to dismiss the appeal in this Court, it is nevertheless the duty of this Court on its own motion to inquire into its jurisdiction. Further, “[ijf this Court finds that it has no jurisdiction over an appeal, it has the authority to dismiss the appeal on its own motion.”

Under OCGA § 44-7-56, governing appeals in dispossessory proceedings, “[a]ny judgment by the trial court shall be appealable pursuant to Chapters 2, 3, 6, and 7 of Title 5, provided that any such appeal shall be filed within seven days of the date such judgment was entered.” The record reflects that Allen Road filed a dispossessory proceeding against RSS in the State Court of Fulton County on December 16, 2008. On January 16, 2009, RSS transferred possession of the premises to Allen Road. Thus, the issue of possession was resolved, and the trial court did not issue a writ of possession in its order. Nonetheless, as explained in Ray M. Wright, Inc. v. Jones it is the underlying subject matter of the litigation, rather than the relief granted, which controls in determining the proper appellate procedure to follow. Here, as in Wright, the action began and continued as a dispossessory action. Further, as this Court pointed out in Wright, OCGA § 44-7-56 “is not limited in scope to a particular type of judgment. It simply provides that ‘any judgment’ must be appealed within seven days.”

Our decision in America Net, Inc. v. U. S. Cover, Inc., is inapposite to the case at bar. America Net began as a dispossessory action in magistrate court. The tenant surrendered the premises, and the parties then transferred the case by consent to state court, in order to litigate amounts due under the lease agreement. On appeal from an adverse order of the state court, the tenant failed to comply with the seven-day limit provided in OCGA § 44-7-56. This Court ruled that the seven-day limit did not apply. We reasoned that the parties effectively converted the litigation from a dispossessory action to a conventional contract action under a lease, because possession was no longer at issue and because the parties stipulated to the transfer to the state court of the contractual dispute as to rent due under the lease. We noted that, outside the narrow circumstances presented in America Net, “once an action was filed as a dispossessory action, it would always retain that character regardless of the issues in dispute or the wishes of the parties.” Therefore, because the circumstances present in America Net are not present in the case at bar, this case has retained its character as a dispossessory action.

Decided July 29, 2011.

Francisco J. Marquez, for appellant.

Wiles & Wiles, Deborah V. Haughton, Noel J. Cotney, Jr., for appellee.

“The proper and timely filing of a notice of appeal is an absolute requirement to confer jurisdiction upon the appellate court.” Under OCGA § 44-7-56, RSS was required to file its notice of appeal within seven days of the entry of the court’s order. Because RSS’s notice of appeal was filed more than seven days after the judgment was entered, it was untimely, and this Court lacks jurisdiction to consider the appeal.

Appeal dismissed.

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

       The trial court awarded Allen Road $12,833.78 past due rent, $1,600 holdover rent, $1,218.93 interest, $2,151.70 late charges, $2,670.66 attorney fees, and $167.50 costs of court.

        Couch v. United Paperworkers Intl. Union, 224 Ga. App. 721 (482 SE2d 704) (1997). Accord Southwest Health & Wellness, LLC v. Work, 282 Ga. App. 619, 622 (1) (a) (639 SE2d 570) (2006).

       (Citation omitted.) Ga. Dept. of Transp. v. Douglas Asphalt Co., 297 Ga. App. 511, 512 (677 SE2d 728) (2009) (whole court).

       239 Ga. App. 521 (521 SE2d 456) (1999) (appeal from arbitration award in dispossessory proceeding was governed by seven-day rule for filing appeal found in OCGA § 44-7-56).

       Id. at 522 (appeal from arbitration award in dispossessory proceeding was governed by seven-day rule for filing notice of appeal found in OCGA § 44-7-56).

       See id. at 523. Contrary to the statement of facts provided in RSS’s brief, the record reflects that the instant case was originally filed in state court, not magistrate court, and that it has not been transferred to any other court.

       Id. at 522.

       243 Ga. App. 204 (532 SE2d 756) (2000).

       Id. at 204 (1). For ease of reference, we refer to the defendant subtenant in America Net as “tenant.”

       Id. at 204-205 (1).

       Id. at 207 (1).

       Id.

       (Citation omitted.) Hardrick v. Morgan, 240 Ga. App. 155 (522 SE2d 742) (1999).

       See Lewis v. Countrywide Funding Corp., 225 Ga. App. 440 (484 SE2d 66) (1997).


source: Caselaw Access Project

author: Mikell, Judge.

license: Public Domain

text:
    A11A0806.
    HARRIS v. THE STATE.
    (715 SE2d 757)
   Mikell, Judge.

Following.a jury trial in the Superior Court of Clayton County, Rico Montez Harris was convicted of two counts of armed robbery, four counts of aggravated assault and two counts of possession of a weapon during the commission of a crime. Harris challenges the sufficiency of the evidence, arguing that he was improperly convicted on the uncorroborated testimony of an accomplice. Because we find that the accomplice testimony was sufficiently corroborated, we affirm Harris’s convictions.

“On appeal from a criminal conviction, the evidence must be construed in a light most favorable to the verdict and [Harris] no longer enjoys a presumption of innocence.” When evaluating the sufficiency of the evidence, the proper standard for review is whether a rational trier of fact could have found the defendant guilty beyond a reasonable doubt. An appellate court does not weigh the evidence or determine witness credibility.

So viewed, the record shows that on January 10, 2008, at approximately 7:30 p.m., Harris, armed with a handgun, and his co-defendant, Michael Lynch, walked into a Family Dollar store with their faces concealed and approached two cashiers, Alayna McDonald and Patricia Ann Williams. Harris held the gun up to McDonald’s head, and said “[b]aby girl, you know what time it is.” Understanding this to be a robbery, McDonald called the store’s assistant manager to the front of the store to obtain the keys to unlock the register. McDonald unlocked the register and handed its contents to Lynch, who was standing at the counter. The two men then fled the premises, and the incident was reported to the police. The police took the witnesses’ statements, and then used a canine unit to track the defendants’ scent through the woods behind the store and into a nearby subdivision.

McDonald testified that although Harris had his face covered, she could tell that he was an African-American teenager, he wore black clothing and he was the taller of the two men. She testified that Lynch was a white teenager who wore a green shirt and a green skull cap.

After the police took the description of the perpetrators, Lynch was suspected as the Caucasian male. A police officer went to his home to determine if he was involved. Lynch’s stepfather told the police that Lynch was not home, but that he had been wearing a green sweatshirt when he left the house earlier with a young black male.

A second robbery occurred on January 17, 2008, at approximately 2:00 p.m. at the Beauty Town Less shop (“Beauty Town”), located across the street from the Family Dollar store. Harris and Lynch, with faces concealed, entered the shop. Harris walked behind the counter, hit the cashier, Hyung Suk Kim, on the back of the head with his gun and demanded money. Once Kim opened the cash register, Lynch grabbed the cash inside, and both men fled. Kim followed the two men out of the store and watched them escape behind the store. Kim called the police and reviewed the store’s surveillance tape with them once they arrived. Kim told the police that the person holding the gun was a young African-American male who was wearing a black sweatshirt and the other person was a young male wearing a gray sweatshirt, but he could not tell his race.

Based on the store’s surveillance video, Officer David Ricks recognized Lynch from his work with the street level drug interdiction gang task force. Lynch was eventually located at the home of his girlfriend, Andrea Johnson, and was placed under arrest. Lynch was wearing blue jeans and a white tank top when the officers arrived at the house, but he had a gray sweatshirt nearby that matched the one on the surveillance tape. While Lynch was being detained, an officer drove Kim to participate in a line identification. Kim did not recognize the suspect, but did recognize the gray sweatshirt as one worn by one of the perpetrators.

Prior to charging Harris with the armed robberies, the police eventually ruled out two other African-American individuals as possible accomplices.

During his detention, Lynch confessed to the Beauty Town robbery and told the police about the robbery of the Family Dollar store. Lynch told the police that Harris was the African-American male who was also present at both robberies.

At Lynch’s request, the police brought Andrea Johnson to the police station for an interview. Prior to conducting her interview, the police allowed Johnson to speak to Lynch. Their entire conversation was monitored, and Lynch did not say anything to influence Johnson’s statement. Johnson gave specific information which verified Lynch’s statement, such as: Harris’ identity; that Harris was at her house shortly after the Beauty Town robbery; that Harris and Lynch gathered in her room and counted money on her bed; and that Harris was wearing a black sweatshirt and black jeans that day — the same clothing shown in the surveillance footage of the robbery. Johnson also told the police that Lynch admitted “he had done something wrong” with Harris at the Family Dollar store and that the robberies were Harris’s idea.

The jury found Harris guilty of both robberies. Lynch, as a condition of his guilty plea, testified at trial. Lynch testified that he, Harris, and another young man were involved in the robberies at the Family Dollar store and at Beauty Town.

Harris contends that he was improperly convicted on the uncorroborated testimony of an accomplice and thus the evidence presented at trial was insufficient to support his convictions arising from the armed robberies of the Family Dollar store or Beauty Town.

Although it is insufficient to sustain a conviction in a felony case upon the testimony of an accomplice alone under OCGA § 24-4-8, such conviction can be sustained if there are “corroborating facts or circumstances, which, in themselves and independently of the testimony of the accomplice, directly connect the defendant with the crime or lead to the inference that he is guilty.” The additional evidence “may be circumstantial and it may be slight” and it need “not of itself be sufficient to warrant a conviction of the crime charged.” “The sufficiency of [the] corroborating evidence is for the trier of fact to decide.” In this case, there was evidence from which a jury could find sufficient corroboration of Lynch’s testimony to support Harris’s convictions for both robberies.

1. As to Harris’s convictions stemming from the armed robbery of the Family Dollar store, Lynch testified that Harris and a third individual came to his house to get him to participate in a robbery of the Family Dollar store because they needed money. Lynch testified that he was wearing a green sweatshirt and Harris was wearing a black sweatshirt. Harris’s job during the robbery was to hold the gun and keep everybody still while Lynch took the money.

The testimony of McDonald and Williams, the victims of this robbery, corroborated Lynch’s testimony. Their testimony at trial established that the second perpetrator in the Family Dollar store robbery was a young, African-American male who was wearing a black sweatshirt. This physical description of the perpetrator that McDonald and Williams provided was consistent with Lynch’s testimony about what Harris was wearing that day. In addition to the physical descriptions, there was testimony from Johnson that Lynch told her he did “something wrong” with Harris at the Family Dollar store and that Harris had “initiated the pulling of the lick.” Although not the strongest corroboration, the testimony of the victims and Johnson was sufficient to corroborate Lynch’s testimony directly identifying Harris as the second perpetrator involved in the robbery. Accordingly, there is no violation of OCGA § 24-4-8, and the trial court did not err in denying Harris’s motion for directed verdict as to the Family Dollar store robbery.

Decided August 1, 2011.

Patricia F. Angelí, for appellant.

Tracy Graham-Law son, District Attorney, Adeline N. Alexander, Lalaine A. Briones, Assistant District Attorneys, for appellee.

2. As to the convictions arising from the second armed robbery, Lynch’s accomplice testimony at trial revealed that he and Harris followed the same course of action on January 17, 2008, to rob Beauty Town. Both men entered the store at the same time, Harris held the gun while Lynch took the money and exited the store first. This time, however, Lynch testified that he wore a gray sweatshirt and Harris wore the same black sweatshirt as before. This description of the men, their attire, and the order of events is corroborated by the testimony of the cashier, Kim, and the store’s surveillance video.

Additionally, Johnson’s testimony confirmed Lynch’s testimony regarding the robbery. Johnson testified that Lynch and Harris arrived at her house shortly after the Beauty Town robbery and appeared disturbed and upset. Both men proceeded up to her room and began to count money on her bed. Johnson also testified that Harris was wearing a black sweatshirt that day. Accordingly, the evidence was sufficient to sustain Harris’s conviction of the robbery of the Beauty Town store.

Judgment affirmed.

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

       Harris filed his notice of appeal on June 29, 2010. However, the notice of appeal was premature because his pending motion for new trial had not yet been ruled upon by the trial court. The notice of appeal ripened on November 10, 2010 when the trial court entered an order denying the motion for new trial. See Livingston v. State, 221 Ga. App. 563, 564 (1) (472 SE2d 317) (1996).

        Hillman v. State, 296 Ga. App. 310-311 (674 SE2d 370) (2009).

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

        Benbow v. State, 288 Ga. 192, 193 (702 SE2d 180) (2010).

       OCGA § 24-4-8 states that
      [t]he testimony of a single witness is generally sufficient to establish a fact. However, in certain cases, including . . . felony cases where the only witness is an accomplice, the testimony of a single witness is not sufficient. Nevertheless, corroborating circumstances may dispense with the necessity for the testimony of a second witness.

       (Citations and punctuation omitted.) Matthews v. State, 284 Ga. 819-820 (1) (672 SE2d 633) (2009).

       (Citations omitted.) Benbow, supra at 194.

       (Citation omitted.) Givens v. State, 227 Ga. App. 861, 862 (490 SE2d 530) (1997).

       (Citation omitted.) Matthews, supra at 820 (1).

        Benbow, supra at 194 (holding that even slight corroborating evidence is sufficient).

       See McDaniel v. State, 289 Ga. App. 722, 723 (1) (658 SE2d 248) (2008) (Evidence to corroborate testimony by a single accomplice may consist entirely of circumstantial evidence and may include defendant’s conduct before and after the crime was committed).

        Bearden v. State, 275 Ga. App. 378, 380 (1) (620 SE2d 613) (2005).


text:
    A11A1214.
    STEELE v. RIVERCHASE DEVELOPMENT COMPANY, INC.
    (715 SE2d 760)
   Mikell, Judge.

Riverchase Development Company, Inc. (“Riverchase”) sued Frank C. Steele, M.D., for repayment of a loan made pursuant to an oral agreement, and following a jury trial, obtained a judgment in the amount of $105,000. Steele appeals, contending that the trial court erred in refusing to consider his motion for summary judgment. We discern no error and affirm.

1. Steele asserts that the trial court erred in refusing to consider his motion for summary judgment because it was untimely filed. We do not agree.

The record shows that Steele filed a motion for summary judgment seven days before trial. Immediately prior to trial, Steele asked the trial court to address his motion. The trial court refused for the reasons that it was untimely filed and that the court would not delay the trial to consider the motion. The case was then presented to a jury, and a verdict was entered against Steele.

OCGA § 9-11-56 (b) states that a defending party “may, at any time, move . . . for a summary judgment in his favor as to all or any part” of the claim against him. However, this Court has held that the phrase “ ‘[a]t any time’ . . . does not mean that a motion for summary judgment may be filed without time limit whatsoever.” Uniform Superior Court Rule (USCR) 6.6 provides that “[mjotions for summary judgment shall be filed sufficiently early so as not to delay the trial. No trial shall be continued by reason of the delayed filing of a motion for summary judgment.” Steele’s motion for summary judgment was not in compliance with USCR 6.6 because it was filed a mere seven days before the trial in the case was scheduled to begin. The trial had been scheduled at least three months prior to the filing of the motion, and a scheduling order had been in place for nearly nine months. Steele argues that he experienced delays in filing his motion because of scheduling delays in obtaining a needed deposition. In order to consider Steele’s motion for summary judgment, however, the trial court would have been required to continue the trial in order to allow Riverchase to respond to the motion and in order to rule upon the motion. The trial court acted within its discretion in declining to consider Steele’s summary judgment motion.

2. Steele contends that the trial court erred in not granting his motion for summary judgment. Even if we viewed the trial court’s refusal to consider Steele’s motion as a denial thereof, we will not review the denial of a motion for summary judgment following a trial and judgment on the merits.

Decided August 1, 2011.

Stemberger, Cummins & Arnall, William J. Stemberger, Jr., for appellant.

Power, Jaugstetter & Futch, Patrick D. Jaugstetter, Gregory A. Futch, for appellee.

Judgment affirmed.

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

        Braselton Bros., Inc. v. Better Maid Dairy Products, 110 Ga. App. 515, 516 (1) (139 SE2d 124) (1964).

       Cf. Pullen v. Oxford, 227 Ga. App. 782 (1) (490 SE2d 478) (1997) (motion for summary judgment was not untimely and was properly considered by trial court; while filed somewhat later than usual, motion was filed more than 30 days before scheduled date of trial, motion did not cause delay in trial, and no continuance of trial was sought because of motion).

       See OCGA § 9-11-56 (c) (motion for summary judgment must be filed at least thirty days before date fixed for hearing).

       See USCR 8.1 and DeClue v. City of Clayton, 246 Ga. App. 487, 493 (4) (540 SE2d 675) (2000) (“The trial court has broad discretion in regulating its business and in scheduling trials”) (footnote omitted).

        Tensar Earth Technologies v. City of Atlanta, 267 Ga. App. 45, 48 (1) (598 SE2d 815) (2004).


author: PHIPPS, Presiding Judge.

text:
    A11A0981.
    JACKSON v. THE STATE.
    (715 SE2d 761)
   PHIPPS, Presiding Judge.

Kendrick Jackson appeals from a trial court order denying a motion to dismiss his indictment for an alleged violation of his constitutional right to speedy trial under the United States and Georgia Constitutions. Because we find the trial court’s order insufficient to allow us to determine whether the trial court abused its discretion, we vacate the judgment and remand the case for entry of an order including proper findings in accordance with Barker v. Wingo.

Constitutional speedy trial claims brought, as here, under the Sixth Amendment and the Georgia Constitution are evaluated according to the four-part test established in Barker. The Barker test requires the court to consider:

(1) the length of the delay, (2) the reason for the delay, (3) the defendant’s assertion of the right [to speedy trial], and (4) the prejudice to the defendant. The fourth factor requires the court to consider three interests: (i) preventing oppressive pretrial incarceration, (ii) minimizing anxiety and concern of the defendant, and (iii) limiting the possibility that the defense will be impaired.

Decided August 2, 2011.

William M. Olson, for appellant.

No one Barker factor is

either a necessary or sufficient condition to the finding of a deprivation of the right of speedy trial. Rather, they are related factors and must be considered together with such other circumstances as may be relevant. In sum, these factors have no talismanic qualities; courts must still engage in a difficult and sensitive balancing process.

“[I]t is not the job of the appellate court... to weigh the Barker factors in the first instance.” Rather,

[o]n appeal, we review the denial of a defendant’s constitutional speedy trial claim for an abuse of discretion. It is imperative, therefore, that in cases implicating a defendant’s constitutional right to speedy trial, the trial court enter findings of fact and conclusions of law consistent with Barker. Absent such findings, there is no exercise of discretion for this [c]ourt to review.

In its order, the trial court found that Jackson had shown no prejudice, but entered no findings as to the majority of the Barker factors.

While a trial court’s finding[ ] as to the presence or absence of prejudice [is] important, [it] cannot alone establish a defendant’s Sixth Amendment speedy trial claim without consideration of the other Barker criteria. Accordingly, we find the limited findings made by the trial court insufficient to provide for proper appellate review. The trial court’s order is vacated and the case remanded for the entry of a proper order pursuant to Barker.'

Judgment vacated and case remanded with direction.

Andrews and McFadden, JJ., concur.

Robert W. Lavender, District Attorney, for appellee.

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

       See Higgenbottom v. State, 288 Ga. 429, 430 (704 SE2d 786) (2011).

       Id. (citation omitted).

        Barker, supra at 533 (IV); see Higgenbottom, supra.

        State v. Pickett, 288 Ga. 674, 679-680 (2) (d) (706 SE2d 561) (2011).

        Higgenbottom, supra at 430-431.

       See id. at 431; see also Pickett, supra.


author: MCFADDEN, Judge.

text:
    A11A0861.
    HAMMOCK v. THE STATE.
    (715 SE2d 709)
   MCFADDEN, Judge.

Michael Hammock was convicted of theft by taking an automobile. He appeals, challenging the sufficiency of the evidence and the effectiveness of his trial counsel. We find the evidence sufficient to sustain the conviction. In so finding, we disapprove our earlier decision, In the Interest of C. G., 261 Ga. App. 814, 815 (584 SE2d 33) (2003), to the extent that it deems testimony describing nonverbal conduct depicted on a surveillance videotape to be hearsay. We also find that trial counsel’s performance was not deficient. We therefore affirm.

1. On appeal from a criminal conviction, the evidence is viewed in the light most favorable to the jury’s verdict, and the defendant no longer enjoys the presumption of innocence. Darnell v. State, 257 Ga. App. 555, 556 (1) (571 SE2d 547) (2002). We do not weigh the evidence or determine the credibility of witnesses, but determine only if the evidence was sufficient for a rational trier of fact to find the defendant guilty of the charged offense beyond a reasonable doubt. Id.

So viewed, the evidence shows that between 3:00 p.m. and 4:00 p.m. on April 22, 2008, Hammock cashed a check at a convenience store in Bartow County and then lingered there for several hours. Sometime after 7:00 p.m., Amy Ellison arrived at the store, put gas in her car and went inside to buy beer, leaving her keys in the car. Ellison, Hammock and store owner Jitendak Patel were the only people inside the store. Hammock cut in front of Ellison at the checkout counter, bought a candy bar and walked out the door. A minute or so later, Ellison went outside and discovered that her car was missing. Ellison and Patel called the police. Ellison, Patel and an officer watched a surveillance videotape, which showed a man walking out of the store, getting into the car and driving away from the scene. All three of them identified Hammock as the man shown on the videotape.

Hammock argues that the evidence was insufficient because the surveillance videotape, which had been taped over and was thus unavailable for viewing at trial, was hearsay and the testimony concerning it had no probative value. The argument is without merit because neither the videotape nor the witnesses’ testimony about what they observed on the tape was hearsay.

“OCGA § 24-3-1 defines hearsay as evidence that ‘does not derive its value solely from the credit of the witness but rests mainly on the veracity and competency of other persons.’ ” Lott v. State, 303 Ga. App. 775, 785 (4) (694 SE2d 698) (2010). Hearsay “generally relates to an out-of-court statement made by someone other than the witness.” (Citation omitted.) Blunt v. State, 275 Ga. App. 409, 411 (1) (c) (620 SE2d 572) (2005). Thus,

[b]y definition, evidence is hearsay when a witness at trial offers evidence of what someone else said or wrote, outside of court, and the proponent’s use of the evidence essentially asks the jury to assume that the out-of-court declarant was not lying or mistaken when the statement was made.

(Citation omitted.) Diaz v. State, 275 Ga. App. 557, 559 (621 SE2d 543) (2005).

Here, the witnesses did not offer any testimony about what someone else said or wrote outside of court. Rather, they testified about their personal observations of the conduct that appeared on the videotape. See Davis v. Civil Svc. Comm. &c. of Philadelphia, 820 A2d 874, 879, n. 3 (Pa. 2003) (store security videotape not hearsay because nonverbal conduct depicted not intended as an assertion); McDougal v. McCammon, 455 SE2d 788, 794 (II) (A) (W Va. 1995) (surveillance videotape not a statement). Because this testimony did not ask the jury to assume the truth of out-of-court statements made by others, and instead “the value of [the] testimony rested on [the witnesses’] own veracity and competence, the testimony was not hearsay.” Lott, supra (officer’s testimony that she saw photograph of defendant on a cell phone not hearsay). See also Troutman v. State, 297 Ga. App. 196, 197-198 (2) (676 SE2d 836) (2009) (testimony that a certain telephone number was displayed on a cell phone as having been recently called not hearsay). Indeed, “the jury was free to disregard [the witnesses’] testimony that the individual depicted in the . . . surveillance video was [Hammock].” (Citations omitted.) United States v. White, 639 F3d 331 (7th Cir. 2011). To the extent that In the Interest of C. G., 261 Ga. App. at 815, holds otherwise and finds that a surveillance videotape merely depicting nonverbal conduct constitutes a hearsay statement, it is hereby disapproved. See Creel v. State, 216 Ga. 233, 235 (2) (115 SE2d 552) (1960) (testimony describing contents of a photograph did not refer to any statements and thus not hearsay).

Accordingly, having reviewed all the evidence in the light most favorable to the verdict, we conclude that there is sufficient evidence from which a rational trier of fact could have found Hammock guilty beyond a reasonable doubt of theft by taking an automobile. See Haugland v. State, 253 Ga. App. 423, 424-425 (1) (560 SE2d 50) (2002).

2. Hammock contends that his trial counsel was ineffective in failing to raise a hearsay objection to the testimony concerning the surveillance videotape, failing to present photographs of the crime scene and failing to obtain a copy of a later videotape from the surveillance camera to show its poor quality. To prevail on a claim of ineffective assistance of counsel, Hammock

must show counsel’s performance was deficient and that the deficient performance prejudiced him to the point that a reasonable probability exists that, but for counsel’s errors, the outcome of the trial would have been different. A strong presumption exists that counsel’s conduct falls within the broad range of professional conduct.

(Citation and punctuation omitted.) Pruitt v. State, 282 Ga. 30, 34 (4) (644 SE2d 837) (2007).

(a) With regard to counsel’s failure to raise a hearsay objection to the testimony about the videotape, as explained above in Division 1, such an objection would have been unavailing because the surveillance footage and the testimony about what the witnesses personally observed on it was not hearsay. Failing to make a meritless objection to admissible evidence does not constitute deficient performance, and thus, “appellant’s ineffective assistance of counsel claim cannot be sustained. [Cit.]” Nash v. State, 285 Ga. 753, 754 (2) (a) (683 SE2d 591) (2009).

(b) At the motion for new trial hearing, trial counsel testified that after visiting the store he decided not to introduce photographs of the store because they would have shown that there were numerous surveillance cameras at the scene. Such a decision not to introduce certain evidence is a strategic and tactical matter that cannot be judged by hindsight to support a claim of ineffective assistance of counsel. See Mattox v. State, 305 Ga. App. 600, 607 (3) (699 SE2d 887) (2010) (decisions on what evidence to introduce are matters of trial tactics that do not amount to ineffective assistance of counsel); Hood v. State, 292 Ga. App. 584, 585 (1) (666 SE2d 674) (2008).

(c) As for the claim that trial counsel should have presented a copy of the surveillance videotape to show that it was of poor quality making identification from it difficult, the record is devoid of any evidence showing that the tape was indeed of poor quality. Because such a tape was never obtained, Hammock can only speculate as to what it might have shown, and “[s]uch speculation is insufficient to authorize a finding that defense counsel ineffectively overlooked evidence which would have resulted in defendant’s acquittal. [Cit.]” Duitsman v. State, 217 Ga. App. 435, 437 (1) (457 SE2d 702) (1995).

Decided July 12, 2011

Reconsideration denied August 3, 2011

Jimmonique R. S. Rodgers, for appellant.

T. Joseph Campbell, District Attorney, Stewart D. Bratcher, Assistant District Attorney, for appellee.

Judgment affirmed.

Ellington, C. J., Smith, P. J., Miller, P. J., Phipps, P. J., Andrews, Mikell, Adams, Doyle, Blackwell and Dillard, JJ., concur. Barnes, P. J., concurs in judgment only.


author: McFADDEN, Judge.

text:
    A11A1204, A11A1443.
    MUHAMMAD v. POWER LENDING, LLC (two cases).
    (715 SE2d 734)
   McFADDEN, Judge.

Ali S. Muhammad appeals from the trial court’s order confirming a foreclosure sale conducted by Power Lending, LLC. In a separate appeal, he also challenges the imposition of a supersedeas bond pending appeal. Because we find that the trial court properly confirmed the foreclosure sale, we affirm the judgment in Case No. A11A1204. Moreover, our resolution of Case No. A11A1204 moots the supersedeas bond issues raised in Case No. A11A1443. The second appeal, therefore, is dismissed as moot.

Case No. A11A1204

On appeal from a confirmation proceeding, we construe the evidence favorably to the trial court’s judgment. Flat Shoals Land Holding v. Decatur First Bank, 307 Ga. App. 536, 537 (705 SE2d 311) (2011). The trial court sits as the trier of fact, and its findings will not be disturbed if supported by any evidence. Id.

So viewed, the record shows that Muhammad obtained a loan from Power Lending in 2006. To secure the indebtedness, Muhammad gave Power Lending a promissory note and a deed to secure debt in property he owned. Muhammad later defaulted on his promissory note obligations, and Power Lending commenced foreclosure proceedings pursuant to the security deed’s power of sale. It advertised the foreclosure sale for four weeks in October 2010, then conducted the sale on the courthouse steps on November 2, 2010. Power Lending, which was the only bidder, ultimately purchased the property for $300,000.

Seeking confirmation of the sale, Power Lending presented an Application and Petition for Confirmation of Foreclosure Sale (“the petition”) to a superior court judge. The judge reviewed the petition and, by order dated November 23, 2010, directed that it be filed and served on Muhammad at least five days before the confirmation hearing. Power Lending filed the petition that same day. Six days later, the trial court issued a rule nisi setting the confirmation hearing for December 17, 2010. Power Lending served Muhammad with the petition and rule nisi on December 3, 2010.

At the December 17 hearing, the attorney who handled the foreclosure sale testified regarding the procedures used to notify Muhammad of the proceedings, advertise the sale, and conduct the sale. A real estate appraiser also testified, valuing the property at $300,000. Based on the evidence presented, the trial court confirmed the sale. Muhammad challenges that ruling on appeal, claiming that the confirmation proceeding and foreclosure sale were procedurally flawed and, therefore, invalid. We disagree.

1. Muhammad first argues that Power Lending failed to follow the statutory requirements for initiating a confirmation petition. Under OCGA § 44-14-161 (a), a creditor begins a confirmation proceeding by reporting the foreclosure sale to a superior court judge within 30 days after the sale. Citing the reporting requirement, Muhammad asserts that Power Lending improperly submitted the petition to the clerk’s office, rather than to a superior court judge. The record belies this claim.

Within 30 days of the November 2, 2010 sale, a superior court judge entered an order noting that Power Lending had presented its petition for confirmation to the court. The petition adequately reported the sale. See Stepp v. Farm & Home Life Ins. Co., 222 Ga. App. 257, 258 (1) (474 SE2d 108) (1996) (confirmation application presented to a superior court judge satisfies OCGA § 44-14-161 (a) when it recites “ ‘the fact of the sale, the price obtained, and all pertinent factors concerning the sale’ ”). And although Power Lending ultimately filed the petition with the clerk’s office, it did so at the trial court’s direction. Under these circumstances, Power Lending properly commenced the confirmation proceeding. See OCGA § 44-14-161 (a); REL & Assocs. v. FDIC, 304 Ga. App. 33, 36 (2) (695 SE2d 370) (2010) (“[T]he statutory language is plain and the clear import of that language is that the report must simply be made to a judge of the superior court of the county in which the land is located.”) (punctuation omitted).

2. Muhammad also argues that he did not receive sufficient notice of the confirmation hearing. The statutory scheme generally requires that “the debtor be personally served with notice of the hearing on the creditor’s application at least five days prior thereto.” Vlass v. Security Pacific Nat. Bank, 263 Ga. 296, 298 (1) (430 SE2d 732) (1993); see also OCGA § 44-14-161 (c). As noted above, the trial court issued a rule nisi on November 29, 2010, setting the hearing for December 17, 2010. Both the rule nisi and the confirmation petition were personally served on Muhammad by a process server on December 3, 2010, more than five days before the hearing.

Based on this evidence, the trial court deemed the notice sufficient. We find no error. Although Muhammad complains that the hearing notice did not “emanate from the [trial] court as required,” he is mistaken. The trial court issued a rule nisi, directing the parties to appear for a hearing on the confirmation petition. The rule nisi met the statutory notice requirements. See OCGA § 44-14-161 (c); Ameribank v. Quattlebaum, 269 Ga. 857, 859 (505 SE2d 476) (1998) (rule nisi may satisfy notice requirements of OCGA § 44-14-161 (c)).

3. Muhammad raises similar arguments regarding the underlying foreclosure proceeding. He claims that he did not receive proper notice of the proceeding and that the sale “was in violation of the laws governing foreclosures.” Power Lending, however, notified Muhammad of the foreclosure sale by certified letter sent over 30 days prior to the sale, in accordance with OCGA § 44-14-162.2 (a). It also advertised the sale in the local newspaper for four weeks, as required. See OCGA §§ 44-14-162 (a); 9-13-140.

The trial court concluded that the foreclosure proceeding was valid. Muhammad has pointed to no evidence undermining this conclusion or showing any violation of the foreclosure statutes. His argument in this regard, therefore, lacks merit. See Oates v. Sea Island Bank, 172 Ga. App. 178, 179 (2) (a), (b) (322 SE2d 291) (1984) (trial court properly confirmed foreclosure sale where evidence authorized conclusion that foreclosure proceeding complied with statutory requirements).

4. Finally, Muhammad argues that the trial court failed to make specific factual findings in its confirmation order. As an initial matter, we note that the order contains numerous findings of fact and conclusions of law regarding the foreclosure sale and confirmation process. Moreover, “the responsibility for assuring a detailed order rest[ed] with [Muhammad], [who] failed to request it either before or after the ruling was made pursuant to OCGA § 9-11-52 (a) or (c).” Southeast Timberlands v. Security Nat. Bank, 220 Ga. App. 359, 361 (3) (469 SE2d 454) (1996). Accordingly, this claim provides no basis for reversal.

Case No. A11A1443

5.Muhammad contends that the trial court erred in setting a supersedeas bond for his appeal of the confirmation order. The confirmation appeal, however, has been resolved, rendering all issues regarding the propriety of a supersedeas bond moot. See Boca Petroco v. Petroleum Realty II, 292 Ga. App. 840 (666 SE2d 17) (2008); Almonte v. West Ashley Toyota, 281 Ga. App. 808, 810 (637 SE2d 755) (2006). Muhammad’s appeal in Case No. A11A1443, therefore, is dismissed. See Boca Petroco, supra; Almonte, supra.

Decided July 18, 2011

Reconsideration denied August 3, 2011

Ali S. Muhammad, pro se.

McCurdy & Candler, Todd H. Surden, for appellee.

Judgment affirmed in Case No. A11A1204. Appeal dismissed as moot in Case No. A11A1443.

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


author: BARNES, Presiding Judge.

text:
    A09A2015.
    OGLETHORPE POWER CORPORATION et al. v. FORRISTER et al.
    (715 SE2d 771)
    Decided August 3, 2011.

      McNatt, Greene & Peterson, Hugh B. McNatt, Batch & Bingham, Natalie C. Beasman, for appellants.

      McRae, Stegall, Peek, Harman, Smith & Manning, Michael D. McRae, Jason B. Sanker, for appellees.
   BARNES, Presiding Judge.

In Oglethorpe Power Corp. v. Forrister, 289 Ga. 331 (711 SE2d 641) (2011), the Supreme Court of Georgia affirmed in part and reversed in part the judgment of this Court in Oglethorpe Power Corp. v. Forrister, 303 Ga. App. 271 (693 SE2d 553) (2010), and remanded the case for proceedings consistent with its opinion. Therefore, we vacate our earlier opinion and adopt the opinion of the Supreme Court as our own.

Judgment affirmed in part and reversed in part, and case remanded with direction.

Ellington, C. J., Miller, P J., Andrews, Mikell, Blackwell, and McFadden, JJ., concur.


author: Dillard, Judge.

text:
    A11A0790.
    BLANKS v. THE STATE.
    (715 SE2d 762)
   Dillard, Judge.

Following trial, a jury convicted Willie J. Blanks on one count each of aggravated assault, simple battery, possession of a firearm during the commission of a crime (aggravated assault), and possession of a firearm by a convicted felon. Blanks appeals, arguing that the evidence was insufficient to support his convictions. For the reasons noted infra, we affirm.

Viewed in the light most favorable to the jury’s guilty verdict, the record shows that just before noon on December 23, 2008, Travis Curtis was walking down a street in his neighborhood when he was approached by a car, in which Blanks, Thomas Dewitt, and two other young men were passengers. Curtis knew all of the men in the car,' including Blanks and Dewitt and, therefore, walked over to the vehicle’s passenger-side window after Blanks called him over to talk. Based on a long-running dispute between Curtis and Dewitt over a girlfriend, the conversation quickly became heated, and Blanks slapped Curtis in the face. Blanks then encouraged Dewitt to “whip” Curtis. At that point, Blanks and Dewitt exited the car, and Dewitt strück Curtis in the head with a pistol that Blanks had given to Dewitt only a minute or two earlier. As Curtis lay bleeding from the wound to his head (which ultimately required 15 stitches), Blanks and Dewitt got back into the car and drove away. Curtis immediately reported the incident to the police, who later arrested Blanks and Dewitt for the assault.

Thereafter, Blanks and Dewitt were indicted jointly on one count of aggravated assault with a deadly weapon, and Blanks was indicted individually on one count each of simple battery, possession of a firearm during the commission of a crime, and possession of a firearm by a convicted felon. During trial, Curtis testified regarding the details of the assault. In addition, a police officer testified that in the course of his investigation of the incident, Blanks led police to a pistol, which had been hidden in the trunk of another vehicle and matched the description of the pistol used to strike Curtis. The State also introduced a written statement that Blanks provided to the police, in which he admitted that he slapped Curtis in the face and that Dewitt hit Curtis in the head with the pistol. Finally, the State called Dewitt as a witness, and he testified that Blanks gave him the pistol that he used to strike Curtis just moments before the assault occurred. At the conclusion of the trial, the jury found Blanks guilty on all counts of the indictment. Subsequently, Blanks filed a motion for a new trial, which the trial court denied. This appeal follows.

1. Blanks contends that the evidence was insufficient to support his conviction of aggravated assault with a deadly weapon. We disagree.

At the outset, we note that when a criminal conviction is appealed, the evidence must be viewed in the light most favorable to the verdict, and the appellant no longer enjoys a presumption of innocence. We do not weigh the evidence or determine witness credibility “but only determine whether a rational trier of fact could have found the defendant [ ] guilty of the charged offenses beyond a reasonable doubt.” Accordingly, the jury’s verdict will be upheld “[a]s long as there is some competent evidence, even though contradicted, to support each fact necessary to make out the State’s case[.]”

Aggravated assault is committed when a person “assaults . . . [w]ith a deadly weapon or with any object, device, or instrument which, when used offensively against a person, is likely to or actually does result in serious bodily injury[.]” Moreover, it is well established that “[elvery person concerned in the commission of a crime is a party thereto and may be charged with and convicted of commission of the crime.” In this respect, “[wjhether a defendant was a party to the crime and aided and abetted in the commission of a crime is a matter for the jury.” Furthermore, “pwjhile it is true that mere presence at the scene of a crime is insufficient to convict one of being a party to the crime, the jury may infer criminal intent from the person’s conduct before, during, and after the commission of the crime.”

And here, the evidence shows that Blanks was involved in the initial argument with Curtis and slapped Curtis in the face. More importantly, the evidence also shows that Blanks gave Dewitt the pistol that Dewitt used to strike Curtis on the head, encouraged Dewitt to “whip” Curtis just moments before the assault occurred, and then fled the scene with Dewitt and the other two men as Curtis lay bleeding. Thus, there was sufficient evidence for a rational trier of fact to find that Blanks was guilty as a party to the aggravated assault with a deadly weapon.

Decided August 3, 2011.

Timothy L. Eidson, Rashawn D. Clark, for appellant.

Denise D. Fachini, District Attorney, Matthew P. Brown, Assistant District Attorney, for appellee.

2. Blanks also generally contends that the evidence was insufficient to support his other convictions. However, he offers no substantive argument to support this contention and focuses solely on challenging his aggravated-assault conviction. Pursuant to Court of Appeals Rule 25 (a) (3) and (c) (2), “an appellant must support enumerations of error with argument and citations of authority, and mere conclusory statements are not the type of meaningful argument contemplated by the rule.” Thus, Blanks has abandoned any challenge to the sufficiency of the evidence with regard to his other convictions. Nevertheless, we have reviewed the record and conclude that there was sufficient evidence for a rational trier of fact to find Blanks guilty beyond a reasonable doubt of simple battery, possession of a firearm during the commission of a crime, and possession of a firearm by a convicted felon.

Judgment affirmed.

Smith, P. J., and Mikell, J., concur.

        See, e.g., Goolsby v. State, 299 Ga. App. 330, 330-31 (682 SE2d 671) (2009); see also Jackson v. Virginia, 443 U. S. 307, 319 (III) (B) (99 SC 2781, 61 LE2d 560) (1979).

        See OCGA § 16-5-21 (a) (2).

        See OCGA § 16-5-23 (a) (1).

        See OCGA § 16-11-106 (b) (1).

        See OCGA § 16-11-131 (b).

        See, e.g., English v. State, 301 Ga. App. 842, 842 (689 SE2d 130) (2010).

         Lott v. State, 303 Ga. App. 775, 776 (1) (694 SE2d 698) (2010) (citation and punctuation omitted).

        Miller v. State, 273 Ga. 831, 832 (546 SE2d 524) (2001) (citation and punctuation omitted).

       OCGA § 16-5-21 (a) (2).

       OCGA § 16-2-20 (a).

        Gant v. State, 291 Ga. App. 823, 825 (1) (662 SE2d 895) (2008) (citation omitted).

        Id. (citation and punctuation omitted).

        See, e.g., Millender v. State, 286 Ga. App. 331, 331-32 (1) (648 SE2d 777) (2007) (holding that defendant’s acts of standing nearby as co-defendant robbed and threatened victim and fleeing with co-defendant was sufficient to convict defendant as a party to armed robbery and aggravated assault); Sapp v. State, 280 Ga. App. 592, 594-95 (634 SE2d 523) (2006) (holding that evidence that defendant accompanied co-defendant as he assaulted former girlfriend was sufficient to convict defendant as a party to aggravated assault).

        Quarterman v. State, 305 Ga. App. 686, 690 (1) (b) (700 SE2d 674) (2010) (footnote and punctuation omitted); see also Court of Appeals Rule 25 (a) (3), (c) (2).

        See Jackson, 443 U. S. at 318-20 (III) (B).


text:
    A11A0953.
    HENRY v. THE STATE.
    (716 SE2d 232)
   PHIPPS, Presiding Judge.

A jury found Norris Henry guilty of possession of marijuana. He challenges the sufficiency of the evidence to support his conviction for this offense. Because we find the evidence met the standard set forth in Jackson v. Virginia, we affirm.

Viewed in the light most favorable to the verdict, the evidence showed that on December 6, 2007, a police officer stopped a vehicle being driven by Henry and owned by Karen Smith, who was a passenger. Henry and Smith were dating, and Smith often allowed Henry to use her vehicle. Earlier on the day of the stop, Henry had used Smith’s vehicle while she was at work.

During the stop, the officer asked Smith for proof of insurance. Smith opened the vehicle’s glove compartment, took from it some papers, and gave them to the officer. The papers smelled to the officer like marijuana. A second officer then searched the vehicle. That officer noticed a strong odor of marijuana coming from the vehicle, which the officer believed would have been noticeable to the vehicle’s occupants. A green, leafy material later determined to be marijuana was found in the glove compartment. The state jointly charged Henry and Smith (the sole passenger in the vehicle) with possession of the marijuana, and the two were tried together on that charge.

Possession of contraband may be actual or constructive.

A person who knowingly has direct physical control over a thing at a given time is in actual possession of it. A person who, though not in actual possession, knowingly has both the power and intention at a given time to exercise dominion or control over a thing is then in constructive possession of it. The law recognizes that possession may be sole or joint. If one person alone has actual or constructive possession of a thing, possession is sole. If two or more persons share [ ] actual or constructive possession of a thing, possession is joint.

Henry argues that the evidence was insufficient because there was no evidence to show he possessed the marijuana, other than that he was the driver of the vehicle at the time the marijuana was found. In cases involving contraband found in vehicles, the state is generally entitled to an evidentiary presumption that the driver or owner of the vehicle is in constructive possession of the contraband. And, as we held in Smith v. State (an appeal brought by Henry’s co-defendant from her conviction in connection with the incident at issue here), the evidence of the odor of marijuana in the vehicle also supported a finding that Henry and Smith jointly possessed the marijuana. Henry points to what he claims are disputes in the evidence related to the strength of the marijuana odor in the vehicle, but any such disputes were for the jury to resolve. Because the evidence that Henry was the driver of the vehicle was not the sole evidence of his possession of the marijuana found therein, and because no evidence was presented that anyone other than Henry and Smith (the charged defendants) had equal access to the marijuana, the “equal access” rule cited by Henry does not apply in this case. Thus, cases cited by Henry that turned on the application of the “equal access” rule are inapposite.

Decided August 3, 2011.

Brown & Gill, William L. Gill, for appellant.

Daniel J. Porter, District Attorney, Vikki L. Morek, Assistant District Attorney, for appellee.

Because any rational trier of fact could have found beyond a reasonable doubt that Henry and Smith were in joint possession of the marijuana, the evidence was sufficient to support Henry’s conviction.

Judgment affirmed.

Andrews and McFadden, JJ., concur.

       443 U. S. 307 (99 SC 2781, 61 LE2d 560) (1979).

       See id. at 319 (III) (B).

        Warren v. State, 254 Ga. App. 52, 54 (1) (561 SE2d 190) (2002).

       Id. (citation omitted).

        Cabrera v. State, 303 Ga. App. 646, 651 (1) (694 SE2d 720) (2010); Ramirez v. State, 290 Ga. App. 3, 4 (1) (658 SE2d 790) (2008).

       308 Ga. App. XXII (Case No. A11A0156, decided Feb. 17, 2011) (unpublished opinion).

       Id.; see Cochran v. State, 300 Ga. App. 92, 95-96 (1) (a) (684 SE2d 136) (2009); Vines v. State, 296 Ga. App. 543, 546-547 (1) (675 SE2d 260) (2009).

       See Dix v. State, 307 Ga. App. 684, 686 (1) (705 SE2d 903) (2011).

       See State v. Johnson, 280 Ga. 511, 514 (630 SE2d 377) (2006) (“equal access” rule applies only where the sole evidence of possession of contraband found in the vehicle was the defendant’s ownership or possession of the vehicle); Cabrera, supra at 651-652 (1) (defendant was not entitled to benefit of “equal access” rule where state jointly charged both him and the only other occupant of a vehicle with possession of contraband found therein).

       See, e.g., Whipple v. State, 207 Ga. App. 131-132 (1) (427 SE2d 101) (1993).

       See Cochran, supra.

       See Jackson v. Virginia, supra.


author: Ellington, Chief Judge.

text:
    A11A1012.
    A11A1013.
    LILES v. THE STATE. KILGO v. THE STATE.
    (716 SE2d 228)
   Ellington, Chief Judge.

Following a bench trial on stipulated facts in the Superior Court of Henry County, co-defendants Christoper Liles and Zachary Kilgo appeal their convictions for possession of marijuana (less than one ounce), OCGA § 16-13-30 (j) (1), and possession of Alprazolam, a schedule IV controlled substance, OCGA §§ 16-13-28 (a) (1); 16-13-30 (a). The appellants challenge the trial court’s order denying their motion to suppress allegedly illegally seized evidence, raising identical issues. We consolidate these appeals for disposition in a single opinion, and, finding no error, we affirm.

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

(Punctuation and footnote omitted.) Esposito v. State, 293 Ga. App. 573 (667 SE2d 425) (2008).

In the late afternoon of December 4, 2009, a City of McDonough uniformed police officer received a tip from a drug task force agent that two men were involved in illegal narcotics activities in Room 178 of a Henry County hotel. The officer and a new trainee went to the room, and the officer knocked on the door. As the officer knocked, he smelled the strong odor of burnt marijuana. A man inside the room asked: “Who is it?” The officer identified himself as a police officer. The occupant of the room did not open the door, and the officer heard “a lot of shuffling around.” The officer knocked on the door again, announcing “McDonough Police Department.” A man inside the room pulled the curtains away from the front window to look out, and the officer recognized the man as Christopher Liles, a person with whom he was familiar “from previous drug transactions[.]” The officer advised Liles that he smelled marijuana smoke coming from the room and that Liles should let him in, at which point Liles let the officer into the room.

The officer observed that the hotel room was filled with marijuana smoke. The officer saw a second man he knew, Zachary Kilgo, lying on one of the beds. The officer told the men that he could see the marijuana smoke and asked them if there was “anything else in the room.” The men told the officer that there was a “roach,” the butt of a marijuana cigarette, in the ashtray. The officer retrieved the roach and asked, again, if there was anything else in the room. Liles said: “No, there’s nothing else. Feel free to search.” The officer searched the room and found a small bag of marijuana and two sets of scales in the coffee table drawer. The officer, upon noticing that one of the ceiling tiles in the bathroom was slightly out of place, searched behind it and discovered three more bags of marijuana and six pills containing the prescription drug Alprazolam (Xanax).

The officer further testified that neither he nor the trainee had their weapons drawn when they approached or entered the room. The officer testified that, because he knew both Liles and Kilgo, he perceived neither as a threat. The officer did not arrest either man upon entering the room or put them in handcuffs, but considered them witnesses to a possible crime and detained them while he completed his investigation. Liles, however, testified that he only allowed the police in after they had threatened to kick the door down with guns drawn, that the police handcuffed them immediately, and that they immediately searched the room without asking for consent. On cross-examination, Liles admitted having given a sworn statement that he and Kilgo had both been smoking marijuana in the hotel room. The statement did not mention any threats or that the officers had their weapons drawn. In fact, Liles stated that the officer, whom he identified by name, “knocked on the door and I let him in.”

1. Liles and Kilgo contend the trial court erred in finding that the officer legally entered their hotel room without a warrant. The record, however, including Liles’ statement, supports a finding that Liles voluntarily admitted the officer into the hotel room.

It is axiomatic that the physical entry of the home is the chief evil against which the wording of the Fourth Amendment is directed. And a principal protection against unnecessary intrusions into private dwellings is the warrant requirement imposed by the Fourth Amendment on agents of the government who seek to enter the home for purposes of search or arrest. A motel room is accorded the same Fourth Amendment considerations as a private home. . . . The U. S. Supreme Court, the Supreme Court of Georgia, and this Court have consistently held that even where probable cause exists, warrantless intrusion of a person’s home is prohibited by the Fourth Amendment, absent consent or a showing of exigent circumstances.

(Citations and punctuation omitted.) Welchel v. State, 255 Ga. App. 556, 557-558 (565 SE2d 870) (2002).

The State argues at length that the police were authorized to enter the room because exigent circumstances existed, namely the risk that evidence would be destroyed. However, the trial court did not make such a finding in support of its order and the officer did not offer any testimony which would support a finding as to his reasonable belief that he entered the room or that he feared he might need to enter the room to prevent the destruction of evidence or for any other purpose that might be construed as an exigent circumstance. Rather, the court concluded that “the officer had a right to be there [in the room]” apparently based upon Liles’ having voluntarily admitted the officer into the room. Thus, the sole question before us is whether there is any evidence to support the trial court’s finding that the officer’s entry into the room was consensual.

When consent is offered as an exception to the warrant requirement, the State bears the burden of showing “that the consent was voluntarily given, and not the result of duress or coercion, [either] express or implied.” (Citations and punctuation omitted.) Code v. State, 234 Ga. 90, 93 (III) (214 SE2d 873) (1975); see also Gray v. State, 296 Ga. App. 878, 882 (5) (b) (676 SE2d 36) (2009) (accord). Voluntariness is a question of fact to be determined by the trial court from all of the circumstances. Code v. State, 234 Ga. at 93 (III); Maloy v. State, 293 Ga. App. 648, 650-651 (2) (667 SE2d 688) (2008).

The circumstances present here support the trial court’s finding, implicit in its order denying the motion to suppress, that Liles voluntarily consented to the entry into his hotel room. We note that “any contradiction between the officer[’s] testimony and that of [Liles] presented a credibility issue for the trial court to resolve.” (Punctuation and footnote omitted.) Silverio v. State, 306 Ga. App. 438, 446 (3) (702 SE2d 717) (2010). The officer’s testimony and Liles’ statement support a finding that the officer requested and received Liles’ consent to enter the hotel room under circumstances that do not suggest either coercion or threat. “The presence of several police officers does not require a finding of coercion, although it merits close judicial scrutiny.” (Footnote omitted.) Id. Here, the officer testified that neither he nor the trainee had their weapons drawn. They did not force their way into the room or threaten to do so. The officer was familiar with Liles and did not perceive him as a threat. Therefore, he simply asked for and received admittance. Further, the trial court was authorized to infer that Liles voluntarily admitted the officer into his room in the calculated hope that the officer would find only the small amount of marijuana that he had left in the ashtray, given the evidence that Liles was a known drug offender, that he had delayed opening the door, that the officer had heard sounds of “shuffling around,” and that the bulk of the contraband had been hidden above a ceiling tile. Consequently, we conclude that the trial court was authorized to find that the State satisfied its burden of showing that Liles’ consent to enter the hotel room was not the product of coercion, express or .implied. See id.

Decided August 3, 2011.

Douglas P. Smith, for appellants.

2. Liles and Kilgo also contend that the trial court erred in finding that, after the officer entered the room, Liles voluntarily consented to a search of the hotel room. The evidence, however, supports the court’s finding that Liles’ consent was voluntary for the same reasons set forth in Division 1, supra. The officers entered the room with permission. They did not handcuff Liles or Kilgo, they simply asked if there was anything in the room other than the marijuana roach to which Liles had already led them. Liles volunteered: “No, there’s nothing else. Feel free to search.” The court was authorized to infer that Liles’ consent to search was freely given in the calculated hope that the officer would not find the hidden contraband. See Division 1, supra.

i I ¡

We reject Liles’ and Kilgo’s argument that Liles’ consent was merely acquiescence to a claim of lawful authority because he was placed under arrest as soon as the officers entered the hotel room, as this argument is not supported by the evidence. Rather, Liles testified that the officers never asked for his consent to search the premises, nor did he voluntarily give it. Having denied that the officer requested his consent, Liles cannot now claim that he simply acquiesced to the request based upon a show of authority. Silverio v. State, 306 Ga. App. at 446 (3). Furthermore, “there was no showing that the officers misrepresented their authority to enter and search against [Liles’] will, if necessary.” (Punctuation and footnote omitted.) Id. For these reasons, the trial court did not err in concluding that the consent to search was voluntary, and it did not err in denying the co-defendants’ motion to suppress.

Judgments affirmed.

Miller, P. J., and Doyle, J., concur.

Tommy K. Floyd, District Attorney, Sandra G. Rivers, Assistant District Attorney, for appellee.

       Exigent circumstances may be found where police reasonably perceive an emergency involving a threat to life or property, or where “an officer is in hot pursuit of a fleeing felon, where an officer reasonably fears the imminent destruction of evidence if entry into the residence is not immediately effected, and where an officer reasonably perceives that a suspect within the dwelling poses a risk of danger to the police or others.” (Citation omitted.) Love v. State, 290 Ga. App. 486, 488 (659 SE2d 835) (2008).


text:
    A11A1341.
    LASTER v. THE STATE.
    (715 SE2d 768)
   Ellington, Chief Judge.

A Floyd County jury found James Laster guilty beyond a reasonable doubt of family violence battery, OCGA § 16-5-23.1; criminal trespass, OCGA § 16-7-21; and abuse of an elder person, OCGA § 30-5-8. He appeals from the denial of his motion for new trial, and, for the following reasons, we affirm.

1. Laster contends that the evidence was insufficient to support his conviction, pointing to the elderly victim’s testimony that, while Laster caused her injuries, he did it accidentally, not intentionally. When a criminal defendant challenges the sufficiency of the evidence supporting his or her 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.” (Citation omitted; emphasis in original.) Jackson v. Virginia, 443 U. S. 307, 319 (III) (B) (99 SC 2781, 61 LE2d 560) (1979). It is the function of the jury, not this Court, to resolve conflicts in the testimony, weigh the evidence, and draw reasonable inferences from the evidence. Id. “As long as there is some competent evidence, even though contradicted, to support each fact necessary to make out the State’s case, the jury’s verdict will be upheld.” (Citation and punctuation omitted.) Miller v. State, 273 Ga. 831, 832 (546 SE2d 524) (2001). Viewed in this light, the record reveals the following facts.

In 2008 or 2009, 48-year-old Laster moved into the home of the victim, an 87-year-old widow who was not related to Laster, but who allowed him to live there free of charge in return for yard and maintenance work. The victim’s daughter and neighbors testified, however, that they rarely saw Laster do any work around the victim’s home. One of the neighbors testified that, instead, Laster often sat on the victim’s front porch drinking alcohol. The victim, whose only income was Social Security benefits, admitted that she regularly gave Laster money to buy food, cigarettes, and alcohol.

According to the victim’s neighbors, they repeatedly heard Laster screaming at the victim, telling her that he wanted money for beer, a bicycle, or other things. The victim often visited one of those neighbors, and the neighbor reported that the victim always seemed tired, that the victim had bruises on her arms “all the time,” and the victim tried to hide the bruises from her. The neighbor testified that she believed Laster had caused the bruises and that he was taking advantage of the victim financially, noting that the victim never seemed to have money and was “always trying to borrow some.” According to the neighbor, during the visits, the victim sometimes seemed frightened of Laster, admitted that Laster got mad at her if she did not have money to give him, and repeatedly said that she wished Laster would move out of her home.

Then, at approximately 11:30 p.m. on May 7, 2010, the victim knocked on the door of her neighbors. She was “shaking all over,” visibly upset, bruised, and bleeding from an injury to her forearm. The victim told them that Laster had grabbed her by the arm, twisted it with both of his hands, and pushed her down. He then poured bleach on her mattress, and the victim was afraid that he was going to burn down the house. The neighbors called 911, and the responding officers observed the victim’s injuries, including the fresh wound to her arm. When asked what had happened, the victim told the officers that she and Laster had gotten into an argument, that he had grabbed her arm with both hands and had twisted her arm, and that he had poured bleach on her mattress and threatened to burn her house down. The officers and the neighbors walked over to the victim’s house and, as soon as they entered the house, they smelled a “suffocating” odor of bleach that was emanating from the victim’s mattress. Laster was not inside the house, so the officers searched the surrounding wooded area, but they were unable to find him.

The next morning, the victim’s daughter was notified of the incident, and she immediately took the victim to the emergency room for treatment of the open wound on her forearm. The victim told her daughter that Laster had grabbed her by the arm and twisted it, thereby causing the wound and other bruises. In addition, the daughter observed that the victim seemed “really scared” and distraught and that she had a swollen bruise on the back of her head, which the victim said was caused when Laster pushed her down. The victim asked her daughter to take photographs of her wounds, and the photographs were shown to the jury. The daughter also testified that she believed that her mother was suffering from dementia and that Laster was taking advantage of her financially, noting that, even though her mother gave Laster money for different things, she sometimes did not have enough money for her own food and other needs.

In addition, the State presented evidence of a similar transaction involving Laster and his former wife, who testified that she and Laster got into an argument while they were both drinking and that Laster bit her arm and broke the back windshield of her car.

In arguing that the evidence was insufficient to support his conviction, Laster argues that the victim was a competent, independent woman who testified at trial that, on the date at issue, she had stumbled and Laster had tried to catch her with both of his hands in an attempt to prevent her from falling. According to the victim, the injury to her arm was the result of Laster’s attempt to help her and was not due to any intentional act by Laster. The victim was unable to recall other facts about the evening, however, including Laster’s act of pouring bleach on her mattress and what she had told the neighbors and the police. Further, the victim admitted at trial that, prior to her “fall,” she and Laster had been talking in her bedroom and Laster had been “upset” because she had decided to pay someone else to cut her grass. Moreover, as shown above, the victim’s recollection of what occurred that night was contradicted by her contemporaneous statements to her neighbors and the police, as well as her statements to her daughter the next morning. In fact, the victim’s neighbors, the officers, and her daughter all testified that the victim never told them that she had tripped and that Laster had tried to prevent her from falling by catching her arms.

Although there were conflicts in the evidence presented in this case, it is solely within the jury’s authority to resolve such conflicts, to weigh the evidence, and to judge the credibility of the witnesses in reaching its verdict. Jackson v. Virginia, 443 U. S. at 319 (III) (B). “[T]he resolution of such conflicts adversely to the defendant does not render the evidence insufficient.” (Citation omitted.) Brooks v. State, 281 Ga. 514, 516 (1) (640 SE2d 280) (2007). Because there was evidence in this case to support each fact necessary to make out the State’s case, the jury was authorized to find that Laster was guilty beyond a reasonable doubt of the charged crimes. Miller v. State, 273 Ga. at 832.

2. Laster contends that the trial court erred in denying his motion for new trial, suggesting that the court erred in refusing to allow the victim to testify during the motion hearing regarding her disagreement with the jury’s verdict. Because Laster has failed to support this contention with any citation to authority, this alleged error is deemed abandoned. Court of Appeals Rule 25 (c) (2).

3. Finally, Laster contends that he was denied a fair trial, alleging that, at the end of his trial, the prosecutor realized that he knew one of the jurors. According to Laster, if he had learned that the juror had a “predisposition” in favor of the prosecution during voir dire, he would have struck the juror. However, Laster has failed to cite to any evidence in the record to support his contentions, and, even though this Court is not required to cull the record to look for error, we have, in fact, reviewed the entire record and have concluded that there is not a single reference to anything that supports Laster’s contention, nor is there any objection by Laster on this issue. In addition, Laster failed to raise this issue in either his motion for new trial or the hearing thereon.

Decided August 3, 2011.

Gary R. Williams, for appellant.

Leigh E. Patterson, District Attorney, C. Stephen Cox, Assistant District Attorney, for appellee.

“A party alleging error carries the burden of showing it affirmatively by the record, and when that burden is not met, the judgment is assumed to be correct and will be affirmed.” (Footnote omitted.) Boles v. Lee, 270 Ga. 454, 455 (1) (511 SE2d 177) (1999). Further, “[ijssues and objections not raised in the trial court and ruled on by the trial court are deemed waived and cannot be raised for the first time on appeal.” (Footnote omitted.) West v. State, 300 Ga. App. 583, 585 (2) (685 SE2d 486) (2009). Accordingly, this alleged error presents nothing for this Court to review.

Judgment affirmed.

Miller, B J., and Doyle, J., concur.

       We note that, during the sentencing phase of trial, the trial court allowed the victim to address the court to express her concerns about the jury’s verdict.

        Rainly v. State, 307 Ga. App. 467, 477 (6) (705 SE2d 246) (2010).


text:
    A11A1400.
    HELTON v. JASPER BANKING COMPANY.
    (715 SE2d 765)
   BARNES, Presiding Judge.

Jasper Banking Company sued Shepard Helton for breach of a personal guaranty. Helton answered and raised the affirmative defense of lack of consideration. The bank moved for summary judgment, and the trial court granted the motion. On appeal, the central issue is whether Helton was entitled to introduce parol testimony that the wrong date of execution had been typed on the guaranty We conclude that parol testimony was admissible and created a genuine issue of material fact over whether the guaranty was executed after the bank had already extended credit to the underlying debtor, and thus over whether the guaranty was void for lack of consideration. Consequently, we reverse the trial court’s grant of summary judgment to the bank.

“Summary judgment is only proper when there is no genuine issue of material fact and the movant is entitled to judgment as a matter of law.” Clayton v. Southern Gen. Ins. Co., 306 Ga. App. 394 (702 SE2d 446) (2010). See OCGA § 9-11-56 (c).

For purposes of summary judgment, although the movant might satisfy its original burden of showing a prima facie right to recover, if the respondent successfully produces rebuttal evidence in the form of an affirmative defense, the burden shifts back to the movant to establish the nonexistence of a genuine issue of fact as to each affirmative defense.

(Citation and punctuation omitted.) Ga. Investments Intl. v. Branch Banking & Trust Co., 305 Ga. App. 673, 675 (1) (700 SE2d 662) (2010). “A de novo standard of review applies to an appeal from a grant of summary judgment, and we view the evidence, and all reasonable conclusions and inferences drawn from it, in the light most favorable to the nonmovant.” Matjoulis v. Integon Gen. Ins. Corp., 226 Ga. App. 459 (1) (486 SE2d 684) (1997).

So viewed, the record shows that on April 24, 2007, Zanjero, LLC obtained a loan from Jasper Banking Company in the principal amount of $1,025,644.05 that was memorialized in a note and secured by a mortgage deed. The bank subsequently agreed to extend the maturity date of the loan, and on April 24, 2009, the note was renewed in the principal amount of $1,026,144.05. Shepard Helton executed a personal guaranty that referenced the renewed note and the amount owed under it. Typed on a line at the top of the guaranty was the date of April 24, 2009. Above the line bearing Helton’s signature, the guaranty read: “[T]his guaranty has been duly executed by the Undersigned the day and year first above written.” There was no handwritten date next to Helton’s signature.

In June 2010, the bank sued Helton for breach of the guaranty, alleging that Zanjero had defaulted under the terms of the renewed note and that Helton had refused to cure the default. The bank sought the principal sum owed under the note of $1,026,144.05, plus interest, attorney fees, and costs. Helton answered and denied liability on several grounds, including that there was a lack of consideration for the guaranty.

The bank moved for summary judgment on its claim of breach of the guaranty. The bank pointed out that the guaranty specifically referenced the renewed note; that the guaranty had the same date of execution and amount of indebtedness typed on it as the date and amount of the renewed note; and that the guaranty undisputedly had been executed by Helton. The bank also submitted the affidavit of its chief executive officer averring that Zanjero had defaulted on the renewed note and that Helton had failed to cure the default. Based upon this evidence, the bank contended that the uncontro-verted record showed that the guaranty was enforceable and that Helton had breached its terms.

In response to the bank’s motion for summary judgment, Helton contended there were genuine issues of material fact over whether there was consideration for his execution of the guaranty. To support his contention, Helton submitted an affidavit indicating that the wrong date of execution had been typed on the guaranty. Helton averred that he had executed the guaranty on a date after the note had already been renewed and that no new consideration had flowed to him as a result of his execution of the guaranty. As such, Helton asserted that the bank’s renewal and extension of further credit to Zanjero, as reflected in terms of the renewed note, had not been conditioned upon his execution of the guaranty.

In a summary order, the trial court found that there were no genuine issues of material fact regarding the breach of the guaranty and granted summary judgment in favor of the bank. This appeal followed.

In several related enumerations of error, Helton argues that the trial court erred in granting summary judgment to the bank because there were genuine issues of material fact over whether there was consideration for his execution of the guaranty. He points to his affidavit and argues that parol evidence was admissible to show that the date of execution typed on the guaranty was wrong. In contrast, the bank argues that parol evidence was inadmissible to contradict the unambiguous date set forth on the face of the guaranty and thus contends that no genuine issue of material fact existed on the issue of consideration. We agree with Helton.

The general rule, as the bank contends, is that “[p]arol evidence is not admissible to contradict or construe an unambiguous [written] contract.” (Footnote omitted.) Duke Galish, LLC v. Manton, 308 Ga. App. 316, 318 (1) (707 SE2d 555) (2011). But as with any general rule, there are exceptions; for example, “[plarol evidence is admissible to prove a mistake in a deed or any other contract required by law to be in writing.” OCGA § 24-6-7. See Morris v. Morris, 282 Ga. App. 127, 133 (5) (637 SE2d 838) (2006). Hence, our Supreme Court has held that a witness may testify that “a certain deed was executed on a date other than the date stated in the deed over [a party’s] objection that a written instrument can not be altered by oral testimony” because parol evidence is admissible to prove a mistake in the date inserted on the deed. Smith v. Smith, 223 Ga. 560, 561 (4) (156 SE2d 901) (1967). See also Irwin v. Dailey, 216 Ga. 630, 633 (1) (118 SE2d 827) (1961). Like a deed, a guaranty is required by law to be in writing. See OCGA § 13-5-30 (2); Charles S. Martin Distrib. Co. v. Bernhardt Furniture Co., 213 Ga. App. 481, 482 (1) (445 SE2d 297) (1994). It follows that, as in the context of a deed, a witness is entitled to offer parol testimony that the guaranty was executed on a date other than the date inserted on the guaranty. See Cohen v. Sandy Springs Crossing Assocs., 238 Ga. App. 711, 713 (520 SE2d 17) (1999). Helton’s affidavit thus was admissible to show that the wrong date of execution had been typed on the guaranty and that it had in fact been executed after the note had already been renewed.

Decided August 3, 2011.

Tilley, Deems & Helton, Shepard Helton, pro se.

Macey, Wilensky, Kessler & Hennings, Hal J. Leitman, for appellee.

Because Helton’s affidavit constituted admissible evidence that the guaranty was executed sometime after the note had been renewed, there was a genuine issue of material fact over whether the guaranty was void for lack of consideration.

A promise to pay the pre-existing debt of another, without any detriment or inconvenience to the creditor or any benefit secured to the debtor in consequence of the undertaking, is a mere nudum pactum. Thus, a contract of guaranty executed after the original obligation must be founded on some new type of consideration, independent of that flowing to the principal and flowing directly to the guarantor. Past consideration — one which has already served its purpose in a former transaction will not support a contract of guaranty.

(Citations and punctuation omitted.) Gwinnett Commercial Bank v. Flake, 151 Ga. App. 578, 582-583 (8) (260 SE2d 523) (1979). See Lamb v. Fulton-DeKalb Hosp. Auth., 297 Ga. App. 529, 533-534 (2) (677 SE2d 328) (2009); Citizens & Southern Nat. Bank v. Williams, 147 Ga. App. 205, 208 (4) (249 SE2d 289) (1978). Accordingly, in light of the factual dispute as to whether there was consideration for the guaranty, the trial court erred in granting summary judgment to the bank.

Judgment reversed.

Adams and Blackwell, JJ., concur.

       The bank also sued Zanjero for breach of contract and moved for summary judgment on that claim as well. The trial court granted summary judgment in favor of the bank on its contractual claim against Zanjero, but that ruling is not before us in this appeal.


text:
    A11A0850.
    KNIGHT v. THE STATE.
    (715 SE2d 771)
   Ellington, Chief Judge.

A Tattnall County jury found William Knight guilty beyond a reasonable doubt of child molestation, OCGA § 16-6-4 (a). He appeals from the denial of his motion for new trial, contending that the evidence was insufficient to support his conviction, that the prosecutor’s argument to the jury was improper, and that the prosecutor “tainted” the court’s sentence by attempting to introduce evidence of his prior convictions. For the following reasons, we affirm.

1. Knight argues that the evidence presented was insufficient to support his conviction because, according to him, the testimony of the 13-year-old victim was incredible and “not worthy of belief.”

When a criminal defendant challenges the sufficiency of the evidence supporting his or her 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.” (Citation omitted; emphasis in original.) Jackson v. Virginia, 443 U. S. 307, 319 (III) (B) (99 SC 2781, 61 LE2d 560) (1979). Viewed in this light, the trial transcript shows that, in January 2007, the victim went to her grandfather’s house after school with her cousin. As she went upstairs, she saw her aunt’s boyfriend, Knight, as he was walking out of the bathroom. Knight had a towel partially wrapped around him, and he followed the victim into the living room. Knight put his leg on a chair and started grabbing the victim’s buttocks. The victim repeatedly told him to stop, but he did not. Knight then told the victim to go into the bathroom with him and, when she refused, he pulled her inside, closed the door, and kissed her on the lips and her neck. The victim pushed Knight away and got out of the bathroom. Knight told her to come back and then removed his towel, showing her his “private part.”

In support of his insufficient evidence argument, Knight notes that there were no other witnesses to the molestation and that the victim did not tell her parents about the molestation, but instead, told a friend at school the next day. He also points to evidence that, in his opinion, shows the victim had a motive to lie and demonstrates that the victim’s testimony was “more than a little suspect.” While characterizing this case as presenting a “classic he-said[,] she said” scenario, he argues that the jury was not authorized to accept the victim’s testimony over evidence showing that she may have been lying. Thus, his insufficiency argument is based entirely on his assertion that, because he and the victim were the only people present during the alleged molestation, and because the victim lacked credibility, the evidence was insufficient as a matter of law.

It is axiomatic, however, that it is the function of the jury, not this Court, to judge the credibility of witnesses, resolve conflicts in the testimony, weigh the evidence, and draw reasonable inferences from the evidence. Jackson v. Virginia, 443 U. S. at 319 (III) (B). In so doing, “[a] jury is authorized to believe or disbelieve all or any part of the testimony of witnesses[.]” (Citation and punctuation omitted.) Bray v. State, 294 Ga. App. 562, 563 (1) (669 SE2d 509) (2008). Ultimately, “[a]s long as there is some competent evidence, even though contradicted, to support each fact necessary to make out the State’s case, the jury’s verdict will be upheld.” (Citation and punctuation omitted.) Miller v. State, 273 Ga. 831, 832 (546 SE2d 524) (2001).

Moreover, as Knight acknowledges, the victim’s testimony alone is generally sufficient to establish the elements of child molestation. Hammontree v. State, 283 Ga. App. 736, 737 (1) (642 SE2d 412) (2007); see OCGA § 24-4-8 (“The testimony of a single witness is generally sufficient to establish a fact.”). Consequently, his challenge to the sufficiency of the evidence, based solely upon his argument that the victim’s testimony was unbelievable, must fail.

2. Knight contends that the prosecutor made improper closing arguments to the jury, including statements that mischaracterized the evidence presented. The trial transcript shows, however, that Knight failed to raise a single objection during the prosecutor’s closing argument, nor did he raise this issue in his motion for new trial.

“Issues and objections not raised in the trial court and ruled on by the trial court are deemed waived and cannot be raised for the first time on appeal.” (Footnote omitted.) West v. State, 300 Ga. App. 583, 585 (2) (685 SE2d 486) (2009). See Williams v. State, 277 Ga. App. 106, 108 (2) (625 SE2d 509) (2005) (“We are a court for the correction of errors of law committed by the trial court where proper exception is taken, and we will not consider issues and grounds for objection, even of a constitutional magnitude, which were not raised and determined in the trial court.”) (footnote omitted). Accordingly, this alleged error presents nothing for review.

3. Knight contends that the State “tainted” the trial court’s sentence by attempting to introduce evidence of his four prior felony drug convictions during sentencing without providing proper notice of its intent to introduce such evidence. He also claims that the prosecutor’s argument during sentencing was improper.

Pretermitting whether Knight met his burden for demonstrating error or even preserved these alleged errors for review, the trial court’s sentence of fourteen years imprisonment, with six to serve, was well within the statutory limits for a child molestation conviction. See OCGA § 16-6-4 (b) (1) (authorizes a sentence for a first conviction of child molestation of between five and twenty years imprisonment). “We will not review for legal error any sentence which is within the statutory limits.” (Citations and punctuation omitted.) Brown v. State, 242 Ga. App. 347, 349-350 (3) (529 SE2d 650) (2000).

Decided August 4, 2011.

Maurice V. Joseph, Craig T. Pearson, for appellant.

Tom Durden, District Attorney, Melissa L. Poole, Assistant District Attorney, for appellee.

Judgment affirmed.

Miller, P. J., and Doyle, J., concur.

       The friend gave the note to a teacher, who in turn gave it to a school counselor, who testified at trial.

       “It is well-established that there is a presumption that [a] sentence was correctly imposed, and the burden of showing that a sentence was not correctly imposed is with the party who asserts its impropriety.” (Citations and punctuation omitted.) State v. Freeman, 198 Ga. App. 553, 557 (3) (402 SE2d 529) (1991). In this case, the trial court sustained Knight’s objection to the introduction of certified copies of the prior convictions. Knight’s argument on appeal that his sentence was improper simply because the trial court was “exposed” to the fact of his prior felony convictions is pure conjecture. Further, Knight failed to object during the prosecutor’s argument and, therefore, waived his opportunity to challenge the alleged improprieties in the argument on appeal. See Division 2, supra.


text:
    A11A1087.
    RICHARDSON v. THE STATE.
    (715 SE2d 774)
   PHIPPS, Presiding Judge.

Steve Richardson appeals from a trial court order denying his motion for discharge and acquittal for an alleged violation of his constitutional right to a speedy trial. Because we find the trial court’s order is insufficient to allow us to determine whether the trial court abused its discretion, we vacate the judgment and remand the case for entry of an order expressly including proper findings in accordance with Barker v. Wingo.

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

Decided August 5, 2011.

Alixe E. Steinmetz, for appellant.

“[T]he trial court’s order must provide sufficient findings of fact and conclusions of law to permit [the appellate court] to determine if the trial court properly exercised its discretions under the Barker analysis.”

Here, the trial court denied Richardson’s motion in an order that did not include any findings of fact or conclusions of law. Because the court failed to enter an order including findings and conclusions, the order is vacated and the case is remanded for the entry of an order consistent with Barker.

Notably, the fact that the trial court in this case discussed at the motion hearing the Barker factors does not make the denial of the motion reviewable. The trial court did not incorporate in its order a transcript containing its verbal findings of fact and conclusions of law, and moreover did not make at the hearing verbal findings of fact and conclusions of law as to all four Barker factors. Absent the required findings of fact and conclusions of law, there is no exercise of discretion for this court to review.

Judgment vacated and case remanded with direction.

Andrews and McFadden, JJ., concur.

Paul L. Howard, Jr., District Attorney, Lenny I. Krick, Assistant District Attorney, for appellee.

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

        Moore v. State, 309 Ga. App. 519 (710 SE2d 692) (2011) (footnote omitted); see Higgenbottom v. State, 288 Ga. 429, 430 (704 SE2d 786) (2011).

        State v. Porter, 288 Ga. 524, 526 (2) (a) (705 SE2d 636) (2011) (citation omitted).

       See Moore, supra; Goddard v. State, 310 Ga. App. 2, 4 (2) (712 SE2d 528) (2011).

       See Butler v. State, 309 Ga. App. 86, 92 (2) (d), n. 29 (709 SE2d 293) (2011) (denial of motion was reviewable where order incorporated transcript of the trial court’s verbal rulings and thus provided sufficient findings of fact and conclusions of law to permit appellate court to determine if trial court had properly exercised its discretion under Barker).

       See Higgenbottom, supra at 430-431.


author: Ellington, Chief Judge

text:
    A11A1016.
    EMERSON v. BROOKMERE HOMEOWNERS ASSOCIATION, INC.
    (715 SE2d 775)
   Ellington, Chief Judge

Pursuant to a granted discretionary appeal, Regina Emerson challenges an order of the Superior Court of Cobb County that granted partial summary judgment to Brookmere Homeowners Association, Inc., on its claim for attorney fees pursuant to OCGA § 13-6-11, in the amount of $5,000. For the following reasons, we reverse.

The relevant, undisputed facts show Emerson owns property in the Brookmere subdivision. Brookmere filed suit against Emerson to foreclose on a lien and to collect unpaid homeowners association assessments, fines, late fees, interest, court costs, and assessed attorney fees “actually incurred in collecting past due assessments and for foreclosure upon the Association’s lien,” pursuant to OCGA § 13-6-11. Emerson answered and counterclaimed for breach of contract, fraud, and breach of fiduciary duty. Brookmere moved to strike Emerson’s answer based upon her failure to verify her complaint. In the alternative, Brookmere moved for summary judgment on its claims and on Emerson’s counterclaims. After a hearing, the trial court denied the motion to strike and denied the motion for summary judgment with respect to Counts 1 and 2 of Brookmere’s complaint, the claims for unpaid assessments and for judicial foreclosure. However, the trial court granted summary judgment on Count 3, the claim for attorney fees, and awarded Brookmere $5,000 “for reasonable attorney’s fees and expenses of litigation which Plaintiff incurred in defending Defendant’s counterclaims.” The trial court also granted summary judgment in favor of Brookmere on Emerson’s counterclaims.

Emerson contends the trial court erred in granting summary judgment on Brookmere’s claim for OCGA § 13-6-11 attorney fees. We agree. Under OCGA § 13-6-11, the

Decided August 8, 2011.

Evans Adika, Selasi E. Adika, for appellant.

Lazega & Johanson, Karen S. Focia, Alisa B. Steinberg, for appellee.

expenses of litigation generally shall not be allowed as a part of the damages; but where the plaintiff has specially pleaded and has made prayer therefor and where the defendant has acted in bad faith, has been stubbornly litigious, or has caused the plaintiff unnecessary trouble and expense, the jury may allow them.

Under the plain language of this statute, only a plaintiff is eligible to recover the expenses incurred in prosecuting his or her claim; a defendant’s expenses of defending against a claim are not recoverable. Dennis-Smith v. Freeman, 277 Ga. App. 822, 825 (3) (627 SE2d 872) (2006) (“OCGA § 13-6-11 does not permit recovery of expenses incurred in defending a lawsuit.”); see Cox Interior v. Bayland Properties, 293 Ga. App. 612, 613 (2) (667 SE2d 452) (2008) (accord).

In this case, Brookmere requested, and the trial court awarded, OCGA § 13-6-11 attorney fees resulting from its successful defense against the counterclaims brought by Emerson. Because Brookmere was the counterclaim defendant, it was not entitled to attorney fees under OCGA § 13-6-11. Consequently, because the trial court’s award was unauthorized, we must reverse.

Judgment reversed.

Miller, P. J., and Doyle, J., concur.

       Brookmere contends this appeal should be dismissed because the order appealed is nonfinal and Emerson failed to follow the interlocutory appeal procedure. Because this appeal is taken from a partial grant of summary judgment, however, it is subject to review pursuant to OCGA § 9-11-56 (h). Further, the appeal was properly brought pursuant to the discretionary appeal procedure, because the award was less than $10,000. OCGA § 5-6-35 (a) (6).

       Although Brookmere may have been entitled to attorney fees resulting from its defense against Emerson’s counterclaims under OCGA § 9-15-14, it failed to request them.