text:
    A11A0578.
    HILL v. THE STATE.
    (713 SE2d 891)
   Barnes, Presiding Judge.

A jury found Marvin Hill guilty of aggravated assault, and the trial court denied his motion for a new trial. On appeal, Hill enumerates several alleged errors, including that the trial court erred by failing to charge the jury on the principle of no duty to retreat in self-defense cases. We conclude that the trial court committed reversible error by failing to give the charge because self-defense was Hill’s sole defense, the issue of retreat was raised by the evidence, the prosecutor raised the issue of retreat in cross-examining Hill and in closing argument, and the evidence of guilt was not overwhelming. Accordingly, we must reverse Hill’s conviction and remand for a new trial.

On appeal from a criminal conviction, we view the evidence in the light -most favorable to the jury’s verdict. Vadde v. State, 296 Ga. App. 405 (674 SE2d 323) (2009). So viewed, the evidence showed that the victim was playing basketball in a neighborhood in Fulton County. Hill was in the same neighborhood visiting with some friends who lived a few doors down from where the victim was playing ball. The victim decided that he wanted to go home and approached Hill, who was outside talking with his friends, about getting a ride. Hill did not know the victim except in passing and refused to drive him home. After his refusal, Hill and the victim got into a heated verbal altercation, and each of them threatened to hurt the other.

Once the verbal altercation ended, Hill left the neighborhood in his car to take his friends to the grocery store, while the victim returned to the yard where he was playing basketball. When Hill got back from the store with his friends, the victim was still outside, along with several other individuals. After dropping off his friends, Hill drove back down the street in the same direction that the victim and others were standing. As his car drove past them, someone threw a beer bottle at Hill’s windshield and cracked it. There was conflicting testimony as to whether the victim threw the bottle and where he was standing at the time it was thrown. Hill then deliberately struck the victim with his car. The victim got pinned underneath and was dragged several feet, resulting in severe injuries to his leg and chest.

Hill was arrested and indicted on the charge of aggravated assault for deliberately striking the victim with his car. At trial, the State maintained that Hill struck the victim in a fit of rage after his car windshield was hit with the beer bottle. In contrast, Hill maintained that he struck the victim in self-defense because the victim threw the bottle at his car, verbally threatened him, and then reached under his shirt as if grabbing for a gun, leading him to believe that the victim was about to shoot him.

The victim took the stand and denied throwing the bottle at Hill’s car. He testified that he was standing in a friend’s yard approximately 20 feet from Hill’s car when the bottle was thrown, and that Hill then drove up into the yard and ran over him. The victim further testified that he was not wearing a shirt that day, did not have a gun with him, and did not threaten to shoot Hill. Other witnesses testified that the victim had thrown the bottle and had on a shirt but that they never saw the victim reach under his shirt, pull out a gun, or verbally threaten Hill before he was struck by the car. Witnesses also testified that the victim was trying to run away from Hill’s car at the time he was struck.

In addition, a police officer who responded to the scene testified that Hill said that he had gotten angry at the victim for throwing the bottle at his car and had run over him as a result. The officer noted that Hill never said that he thought that the victim had a gun, that he feared for his life, or that he was acting in self-defense when he struck the victim. The officer further testified that he did not find any weapons around the site of the incident.

Hill testified to an entirely different version of events. According to Hill, during his initial verbal altercation with the victim, the victim had threatened, “I will take your car and shoot you.” Hill testified that later, after returning from the grocery store and dropping off his friends, he drove by the victim on his way out of the neighborhood to go home. At that point, Hill claimed that the victim threw a bottle at his windshield and then reached under his shirt and said, “Now I’m going to bust you,” as he stood at the curb two or three feet from the car. Hill testified that he thought he saw something shiny and believed that the victim was reaching for a gun. As related by Hill, at that second, he turned the wheel and steered his car into the victim on the curb because he was scared of getting shot. Hill stated that the victim then slipped and went underneath the car, which came to rest in the yard adjacent to the curb. Following the collision, Hill said that he told the responding officer that he believed the victim had been reaching for a gun, but the officer never gave him an opportunity to provide a written statement or fully explain himself.

One of the ways that the prosecutor attempted to counter Hill’s defense was by raising the issue of retreat. During cross-examination, the prosecutor asked Hill why he did not simply drive back to his friends’ house up the street and dial 911 if he felt threatened by the victim. Hill responded that he thought the victim had a gun and that “it was either me getting shot or trying to stop him from shooting me.” The prosecutor also asked Hill why he “didn’t put it in reverse and back up instead of driving over the [victim],” and he responded, “Because I was scared that the [victim] had a gun.” Later, during closing argument, the prosecutor again raised the issue of retreat, arguing that Hill should have simply driven away: “He could have steered away. He could have put it in reverse and gotten the heck out of dodge.”

At the trial’s conclusion, Hill orally requested that the trial court charge the jury with the pattern instructions for self-defense, and the court indicated that it would do so. However, Hill failed to submit any written requests to charge to the trial court. The trial court subsequently charged the jury on self-defense, but omitted the pattern jury instruction regarding the lack of a duty to retreat for a non-aggressor. Hill did not object to this omission in the charge.

After hearing the conflicting testimony and the charge of the court, the jury convicted Hill of aggravated assault. Hill filed a motion for a new trial, which the trial court denied. This appeal followed.

1. Although not enumerated as error, we first address the sufficiency of the evidence to support Hill’s conviction. Under Georgia law,

[a] person is justified in threatening or using force against another when and to the extent that he or she reasonably believes that such threat or force is necessary to defend himself or herself or a third person against such other’s imminent use of unlawful force; however, ... a person is justified in using force which is intended or likely to cause death or great bodily harm only if he or she reasonably believes that such force is necessary to prevent death or great bodily injury to himself or herself or a third person or to prevent the commission of a forcible felony.

OCGA § 16-3-21 (a). “Once evidence of self-defense is presented, the burden is on the [SJtate to disprove that defense beyond a reasonable doubt.” (Footnote omitted.) In the Interest of A. D., 295 Ga. App. 750, 751 (673 SE2d 116) (2009). The question of whether a defendant acted in self-defense is normally for the jury to resolve. Holmes v. State, 273 Ga. 644, 645 (1) (543 SE2d 688) (2001).

Viewed in the light most favorable to the verdict, the evidence discussed above was sufficient for the jury to conclude beyond a reasonable doubt that the State disproved Hill’s self-defense claim. The jury was entitled to reject Hill’s version of events and instead find that the victim did not throw the beer bottle, did not verbally threaten Hill, and did not reach under his shirt as if grabbing for a gun before he was struck by the car. See Muckle v. State, 307 Ga. App. 634, 638 (1) (a) (705 SE2d 721) (2011) (noting that “although [the defendant] offered testimony that conflicted with the State’s version of events, it was the role of the jury[ ] ... to assess the credibility of the witnesses and decide whose testimony to accept or reject.”). And even if the jury found that the victim threw the bottle at Hill’s car, it could have concluded that Hill struck the victim after any danger had passed and that his response was excessive. See id. at 637 (1) (a) (defendant’s use of force not justified if it occurs “after the imminent danger ... has passed” or “if the amount of force ... is excessive”) (citations and punctuation omitted). Accordingly, the evidence was sufficient to authorize a rational jury to find Hill guilty beyond a reasonable doubt of aggravated assault. Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560) (1979). See OCGA § 16-5-21 (a) (2).

2. Hill argues that the trial court committed reversible error by failing to charge the jury on the principle that a non-aggressor is not required to retreat before using force against an assailant, even absent a written request to charge. We agree.

Regarding the issue of retreat in self-defense cases, Georgia law provides that

one who is not the aggressor is not required to retreat before being justified in using such force as is necessary for personal defense or in using force which is likely to cause death or great bodily harm, if one reasonably believes such force is necessary to prevent death or great bodily harm to himself or to prevent the commission of a forcible felony.

(Citation and punctuation omitted.) Lewis v. State, 292 Ga. App. 257, 264 (2), n. 6 (663 SE2d 721) (2008). See OCGA § 16-3-23.1; Glover v. State, 105 Ga. 597, 598-599 (31 SE 584) (1898). Where self-defense is the sole defense, and the issue of retreat is raised by the evidence or placed in issue, the defendant is entitled to a charge on the lack of a duty to retreat. See Johnson v. State, 253 Ga. 37, 38-39 (315 SE2d 871) (1984); Jackson v. State, 237 Ga. App. 746 (516 SE2d 792) (1999). Furthermore, a trial court commits reversible error in failing to give the charge, even absent a written request or timely objection to its omission, where the evidence of the defendant’s guilt is not overwhelming and “the prosecution has raised the issue [of retreat] when questioning witnesses or in closing arguments.” (Citations omitted.) Felder v. State, 291 Ga. App. 740, 742-743 (1) (662 SE2d 826) (2008). See Jackson, 237 Ga. App. at 746-747.

In the present case, self-defense was Hill’s sole defense. Based upon his testimony, Hill was simply trying to drive home when the victim, who earlier that day had threatened to take his car and shoot him, approached his car, threw a beer bottle at the windshield, threatened to “bust” him, and reached under his shirt as if grabbing for a gun. Hence, under Hill’s version of the facts, he was not the initial aggressor and reasonably believed that force was necessary to prevent death or great bodily harm to himself. Moreover, the issue of retreat was squarely placed in issue by the prosecutor’s cross-examination of Hill, by Hill’s explanation of why he did not drive away from the victim, whom he characterized as the aggressor, and by the prosecutor’s closing argument. Compare Higginbotham v. State, 287 Ga. 187, 190 (4) (695 SE2d 210) (2010) (trial court’s failure to charge on lack of duty to retreat was not error, where the prosecutor did not question the defendant “as to why he did not leave the scene” and the issue was not otherwise raised by the evidence).

Additionally, we cannot say that the evidence of Hill’s guilt was overwhelming, given that the case turned solely on the credibility of Hill, the victim, and the other witnesses. Compare Buggle v. State, 299 Ga. App. 515, 518 (1) (683 SE2d 85) (2009) (evidence of defendant’s guilt was overwhelming, where the defendant’s testimony that he acted in self-defense was belied by a videotape of the incident). Under these circumstances, the trial court committed reversible error in failing to charge the jury on the lack of a duty to retreat, and we must reverse Hill’s conviction and remand for a new trial. See Johnson, 253 Ga. at 38-39; Lewis, 292 Ga. App. at 265-266 (2); Felder, 291 Ga. App. at 742-743 (1); Jackson, 237 Ga. App. at 747.

Decided July 8, 2011.

Eric J. Taylor, for appellant.

Paul L. Howard, Jr., District Attorney, Peggy R. Katz, Assistant District Attorney, for appellee.

3. In light of our holding in Division 2, we need not address Hill’s remaining enumerations of error.

Judgment reversed.

Adams and Blackwell, JJ., concur.

       The Suggested Pattern Jury Instructions, Vol. II: Criminal Cases, § 3.10.13, provides:
      One who is not the aggressor is not required to retreat before being justified in using such force as is necessary for personal defense or in using force that is likely to cause death or great bodily harm if one reasonably believes such force is necessary to prevent death or great bodily injury to oneself or a third person or to prevent the commission of a forcible felony.


source: Caselaw Access Project

author: Adams, Judge.

license: Public Domain

text:
    A11A0745.
    ADI FINANCIAL SERVICES, INC. v. CITY OF ATLANTA.
    (714 SE2d 270)
   Adams, Judge.

ADI Financial Services, Inc. appeals from the trial court’s order granting summary judgment to the City of Atlanta in this contract action. We affirm for the reasons set forth below.

On or about June 13, 2007, ADI entered into a one-year contract, entitled “City Contract Agreement for FC-6006007918, Audit of Duplicate Payments” (the “Agreement”). Under the Agreement, ADI agreed to provide “recovery auditor services,” which involved reviewing “accounts payable vendor files to identify duplicate payments” made by the City. In return, the City agreed to pay ADI 20 percent of all identified “duplicate payments” returned to the City. The Agreement provided that “ [further service under this Agreement, if desired, will require an amendment to this Agreement and the allocations of additional funds by the City.” Additionally, the City could make changes “within the general scope of the Agreement,” but “[i]f any changes cause an increase or decrease in [ADI’s] cost of performing any part of the Services . . . then a written amendment to the Agreement reflecting that change will be negotiated and entered into between the City and [ADI].”

At the end of the first year, the Agreement was subject to a one-year renewal option at “the sole discretion of the City.” And the City had the right to terminate the Agreement “for its convenience” at any time upon 30 days written notice. The City also had the right to terminate in the event of ADI’s default. The Agreement further provided that “[i]f this Agreement is so terminated, [ADI] shall be paid for Services satisfactorily completed.”

ADI subsequently discovered in the course of its audit that the Clerk of the Fulton County Superior Court had applied an improper millage rate and thus had incorrectly calculated the revenues owed to the City from intangible recording taxes and real estate transfer taxes. The result was that the City was not receiving its allotted share of intangible tax and real estate transfer tax distributions from Fulton County. ADI notified the City of this discrepancy, and on June 28, 2007, Gary Donaldson, revenue chief for the City, and Charlotte Daniely, accounts payable manager, signed a “City of Atlanta Recovery of Payment Form,” prepared by ADI (the “Recovery of Payment Form”). ADI’s president and sole owner, Stephon Lee, also signed and dated the form. The Recovery of Payment Form provides:

Based on ADI audit and analysis, the City wishes to explore approximately $11 million in Intangible Recording Taxes due to prior years’ erroneous allocation of payments by the Fulton County Superior Court. City will gain additional recurring tax collections of approximately $1.2 million, per year, once the error has been corrected. ADI has performed its analysis and provided the City with the correct method for calculating and allocating the Intangible Recording Taxes. Attached is the summary and detailed analysis reflecting the correct method for calculating the allocation of funds and the amount due the City. ADI will begin its efforts to collect funds due the City, immediately. Furthermore, ADI will have Fulton County Superior Court to change its method of calculating the City’s percentages of taxes due; thereby, causing an increase in future allocations of Intangible Recording Taxes to the City.

Donaldson and Daniely signed the form under language reading, “Please sign below to acknowledge and authorize ADI to pursue collection of fund [sic] due the City as stated above.” The summary attached to the form reflects that ADI ran the corrected calculations for the intangible recording tax from 2000 to 2007 and estimated that the City was due in excess of $13.7 million in unpaid revenue from that period.

On July 2, 2007, ADI wrote a letter to the Fulton County Tax Commissioner’s office notifying them that “there was an error in the method in which the Fulton County Superior Court allocates the Intangible Recording Taxes,” with supporting documentation. Four days later, ADI wrote the Clerk of the Fulton County Superior Court about this miscalculation and forwarded an opinion ADI had obtained from the Georgia Department of Revenue supporting this position. On or about August 29, 2007, the Fulton County Superior Court indicated that it would use corrected millage rates for calculating the real estate transfer and intangible recording taxes beginning September 1, 2007 forward. ADI acknowledges that the City paid it 20 percent of the additional amounts it received from the Clerk of the Fulton Superior Court from September 1, 2007 to June 2008, for a total of $240,442.46. But Revenue Chief Donaldson informed ADI that he would not authorize the company to collect the past due revenues, although the reason for this decision is in dispute. In June 2008, the City informed ADI that it would not be renewing the Agreement.

ADI brought suit against the City on January 20, 2009, asserting claims for, inter alia, bad faith breach of contract, unjust enrichment and specific performance. ADI contends that the City was obligated under the Recovery of Payment Form to pursue collection of the past due revenues from 2001 through 2007, but it prevented ADI from collecting those amounts and thus from collecting its 20 percent fee. The City filed a counterclaim for money had and received in the amount of $240,442.46, alleging that the Agreement was never amended to increase the scope of the services to be performed to include identification of lost revenues. The parties filed cross-motions for summary judgment.

In its summary judgment order, the trial court found that the Agreement contemplated only that ADI would audit accounts payable vendor files, and the court determined that the parties never formally amended the Agreement to provide that ADI also would audit for lost revenues. Nevertheless, the trial court found that “City Ordinance 2.1292 (d) allows modifications of city contracts ‘involving no additional cost to the city’ to be executed by the ‘head of the affected using agency or his designee.’ ” And Donaldson and Daniely, in fact, signed the Recovery of Payment Form and the City subsequently paid ADI 20 percent of the increase in collected revenues beginning in September 2007. Thus, the trial court concluded that “City . . . treated the [Agreement] as modified.” But the trial court concluded that

[njothing ... in [Agreement] or the Recovery of Payment Form requires the City to pursue past lost revenues. The Recovery of Payment Form talks in terms of persuading the County Clerk to “change its method of calculating the City’s percentages of taxes due; thereby, causing an increase in future allocations.

(Emphasis in original.) Because the Agreement ended in June 2008, the trial court concluded that ADI had been properly compensated for its services and was “not entitled to anything more.” Accordingly, the trial court granted both motions for summary judgment.

On appeal, ADI argues that the lower court erred in finding that the Recovery of Payment Form only permitted ADI to pursue and collect future allocations to the City of Atlanta, and not past allocations. “Construction of a written contract is a question of law for the trial court based on the intent of the parties as set forth in the contract, which question we review de novo.” (Citation and footnote omitted.) Donchi, Inc. v. Robdol, LLC, 283 Ga. App. 161, 163-164 (1) (a) (640 SE2d 719) (2007). When the language of the contract is clear and unambiguous, this Court will enforce the terms of the contract as written, without reference to matters outside of the contract. Id. at 164 (1) (a). Moreover, “ ‘[a] contract is not ambiguous, even though difficult to construe, unless and until an application of the pertinent rules of interpretation leaves it uncertain as to which of two or more possible meanings represents the true intention of the parties.’ ” (Citation omitted.) Giles v. Nationwide Mutual Fire Ins. Co., 199 Ga. App. 483, 484 (1) (405 SE2d 112) (1991).

Applying these principles, we agree with the trial court that nothing in either the Agreement or the Recovery of Payment form requires the City to collect past due revenues. The original Agreement did not contemplate, and thus does not address, any audit or collection of revenues by ADI; rather it concerns the audit of accounts receivable vendor files. The trial court found that the Agreement had not been formally amended but that the parties treated the Recovery of Payment Form as a modification of the Agreement, which was authorized by city ordinance. The City did not appeal that ruling. But even considering the Recovery of Payment Form as a binding modification, we conclude that it imposes no obligation upon the City to collect past due revenues.

The Recovery of Payment Form imposes additional obligations only upon ADI: to “begin its efforts to collect funds due the City, immediately” and to “have” Fulton County change its method of calculating the City’s allocation of revenues. While it may be implicit based upon the original Agreement that ADI would be compensated for its efforts — and the City did in fact compensate ADI for additional revenues going forward — nothing in the language of the form obligates the City to take any action not contemplated by the Agreement. Certainly nothing in the form requires the City to pursue the collection of past due revenue. The form merely states that the City “wishes to explore” the past due amounts. And although the signature line indicates that it represents an authorization for ADI to pursue “collection of fund[s] due the City as stated above,” nothing in the form’s language explicitly states that this includes the collection of past due revenues. To the extent that this lack of specificity creates any doubt or ambiguity as to the parties’ intent, it must be construed against ADI as the drafter of the Recovery of Payment Form and the party undertaking the obligation under the form. OCGA § 13-2-2 (5) (“If the construction [of a contract] is doubtful, that which goes most strongly against the party executing the instrument or undertaking the obligation is generally to be preferred”); Dept. of Community Health v. Pruitt Corp., 295 Ga. App. 629, 632 (673 SE2d 36) (2009) (“Another rule of construction requires us to construe ambiguous contract provisions against the drafter. . . .”). Accordingly, we conclude that nothing in the language of the Recovery of Payment Form entitles ADI to require the City to pursue collection of the past due revenue, and thus we affirm the denial of ADI’s motion for summary judgment.

Decided July 8, 2011.

Ayoub & Mansour, John A. B. Ayoub, for appellant.

Laura Sauriol-Gibris, for appellee.

Judgment affirmed.

Barnes, P. J., concurs. Blackwell, J., concurs in judgment only.

       Exhibit “A” to the Contract, entitled “General Conditions,” also provided that the City “reserves the right to modify or amend the Scope of Services and to renegotiate any Agreement awarded hereunder during the term of the Agreement.”

       The language “wishes to explore” is a handwritten change made to ADI’s typewritten form, which originally read that the City “is due” $11 million. This change was initialed by ADI’s president.

       The City does not appeal the grant of ADI’s motion for summary judgment on its counterclaim.

       Here, both parties executed the Recovery of Payment Form, but only ADI undertook any additional obligation under the form.


author: Miller, Presiding Judge.

text:
    A11A0747.
    JONES v. THE STATE.
    (713 SE2d 895)
   Miller, Presiding Judge.

Following a jury trial, Dan Jones was found guilty of aggravated stalking (OCGA § 16-5-91 (a)) and two counts of family violence battery (OCGA § 16-5-23.1). Jones filed a motion for a new trial, which the trial court granted as to the latter counts, but denied as to the aggravated stalking count. Jones appeals from the portion of the trial court’s order denying his motion for a new trial, asserting that his trial counsel provided ineffective assistance by (a) failing to move for a directed verdict based on an alleged fatal variance between the indictment and trial evidence; (b) failing to move for a directed verdict based on insufficient evidence to support the aggravated stalking charge; and (c) failing to object to the trial court’s jury charge on aggravated stalking. Concluding that Jones cannot establish ineffective assistance of counsel, however, we affirm.

Under Strickland v. Washington, 466 U. S. 668 (104 SC 2052, 80 LE2d 674) (1984),

[a] criminal defendant asserting an ineffective assistance of counsel claim bears the burden of showing (1) that counsel’s performance was deficient and (2) that the deficient performance prejudiced the defense by creating a reasonable probability that but for counsel’s errors, the outcome of the trial would have been different.

(Citations and footnotes omitted.) Miller v. State, 305 Ga. App. 620, 621 (2) (700 SE2d 617) (2010).

Viewing the evidence in the light most favorable to the verdict, see Jackson v. Virginia, 443 U. S. 307, 318-319 (99 SC 2781, 61 LE2d 560) (1979), the record reflects that Jones and the victim were married in 2001 and were divorced in December 2008. The victim’s testimony reflects a turbulent and abusive marriage. In October 2008, the victim and Jones were evicted from the trailer park where they lived; the victim communicated her intent to divorce Jones, and she moved in with her daughter. Because the victim’s daughter did not allow Jones to live in her residence, Jones stayed in his vehicle after he and the victim were evicted from the trailer park.

The victim testified that on October 3, 2008, Jones took her purse and car from her daughter’s residence in the middle of the night. The victim did not realize her purse and car were missing until the next morning, at which time she called the police. After this incident, the victim filed a petition for a good behavior bond in the magistrate court, alleging that Jones had threatened to kill her and placed her in fear. The court issued a good behavior bond, which restrained Jones from having any contact with the victim.

Thereafter, on October 10, 2008, the victim called the police and reported that Jones was repeatedly calling and text messaging her in violation of the good behavior bond. On October 25, 2008, the victim left her daughter’s residence and when she returned, she found that her clothes, television, DVD player, and blankets were missing. The victim assumed that the items had been taken by Jones. The victim called the police and left the residence again to check on her storage unit to ensure it had not been tampered with. Upon her return from the storage unit, she noticed Jones’s blue pickup truck parked in the driveway of an empty trailer about three houses down from her daughter’s residence. The victim testified that the truck appeared to be empty, so she approached it to obtain its tag information. As she approached the truck, however, the victim saw Jones coming from the direction of her daughter’s residence. Jones walked past the victim while she was on the phone with 911, he got back into the truck, and he began driving the truck in reverse. Thereafter, however, Jones proceeded to get out of the truck, at which point the victim ran. Jones subsequently hit the victim in the back of her head, knocked her to the ground, got on top of her, and hit her in the face. The next day, on October 26, 2008, the victim answered a phone call from an unidentified number and was told “you’re a dead bitch now.” The victim called the police regarding the phone call.

On October 27, 2008 (the date specified in the relevant aggravated stalking count of the indictment), the victim testified that she received several text messages from Jones while she was at work; she testified that she called the police because the text messages violated Jones’s good behavior bond. After the victim finished work for the day on October 27, 2008, she returned to her daughter’s residence at approximately 3:00 p.m. The victim’s daughter testified that “sometime that evening” she saw Jones at the residence. The victim’s daughter saw Jones parked on the property in a blue pickup truck, watched him “spin out” in his truck, and heard him yell. The daughter called the police, who were dispatched to her residence. The responding officer testified that he arrived at the residence at approximately 9:50 p.m. and met with the victim and her daughter at that time. The daughter informed him of the existence of the good behavior bond and her observation of the above-described incident. Later that night, the responding officer was again dispatched to the daughter’s residence in response to a call reporting Jones to be back at the residence. Jones had already fled the scene by the time the police arrived at the residence; he was nevertheless located and arrested later that night about a mile away from the daughter’s residence. The victim later left and stayed at a friend’s house that night.

Jones was indicted with four counts of aggravated stalking and two counts of family violence battery. At trial, Jones was represented by the public defender’s office. As the trial began, the State withdrew one aggravated stalking count. At the close of the State’s evidence, Jones’s trial counsel moved for a directed verdict on two of the aggravated stalking counts; the trial court granted Jones’s motion on one count and the State withdrew the other count. The remaining count of aggravated stalking and the two counts of family violence battery were submitted to the jury. The jury found him guilty on each count. Following his conviction and sentencing, Jones filed a timely pro se motion for new trial and communicated to the trial court that he wished to pursue a claim for ineffective assistance of trial counsel in his appeal. Per the trial court’s order, Jones was appointed new counsel to represent Jones on appeal. Jones’s new counsel filed an amended motion for new trial on April 2, 2010, in which he raised claims of ineffective assistance of trial counsel. The trial court entered an order granting Jones’s motion for new trial as to the family violence battery counts (the State subsequently nolle prossed these charges), but denying it with respect to the aggravated stalking count.

We note that the record reflects a motion for new trial hearing was scheduled for April 8, 2010. However, the trial court’s order makes no reference as to whether such hearing took place, and no transcript of that hearing has been included in the record for our review. “Appellate consideration of the claim based only on the trial record would not, of course, include the testimony of trial counsel concerning counsel’s actions at trial.” Wilson v. State, 277 Ga. 195, 198 (586 SE2d 669) (2003).

(a) Fatal Variance. Jones argues that his trial counsel should have moved for a directed verdict on the ground that there was an alleged “fatal variance” between the indictment and the proof presented at trial. Based on our review of the record, however, Jones cannot show that his trial counsel’s performance was deficient.

“The true inquiry regarding a fatal variance claim is whether there has been such a variance as to affect the substantial rights of the accused.” Holmes v. State, 291 Ga. App. 196, 199 (2) (661 SE2d 603) (2008).

The indictment pertinently charged Jones with aggravated stalking in that “on October 27, 2008, ... in violation of a good behavior warrant. . . , [he] did place [the victim] under surveillance at the residence [of her daughter] without the consent of [the victim] and for the purpose of harassing and intimidating [the victim] by going to [her daughter’s residence].” Based on OCGA § 16-5-91 (a), as limited by the language of the indictment, Jones could be convicted for aggravated stalking upon the State’s showing that Jones (1) violated a good behavior bond; (2) which prohibited following, placing under surveillance, or contacting the victim; (3) without the consent of the victim; and (4) for the purpose of harassing and intimidating the victim. See Jagat v. State, 240 Ga. App. 822, 822 (1) (525 SE2d 388) (1999).

Although the statute fails to provide a definition of the term “surveillance,” the term is readily understood by people of ordinary intelligence as meaning a “close watch kept over someone or something.” Merriam-Webster Online Dictionary (11th ed. 2008). Accordingly, the indictment put Jones on notice that driving to, parking at, and sitting outside the residence where the victim was staying constituted “surveillance” and that such conduct was a violation of the good behavior bond. Accord Holmes, supra, 291 Ga. App. at 198-199 (2) (concluding the indictment, which alleged that the aggravated stalking occurred on a specific date in violation of a family violence protective order, clearly put the defendant on notice that the alleged act of aggravated stalking was a violation of that order). “Thus, there is no basis whatsoever to believe that [Jones] was somehow misled or surprised as to the incident referred to in the indictment, that his ability to prepare for trial had been impeded, or that he could be tried again for the same offense.” (Footnote omitted.) Id. at 199 (2).

Since there was no fatal variance between the indictment and the trial evidence, trial counsel’s failure to move for a directed verdict on this ground was not deficient. “Failure to pursue a meritless motion does not amount to ineffective assistance.” Murray v. State, 306 Ga. App. 106, 108 (701 SE2d 579) (2010).

(b) Insufficient Evidence. Jones argues that his trial counsel should have moved for a directed verdict on the grounds that there was insufficient evidence to support his aggravated stalking conviction. However, we again conclude that Jones cannot demonstrate that his counsel’s performance was deficient.

Jones specifically contends that there is a lack of competent evidence showing that (i) the victim was present at the time of the October 27, 2008, incident, (ii) the victim was ever “placed under surveillance” by Jones, or (iii) Jones violated the good behavior bond. We disagree. First, based upon the evidence showing that the victim was present to speak with the officer, who had arrived shortly after Jones fled the scene, the jury was authorized to infer that the victim had also been present at the time of the incident. Furthermore, the evidence that Jones drove to, parked at, and sat outside of the residence where the victim was staying was sufficient for the jury to reasonably infer that Jones’s behavior constituted “surveillance” and contact of a nature that violated the good behavior bond.

Thus, viewing this evidence in the light most favorable to the verdict, we conclude that the evidence was sufficient to support the conviction of aggravated stalking as charged in the indictment. Consequently, trial counsel’s failure to move for a directed verdict on the grounds of insufficient evidence was not deficient. See McCoy v. State, 278 Ga. App. 492, 494 (4) (a) (629 SE2d 493) (2006) (“The failure to raise a meritless motion for a directed verdict, as a matter of law, is not ineffective assistance of counsel.”).

(c) Jury Charge. Jones contends that he received ineffective assistance of counsel because his trial counsel failed to object to the trial court’s jury charge on aggravated stalking. We disagree.

“Trial counsel’s failure to raise objections to the charge establishes no lack of effectiveness on his part absent some deficiency or impropriety in the charge which was harmful to [the defendant].” Harris v. State, 258 Ga. App. 669, 672 (2) (574 SE2d 871) (2002).

In accordance with Suggested Pattern Jury Instructions, Vol. II: Criminal Cases (4th ed.) § 2.24.55, the trial court instructed the jury that “a person commits the offense of aggravated stalking when such person, in violation of a good behavior bond, places under surveillance or contacts another person at or about a place or places without the consent of the other person for the purposes of harassing or intimidating the other person.” Jones claims that trial counsel should have objected to the jury charge because it contained the term “contacts” (in addition to “places under surveillance”), whereas the relevant aggravated stalking count of the indictment charged only that Jones “place[d] [the victim] under surveillance.”

Even if we assume that trial counsel was deficient in failing to object to the charge on the ground that it deviated from the indictment, Jones has shown no prejudice from the alleged error. Accord Goldey v. State, 289 Ga. App. 198, 201 (2) (f) (656 SE2d 549) (2008). Notably, we find it highly improbable that the absence of an objection to the charge contributed to the jury’s verdict. Id. at 202 (2) (f). Here, the trial court twice read the allegations of the indictment to the jury, twice reminded the jury that they would have the indictment with them during their deliberations, and instructed the jury that the burden rests with the State to prove every material allegation of the indictment. The charge as given was not likely to mislead the jury into believing it could convict Jones should they find the evidence supported a form of aggravated stalking not specified in the indictment, i.e., by “contacting” the victim on October 27, 2008. Potts v. State, 207 Ga. App. 863, 865 (1) (429 SE2d 526) (1993) (“A charge on a code section in its entirety is not error where a part thereof is applicable and it does not appear that the inapplicable part misled the jury or erroneously affected the verdict.”) (citations and punctuation omitted); see also Slack v. State, 159 Ga. App. 185, 188 (2) (283 SE2d 64) (1981).

Decided July 8, 2011.

James A. Chamberlin, Jr., for appellant.

Jacquelyn L. Johnson, District Attorney, Jonathan R. Miller III, Assistant District Attorney, for appellee.

Accordingly, Jones cannot show that there is a reasonable probability that the outcome of the proceedings would have been different, but for his trial counsel’s allegedly unprofessional error.

Judgment affirmed.

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

       We note that in denying Jones’s motion for new trial, the trial court’s order ruled only on the general ground that there was sufficient evidence to sustain Jones’s conviction of aggravated stalking. The trial court did not make any additional findings, or otherwise consider, the numerous claims of ineffective assistance of counsel raised by Jones in his amended motion for new trial. Under these circumstances, this Court would generally remand the case for the trial court’s determination of Jones’s ineffective assistance of counsel claims. Shelton v. State, 307 Ga. App. 599, 601 (2) n. 5 (705 SE2d 699) (2011). Nevertheless, “[rjemand is not mandated if we can determine from the record that the defendant cannot establish ineffective assistance of counsel under the two-prong test set forth in Strickland.” (Citation and punctuation omitted.) Ruiz v. State, 286 Ga. 146, 149 (2) (686 SE2d 253) (2009). As further detailed herein, the record in this case is sufficient for this Court to determine that Jones’s ineffective assistance claims lack merit.


author: Barnes, Presiding Judge.

text:
    A11A1002.
    A11A1008.
    TOOKES v. THE STATE. SMALLS v. THE STATE.
    (713 SE2d 882)
   Barnes, Presiding Judge.

Following a jury trial, Shaheem Smalls and Charles Tookes were each convicted of armed robbery. In these companion appeals, both men argue that the evidence presented at trial was insufficient to sustain their convictions. Upon our review, we affirm.

When reviewing a claim of insufficient evidence, this court determines only whether there was sufficient evidence upon which a rational trier of fact could find the defendants guilty beyond a reasonable doubt of the charged offenses. Jackson v. Virginia, 443 U. S. 307 (1) (99 SC 2781, 61 LE2d 560) (1979). The defendants no longer possess a presumption of innocence, and this court views the evidence in the light most favorable to the jury’s verdict. Id. See also Kirk v. State, 271 Ga. App. 640, 641 (1) (610 SE2d 604) (2005).

So viewed, the record reveals that on June 18, 2008, the victim felt someone touch her on her back as she began getting into her car at a store parking lot in McDonough, Georgia. Assuming that she knew who was behind her, the victim turned around only to find two unknown teenage males, one with dreadlocks. After telling the individuals to get away from her, they began “crowding” her.

When the victim saw what she believed was a gun, she began to defend herself by swinging her bag at the individuals. They pushed her to the ground, and “crowded over” her. One of them pointed a gun directly into the victim’s chest. The individuals took the victim’s bag and ran.

One witness called the police and identified the individual with dreadlocks as Shaheem Smalls. Another witness chased after the two men in his truck. This witness was able to get close enough to throw rocks at them, hitting one of them in the back. A few seconds later, the individual carrying the bag threw it away, and the witness retrieved it and gave it to the police. The two witnesses later testified at trial regarding what they had seen.

After receiving a positive identification and other witness descriptions of the assailants, the police arrested Smalls. The police later arrested Tookes as a suspect in the crime.

The sole contention of Smalls and Tookes is that the gun was not used to facilitate the robbery. A person commits the offense of armed robbery when, with the intent to commit the theft, he takes the property of another from the person or immediate presence of another by use of an offensive weapon. OCGA § 16-8-41 (a). “The force or intimidation essential to robbery must either precede or be contemporaneous with, and not subsequent to, the taking.” (Emphasis omitted.) Thomas v. State, 290 Ga. App. 10, 11 (1) (658 SE2d 796) (2008).

An armed robber need not use an offensive weapon in a menacing or threatening manner to accomplish the robbery. . . . The element of “use” is present when the victim is aware of the weapon and it has the desired forceful effect of assisting to accomplish the robbery.

(Citation, punctuation and footnote omitted.) Jackson v. State, 248 Ga. App. 7, 8-9 (1) (545 SE2d 148) (2001).

Viewing the facts in the light most favorable to the jury’s verdict, the record shows that one of the perpetrators brandished a gun and pointed it directly into the victim’s chest during the robbery. One of the perpetrators took the victim’s bag seconds after knocking her to the ground. The evidence further established that the perpetrator who was unarmed aided and abetted in the robbery by approaching and “crowding” over the victim. See OCGA § 16-2-20 (b). Lastly, evidence further shows that the two perpetrators were identified at trial as Smalls and Tookes. Based on this combined evidence, we conclude that the evidence was sufficient for a rational jury to find Smalls and Tookes guilty beyond a reasonable doubt of armed robbery. See OCGA § 16-2-20; Jackson, 443 U. S. 307; Robinson v. State, 246 Ga. App. 576 (541 SE2d 660) (2000).

Decided July 8, 2011.

Jimmonique R. S. Rodgers, for appellant (casé no. A11A1002).

L. Elizabeth Lane, for appellant (case no. A11A1008).

Tommy K. Floyd, District Attorney, John A. Pipkin III, Assistant District Attorney, for appellee.

Judgments affirmed.

Adams and Blackwell, JJ, concur.

       The State’s motion to dismiss Smalls’s appeal is hereby denied.

       Although not presented to the jury, the basis for the police to arrest Tookes was because Smalls implicated him in a written confession of the robbery.


author: McFadden, Judge.

text:
    A09A2317.
    SAPP et al. v. CANAL INSURANCE COMPANY.
    (713 SE2d 900)
    Decided July 11, 2011.

      Watkins, Lourie, Roll & Chance, Lance D. Lourie, Stephen R. Chance, for appellants.

      Gilliland, Ratz & Browning, Charles A. Ratz, Robert W. Browning, Spurlin & McCorvey, John C. Spurlin, McCall, Williams, Wilmot & Powell, Robert C. Wilmot, William H. Hedrick, for appellee.
   McFadden, Judge.

In Sapp v. Canal Ins. Co., 288 Ga. 681 (706 SE2d 644) (2011), the Supreme Court reversed the judgment of this Court in Sapp v. Canal Ins. Co., 301 Ga. App. 596 (688 SE2d 375) (2009). Accordingly, we vacate our earlier opinion and adopt the judgment of the Supreme Court as our own.

Judgment reversed.

Ellington, C. J., and Mikell, J., concur.


author: Blackwell, Judge.

text:
    A11A0340.
    SAIIA CONSTRUCTION, LLC v. TERRACON CONSULTANTS, INC.
    (714 SE2d 3)
   Blackwell, Judge.

Saiia Construction, LLC settled a claim arising from its alleged failure to properly construct a retaining wall, and Saiia sued Terra-con Consultants, Inc., a firm that advised Saiia in connection with the construction of the wall, for contractual indemnification, common-law indemnification, and contribution. Relying on our decision in Jordan Jones & Goulding v. Newell Recycling of Atlanta, 299 Ga. App. 294 (682 SE2d 666) (2009)—in which we held that, even when a written contract governs a professional relationship, any claims sounding in professional malpractice are subject to the limitations set forth in OCGA § 9-3-25 — Terracon moved for summary judgment, contending that the claims against it sound in professional malpractice, were not filed within four years of the last date on which Terracon performed services for Saiia, and are barred, therefore, by OCGA § 9-3-25. The trial court granted the motion, and Saiia commenced this appeal. Since then, the Supreme Court of Georgia has overturned our decision in Jordan Jones, holding that not all professional malpractice claims are subject to OCGA § 9-3-25. See Newell Recycling of Atlanta v. Jordan Jones & Goulding, 288 Ga. 236 (703 SE2d 323) (2010); see also Jordan Jones & Goulding v. Newell Recycling of Atlanta, 309 Ga. App. 717 (710 SE2d 915) (2011). We now conclude that the trial court in this case erred when it awarded summary judgment to Terracon, and we reverse the judgment below.

Summary judgment is warranted when the material facts, as shown by the pleadings and record evidence, are undisputed and these facts entitle the moving party to judgment as a matter of law. See OCGA § 9-11-56 (c). We review de novo the grant of a motion for summary judgment. McPherson v. McPherson, 307 Ga. App. 548, 548 (705 SE2d 314) (2011); see also Pendley v. Southern Regional Health System, 307 Ga. App. 82, 82 (704 SE2d 198) (2010). And we view the record evidence on appeal in the same way as the trial court, that is, in the light most favorable to the nonmoving party. McPherson, 307 Ga. App. at 548; see also Pendley, 307 Ga. App. at 82.

So viewed, the record shows that a general contractor hired Saiia to perform certain site work in connection with the construction of an apartment complex. This work involved, among other things, the erection of a retaining wall. On November 2, 2002, Terracon submitted a written proposal to Saiia, in which Terracon proposed to provide Saiia with soil-observation and testing services at the apartment complex. This written proposal is signed by a representative of Terracon and sets forth the terms and conditions under which Terracon would provide services to Saiia, including a provision that Terracon would maintain certain insurance policies and would, within the limits and conditions of such policies, “indemnify and save [Saiia] harmless from and against any loss, damage, injury or liability arising from any negligent acts of Terracon, its employees, agents, subcontractors and their employees and agents.” The written proposal also provides that “[sjervices performed by Terracon under this Agreement will be conducted in a manner consistent with that level of care and skill ordinarily exercised by members of the profession currently practicing under similar conditions in the same locale.” Terracon ultimately did perform work for Sáiia, and Terra-con completed its work on December 17, 2003, when it provided Saiia with an engineering certificate for the construction of the retaining wall.

The owner of the apartment complex and the general contractor apparently did not pay Saiia the amounts to which Saiia believed it was entitled, and on April 13, 2006, Saiia filed a lawsuit against the owner to enforce its lien for the work it had performed. The owner and general contractor then brought a counterclaim against Saiia, in which they alleged that the retaining wall was defective. Saiia eventually settled this counterclaim.

On November 2, 2009, Saiia filed this lawsuit, in which it asserts claims against Terracon for contractual indemnification, common-law indemnification, and contribution. Saiia alleges that any defect in the retaining wall, and, hence, its liability to the owner and general contractor for any such defect, are the proximate result of the negligence of Terracon. Terracon denied these allegations, and it moved for summary judgment, asserting that the claims that Saiia asserts against it are barred by OCGA § 9-3-25, which provides in pertinent part that “[a] 11 actions . . . upon any implied promise or undertaking shall be brought within four years after the right of action accrues.” In its motion, and at the hearing on its motion, Terracon relied upon our decision in Jordan Jones, 299 Ga. App. at 294, arguing that we held in Jordan Jones that OCGA § 9-3-25 applies “unconditionally” to all claims that sound in professional malpractice, even those that arise from a written contract. Because the claims that Saiia asserts in this lawsuit sound in professional malpractice, and because they were brought more than four years after Terracon completed its work for Saiia, the claims are barred, Terracon argued, by OCGA § 9-3-25. The trial court concluded that this case is controlled by our opinion in Jordan Jones and awarded summary judgment to Terracon. Saiia appeals from the judgment below, and we conclude that the court below erred for two reasons.

1. We first note that, even if OCGA § 9-3-25 applies to the claims in this lawsuit, the trial court erred when it awarded summary judgment to Terracon because the record does not show that more than four years elapsed between the date upon which the claims for indemnity and contribution accrued and the filing of this lawsuit. The period of limitation for a common-law indemnity or statutory contribution claim begins to run when the claimant pays another to settle the claim of the other or to satisfy the judgment of the other. Auto-Owners Ins. Co. v. Anderson, 252 Ga. App. 361, 364 (1) (556 SE2d 465) (2001). And the period of limitation for a claim of breach of contract begins to run when the contract is breached, Hamburger v. PFM Capital Mgmt., 286 Ga. App. 382, 384-385 (1) (649 SE2d 779) (2007), which, in the case of a contractual duty to indemnify, is the moment at which the party owing the duty refuses to indemnify the other party for amounts that the latter has paid to settle the claim of another or to satisfy the judgment of another. See Davis v. Southern Exposition Mgmt. Co., 232 Ga. App. 773, 775 (2) (503 SE2d 649) (1998) (“Where no funds have yet been expended, a party’s right to seek [contractual] indemnification has not yet actualized.”). Here, the record reflects that Saiia settled the counterclaim of the owner and general contractor on April 16, 2010, pursuant to an agreement that obligated it to release its lien and claims against the owner and general contractor, perform corrective work on the property, and pay approximately $183,000 to the general contractor. As a result, Saiia’s lawsuit seeking indemnification and contribution was not filed more than four years after the events that caused the claims in this case to accrue. For this reason alone, it was error for the trial court to award summary judgment to Terracon in August 2010.

2. We also think the trial court erred when it applied OCGA § 9-3-25 to the claims that Saiia asserts against Terracon. The trial court relied upon our decision in Jordan Jones when it held that the claims in this case are subject to OCGA § 9-3-25 because they sound in professional malpractice. But our Supreme Court subsequently overruled our decision in Jordan Jones, explaining that, when a professional malpractice claim arises from a standard of care implied by law in a written contract for professional services, the statute of limitation for written contracts, OCGA § 9-3-24, applies. Newell Recycling, 288 Ga. at 237 (“[BJecause an implied promise to perform professionally pursuant to a written agreement for professional services would be ‘written into (the contract for professional services) by the law,’ an alleged breach of this implied obligation would necessarily be governed by the six-year statute of limitation of OCGA § 9-3-24.”). In light of the decision of our Supreme Court in Newell Recycling, and because there is some evidence in this case of a complete written contract for professional services, the trial court erred when it applied OCGA § 9-3-25 to the claims in this case for purposes of summary judgment. As to the claim for contractual indemnification, if there is, in fact, a complete written contract for professional services between Saiia and Terracon from which the claim for contractual indemnification arises, the limitations set forth in OCGA § 9-3-24 would apply.

As to the claims for common-law indemnification and contribution, we think these claims are subject to OCGA § 9-3-22, which provides in pertinent part that “[a]ll actions for the enforcement of rights accruing to individuals under statutes ... or by operation of law shall be brought within 20 years after the right of action has accrued.” A right of indemnity accrues by operation of the common law to one “who is compelled to pay damages because of liability imputed to him as the result of a tort committed by another.” Auto-Owners, 252 Ga. App. at 363 (1) (citation omitted); see also Crawford v. Johnson, 227 Ga. App. 548, 549 (1) (489 SE2d 552) (1997); North Ga. Elec. Membership Corp. v. Thomason &c. Constr. Co., 157 Ga. App. 719, 720 (1) (278 SE2d 433) (1981). And the right of contribution against a joint tortfeasor is given by statute, OCGA § 51-12-32 (a). A claim to vindicate these rights is, therefore, a claim to enforce rights that accrue by operation of law or a statute. We have held before that such claims are subject to OCGA § 9-3-22, and we see no reason in this case to revisit these holdings. See, e.g., Auto-Owners, 252 Ga. App. at 364 (1) (“The statute of limitation for a claim of [common-law] indemnity is 20 years from the settlement or final judgment.”); Krasaeath v. Parker, 212 Ga. App. 525, 526 (1) (441 SE2d 868) (1994) (“The 20-year statute of limitation for contribution actions is governed by OCGA § 9-3-22.”).

Decided June 16, 2011

Reconsideration denied July 12, 2011.

Walston, Wells, Anderson & Birchall, Vernon L. Wells II, Hull Barrett, David E. Hudson, for appellant.

Weinberg, Wheeler, Hudgins, Gunn & Dial, Henry C. DeBardeleben TV, Scott A. Witzigreuter, Jeffrey N. Amason, Downey & Cleveland, George L. Welborn, for appellee.

Because the trial court erred when it granted summary judgment to Terracon, we reverse the judgment below and remand this case to the trial court for proceedings consistent with this opinion.

Judgment reversed and case remanded.

Barnes, P. J., and Adams, J., concur.

       Saiia also sued an individual involved in the construction of the retaining wall, but its claims against this individual are not a subject of this appeal.

       Saiia first brought its indemnity claim against Terracon as a third-party claim in its litigation with the owner and general contractor, but Saiia later dismissed that third-party claim without prejudice.

       The bar of a statute of limitation is an affirmative defense, and Terracon, therefore, bears the burden of proving that the claims asserted by Saiia are barred by the applicable statute of limitation. Cleaveland v. Gannon, 284 Ga. 376, 381 (2) (667 SE2d 366) (2008).

       At this point, because we must construe the record evidence in the light most favorable to Saiia, and because there is some evidence in the record of a complete written contract between Saiia and Terracon, we accept that the contractual claim in this case is based upon a complete written contract for professional services. On remand, however, Terracon may dispute that the writings on which Saiia relies form the entire contract between the two parties or that the services it provided to Saiia in connection with the construction of the retaining wall were, in fact, rendered pursuant to this written contract. These are not questions before this Court at this time, and our decision is limited to the record now before the Court.

       We note that our Constitution provides that “[t]he decisions of the Court of Appeals insofar as not in conflict with those of the Supreme Court shall bind all courts except the Supreme Court as precedents,” Ga. Const. 1983, Art. VI, Sec. V, Par. Ill, and our decision in Jordan Jones was still considered good authority, and, therefore, binding upon the trial court, at the time the trial judge rendered his decision in this case.

       Terracon argues on appeal that Saiia is not entitled to recover indemnification under the common law or contribution from Terracon on the facts alleged in its complaint. Terracon might be right about the merits of these claims, but the merits of the claims are not before us. The sole issue before us is the statute of limitation.


text:
    A10A2104.
    BETHEL v. FLEMING.
    (713 SE2d 900)
   Miller, Presiding Judge.

This case involves a declaratory judgment action brought by Gwendolyn Keyes Fleming, the former District Attorney of the Stone Mountain Judicial Circuit (the “District Attorney”), against Winston E Bethel, Chief Judge, and the other judges of the Magistrate Court of DeKalb County (“MCDC”). The District Attorney asserts that declaratory judgment relief is needed to enable her to ascertain the proper evidentiary standards in preliminary hearings in the MCDC, alleging that she faced uncertainty and insecurity as to her ability to rely on hearsay evidence alone as a basis on which to establish probable cause in order to have a case bound over to an appropriate court. On the parties’ cross-motions for summary judgment, the trial court granted the District Attorney’s motion and entered a declaratory judgment in favor of the District Attorney. The MCDC appeals, arguing that (i) the underlying action for declaratory judgment is procedurally improper under OCGA § 9-4-2 (a) and (b), (ii) the MCDC has discretion to exclude hearsay evidence at preliminary hearings, and (iii) noncompliance with a declaratory judgment does not constitute a basis for bringing a complaint to the Judicial Qualifications Commission (“JQC”).

This case is of great significance to the extent that if decided wrongly, it would negatively impact the expedient resolution of cases and the public safety of all Georgia citizens in the context of the criminal justice system. To that end, we find a declaratory judgment regarding the proper evidentiary standards in preliminary hearings is authorized and necessary in this case, and further, that magistrate judges are required to admit and weigh hearsay evidence in preliminary hearings. We thus affirm the trial court’s order on these grounds. Regarding the trial court’s ruling on JQC complaints, however, we conclude that such ruling was an erroneous advisory opinion; therefore, we reverse that portion of the declaratory judgment.

This Court’s review of the grant or denial of summary judgment is de novo in order to determine whether any genuine issue of material fact exists for resolution by a jury. To prevail at summary judgment, the moving party must demonstrate that there is no genuine issue of material fact and that the undisputed facts, viewed in the light most favorable to the nonmoving party, warrant judgment as a matter of law pursuant to OCGA § 9-11-56 (c). A defendant may do this by showing the court that the documents, affidavits, depositions and other evidence in the record reveal that there is no evidence sufficient to create a jury issue on at least one essential element of plaintiffs case. The burden on the moving party may be discharged by pointing out by reference to the affidavits, depositions and other documents in the record that there is an absence of evidence to support the nonmoving party’s case. If the moving party discharges this burden, the nonmoving party cannot rest on its pleadings, but rather must point to specific evidence giving rise to a triable issue.

(Punctuation and footnotes omitted.) McCullough v. Reyes, 287 Ga. App. 483, 484 (651 SE2d 810) (2007).

So viewed, the evidence shows that the genesis of the instant action dates back to 2007, when the District Attorney filed a petition for mandamus and writ of prohibition against the MCDC and against Chief Judge Bethel and certain magistrate judges in their individual capacities, seeking an order requiring the MCDC to admit and consider hearsay evidence at preliminary hearings to determine whether to bind over the defendant for grand jury indictment. The trial court ruled that “a magistrate judge does not have the discretion to refuse to admit hearsay or to require evidence in addition to hearsay evidence, if such hearsay by itself establishes probable cause to bind over charges against a defendant.”

The MCDC appealed to the Supreme Court of Georgia, which reversed the trial court’s order on the ground that the “underlying subject matter concerns rulings allegedly made in criminal prosecutions, and from which the State has no ability to appeal. . . .” Magistrate Court of DeKalb County v. Fleming, 284 Ga. 457, 458 (667 SE2d 356) (2008). In reaching its decision, however, the Supreme Court opined that had the District Attorney’s petition for mandamus and prohibition been cast as a complaint for declaratory judgment, “merely seeking guidance regarding the proper evidentiary standards for preliminary hearings,” such a complaint would have been proper. Id. at 458.

Upon the remittitur of the case, the District Attorney sought leave of court to amend her petition for mandamus and prohibition to assert the claim for declaratory judgment now at issue before this Court. On cross-motions for summary judgment, the trial court entered judgment for Fleming and against the MCDC, declaring that at a preliminary hearing:

(1) there is no constitutional right to confront witnesses, (2) hearsay evidence is probative evidence, (3) hearsay evidence is admissible and the magistrate judge does not have the discretion to exclude evidence simply because it is hearsay, (4) the magistrate judge does not have the discretion to require evidence in addition to hearsay evidence as a condition precedent to bind over, if such evidence by itself establishes probable cause, and (5) the probable cause standard for bind over at a preliminary hearing is the same as the probable cause standard for the issuance of an arrest warrant.

(Emphasis in original.)

Finally, the trial court opined that should a magistrate judge disregard its ruling, a complaint could properly be made to the JQC for determination of whether the accused magistrate judge “had engaged in judicial misconduct for wilfully failing to follow clear and determined law.”

1. The MCDC argues that the District Attorney cannot satisfy the statutory elements for a declaratory judgment action, and regardless, her petition was improperly brought and is moot. Specifically, the MCDC asserts that: (a) there is no case or controversy under OCGA § 9-4-2 (a) since the case does not “affect[ ] any actual pending criminal prosecution” and “does not challenge any specific ruling in a specific case”; (b) the case involves a matter of criminal, rather than civil, law; and (c) the action is moot for lack of uncertainty and practical effect. Finding this to be a civil case clearly presenting a justiciable controversy which cannot be regarded as moot given the District Attorney’s daily evidentiary burden at countless bindover hearings, we are not persuaded.

(a) Case or Controversy. Standing to assert a claim for declaratory judgment does not turn exclusively on the presence of a case or controversy under OCGA § 9-4-2 (a). Rather, subsection (b) thereof extends the reach of the Declaratory Judgment Act beyond actual cases or controversies to any controversies that are “justiciable.” Calvary Independent Baptist Church v. City of Rome, 208 Ga. 312, 314 (3) (66 SE2d 726) (1951). In this regard, a declaratory judgment is authorized when there are

circumstances showing any necessity for a determination of the dispute to guide and protect the plaintiff from uncertainty and insecurity with regard to the propriety of some future act or conduct, which is properly incident to his alleged rights and which if taken without direction might reasonably jeopardize his interest....

(Citation and punctuation omitted.) Morgan v. Guaranty Nat. Cos., 268 Ga. 343, 344 (489 SE2d 803) (1997).

Here, as the trial court recognized, the District Attorney must daily appear and assume a burden of proof and production of evidence during preliminary hearings in the MCDC. See OCGA § 17-7-23 (a) (“The duty of a court of inquiry is simply to determine whether there is sufficient reason to suspect the guilt of the accused and to require him to appear and answer before the court competent to try him. Whenever such probable cause exists, it is the duty of the court to commit.”); see also Neal v. State, 160 Ga. App. 498, 499 (1) (287 SE2d 399) (1981), overruled on other grounds, Bangs v. State, 198 Ga. App. 404 (401 SE2d 599) (1991) (“The state’s burden at the commitment hearing is simply to show probable cause to believe the accused guilty, and if so, to bind him over to the grand jury for indictment, rather than to show guilt beyond a reasonable doubt, as at trial.”). The MCDC’s responses to the District Attorney’s five Requests for Admissions, internal memoranda and trial testimony indicating that hearsay evidence is illegal evidence and insufficient alone to establish probable cause to bind a case over to superior court demonstrate that the MCDC has established a standard practice requiring the production of “direct evidence,” in addition to hearsay evidence, to support a bindover determination at a preliminary hearing. The result, as recognized by the trial court and as suggested by the Supreme Court in Fleming, is uncertainty and insecurity in the District Attorney as to her office’s burden of proof and production at future preliminary hearings. Accordingly, the District Attorney’s declaratory judgment claim is proper as involving a justiciable controversy. Calvary Independent Baptist Church, supra, 208 Ga. at 314 (3); see also Morgan, supra, 268 Ga. at 344.

(b) Civil versus Criminal Case. Neither is there merit in the MCDC’s claim that the District Attorney’s declaratory judgment action is improper because it involves a criminal, rather than a civil, matter.

By the instant suit for declaratory judgment, as compared to the District Attorney’s original petition for mandamus and prohibition, the District Attorney plainly does not challenge a ruling or judgment in a criminal prosecution, from which the State has no right of appeal. Cf. OCGA § 5-7-1 (a) (authorizing appeal by the State in criminal cases in limited circumstances only); Fleming, supra, 248 Ga. at 458 (“[A]s the underlying subject matter concerns rulings allegedly made in criminal prosecutions, and from which the State has no ability to appeal, the trial court erred by considering the petition for mandamus and prohibition . . . .”). Rather, the District Attorney’s claim for declaratory judgment seeks guidance regarding the proper evidentiary standards for preliminary hearings, Fleming, supra, 248 Ga. at 457-458, given the untenable position she is in on a daily basis regarding her ability to rely on hearsay evidence alone to establish probable cause for bind over to the indictment phase of the process. Thus, the District Attorney’s claim is properly a claim for declaratory relief. See OCGA § 9-4-1 (purpose of Declaratory Judgment Act is to “settle and afford relief from uncertainty and insecurity with respect to rights, status, and other legal relations”); Calvary Independent Baptist Church, supra, 208 Ga. at 314 (3).

(c) Mootness. The MCDC contends that the instant action is moot for lack of uncertainty and because it would have no practical effect on the relationship of the parties, does not affect any identifiable pending case, and would not allow the District Attorney to challenge any past, present, or future ruling in a preliminary hearing. As to the issue of uncertainty, however, the MCDC concedes “some degree of theoretical uncertainty regarding the state of the law” as to the evidentiary standards for preliminary hearings.” This is consistent with the trial court’s uncontradicted finding that the judges’ responses to the District Attorney’s Requests for Admissions, show that the District Attorney faces uncertainty and insecurity as to her burden of proof at preliminary hearings.

Given this uncertainty with respect to future preliminary hearings and the sheer body of criminal cases that come before the MCDC, we conclude that the District Attorney’s declaratory judgment action was a justiciable controversy that authorizes a declaratory judgment under OCGA § 9-4-2 (a). And contrary to the MCDC’s argument otherwise, because the trial court’s declaratory judgment resolves for the District Attorney such future uncertainty, this is not a case where the trial court’s decision lacks any practical effect. Therefore, the District Attorney’s declaratory judgment action is not moot.

2. Next, the MCDC contends that the trial court erred “in holding that courts of inquiry[, as opposed to courts of record,] have no discretion regarding whether to admit hearsay in preliminary hearings.” Citing Uniform Superior Court Rule 26.2 (B) (1) and Uniform Magistrate Court Rule 25.2 C. (1) (collectively, “Uniform Rules”), the MCDC argues that the admission of hearsay evidence at a preliminary hearing is vested in the discretion of the magistrate court, because each Uniform Rule states that “[t]he rules of evidence shall apply except that hearsay may be allowed[.]” (emphasis supplied). Further, the MCDC argues that Gresham v. Edwards, 281 Ga. 881 (644 SE2d 122) (2007), does not conflict with its interpretation of these rules. We disagree.

OCGA § 17-7-28 provides that “[t]he court of inquiry shall hear all legal evidence submitted by either party.” By the statute’s mandatory language, magistrate judges are required to consider all “legal evidence” presented at a preliminary hearing. The question is whether hearsay evidence is “legal evidence” that must be admitted at such a hearing. The MCDC’s assertions to the contrary notwithstanding, we answer in the affirmative. The Uniform Rules state that in a preliminary hearing “[t]he rules of evidence shall apply except that hearsay may be allowed.” Uniform Rules 26.2 (B) (1) and 25.2 C. (1). While the MCDC interprets the word “may” as permissive, we cannot agree. Consistent with 'settled law establishing that hearsay evidence is admissible as legal evidence at preliminary hearings, we conclude that the purpose of the Uniform Rules is to expand the scope of legal evidence in preliminary hearings to “allow” hearsay as legal evidence. Our conclusion, however, does not in any sense foreclose the discretion in magistrate judges to weigh hearsay evidence, as appropriate; our conclusion mandates only that they admit the same as legal evidence. Nor does it foreclose a magistrate judge, after hearing the evidence, from deciding that probable cause does not exist and then dismissing the case. As the trial court noted,

[o]nce hearsay is admitted as probative evidence, the magistrate judge [should apply] the “totality of the circumstances test” in determining if probable cause exists for bind over to the appropriate court. In making a determination [as to whether] probable cause exists, the magistrate judge is entitled to make a good faith determination of the weight and credibility to be given hearsay evidence based on “. . . the veracity and basis of knowledge of persons supplying the hearsay information . . . .” Bussey v. State, 263 Ga. App. 56[, 60 (3)] (587 SE2d 134) (2003).

Our conclusion is further supported by the public’s interest in justice and safety which is implicated when criminal charges are preliminarily dismissed against persons who were arrested pursuant to a showing of probable cause sufficient to obtain an arrest warrant. “A mandatory construction will usually be given to the word ‘may’ where public interests are concerned, and the public or third persons have a claim de jure that the power conferred should be exercised, or whenever something is directed to be done for the sake of justice or the public good . . . .” (Citations and punctuation omitted.) Longino v. Hanley, 184 Ga. 328, 329-330 (191 SE 101) (1937). Accordingly, the trial court did not err in ruling that hearsay evidence must be admitted as legal evidence at preliminary hearings.

3. Finally, the MCDC claims that the trial court erred in opining that its declaration of law was subject to enforcement by a complaint to the JQC. We agree. Such issue was not properly before the trial court, and the trial court’s ruling regarding the JQC was merely advisory. See Baker v. City of Marietta, 271 Ga. 210, 214-215 (1) (578 SE2d 879) (1999). Entry of a declaratory judgment “based on a possible or probable future contingency ... is an erroneous advisory opinion which rules in a party’s favor as to future litigation over the subject matter and must be vacated.” Id. at 215 (1). Thus, we reverse the portion of its declaratory judgment regarding complaints to the JQC.

In sum, although the JQC portion of the trial court’s order was error, we nevertheless find that a declaratory judgment regarding the proper evidentiary standards in preliminary hearings is authorized and necessary in this case, and further, that magistrate judges are required to admit and weigh hearsay evidence in preliminary hearings.

Judgment affirmed in part and reversed in part.

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

Decided July 12, 2011

Howard W. Indermark, Benjamin D. Goldberg, for appellant.

Leonora Grant, Matthew McCoyd, Assistant District Attorneys, for appellee.

Susan B. Ellis, amicus curiae.

       District Attorney Fleming has since been succeeded by the Honorable Robert D. James.

       Berryl A. Anderson, Judge, MCDC; Kathy K. Dorough, Judge, MCDC; C. David Wood, Judge, MCDC; Rhathelia Stroud, Judge, MCDC; Tracy Aronovitz Dorfman, Judge, MCDC; Richard C. Foxworth, Judge, MCDC; Glen Galbaugh, Judge, MCDC; M. Ayres Gardner, Judge, MCDC; Abbi Taylor Guest, Judge, MCDC; Alan Harvey, Judge, MCDC; Claire Bradley Jason, Judge, MCDC; Robert N. Leitch, Judge, MCDC; Gary J. Leshaw, Judge, MCDC; Curtis W Miller, Judge, MCDC; Albert Sacks, Judge, MCDC; Amy Ratoosh Simon, Judge, MCDC; James E. Spence, Jr., Judge, MCDC; Corneill A. Stephens, Judge, MCDC; William D. Strickland, Judge, MCDC; and Mary Walton Whiteman, Judge, MCDC.

       The magistrates’ individual discovery responses reflect inconsistencies in their handling of hearsay evidence during preliminary hearings. The trial court opined that the effect of allowing individual magistrate judges to make inconsistent determinations regarding the admissibility of evidence presented a “quagmire.”

       To the extent the MCDC contends otherwise, we note that its argument ignores the purpose of the trial court’s order. Its purpose was not to provide the District Attorney a basis upon which to challenge evidentiary rulings made in the future. Rather, the purpose of the order was to declare the law and remove all confusion as to the applicable standard relative to the admissibility of hearsay evidence in preliminary bindover hearings.

       We note that magistrate courts are courts of inquiry only, and not courts of record. See Bowen v. Ball, 215 Ga. App. 640, 640 (451 SE2d 502) (1994) (“Magistrate courts are not required to keep the type of permanent records required in order to be considered a court of record and are not therefore, so considered.”). We note further that “[m]agistrate courts are courts of limited jurisdiction and, therefore, possess only those powers specifically conferred upon them by statute.” Id.; see OCGA § 15-10-2 (delineating the jurisdiction and powers of magistrate courts). Nevertheless, in the context of preliminary hearings in criminal cases, magistrate courts are charged with the performance of an essential, core function of the criminal justice system, that is, they must “ ‘determine whether there is probable cause to believe the accused guilty of the crime charged, and if so, to bind him over for indictment by the grand jury.’ ” Gresham, supra, 281 Ga. 882 (1), n. 2.

       The General Assembly recently amended the Georgia Code to substantially revise, supersede, and modernize provisions relating to evidence “to adopt the Federal Rules of Evidence, as interpreted by the Supreme Court of the United States and the United States circuit courts of appeal as of January 1, 2013 . . . .” See House Bill No. 24, Ga. L. 2011, p. 1, § 1. Although the amended Code sections do not apply in this case, we nevertheless note that they are consistent with our conclusion here. See House Bill No. 24, Ga. L. 2011, p. 3, § 2 (“In criminal commitment or preliminary hearings in any court, the rules of evidence shall apply except that hearsay shall be admissible.”) (to be codified at OCGA § 24-1-2 (d) (1)); id. at p. 97, § 30 (“The rules of evidence shall apply except that hearsay shall be admissible.”) (to be codified at OCGA § 17-7-28).

       See Gerstein v. Pugh, 420 U. S. 103, 120 (III) (95 SC 854, 43 LE2d 54) (1975) (“[PJrobable cause to believe the suspect has committed a crime - traditionally has been decided by a magistrate in a nonadversary proceeding on hearsay and written testimony, and the Court has approved these informal modes of proof.”); Gresham, supra, 281 Ga. at 882-884 (2) (over objection, the admission of the hearsay testimony presented by the investigating detective was admissible at a preliminary hearing and sufficient alone to establish probable cause to bind over the defendant); see also Fleming, supra, 284 Ga. at 460 (Sears, C. J., dissenting) (pursuant to longstanding evidentiary rules hearsay is legal evidence at a preliminary hearing).