author: Rickman, Judge.

text:
    A16A1844.
    JOHNSON v. THE STATE.
    (797 SE2d 666)
   Rickman, Judge.

Cortavious Deshun Johnson was tried by a jury and convicted of armed robbery and possession of a firearm during the commission of a felony (armed robbery). On appeal, Johnson contends that the evidence was insufficient to support his convictions beyond a reasonable doubt. Johnson also contends that the trial court abused its discretion by admitting other acts evidence pursuant to OCGA § 24-4-404 (b) and by failing to excuse an entire panel of potential jurors after an issue with one potential juror during voir dire, and that he received ineffective assistance of counsel. For the following reasons, we affirm.

On appeal from a criminal conviction, we view the evidence in the light most favorable to support the jury’s verdict, and the defendant no longer enjoys a presumption of innocence. We do not weigh the evidence or judge the credibility of the witnesses, but determine only whether the evidence authorized the jury to find the defendant guilty of the crimes beyond a reasonable doubt in accordance with the standard set forth in Jackson v. Virginia, 443 U. S. 307 (99 SC[t] 2781, 61 LE2d 560) (1979).

(Citation and punctuation omitted.) Hall v. State, 335 Ga. App. 895 (783 SE2d 400) (2016).

So viewed, the evidence shows that, on the afternoon of October 31, 2014, Johnson approached the victim while she was working at a bank as a teller, and he pushed a card toward her. The card read, “Put The Money in The Bag Or Die.” The victim thought that Johnson may be pulling a Halloween prank, but when she asked if he was kidding, he shook his head negatively The victim again questioned Johnson about his intentions and “he stepped back, he pulled up his shirt, and he showed [her] a gun.”

Johnson yelled out “now” and put a bag on the counter in front of the victim. The victim, fearing that Johnson was going to shoot her, picked up the bag, and began to put money in it. As the victim filled the bag with money, Johnson yelled for her to “hurry up, hurry up, hurry up, hurry up,” followed by “hundreds, hundreds, hundreds.” While Johnson yelled at the victim to grab hundred dollar bills, she put bait money in the bag that was hooked to an alarm system at the bank. At some point, Johnson grabbed the bag from the victim and ran out of the bank.

Another customer at the bank, who was speaking with a different, teller, witnessed the victim show a note to the other teller and question if the note was a joke. The customer then observed Johnson raise his shirt to reveal a gun.

A special agent with the Georgia Bureau of Investigation (“GBI”) who was investigating the armed robbery facilitated the release of surveillance photographs depicting the subject who committed the armed robbery to the media. The special agent received information that the person in the surveillance photographs was Johnson. Later in the day, the special agent received information that Johnson may be in the company of a female companion. The special agent was able to receive data from Johnson’s female companion’s cell phone which revealed her location.

Later in the evening on the date of the armed robbery, a Georgia State Patrol trooper was driving on the highway when he received information that he was near the location of a vehicle in which Johnson may be traveling. Following a police chase involving that vehicle, Johnson was apprehended. A search of the vehicle Johnson was driving was conducted pursuant to a search warrant by a GBI special agent in charge (“SAC”). The SAC recovered cash money from the vehicle including $20 bills that matched the serial numbers on the bait money given to Johnson. In the trunk of the vehicle, the SAC found Johnson’s driver’s license, along with a loaded pistol.

Four witnesses testified as to two other acts pursuant to OCGA § 24-4-404 (b). The first two other acts witnesses testified about an incident that took place in March 2013. Two women testified that a man pulled a gun and pointed it toward their vehicle during a “road rage” incident while they were driving. Both women identified Johnson as the man who pointed the gun at them.

The second incident took place in South Carolina in August 2014. A woman went to her workplace to cash her paycheck. After cashing her paycheck, she got into her vehicle, and a man approached her window. The man asked for her phone number, and as she was putting her number into his cellular phone, he pointed a gun at her, and ordered her to give him her money. After the woman heard the gun “click,” she gave him money and her phone. The woman identified Johnson as the man who robbed her when shown a photographic lineup and when testifying at the trial of this case.

The grand jury returned an indictment charging Johnson with armed robbery, possession of a firearm during the commission of a felony (armed robbery), aggravated assault, and possession of a firearm during the commission of a felony (aggravated assault). Johnson was tried by a jury and found guilty of all the crimes that were charged; the trial court merged his convictions for aggravated assault and possession of a firearm during the commission of a felony (aggravated assault) into his convictions for armed robbery and possession of a firearm during the commission of a felony (aggravated assault) for the purpose of sentencing. Johnson timely filed a motion for new trial, which was denied. It is from this order that Johnson now appeals.

1. Johnson contends that the evidence was insufficient to support his convictions. Specifically, Johnson contends that there was insufficient proof that he used a handgun during the robbery because he only showed the victim a handgun tucked into his pants. We disagree.

OCGA § 16-8-41 (a) provides, in pertinent part, that “[a] person commits the offense of armed robbery when, with intent to commit theft, he or she takes property of another from the person or the immediate presence of another by use of an offensive weapon, or any replica, article, or device having the appearance of such weapon.”

The evidence at trial showed that [Johnson] lifted his shirt and showed the victim a gun when he demanded [money from the victim]. While it is true that [Johnson] did not pull the weapon out of his pants, [Johnson’s] display of the gun handle was sufficient to create a reasonable apprehension on the part of the victim that [Johnson] was using an offensive weapon and to cause [her] to comply with [Johnson’s] demand for money.

(Punctuation omitted.) Price v. State, 289 Ga. App. 763, 765 (1) (658 SE2d 382) (2008).

Furthermore, “[w]here a robbery is committed by the use of a firearm, separate convictions for armed robbery and possession of a firearm during the commission of a crime are specifically authorized by OCGA § 16-11-106 (e).” (Citation omitted.) Broyard v. State, 325 Ga. App. 794, 797 (1) (b) (755 SE2d 36) (2014). Thus, the evidence was sufficient to support Johnson’s conviction for armed robbery and possession of a firearm during the commission of a felony (armed robbery). See id. at 797-798 (1) (b); see also Price, 289 Ga. App. at 765 (1); Forde v. State, 277 Ga. App. 410, 412 (1) (626 SE2d 606) (2006).

2. Johnson contends that the trial court abused its discretion by admitting other acts evidence pursuant to OCGA § 24-4-404 (b). OCGA § 24-4-404 (b) provides, in pertinent part:

Evidence of other crimes, wrongs, or acts shall not be admissible to prove the character of a person in order to show action in conformity therewith. It may, however, be admissible for other purposes, including, but not limited to, proof of motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or accident. . . .

In addition, under OCGA § 24-4-403, “[rjelevant evidence may be excluded if its probative value is substantially outweighed by the danger of unfair prejudice, confusion of the issues, or misleading the jury or by considerations of undue delay, waste of time, or needless presentation of cumulative evidence.”

Georgia has adopted the Eleventh Circuit three-prong test to determine the admissibility of evidence of other crimes and acts under OCGA § 24-4-404 (b):

(1) the evidence must be relevant to an issue other than defendant’s character; (2) the probative value must not be substantially outweighed by undue prejudice; (3) the government must offer sufficient proof so that the jury could find that defendant committed the act.

(Citation, punctuation and footnote omitted.) Bradshaw v. State, 296 Ga. 650, 656 (3) (769 SE2d 892) (2015). A trial court’s decision on whether to admit evidence under OCGA §§ 24-4-404 (b) and 24-4-403 is reviewed for a “clear abuse of discretion.” Id.

(a) Prong one: The trial court allowed the State to introduce evidence of two other acts for the limited purpose of showing Johnson’s “intent to . . . use a firearm.” “A culpable state of mind — intent or criminal negligence — is an essential element of every crime.” (Citation omitted.) Olds v. State, 299 Ga. 65, 72 (2) (786 SE2d 633) (2016).

In both of the other acts, Johnson was alleged to have used a gun in an offensive manner against others. The March 2013 incident where Johnson allegedly pointed a gun at two women who were driving a vehicle, an act which could be considered an aggravated assault, and the August 2014 incident where Johnson demanded money from a woman while pointing a gun at her, an act which could be considered an armed robbery, both involve the same intent as required to prove crimes Johnson was charged with in this case. Thus, the other acts were “relevant” and satisfy the first prong for the admission of such evidence. See Graham v. State, 337 Ga. App. 664, 669 (2) (788 SE2d 555) (2016); see also Olds, 299 Ga. at 72 (2); Bradshaw, 296 Ga. at 656-657 (3).

(b) Prong two: The trial court found that the probative value of the other acts evidence was not substantially outweighed by undue prejudice. We agree.

Rule 403 is an extraordinary remedy that must be used sparingly because it results in the exclusion of concededly probative evidence. Even in close cases, the balance is struck in favor of admissibility in determining whether its probative value is outweighed by the danger of unfair prejudice.

(Citations and punctuation omitted.) Wilson v. State, 336 Ga. App. 60, 63 (2) (b) (783 SE2d 662) (2016).

“When the fact for which the evidence is offered is undisputed or not reasonably susceptible of dispute, the less the probative value of the evidence.” (Citation omitted.) Olds, 299 Ga. at 76 (2). “The more strongly an issue is contested, the greater the justification for admitting other act evidence bearing on the point.” (Punctuation and footnote omitted.) Id., citing Mueller & Kilpatrick, Evidence § 4.21 (1995). The principal issue in this case was Johnson’s intent to use a firearm in an offensive manner against others. In his opening statement to the jury, Johnson’s trial counsel stated that, “Johnson robbed a bank. . . . He is guilty of robbing that bank, but he’s not guilty of armed robbery He didn’t use a gun in the robbery and he did not show a gun to [the victim].” Johnson’s trial counsel centered his entire defense upon the State’s inability to prove that Johnson was armed when he committed the robbery Approximately 15 to 20 surveillance photographs were taken of Johnson inside the bank, and a gun was not visible in any of the photographs. Additionally, the victim’s and the other witness to the robbery’s descriptions of the gun did not match the gun that was ultimately recovered from the vehicle Johnson was driving. Accordingly, the other acts evidence was probative of the issue of Johnson’s intent, and given the circumstances of this case, “[t]he trial court did not abuse his discretion in balancing the other act[s’] probative value against [their] prejudicial effect.” (Citation omitted.) Wilson, 336 Ga. App. at 63 (2) (b).

(c) Prong three: At trial, the victims of the other acts identified Johnson as the perpetrator of the crimes committed against them. Furthermore, the victim of the August 2014 incident identified Johnson in a photographic lineup. “This evidence was sufficient for the jury to find by a preponderance of the evidence that the other act was committed, thereby satisfying the third prong required for the admission of the other act evidence under Rule 404 (b).” (Citation omitted.) Wilson, 336 Ga. App. at 63 (2) (c).

3. Johnson contends that the trial court abused its discretion when it did not excuse an entire panel of potential jurors after an issue with one potential juror during voir dire. Specifically, following the trial court’s reading of the indictment to the potential jurors, one potential juror stated that he had “heard enough to convince [him] The juror then asked the trial court if there was an eyewitness in the case. As the trial court attempted to respond that the potential juror did not yet know the evidence, the potential juror interrupted and stated, “[w]ell, if people saw [Johnson] do it... I couldn’t be impartial in this.” Trial counsel for Johnson stated that he had no questions for the potential juror, and the trial court excused him. However, after the trial court stated that the potential juror was excused, the State attempted to rehabilitate him. Throughout the dialogue between the State and the potential juror, the potential juror speculated as to what the evidence would be based upon the reading of the indictment. The potential juror stated that if the evidence showed that there were witnesses to Johnson’s alleged crimes and if he was on camera then he was guilty. At one point the trial court stopped the questioning of the potential juror and stated, “Okay. I think that’s enough. I don’t think... you’re not impartial, are you?” The potential juror responded, “No” and the trial court excused the juror.

In determining whether a trial court is required to excuse a jury panel for remarks made during voir dire, the inquiry is whether the remarks were inherently prejudicial and deprived [Johnson] of his right to begin his trial with a jury free from even a suspicion of prejudgment or fixed opinion. If so, then the trial court’s failure to excuse the panel constitutes an abuse of discretion.

(Punctuation and footnotes omitted.) Williams v. State, 248 Ga. App. 111, 112 (1) (545 SE2d 669) (2001).

Generally, dismissal of a jury panel is required when, during voir dire, a prospective juror relays information that is specific to the defendant and germane to the case for which the defendant is on trial. Dismissal is not required, however, when the statements establish only gossamer possibilities of prejudice.

(Punctuation and footnotes omitted.) Id.

In this case, the statements made by the potential juror were not inherently prejudicial. The potential juror did not relay any harmful information about Johnson, he only speculated as to what the evidence might show based upon the indictment while being reminded repeatedly by both the trial court and the State that he did not, in fact, actually know what the evidence would show. Accordingly, the potential juror’s statements provided no ground for disqualifying the entire panel of potential jurors. See Williams, 248 Ga. App. at 112 (1); see also Jordan v. State, 218 Ga. App. 679, 680 (1) (462 SE2d 801) (1995).

Additionally, after excusing the potential juror for the second time, the trial court asked the remaining potential jurors if they were still perfectly impartial between the State and Johnson, and no one indicated otherwise. Accordingly, the trial court did not abuse its discretion in failing to excuse the entire panel of jurors. See Jordan, 218 Ga. App. at 680 (1); see also Cotton v. State, 279 Ga. 358, 360 (4) (613 SE2d 628) (2005).

Decided March 1, 2017.

Katherine M. Mason, for appellant.

Denn is C. Sanders, District Attorney, Kevin R. Majeska, Rindi R. Harbeson, Assistant District Attorneys, for appellee.

4. Johnson contends that he received ineffective assistance of counsel. Specifically, he argues that his trial counsel was ineffective for failing to move for a mistrial after the potential juror’s remarks that are detailed in Division 3.

To prevail on an ineffective assistance of counsel claim, Johnson must prove that his trial counsel’s performance was deficient and that he was prejudiced by this deficient performance. Strickland v. Washington, 466 U. S. 668, 687 (III) (104 SCt 2052, 80 LE2d 674) (1984). “A motion for mistrial is not the proper procedural tool when an allegedly prejudicial comment is made during voir dire of prospective jurors.” (Citation omitted.) Cotton, 279 Ga. at 360 (4). See Sharpe v. State, 272 Ga. 684, 687 (5) (531 SE2d 84) (2000) (“The time for making a motion for mistrial is not ripe until the case has begun, and the trial does not begin until the jury has been impaneled and sworn.”) (citation and punctuation omitted). “[T]he failure to make a meritless motion or objection does not provide a basis upon which to find ineffective assistance of counsel.” (Citation omitted.) Hampton v. State, 295 Ga. 665, 670 (2) (763 SE2d 467) (2014).

Johnson also argues that his trial counsel was ineffective for failing “to move for a new panel or object to the curative instruction and move for a new panel.” However, as discussed in Division 3, it was not erroneous to continue voir dire with the same panel of jurors. Accordingly, any motion for a new panel would have been meritless and thus not a basis upon which to find ineffective assistance of counsel. See Hampton, 295 Ga. at 670 (2). Thus, this claim is without merit. Johnson has failed to show any error warranting a new trial.

Judgment affirmed.

Barnes, P. J., and Self, J., concur.

       OCGA § 16-8-41 (a).

       OCGA § 16-11-106 (b).

       Johnson also challenges the sufficiency of the evidence as to his convictions for aggravated assault and possession of a firearm during the commission of a felony (aggravated assault). However, this contention is moot because those two convictions merged into Johnson’s convictions for armed robbery and possession of a firearm during the commission of a felony (armed robbery). See Long v. State, 287 Ga. 886, 887-888 (1) (700 SE2d 399) (2010).


source: Caselaw Access Project

author: Self, Judge.

license: Public Domain

text:
    A16A1888.
    HENRY v. STRATEGIC EXCHANGE, LLC et al.
    (797 SE2d 672)
   Self, Judge.

Beatrice Henry appeals from the trial court’s dismissal of her complaint against Strategic Exchange, LLC (“Strategic”), Maurice Sanders, and Yusef Poole based upon the expiration of the statute of limitation. Henry contends that the trial court erred because: (1) her complaint was not barred by the statute of limitation; (2) the defendants’ failure to respond to her requests for admissions entitled her to summary judgment in her favor; and (3) the defendants’ motion to dismiss was untimely For the reasons explained below, we reverse.

On appeal, we conduct a de novo review of a trial court’s ruling on a motion to dismiss. Our role is to determine whether the allegations of the complaint, when construed in the light most favorable to the plaintiff, and with all doubts resolved in the plaintiff’s favor, disclose with certainty that the plaintiff would not be entitled to relief under any state of provable facts.

(Citation, punctuation and footnotes omitted.) Sanders v. Trinity Universal Ins. Co., 285 Ga. App. 705, 706 (647 SE2d 388) (2007).

In a verified complaint, Henry alleged that in June 2006, she lent Strategic $50,000 in exchange for a one-year promissory note and a guaranty of the loan by Poole and Sanders. Henry attached copies of a “Promissory Installment Note” and a guaranty to the complaint.

The note provided that Strategic would pay

four (4) equal payments on a quarterly basis of $1,250.00 interest. The first such payment due and payable on the 1st day of October, 2006, and a like installment shall be due and payable on the same day of each third succeeding month thereafter (i.e. January 2007, April 2007, July 2007) with the final payment including the original principal amount of $50,000.00, until the total of $55,000.00 principal and interest is paid in full.

According to Henry’s complaint, she sent Poole and Sanders a letter in July 2011, informing them that she had only received “a few thousand dollars of interest and none of the principal due on the Note[,]” but received no response from them. She subsequently retained counsel, who sent a demand letter for payment to Strategic, Poole, and Sanders in September 2012.

After receiving no response from the defendants to her attorney’s demand letter, Henry filed the present suit for breach of the note and the guaranty on January 11, 2013. She later moved for summary judgment in her favor based upon admissions resulting from the defendants’ failure to respond to her requests for admissions. Through these admissions, each of the defendants was deemed to have admitted that Strategic entered into the one-year written promissory note attached to Henry’s requests for admissions. The record before us contains no ruling by the trial court on Henry’s motion for summary judgment.

The defendants filed a motion to dismiss based upon the expiration of the statute of limitation, and the trial court granted the motion, reasoning:

Actions arising from breach of an oral contract must be brought within four years after the right of action accrues. OCGA § 9-3-25. . . . Any action arising from breach of a written contract must be brought within six years after the right of action accrues. . . . The statute of limitations bar[s] this action. Here, the parties entered [into] an agreement on June 26, 2006. The first payment from this agreement came due on October 1, 2006, at which time no payment was made. Therefore, the action accrued on October 1, 2006. This claim was filed on January 11, 2013. Since the facts do not support any tolling of the statute of limitations, a claim on an oral contract or unjust enrichment would be barred after October 1, 2010, and a claim on a written contract would be barred after October 1, 2012.

Based upon these conclusions, the court noted that it “need not determine whether a written contract exists to find that this claim is barred by the statute of limitations.”

1. Henry asserts that the trial court erred by dismissing her complaint based upon the expiration of the statute of limitation because it did not begin to accrue until the note matured in July 2007. We agree.

Due to the lack of evidence showing that Henry accelerated the note after Strategic failed to make scheduled payments, her cause of action on the note accrued when the appellees failed to pay the note upon its maturity in July 2007. See Chatham v. Georgia-Pacific Corp., 163 Ga. App. 525, 526 (295 SE2d 226) (1982) (right of action accrues at maturity date of obligation); Wall v. Citizens & Southern Bank of Houston County, 153 Ga. App. 29, 31 (4) (264 SE2d 523) (1980) (cause of action for note accrues upon acceleration of note after missed payment), overruled on other grounds, Southall v. State, 300 Ga. 462, 468 (1) (796 SE2d 261) (2017); McKeever v. State of Ga., 189 Ga. App. 445, 446 (375 SE2d 899) (1988). As this case involves a simple contract in writing, the statute of limitation period is six years. OCGA § 9-3-24; Newell Recycling of Atlanta v. Jordan Jones and Goulding, Inc., 288 Ga. 236, 237 (703 SE2d 323) (2010); Phoenix Recovery Group v. Mehta, 291 Ga. App. 874, 875 (663 SE2d 290) (2008); Hill v. American Express, 289 Ga. App. 576, 577 (2) (657 SE2d 547) (2008). As Henry filed her action in January 2013, less than six years after her right of action on the note accrued in July 2007, the trial court erred in granting the motion to dismiss based upon the expiration of the statute of limitation.

Decided March 1, 2017.

Krevolin & Horst, Jeffrey D. Horst, Christopher E. Adams, for appellant.

Roberts Law, Grady A. Roberts III, for appellees.

2. Because Henry’s motion for summary judgment was not ruled upon by the trial court, we cannot consider the merits of the motion for the first time on appeal. “This court is for the correction of errors, and where the trial court has not ruled on an issue, we will not address it.” (Citation and punctuation omitted.) Rushin v. Ussery, 298 Ga. App. 830, 837-838 (5) (681 SE2d 263) (2009).

3. Henry’s remaining claim of error is rendered moot by our holding in Division 1.

Judgment reversed.

Barnes, P. J., and Rickman, J., concur.


author: BARNES, Presiding Judge.

text:
    A16A1931.
    CANADY v. CUMBERLAND HARBOUR PROPERTY OWNERS ASSOCIATION, INC.
    (797 SE2d 674)
   BARNES, Presiding Judge.

Edward R. Canady, d/b/a EC2 (hereinafter “Canady”), appeals from the orders of the trial court granting Cumberland Harbour Property Owners Association, Inc., (“the Association”) summary judgment on its claim for unpaid assessments, and denying his motion for reconsideration. Upon our review, we affirm.

The record reflects that Canady purchased eight lots at tax sales, and the Association sued Canady to recover unpaid assessments on the lots. Canady purchased the lots at tax sales on February 1, 2011, September 6, 2011, and April 3, 2012, and the Association sought an award of assessments for each lot from the time of the tax sales until December 31,2015. On September 14,2015, the trial court entered an order granting summary judgment to the Association in which it found Canady “holder of legal title to the properties ... [and] liable to [the Association] for dues and assessments as a matter of law.” The order directed the Association to prepare a proposed judgment and submit it to Canady, “who shall have ten days from the date of service of the proposed judgment to file objections thereto.”

On October 13, 2015, the Association filed its proposed judgment for $66,362, including $46,383.10 for regular assessments unpaid from the time of the tax sales through December 31, 2015 with supporting affidavits. Canady did not respond to the filing by objection or otherwise within ten days as directed by the trial court. Instead, on December 29, 2015, a new attorney filed a notice of appearance as counsel of record for Canady and requested an evi-dentiary hearing on all issues regarding damages. The trial court denied the motion, holding that “[t]here is no ‘damages hearing’ or contested proceeding when liquidated damages are involved,” and that the proposed order was to “provide counsel for [Canady] ... an opportunity to comment solely on the amount claimed to be due . . . [and] not re-argue the merits.” The trial court found that the Association was entitled to recover all sums due from the tax sales until September 14, 2015, the day summary judgment was granted, and directed the Association to submit a proposed judgment so reflecting.

Thereafter, Canady filed a “Motion to Reconsider Summary Judgment, to Determine the Damages Which Are Owed and/or to Change the Law.” In the motion, Canady requested that the trial court reconsider his liability for fees and assessments between the date of his purchase of the tax deeds and August 6, 2014, the date on which he had properly barred the Association’s right of redemption. See OCGA § 48-4-45 (a) (1) (C). He maintained that since he could not have recovered homeowners association dues and assessments paid by him from the owner of the property if the right of redemption had been exercised, he should not be personally liable for those charges that accrued between the time he purchased the tax deed until the date when the right of redemption had been extinguished.

The trial court denied the motion for reconsideration, holding, among other things, that Canady’s argument was speculative and therefore not justiciable because Canady

is not being called upon by [the Association] to pay homeowners[ ] association dues and assessments which he might not recover from the record owner of the property if the right of redemption was exercised. He is being asked to pay lawfully imposed dues and assessments which remain unpaid with respect to property he acquired by a tax deed which has ripened into fee simple title. This court cannot address the hypothetical question of whether Defendant’s rights were violated by a statute and case law that could have deprived him of the ability to recover the cost of association obligations in the event the owner of the property has redeemed it.

(Emphasis supplied.) Canady also filed a motion to reconsider that order in which he disputed the trial court’s ruling as to absence of a justiciable controversy, which the trial court also denied. This appeal ensued.

1. Canady first contends that the trial court erred in holding him liable for the homeowners assessments that came due between the time he purchased the properties at the tax sale and the date he barred the Association’s rights of redemption. The assessments that were due after Canady bought the tax deeds constituted a lien on the property under OCGA § 44-3-232, and as a lienholder, the Association had a right of redemption that became barred, and its lien became extinguished, once Canady gave proper notice pursuant to OCGA § 48-4-45. Canady contends that because the liens were extinguished, he should not be liable for the debt underlying the now-extinguished liens.

We first note that in his notice of appeal, Canady specifically excluded from the record the Association’s partial motion for summary judgment on liability and any pleadings associated with the motion, including Canady’s response. In its order granting the Association’s motion for summary judgment, the trial court found that Canady “[a]s current holder of legal title to the properties ... is liable to [the Association] for dues and assessments as a matter of law.” And, in denying Canady’s motion for reconsideration and request for a hearing, the trial court held that since the parties “have adequately addressed the issues of law presented by this case in their briefs, the Court determined that no hearing is necessary.”

“On appeal [of the grant of a motion for summary judgment,] this Court is required to conduct a de novo review which, by definition, is impossible if the appellant omits the very evidence at the heart of our inquiry.” Griffin v. Travelers Ins. Co., 230 Ga. App. 665, 666 (497 SE2d 257) (1998). “[T]he grant of summary judgment... requires that each party on motion for summary judgment presen t their case in full.” (Citations omitted; emphasis supplied.) Sands v. Lamar Properties, 159 Ga. App. 718, 720 (285 SE2d 24) (1981). And,

[i]n considering the grant of summary judgment, we and the trial court must look at the entire record . . . and where the proof necessary for determination of the issues on appeal is omitted from the record, an appellate court must assume that the judgment below was correct and affirm. . . . Such omissions from the appellate record from matters on summary judgment generally prove fatal to appellate review since it must be assumed by a reviewing court that the trial court’s grant of summary judgment is properly supported by the trial court record and since appellant has the burden of showing error affirmatively by the record on appeal.

(Citations and punctuation omitted.) Redford v. Collier Heights Apartments, 298 Ga. App. 116, 117 (679 SE2d 120) (2009).

Canady attempts to solely rely on the arguments maintained in his motions for reconsideration, and to couch his appeal as only from the orders denying his two motions for reconsideration. However, Canady sought reconsideration from the grant of the Association’s motion for summary judgment, which the trial court had granted after reviewing the motion and other relevant portions of the record, including the parties’ briefs — essentially the materials Canady purposefully excluded from the appellate record. When “the proof necessary for determination of the issues on appeal is omitted from the record, an appellate court must assume that the judgment below was correct and affirm.” (Punctuation and footnote omitted.) Tanks v. The Greens Owners Assn., 281 Ga. App. 277, 277 (635 SE2d 872) (2006); see Kappelmeier v. Prudential Ins. Co. of America, 306 Ga. App. 58, 58 (1) (701 SE2d 488) (2010).

Given that Canady has omitted material evidence from the record on appeal, we affirm the trial court’s holding that Canady was liable for the assessments that came due between the time he purchased the properties at the tax sale and the date he barred all rights of redemption.

Moreover, contrary to Canady’s contention that he was not liable for assessments during the period of time that the Association had a lien on the properties, per this Court’s holding in Croft v. Fairfield Plantation Property Owners Assn., 276 Ga. App. 311 (623 SE2d 531) (2005), Canady “acquire[d] an interest in the property even during the time within which it might be redeemed, which is sufficient to render him liable for taxes accruing upon the property [and] . . . this interest is also sufficient to render [Canady] liable for homeowners association assessments.” Id. at 314 (1). With that being so,

[a] contrary holding would result in a situation in which a tax deed purchaser could, by inaction, keep the redemption period alive indefinitely, reap the benefit of property value increases, and avoid the obligation to pay maintenance expenses which increase the value of the property It would be inequitable to allow a tax deed holder to obtain the benefit of restrictive covenants that require the homeowners association to maintain the surrounding amenities such as roads and common areas, all of which increase the value of the property purchased at the sale, without having to pay a proportional share of the cost of these benefits for an indefinite period of time.

(Punctuation and footnote omitted.) Id.

It makes no difference that, as Canady maintains, here, unlike Croft, he actually barred the Association’s right of redemption. His defeasible title acquired upon purchase of the properties at the tax sale was “sufficient to trigger automatic membership in the Association,” and render him liable for the assessments even during the time in which the property might be redeemed. Croft, 276 Ga. App. at 313 (1). Nor are we persuaded by Canady’s assertion that Croft was incorrectly decided because it prevents investors from recouping their investments or making a profit because homeowners association assessments are not included in the redemption price. Whether to include such assessments in the redemption price is a policy matter best left to the legislature. Indeed, the General Assembly recently amended OCGA § 48-4-42 to add the amount paid to a homeowners association to the redemption price for any sale made after July 1, 2016. See OCGA § 48-4-42 (c) (3); Ga. L. 2016, p. 793, § 2/HB 51.

Decided March 1, 2017.

Vincent D. Sowerby, for appellant.

Accordingly, contrary to Canady’s assertion, a tax sale purchaser of property is liable per Croft and OCGA § 48-4-42 for the payment of homeowners assessments that accrued on the property after the tax sale during the redemption period.

2. The trial court found in its order denying Canady’s motion to reconsider the grant of summary judgment to the Association that Canady had not suffered a concrete injury because the properties he purchased at the tax sales were not redeemed, and that his argument therefore was hypothetical and not justiciable. The issue of the presence of a justiciable controversy “is a jurisdictional one, inasmuch as no court — trial or appellate — has jurisdiction of the subject matter in a case that presents no justiciable controversy ... And this Court has an obligation to inquire into its jurisdiction in any case in which there may be a doubt about the existence of such jurisdiction.” Fulton County v. City of Atlanta, 299 Ga. 676, 676, n. 2 (791 SE2d 821) (2016). “A controversy is justiciable when it is definite and concrete, rather than being hypothetical, abstract, academic, or moot.” Mullin v. Roy, 287 Ga. 810, 812 (3) (700 SE2d 370) (2010). In this case, the Association was awarded homeowners association assessments from the date of the tax sales until the date the summary judgment was entered. Canady’s contention was that the assessments should not have been included in the damages award. Clearly, the issue was justiciable.

However, the trial court’s order granting summary judgment to the Association was correct as demonstrated in Division 1, and a judgment right for any reason must be affirmed. See Pinnacle Properties V, LLC v. Mainline Supply of Atlanta, 319 Ga. App. 94, 99-100 (1) (b) (735 SE2d 166) (2012) (“[A] grant of summary judgment must be affirmed if right for any reason, whether stated or unstated. It is the grant itself that is to be reviewed for error, and not the analysis employed.”) (punctuation omitted).

Judgment affirmed.

Rickman and Self, JJ., concur.

Lueder, Larkin & Hunter, Stephen A. Finamore, Elina V Brim, for appellee.

       OCGA § 48-4-45 provides, in relevant part that “[a]fter 12 months from the date of a tax sale, the purchaser at the sale or his heirs, successors, or assigns may terminate, foreclose, divest, and forever bar the right to redeem the property from the sale by causing a notice or notices of the foreclosure,” to be provided to, among others, persons having a lien upon the property. OCGA § 48-4-45 (a) (1) (C).

       Other documents specifically excluded from the record on appeal include the writ of fieri facias, a letter from the trial judge dated September 10, 2015, Canady’s motion for summary judgment, and the Association’s consolidated response to Canady’s motion for summary judgment and reply to Canady’s response to the Association’s motion for summary judgment.

       He argued in his motion for reconsideration that his former counsel’s arguments were “frivolously” and “incorrectly presented.”

       Pursuant to OCGA § 48-4-40, title in land sold at a tax sale can be restored to the owner at the time of the sale, referred to as the “defendant in fi. fa.,” through the payment of the statutory amount of redemption (a) at any time within 12 months from the date of the tax sale, and (b) at any time after the tax sale until the right to redeem is foreclosed by the tax deed purchaser giving the notice prescribed by OCGA § 48-4-45.


text:
    A16A1953.
    In the Interest of L. L., a child.
    (798 SE2d 1)
   Self, Judge.

Thirteen-year-old L. L. was charged in a delinquency petition with aggravated assault with a deadly weapon after the knife he threw at a 15-year-old neighbor lodged in her upper chest, leaving a deep cut. Following a competency hearing, the DeKalb County Juvenile Court found L. L. competent to stand trial. The juvenile court subsequently adjudicated him delinquent and sentenced him to 12 months probation and completion of the “CAP program.” He appeals, arguing that the delinquency adjudication should be reversed because the evidence was insufficient to support the juvenile court’s finding of competency We affirm.

“It has long been accepted that a person whose mental condition is such that he lacks the capacity to understand the nature and object of the proceedings against him, to consult with counsel, and to assist in preparing his defense may not be subjected to a trial.” Drope v. Missouri, 420 U. S. 162, 171 (II) (95 SCt 896, 43 LE2d 103) (1975). This principle applies to juvenile proceedings in Georgia. OCGA § 15-11-651. Pursuant to OCGA § 15-11-651, a child may be found “incompetent to proceed” when the child is

lacking sufficient present ability to understand the nature and object of the proceedings, to comprehend his or her own situation in relation to the proceedings, and to assist his or her attorney in the preparation and presentation of his or her case in all adjudication, disposition, or transfer hearings . Such term shall include consideration of a child’s age or immaturity

OCGA § 15-11-651 (3). See also Sims v. State, 279 Ga. 389, 392 (2) (614 SE2d 73) (2005) (“[t]he factors to consider in determining a defendant’s capability to assist in his defense include whether the defendant can adequately consult with others, knows the names and functions of those involved with the case, and reasonably understands the rules, the specific charges, the penalties and the consequences of the proceedings”). “The burden of proving that a child is incompetent to proceed shall be on such child. The standard of proof necessary for proving mental competency shall be a preponderance of the evidence.” OCGA § 15-11-655 (c).

In reviewing L. L.’s challenge to the juvenile court’s finding of competency the standard of appellate review is whether, “after reviewing the evidence in the light most favorable to the State, a rational trier of fact could have found that the defendant failed to prove by a preponderance of the evidence that he was incompetent to stand trial.” Sims, supra, 279 Ga. at 391 (1). In this case, L. L.’s court-appointed attorney moved to have him declared incompetent to stand trial, and the juvenile court ordered a forensic evaluation. At the competency hearing, L. L. presented the testimony of Dr. Lesley Slone, a licensed clinical psychologist who performed forensic evaluations of juveniles for Georgia Regional Hospital; the assistant public defender appointed at the time of his initial detention; and a social worker employed by the juvenile division of the DeKalb County Public Defender’s Office. Dr. Slone filed two reports with the juvenile court: a behavioral health evaluation and a competency evaluation. Dr. Slone testified that she has been a practicing psychologist since 1969, and has completed approximately 3,000 forensic psychological evaluations over her career. Dr. Slone evaluated L. L. on September 8, 2015, using the following tests: the Kaufman Brief Intelligence Test, Second Edition; Wide Range Achievement Test, Fourth Edition (“the WRAT”); Bender Visual Motor Gestalt Test; the Millón Adolescent Clinical Inventory; and the Juvenile Competency Assessment Procedure, Washington State Revision (“the JCAP”). She explained that she administered tests other than the JCAP to determine if L. L. was “intelligent enough to be able to become competent” and whether he could “think abstractly enough to envision possible situations... She also administered a personality test. Dr. Slone found L. L. pleasant, but noted that his language skills were poor for his age and that he had difficulty expressing his thoughts clearly and did not request clarification if he did not understand something. In the test for intelligence range, L. L. scored a 71 on the verbal portion, “in the below average range, but not low enough to suggest that he has any kind of intellectual disability” In the nonverbal portion, L. L. scored 85, the lower limit of the average range. The Kaufman Test suggested that L. L.’s IQ was in the below average range. L. L. did not do as well as Dr. Slone expected on the Bender Visual Motor Gestalt Test, but it was “not low enough or poor enough to suggest. . . this child’s got a brain injury.”

In addition to the intelligence tests, Dr. Slone administered the WRAT which assesses reading, math, and spelling skills. Dr. Slone noted that the reading portion of this test is particularly important because L. L. will be required to read court-provided materials. Dr. Slone determined that L. L. was reading at a third-grade comprehension level.

Dr. Slone also discussed L. L.’s performance on a personality test. She noted that certain factors can affect the test. Specifically, at that time, L. L. appeared insecure and was “feeling vulnerable. He was in the detention center. He was very unhappy and frightened.” She noted that he was depressed about being in the detention center and feeling “homesick.” Dr. Slone also noted that according to L. L.’s mother, he had been a straight-A student who never got into trouble at school, had never been in a fight, and behaved very well at home until his family moved to Georgia about a year ago. Dr. Slone did not see any signs of serious mental illness or clinical depression, but explained that L. L.’s performance on the personality test shows he is

more likely to let his attorney make all the decisions and not try [to] get involved, not try to understand how it is going to affect him. Is more likely to answer questions that someone asks him in court and kind of let it all hang out, make comments that are not in his own best interest to make.

Dr. Slone also administered the JCAP, which focuses specifically on competency and helps to assess a child’s understanding and appreciation of the charges against him, possible consequences, the nature of court proceedings, the roles of the different players in court, the different personnel, and whether a child can apply his rights to his own situation and assist his attorney in preparing and presenting a defense. Dr. Slone examined each of these factors in her testimony and report.

(i) Appreciation of Charges or Allegations. Dr. Slone testified that L. L. did not initially recall the charges against him, but once it was read to him, he was able to recall it, defining aggravated assault as “when you damage a human.” Dr. Slone further testified that L. L. knew what he had been accused of doing, which is “the urgent part. I don’t care if the child knows the actual words, but if they understand . . . what did the police accuse you of doing, that’s what they have to know.” He also reasonably understood the severity of the aggravated assault charge and correctly stated that his charge is more serious than breaking a window because the victim could “get very injured,” but less serious than killing someone. Initially, L. L. did not understand the difference between a misdemeanor and a felony, but was able to understand and retain the difference as explained by Dr. Slone. When asked if he was in “a lot,” “a medium,” or “a little” amount of trouble, L. L. chose “a little because the judge was trying to let me out on house arrest and probation.”

(ii) Appreciation of the Range/Nature of Possible Penalties. Dr. Slone testified that L. L. explained that courts punish people “so they can learn their lesson and never make the mistake again.” L. L. identified possible punishments as house arrest, unspecified programs, group home, and boot camp. He thought house arrest would be the worst punishment he could get “because you can’t go outside”; probation, the best. But, according to Dr. Slone, “he simply didn’t know enough about the options to know which is worse.” L. L. stated that the judge would give him a fair punishment “so he can learn,” but persisted in believing, despite Dr. Slone’s correcting him, that even if the judge did not find him delinquent, she could still punish him “if she believed it would teach [him] a lesson and keep him from getting into trouble in the future.”

(iii) Understanding of the Adversarial Nature of the Legal Proceedings. L. L. had no knowledge of his legal rights, and Dr. Slone had to explain what it meant to have the “right to remain silent.” While L. L. retained knowledge of his right to remain silent, he believed that he had to respond to the judge’s questions regardless of whether his responses damaged his case. L. L. described the roles and responsibilities of courtroom personnel, stating that the prosecutor’s job was to convince the judge he was guilty, and “try to keep him in jail”; that his attorney’s job was to help him and try to keep him out of jail; and that the judge’s job was to be impartial and decide his punishment, but that he did not expect her to treat him fairly. L. L. explained that witnesses are on “nobody’s side” but he was worried that one witness to the incident would lie because he was better friends with the victim.

Dr. Slone determined that L. L. seemed not to understand the concept of pleas or plea bargaining. L. L. stated that a guilty plea “[m]eans you did it” and would have an opportunity to tell the judge your side of the story and that a not-guilty plea means “you still have a chance. They find you not guilty.” In her report, Dr. Slone noted that L. L. “persisted in believing that if the defendant committed the crime, he or she could not plead ‘not guilty.’ ” When Dr. Slone explained to L. L. the process of plea bargaining, he paraphrased the information given to him as follows: “[The prosecutor] don’t have enough evidence to find you guilty, so she gonna try to make a deal, probation, house arrest or you might have to do a couple months.” L. L. would consider his attorney’s recommendations of a fair plea deal even if he did not understand them, but recognized that he is not bound by his attorney’s advice. He could not remember any of the rights he would give up if he accepted a plea offer.

(iv) Capacity to Identify and Disclose Pertinent Facts. L. L. believed that anything he told his attorney would be kept “secret” and that he planned to tell his attorney everything about what happened. Dr. Slone reported that L. L.’s account of the incident was vague and confusing, but that it improved in response to direct questioning. When given a hypothetical case and offered three pairs of new facts about the defendant and the events, L. L. was able to correctly identify information relevant to the defense.

(v) Capacity to Testify Relevantly. L. L. understood that he did not have to testify, but that if he chose to, he must tell the truth. He told Dr. Slone that if the district attorney asked him a question which could “get [him] in trouble if [he] told the truth,” he would rather not say anything “than tell a lie.” However, he added that if the judge asked him a question and he was afraid he would get in trouble if he told the truth, he would still tell the truth and that he wanted the judge to let him “go with a punishment.” When asked the hardest part about testifying, L. L. responded that it would be “the DA telling me I’m found guilty. How can I prove that I’m found guilty” Dr. Slone was concerned that L. L. thought he needed to prove that he is found guilty and concluded that L. L. did not grasp the information well enough to explain himself.

(vi) Ability to Manifest Appropriate Courtroom Behavior and Tracking of Proceedings. L. L. understood that he was supposed to behave “presentabl[y]” in court, not talk when the judge is talking, stand up when the judge asked, and pay attention to the proceedings, including witness testimony. Dr. Slone testified that L. L. was capable of paying attention in the courtroom, but she noted that “he didn’t understand that when the judge asks you to stand up, that you are not being asked to tell the whole story of your life, that you are responding to specific questions.”

(vii) Diagnosis/Conclusion. Dr. Slone diagnosed L. L. with an adjustment disorder because L. L.

was a well-functioning kid picked up out of a calm middle class social environment and dropped into an area full of disorganization, community disorganization, violence, drugs, and it was just culture shock. I think it was probably very frightening to him, very lonely, because none of the rules he has learned on how you get along with kids, how you interact with people and with adults, those don’t work the same in this environment that they get there.

According to L. L.’s mother, he was a “ ‘straight-A student’ who never got into trouble at school, had never been in a fight, and behaved very well at home” until the family moved to Georgia from Florida a year before. Dr. Slone found no evidence of mental illness or attention disorders. Dr. Slone noted that at the time of the evaluation, L. L. was “homesick, anxious and unhappy, to the point of tears. He reported having nightmares about family members getting killed.”

Dr. Slone stated throughout her testimony and in her report that L. L. had trouble expressing his thoughts clearly and would not ask for clarification if he did not understand something; he was trying to do his best during the interview and did not want to offend Dr. Slone. Based on the factors discussed above, Dr. Slone opined that L. L. was incompetent to stand trial. Of particular concern to Dr. Slone was that L. L. does not “have an adequate rational appreciation of the nature of the proceedings against him or of his own role in those proceedings” and that he has difficulty understanding his plea options and the plea bargaining process.

Michelle Gopman, an assistant public defender with the DeKalb County Juvenile Court, also testified on behalf of L. L. Gopman testified that she was assigned to handle L. L.’s initial detention case and that during her first meeting with him, she knew immediately that he was inarticulate and that his cognitive function was below the level of a 13-year-old. At that time, Gopman suspected that she would file an incompetency request. Gopman also testified that L. L.’s version of the events that resulted in his detention was somewhere between unrealistic and fantastical; that he did not understand the juvenile court legal process; that he did not understand the concept of probation (“probation is something that happens to him when he’s found not guilty”); that he did not think he had a choice about testifying; that he believed detention and trial were synonymous; and that the judicial process was very one-sided, because he stated that “there was no getting off for him.”

Kimberly Burke, a social worker with the juvenile division of the DeKalb County Public Defender’s Office, also testified on L. L.’s behalf. She explained that she first met L. L. when Gopman explained that she had concerns about L. L.’s competency and asked Burke to attend a meeting with the child. Burke believed that a competency evaluation was warranted for the following reasons: L. L. could not articulate the roles and responsibilities of court personnel, though he stated that the public defender’s job was to help him and the prosecutor’s role was to put him in jail; he did not understand the juvenile court process; he did not understand his rights; he did not understand the concept of a plea bargain; he was unable to articulate an understanding of probation; he could not articulate the difference between a felony and a misdemeanor; he believed he had to testify and if he refused, he would automatically go to detention; and his recollection of the events that led to his arrest, were “fantasy like .. . [not] reality based.”

After considering the testimony and Dr. Slone’s written report, the juvenile court ruled that L. L. was competent to stand trial. The juvenile court rejected Dr. Slone’s assessment that L. L. did not understand juvenile court proceedings, finding that “a child’s inability to initially grasp legal jargon[, i.e., felony and misdemeanor,] does not go to a child’s incompetence . . . [as] there are probably many children, as well as many adults, who are very unfamiliar with such legal jargon.” The court found that the following factors weighed in favor of competence: (1) L. L. had a good understanding of possible penalties and the role of court personnel; (2) he gave appropriate responses to the legal hypotheticals presented to him by Dr. Slone; and (3) he articulated the importance of proper courtroom demeanor. In its oral ruling, the juvenile court took issue with several of Dr. Slone’s conclusions as follows:

[Dr. Slone] stated that even if [L. L.] was found not to have committed the offense, he still believe [d] that the judge could punish him or teach him a lesson to keep him from getting into trouble again. From a child’s perspective, I don’t think that that is altogether incorrect in the sense that I think from a child’s perspective he realize[s] that even if he were found not guilty of the charge, the judge could still lecture him about if the judge, as he said, believed he really did it, about not getting into trouble in the future. So I thought that was a fairly reasonable assessment on the part of a 13[-]year[-]old. Furthermore, [Dr. Slone stated] that the child persisted in believing that if he pled guilty he would still have an opportunity to tell the judge his side of the story, and the evaluator thought that was correct. But again, I don’t think that is an unreasonable presumption of a 13[-] year [-]old child who has had some experience with the juvenile court system because even if he did plead guilty, he would have to tell his side of the story to some extent. Furthermore, [Dr. Slone] stated that the child persisted in believing that if the defendant committed the crime he or she should not plead[,] could not plead[,] not guilty .. . [0]ne of the reasons [Dr. Slone] says the child is incompetent was because he adamantly believed that if he committed the crime he could not plead not guilty. But to me that goes to this particular child’s own personal moral code or ethical code. Just because you explain to a child that he has a right to plead not guilty that doesn’t mean that a child really internalizes that particularly if he believes and knows he committed the crime.... [L. L.’s] insistence on not being able to plead not guilty if he committed the crime . . . goes to his own ethical code not an inability to understand the legal process.

L. L. contends that the preponderance of the evidence established that he was incompetent to stand trial as defined by OCGA § 15-11-651, and that subjecting him to a delinquency hearing violated his due process rights. L. L. takes issue with the trial court’s rulings on each factor provided in OCGA § 15-11-651 (3). Before we address each factor, it is important to set forth the basic principles applicable to competency proceedings.

“The purpose of a competency hearing is to determine the mental ability of the defendant, at the time of trial, to intelligently participate in his or her trial.” (Citation omitted.) Almond v. State, 180 Ga. App. 475, 477 (1) (349 SE2d 482) (1986). In making this determination, the trier of fact resolves conflicts in the testimony and weighs the evidence. See Tiegreen v. State, 314 Ga. App. 860, 867 (1) (726 SE2d 468) (2012). Cf. Nagel v. State, 262 Ga. 888, 891 (2) (a) (427 SE2d 490) (1993) (in hearing on defendant’s application for release after he was committed on grounds of insanity, factfinder must balance expert medical evidence against presumption of insanity and may not simply disregard expert medical evidence and rely solely on presumption). “[Decisions regarding credibility are uniquely the province of the [factfinder], which [is] not required to accept the testimony of [the defendant’s] witnesses. . . Tiegreen, supra, 314 Ga. App. at 867 (1). Compare Wallace v. Kemp, 757 F2d 1102, 1109 (III) (11th Cir. 1985) (“when the expert testimony clearly and overwhelmingly points to a conclusion of incompetency, the [trier of fact] cannot arbitrarily ignore the experts in favor of the observations of laymen”; in this case, jury improperly disregarded three expert opinions that defendant was incompetent to stand trial (citation and punctuation omitted)). As discussed above, there is a rebuttable presumption that the defendant is competent to stand trial. Although Dr. Slone opined that L. L. was incompetent to stand trial, the juvenile court found that her testimony and report failed to rebut this presumption. The court concluded that Dr. Slone’s evidence was insufficient to prove, by a preponderance of the evidence, that L. L. was incompetent to stand trial and, for the reasons that follow, we agree.

1. L. L. claims that he lacked sufficient present ability to understand the nature and object of the proceedings. This claim rests primarily on L. L.’s low IQ and Burke and Slone’s testimony that L. L. did not understand how court personnel interacted with each other and could not grasp the process of plea bargaining, particularly any of the rights he would be giving up if he accepted a plea offer. With the reading comprehension of a third grader and a below-average IQ, L. L. contends that his comprehension of the legal process was “woefully lacking.”

A defendant’s below average IQ is not determinative of his ability to stand trial. See Tye v. State, 298 Ga. 474, 478 (2) (a) (782 SE2d 10) (2016); Sims, supra, 279 Ga. at 393 (2). Rather, “[t]he constitutional test for competency is whether the defendant is capable of understanding the nature and object of the proceedings, comprehends his own condition in reference to such proceedings, and is capable of rendering his counsel assistance in providing a proper defense.” (Punctuation omitted.) Slaughter v. State, 292 Ga. 573, 578 (4) (740 SE2d 119) (2013), citing Sims, supra, 279 Ga. at 390.

L. L. points to his initial detention hearing where the juvenile court discovered that he lied to his attorney as evidence that he did not understand counsel’s duty of confidentiality. The record, however, does not support the conclusion that L. L. did not understand his attorney’s duty of confidentiality According to Dr. Slone’s report and testimony, L. L. showed an appreciation for confidential communications with his attorney. Additionally, L. L. possessed a reasonable grasp of the juvenile court process, correctly explaining the roles of the prosecutor, his attorney, the judge, and witnesses. He also acknowledged that he could remain silent when questioned by the prosecutor, and advised that he would tell his attorney the truth about what happened. While L. L. had some difficulty understanding the particulars of plea bargaining, he knew the difference between a guilty plea and a not guilty plea and was able to retain Dr. Slone’s explanation of the process. Most importantly, he recognized that he could consult with his attorney about a fair plea deal. OCGA § 15-11-651(3) does not require a comprehensive understanding of the details of plea bargaining; it requires that a juvenile defendant be able to assist in his own defense. Cf. Slaughter, supra, 292 Ga. 573 (affirming finding that defendant was competent to stand trial where preponderance of the evidence showed that defendant knew the names and functions of those involved in the trial process, could recall and relate facts pertaining to his actions and whereabouts at the time of the crime, and knew what was expected of him at trial, what the charges against him were, and the potential sentence he faced if convicted).

2. L. L. next contends that he lacked sufficient present ability to comprehend his own situation in relation to the proceedings. In support of this contention, L. L. points out that he could not articulate the difference between a felony and a misdemeanor; that he believed that he was in a “little” amount of trouble when in fact he was charged with a “Class A Designated Felony”; and that he was confused by his plea options. Dr. Slone’s report and testimony demonstrated that L. L. was able to articulate the possible penalties available to the court if he were found guilty, including detention (you “might have to do couple months”), house arrest, and probation. The evidence also indicated that L. L. was aware of the conduct that occasioned the charge and recognized the severity of that conduct, confirming that he was charged with something more serious than breaking a window but less serious than murder. He also grasped the difference between pleading “guilty” or “not guilty,” explaining that pleading guilty “[mjeans you did it,” and pleading not guilty means “you still have a chance [;] [t]hey [can] find you not guilty.” The preponderance of the evidence supported the trial court’s finding that L. L. had sufficient present ability to comprehend his own situation in relation to the proceedings.

3. L. L. further contends that he lacked sufficient present ability to assist his attorney in the preparation and presentation of his case in all adjudication, disposition, or transfer hearings. Again, L. L. points to his misunderstandings about the plea bargaining process and his legal rights, specifically his right to remain silent. We addressed the process of plea bargaining above. As for L. L.’s understanding of his legal rights, while there is evidence that he showed some initial confusion, there is also evidence that he later understood he was not required to testify or answer questions posed by the prosecutor if his answers were incriminating.

There was ample evidence of L. L.’s ability to assist in his defense. Testimony showed that L. L. could recount for his attorney the facts underlying the charge and that he planned to tell his attorney everything about the incident. While there was some testimony that L. L.’s version of the incident was “unrealistic and fantastical,” L. L. presented no evidence explaining this characterization of his recollection or how it would hinder his ability to assist his attorney. Moreover, Dr. Slone notedthat L. L.’s account of the incident improved with questioning. Accordingly, the juvenile court was authorized to discount this evidence and place more weight on Dr. Slone’s finding that L. L. correctly answered three hypothetical questions posed by Dr. Slone, showing that he appreciated the factors relevant to putting forth a meaningful defense.

4. L. L. asserts that the juvenile court incorrectly based its ruling on evidence not presented in the hearing. In this regard, L. L. contends that (1) the court misrepresented “L. L.’s deficits as more simplistic than what was established by the evidence” and incorrectly dismissed them as merely “a child’s inability to grasp legal jargon” and (2) the trial court discounted L. L.’s “dangerously inaccurate and deficient understanding^]” of the legal process by characterizing them incorrectly as “reasonable assessments on the part of a” teenager or relating to the child’s moral or ethical code. “In this case, the trial judge did what factfinders do in every case and applied [her] own life experiences and knowledge to the evidence at hand.” Larsen v. State, 253 Ga. App. 196, 198 (2) (558 SE2d 418) (2001).

5. Finally, in a related argument, L. L. contends that the juvenile court erred by arbitrarily and summarily ignoring Dr. Slone’s overwhelming opinion evidence that L. L. was incompetent to stand trial. In support of this argument, L. L. relies on Nagel, supra, Wallace, supra, and Strickland v. Francis, 738 F2d 1542 (11th Cir. 1984). In addressing the defendant’s competence to stand trial, the court in Strickland stated:

It is well established that a factfinder need not adhere to an expert opinion on incompetency if there is reason to discount it. However, where, as here, the expert testimony so clearly and overwhelmingly points to a conclusion of incompetency, the [factfinder] cannot arbitrarily ignore the experts in favor of the observations of laymen.

(Citations and punctuation omitted.) Strickland, supra, 738 F2d at 1552 (III) (B). In assessing whether the defendant in Strickland was faking his mental illness the court considered four factors “that reasonably could lead a factfinder to disregard expert testimony on the defendant’s mental condition.” Id. The four factors are:

(1) the correctness or adequacy of the factual assumptions on which the expert opinion is based; (2) possible bias in the experts’ appraisal of the defendant’s condition; (3) inconsistencies in the expert’s testimony, or material variations between experts; and (4) the relevance and strength of the contrary lay testimony.

(Citation and punctuation omitted.) Id. In Keener v. State, 254 Ga. 699 (334 SE2d 175) (1985), our Supreme Court took note of these factors in affirming a jury’s finding that the defendant was guilty of murder but mentally ill. Id. at 701 (1), n. 4. The Court noted that factors (1) and (4) were present in Keener, making it reasonable for the factfinder to disregard the expert testimony Id.

To the extent the Strickland factors apply in this case, we find that it was reasonable for the juvenile court to disregard Dr. Slone’s conclusion that L. L. was incompetent to stand trial based on the first factor. Dr. Slone ultimately determined that L. L. was incompetent to stand trial because she did not believe that he had an adequate rational appreciation of the nature of the proceedings against him or of his own role in those proceedings, and she was concerned about his ability to adequately track and comprehend witness testimony and to testify without incriminating himself. However, the factual assumptions underlying Dr. Slone’s ultimate conclusion of incompetency were inadequate to support that conclusion. Those factual assumptions included that L. L. had difficulty understanding his plea options and the particulars of the plea bargaining process, that he did not understand the difference between a felony and a misdemeanor, that he would tell the judge the truth if asked a question, and that his account of the incident was vague and confusing. Dr. Slone’s ultimate conclusion relied upon these inadequate factual assumptions, while diminishing factors that go to the very heart of whether a juvenile defendant is capable of assisting in his own defense. In particular, according to Dr. Slone, L. L. understood what he had been accused of doing, which in her mind was the most “urgent” part of assessing his appreciation of the charges and allegations against him. He also appreciated the severity of the charge; correctly described the roles of and responsibilities of courtroom personnel; understood courtroom decorum; understood that he did not have to testify; planned to tell his attorney everything about the incident; and was able to identify possible punishments. He further understood that his discussions with his attorney were confidential and, most notably, he correctly answered three hypothetical questions posed by Dr. Slone, showing that he appreciated the factors relevant to putting forth a meaningful defense. All of these factors support the trial court’s finding of competency

Decided March 1, 2017.

Kosha S. Tucker, for appellant.

Robert D. James, Jr., District Attorney, Deborah D. Wellborn, Ramika R. Gourdine, Assistant District Attorneys, for appellee.

In this case, the factual assumptions upon which Dr. Slone relied in reaching her ultimate opinion were inadequate to support a conclusion of incompetency. Accordingly, the juvenile court did not err in taking exception to the opinion and finding L. L. competent to stand trial.

Judgment affirmed.

Barnes, P. J., and Rickman, J., concur.

       The victim did not receive treatment by a doctor or stitches.

       During that hearing, L. L.’s attorney supported her request for his release by explaining that he never got into trouble at school and was a straight-A student. L. L.’s mother disputed this, advising the court that L. L. did nothing at school, that he came home at six in the morning or sometimes left home for two or three days at a time, and that his behavior was challenging and disrespectful. The court asked how L. L. was “managing to be a straight-A student” given his behavior and L. L.’s mother replied, “[tjhat’s what he told [his attorney].” The court then asked L. L., “[s]o, is what you told your lawyer is that the truth that you’re a straight-A student? You are[,] is he a straight-A student?” L. L.’s mother replied, “[sjtraight zeros.” The court then reprimanded L. L.:
      So do you understand that you’re coming up in here telling the person who — who sits between detention and freedom and you’re lying to her. I’m not talking about your mom, I’m talking about your lawyer. You know if you’re going to tell the truth to anybody, you need to tell it to your lawyer because she tells the court and court is trying to make a decision, and now I can’t trust anything that she says.
      Not because she’s a bad person, it’s because you are a liar. Your mom comes in here to say that you are a zero student. And I don’t believe your mama has any reason to come in here and make such a false statement.