text:
    A11A1009.
    DAVIS v. THE STATE.
    (716 SE2d 710)
   MlKELL, Judge.

Based on evidence that Dustin Denard Davis brutally attacked his wife, a Gwinnett County jury convicted him of rape, aggravated sodomy, aggravated assault, family violence battery, and possession of a knife during the commission of a felony. Davis appeals from the order denying his second amended motion for new trial, contending that his trial counsel rendered ineffective assistance. We disagree and affirm.

To prevail on a claim of ineffective assistance of counsel, a criminal defendant must show that counsel’s performance was deficient and that the deficiency so prejudiced defendant that there is a reasonable likelihood that, but for counsel’s errors, the outcome of the trial would have been different. The criminal defendant must overcome the strong presumption that trial counsel’s conduct falls within the broad range of reasonable professional conduct.

“We accept the trial court’s factual findings and credibility determinations unless clearly erroneous, but we independently apply the legal principles to the facts.”

1. Davis first contends that trial counsel was ineffective for failing to file a motion to suppress evidence, including the knife he used to threaten his wife, discovered during a warrantless search of his residence. “When trial counsel’s failure to file a motion to suppress is the basis for a claim of ineffective assistance, the defendant must make a strong showing that the damaging evidence would have been suppressed had counsel made the motion.” Davis has failed to make this showing.

The evidence shows that Davis’s wife signed a form consenting to the search of the marital residence. Davis argues that the consent was invalid because it was given after his wife vacated the home, rendering her a “nonresident” for Fourth Amendment purposes. The record shows, however, that Mrs. Davis executed the consent form on the very day that she fled to her uncle’s house and called the police. Davis has cited no authority for the proposition that Mrs. Davis relinquished all interest in the marital residence at the moment she fled the home with her baby and belongings. The case he relies upon, Wilson v. State, is wholly inapposite. In Wilson, we upheld a burglary conviction based, in part, on evidence that the defendant lacked authority to be in his girlfriend’s home. Although the defendant had resided there, he was not a party to his girlfriend’s lease, did not have a key to her home, and did not have her permission to be there at the time of the offense. In the case at bar, Davis made no showing at the hearing held on his second amended motion for new trial that his wife lacked authority to consent to a search of the marital residence. Wilson does not support his argument.

Moreover, Davis’s reliance on Georgia v. Randolph is misplaced. According to Randolph, “a warrantless search of a shared dwelling for evidence over the express refusal of consent by a physically present resident cannot be justified as reasonable as to him on the basis of consent given to the police by another resident.” Davis does not assert that he was physically present and refused consent. His trial counsel testified at the new trial hearing that he did not recall Davis voicing any objection to the search of the marital residence. Therefore, the warrantless search is not invalid for the reason stated in Randolph, It follows that Davis’s attorney’s performance was not deficient for failing to pursue a meritless motion to suppress.

2. Davis next asserts that his trial counsel was ineffective for failing to introduce a cologne bottle into evidence. He claims that his wife sodomized herself with the bottle, thereby causing her own anal injuries. At the new trial hearing, a nurse testified that Mrs. Davis’s injury was consistent with this theory as well as with the victim’s testimony as to how she was injured. Davis’s trial counsel testified that he did not deem credible Davis’s theory that his wife caused her own injuries by “shoving a cologne bottle in her anus.” Accordingly, counsel decided not to present this theory as a defense to the charge of aggravated sodomy. “An attorney’s decisions on which witnesses to call, what evidence to introduce . . . and which defenses to pursue are matters of trial tactics that do not amount to ineffective assistance of counsel.” “Such tactical decisions provide no grounds for reversal unless they are so patently unreasonable that no competent attorney would have chosen them.” Davis’s trial attorney’s strategic decision not to pursue this defense was not patently unreasonable, and this claim of ineffectiveness fails.

3. Davis next argues that trial counsel was ineffective in failing to request a poll of the jury to establish that the verdict was unanimous. The record shows that during deliberations, the jury sent a note to the judge seeking clarification on the offense of aggravated assault as alleged in the indictment. The court recharged the jury, and it resumed deliberations. The court then realized that its recharge was incorrect, but before the court could recall the jury, it reached a verdict. The court declined to receive the verdict and explained to the jury what had transpired. The court correctly recharged the jurors and instructed them to deliberate anew. The jury returned with its verdict within a few minutes.

Davis argues that the circumstances under which the jury reached its verdict were so “bizarre” as to require competent counsel to request polling of the jury. As Davis has cited no authority to support his position, this ground of ineffectiveness also fails. “Our courts have consistently rejected ineffective assistance claims based on the failure to conduct a poll.”

Decided July 15, 2011

Reconsideration denied September 16, 2011

Edwin J. Wilson, for appellant.

Daniel J. Porter, District Attorney, Wesley C. Ross, Assistant District Attorney, for appellee.

4. Finally, Davis asserts that first appellate counsel was ineffective for failing to raise the ineffectiveness of trial counsel. Davis makes this argument in the event this Court determines that his claims of ineffectiveness were waived by first appellate counsel. As these claims were raised by current appellate counsel in a second amended motion for new trial and were ruled on by the trial court following a hearing, there has been no waiver. As such, this enumeration of error is moot.

Judgment affirmed.

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

       (Citations and punctuation omitted.) Patel v. State, 279 Ga. 750, 751 (620 SE2d 343) (2005).

       (Citation omitted.) Stanley v. State, 283 Ga. 36, 38 (2) (656 SE2d 806) (2008).

       (Citation omitted.) Richardson v. State, 276 Ga. 548, 553 (3) (580 SE2d 224) (2003); accord Stanley, supra at 39 (2) (a); Odom v. State, 304 Ga. App. 615, 619 (5) (697 SE2d 289) (2010).

       See State v. Goodman, 290 Ga. App. 196, 198 (660 SE2d 21) (2008) (affirming grant of motion to suppress because state did not show that owner consented to police entry into his home or that person consenting was authorized to allow such entry); Brown v. State, 261 Ga. App. 351, 354 (1) (582 SE2d 516) (2003) (“[T]he mere presence of a third party who opens the door is insufficient to show the type of authority required” to consent to a search.) (citations omitted).

       304 Ga. App. 743 (698 SE2d 6) (2010).

       Id. at 746 (1) (b).

       547 U. S. 103 (126 SC 1515, 164 LE2d 208) (2006).

       (Footnote omitted.) Id. at 120 (II) (D).

       See generally Valle v. State, 282 Ga. App. 223, 225 (2) (638 SE2d 394) (2006) (“[A] warrantless entry into and search of a residence may be authorized by the voluntary consent of the individual whose property is searched.”) (footnote omitted).

       See Peeler v. State, 286 Ga. App. 400, 405 (2) (c) (649 SE2d 775) (2007).

       (Citations, punctuation and footnote omitted.) Mattox v. State, 305 Ga. App. 600, 607 (3) (699 SE2d 887) (2010).

       (Punctuation and footnote omitted.) Serrate v. State, 268 Ga. App. 276, 278 (2) (c) (601 SE2d 766) (2004).

       (Punctuation omitted.) Marshall v. State, 285 Ga. 351, 353 (4) (c) (676 SE2d 201) (2009), citing Hodge v. State, 287 Ga. App. 750, 753 (2) (a) (652 SE2d 634) (2007).

         Compare Thompson v. State, 257 Ga. 386, 388 (2) (359 SE2d 664) (1987) (“Any ineffective counsel challenge will be deemed waived if the new attorney files an amended motion for new trial and does not raise the issue before the trial court so that the challenge can be heard at the earliest practicable moment, i.e., during the hearing on the amended motion.”).


source: Caselaw Access Project

author: MlKELL, Judge.

license: Public Domain

text:
    A11A1482.
    LEONE v. GREEN TREE SERVICING, LLC et al.
    (716 SE2d 720)
   MlKELL, Judge.

Kyunna Sierra Leone, proceeding pro se both below and on appeal, appeals from the trial court’s grant of summary judgment in favor of Green Tree Servicing, LLC (“Green Tree”), in this action for wrongful foreclosure. We affirm.

On appeal from the grant of summary judgment, this Court conducts a de novo review of the evidence to determine whether there is a genuine issue of material fact and whether the undisputed facts, viewed in the light most favorable to the nonmoving party, warrant judgment as a matter of law.

A defendant is entitled to summary judgment if it shows that “the record lacks evidence sufficient to create a jury issue on at least one essential element of the plaintiffs case. The defendant does not need to affirmatively disprove the plaintiffs case, but may prevail simply by pointing to the lack of evidence.” If this is shown, the plaintiff “cannot rest on his pleadings, but must point to specific evidence that gives rise to a triable issue of fact.”

Properly viewed, the evidence shows that on February 22, 1997, Leone executed a Retail Installment Contract and Security Agreement (“Contract”) related to a purchase of a mobile home from Sinclair Oconee. Pursuant to the Contract, Sinclair Oconee retained a security interest in the mobile home. Sinclair Oconee then assigned its right, title, and interest in the mobile home to Belgravia Financial Services, LLC (“Belgravia”). Belgravia then assigned its right, title, and interest in the Contract to Dynex Financial, Inc. (“Dynex”). On or about December 23, 1997, the Georgia Department of Motor Vehicles issued a Certificate of Title with respect to the mobile home, reflecting Leone as the owner and Dynex as the lienholder. Dynex subsequently changed its name to Origen Financial, LLC.

Under the terms of the Contract, Leone agreed to pay $44,912 over a term of 360 months by making monthly installments of $329.24, commencing March 24, 1997. To secure payment, Leone granted a security interest in the mobile home to the Seller or its assignees. On July 1, 2008, Green Tree took over servicing the loan, and a notice of change of servicing was sent to Leone.

The Contract provided that a failure to make timely monthly payments on the loan constitutes a default. Leone stopped making payments on the account on July 24, 2008. On September 2, 2008, Green Tree sent Leone a Notice of Default and Right to Cure Default. Leone failed to tender any payments to Green Tree in response to the Notice of Default, and the default was not cured. Green Tree then filed a Petition for Writ of Possession in the State Court of Carroll County (the “State Court case”). The trial judge in the State Court case entered an order compelling Leone to pay rent payments into the court registry. Leone appealed that order compelling payments into the registry of the court to this Court in Case No. A11A1599 currently pending before this Court, and the remainder of the case was stayed by the trial judge.

While the State Court case was pending, Leone filed the present lawsuit in the Superior Court of Carroll County. Leone’s complaint is captioned as an “amended petition to have the wrongful foreclosure set aside and motion for preliminary injunction.” Green Tree filed a motion for summary judgment contending that no foreclosure had occurred on her property, and thus Leone’s argument was moot. After oral argument, the trial court agreed and granted Green Tree’s motion for summary judgment. Leone appeals.

1. As a threshold matter, we address the deficiencies of Leone’s brief. While she has enumerated eight errors, she has not numbered her arguments correspondingly in her brief as required by Court of Appeals Rule 25 (c) (1). Further, we note that Leone’s brief has substantially failed to comply with Court of Appeals Rule 25 (c) (2) (i), which provides that “[e]ach enumerated error shall be supported in the brief by specific reference to the record or transcript.” Although Leone does set out minimal references to the record in support of her enumerated errors, such references are only to conclusory statements provided in the pleadings she presented to the trial court. We remind the litigants that allegations of fact appearing only in appellate briefs and unsupported by evidence will not be considered on appeal. And, “[i]t is not the function of this court to cull the record on behalf of [the] party in search of instances of error. The burden is [on] the party alleging error to show it affirmatively [on] the record.” We caution that this Court’s rules “are designed to facilitate the consideration of enumerated errors and compliance with such rules is not optional.” Leone’s failure to adhere to our rules has hampered our ability to ensure that all her arguments are considered.

2. Leone argues that the trial court erred in not holding a jury trial pursuant to her jury demand. This claim is without merit.

The right to a jury trial “is not infringed where, as here, the jury would have no role since there are no issues of material fact in dispute.” When a trial court determines that summary judgment is appropriate, it is in effect a determination that a party is not entitled to his or her right to a jury trial under the Georgia Constitution or OCGA § 9-11-38. Accordingly, the trial court did not violate Leone’s right to a jury trial by granting summary judgment to Green Tree in this matter.

3. Leone next contends that the trial court erred in not granting her motion to strike the affidavit of Jeffrey A. Eizenga proffered by Green Tree in support of its motion for summary judgment. The basis of Leone’s argument is that the affidavit was “hearsay” because Eizenga could not testify as to the originality of any documents in this manner. However, the trial court failed to rule on this motion and Leone did not seek a ruling. “It is the duty of [a litigant] to obtain a ruling on his motions or objections.” Under these circumstances, Leone’s failure to obtain a ruling on the motion to strike the affidavit resulted in a waiver of that issue.

4. Leone next maintains that the trial court erred in granting summary judgment in favor of Green Tree on her claim for wrongful foreclosure for the following two reasons: her mobile home constituted real estate, and not personal property and Green Tree failed to carry its burden to show the assignments of the underlying Contract. Leone has not supported these arguments with any citations to the record and a review of the record reveals that many of the facts referred to by Leone appear only in the briefs. “Allegations of facts appearing only in the briefs and unsupported by evidence in the record will not be considered on appellate review.”

5. Leone’s “remaining enumerations of error are predicated on legal arguments that were not presented to the trial court, and we decline to consider them for the first time on appeal.”

Decided August 23, 2011

Reconsideration denied September 16, 2011

Kyunna S. Leone, pro se.

Kenney, Solomon & Medina, Robert J. Solomon, for appellees.

6. Leone has remained in possession of the mobile home for approximately twenty-six months without payment of rent into the court, as required by the trial court in the State Court case. All issues raised by Leone in the trial courts and in this court are completely lacking in merit and appear to be an attempt to abuse the judicial system in an effort to avoid her contractual obligations. Since we find no reasonable basis on which Leone could have anticipated reversal of the trial court’s judgment, we assess a penalty against her in the amount of $1,000 for frivolous appeal, pursuant to Rule 15 (b) of this Court.

Judgment affirmed.

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

       (Punctuation and footnote omitted.) Azam v. RPR Holdings, Inc., 309 Ga. App. 469-470 (711 SE2d 50) (2011).

       (Citation.omitted.) Adamchick v. Cracker Barrel Old Country Store, 281 Ga. App. 677 (637 SE2d 44) (2006).

       Id.

       The related case was heard before the State Court of Carroll County, in an action styled Green Tree Servicing, LLC v. Kyunna Sierra Leone, Civil Action File Number 08-S-01929. The court in that case granted summary judgment in favor of Green Tree, and Leone has also filed notice in that appeal, which is currently before this Court in Case No. A11A1599. Leone filed yet another lawsuit in the Northern District Court, Atlanta Division, styled Kyunna Sierra Leone v. Green Tree Servicing, LLC, Dynex Financial and Origen Financial, LLC, Civil Action File Number 1:10-CV-3402-CAE This complaint was dismissed upon Green Tree’s motion to dismiss.

       See Hallisy v. Snyder, 219 Ga. App. 128, 129 (2) (464 SE2d 219) (1995).

       (Citation and punctuation omitted.) Sharp v. Greer, Klosik & Daugherty, 256 Ga. App. 370, 372 (2) (568 SE2d 503) (2002).

       (Punctuation and footnotes omitted.) Wright v. AFLAC, Inc., 283 Ga. App. 890, 891-892 (1) (643 SE2d 233) (2007).

       See Salazar v. State, 256 Ga. App. 50, 53 (4) (567 SE2d 706) (2002) (holding that a pro se defendant “is not held to a different or more lenient standard in this regard merely because he elected to proceed pro se. One who knowingly elects to represent himself assumes full responsibility for complying with the substantive and procedural requirements of the law”) (citation omitted).

       (Citation and punctuation omitted.) Crane v. Samples, 267 Ga. App. 895, 896 (2) (600 SE2d 624) (2004). Accord Hallisy, supra at 129 (3) (Although the right to a trial by jury exists in disposesssory actions, “(t]he existence of the right does not demand that a jury trial be held in all cases, including those where no issues remain for jury determination.” To hold otherwise would mean that “no case would be decided upon summary adjudication. This is patently absurd.”).

        Svc. Merchandise v. Jackson, 221 Ga. App. 897, 899 (1) (473 SE2d 209) (1996).

       Id.

       (Citation and punctuation omitted.) Smith v. Stacey, 281 Ga. 602 (1) (642 SE2d 28) (2007).

       Id.

       (Citation omitted.) Hallisy, supra. Accord Sirdah v. North Springs Assoc., 304 Ga. App. 348, 352 (2) (696 SE2d 391) (2010) (Pursuant to Court of Appeals Rule 25 (a) (3), “an appellant must support enumerations of error with argument and citations of authority, and mere conclusory statements are not the type of meaningful argument contemplated by Rule 25 (a) (3)”) (citation and punctuation omitted).

        Sirdah, supra at 352 (4). Accord Watson v. Frnka, 266 Ga. App. 64, 65 (596 SE2d 187) (2004).


author: Andrews, Judge.

text:
    A11A1033.
    DENNIS PERRY HOMES, INC. v. COMPANION PROPERTY & CASUALTY INSURANCE COMPANY.
    (716 SE2d 798)
   Andrews, Judge.

Dennis Perry Homes, Inc. (Perry) appeals from the trial court’s grant of summary judgment to Companion Property & Casualty Insurance Company (Companion) on Companion’s claim for premiums due under a workers’ compensation insurance policy. For the reasons discussed below, we conclude there was no error and affirm.

The record shows that Companion issued the workers’ compensation insurance to Perry under an “assigned risk” policy because Perry was unable to obtain insurance on the open market. All insurers that write workers’ compensation policies must participate in insuring companies in the assigned risk pool.

Based on the information supplied by Perry, Companion wrote the policy with an initial premium of $750. However, workers’ compensation premiums are based on the actual amount paid to workers, therefore the actual policy premium cannot be determined until after the policy term. In its answers to interrogatories, Perry stated that its estimated payroll for employees was zero, and also stated that it was not informed that it should list contractors and subcontractors for purposes of workers’ compensation insurance.

The audit showed that, after the first term, an additional premium payment of $79,523 was due. At the end of the second policy period, the audit showed an additional premium due of $24,551. Perry refused to pay, and Companion sued for the above amounts. The trial court granted summary judgment to Companion, and this appeal followed.

1. On appeal, Perry contends that the trial court erred in ruling that there was no factual issue as to whether Perry was the statutory employer of the workers listed in the audits. Perry argues that a jury should decide whether the workers included in the audits were employees, independent contractors, or subcontractors.

Summary judgment is proper “if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law.” OCGA § 9-11-56 (c). “[A] defendant who will not bear the burden of proof at trial need not affirmatively disprove the nonmoving party’s case, but may point out by reference to the evidence in the record that there is an absence of evidence to support any essential element of the nonmoving party’s case.” Cox Enterprises v. Nix, 274 Ga. 801, 804 (560 SE2d 650) (2002). See also OCGA § 9-11-56 (e):

When a motion for summary judgment is made and supported as provided in this Code section, an adverse party may not rest upon the mere allegations or denials of his pleading, but his response, by affidavits or as otherwise provided in this Code section, must set forth specific facts showing that there is a genuine issue for trial. If he does not so respond, summary judgment, if appropriate, shall be entered against him.

The applicable Code section in this case is OCGA § 34-9-8, which provides in pertinent part:

(a) A principal, intermediate, or subcontractor shall be liable for compensation to any employee injured while in the employ of any of his subcontractors engaged upon the subject matter of the contract to the same extent as the immediate employer.
(b) Any principal, intermediate, or subcontractor who shall pay compensation under subsection (a) of this Code section may recover the amount paid from any person who, independently of this Code section, would have been liable to pay compensation to the injured employee or from any intermediate contractor.
(c) Every claim for compensation under this Code section shall be in the first instance presented to and instituted against the immediate employer, but such proceedings shall not constitute a waiver of the employee’s right to recover compensation under this chapter from the principal or intermediate contractor. If such immediate employer is not subject to this chapter by reason of having less than the required number of employees as prescribed in subsection (a) of Code Section 34-9-2 and Code Section 34-9-124 does not apply, then such claim may be directly presented to and instituted against the intermediate or principal contractor. However, the collection of full compensation from one employer shall bar recovery by the employee against any others, and the employee shall not collect a total compensation in excess of the amount for which any of the contractors is liable.

Accordingly, under OCGA § 34-9-8 (a), a general contractor is liable for payment of workers’ compensation benefits to the employee of a subcontractor to the same extent as the subcontractor.

“The purpose of [OCGA § 34-9-8] is to ensure that employees in construction and other industries are covered by workers’ compensation. In order to do so, it places an increased burden, in the form of potential liability for workers’ compensation benefits, on the statutory employer. This encourages the statutory employer to require subcontractors to carry workers’ compensation insurance.” Wright Assoc. v. Rieder, 247 Ga. 496, 499-500 (1) (277 SE2d 41) (1981).

Franks v. Avila, 200 Ga. App. 733 (409 SE2d 564) (1991). Thus, “[t]he fact that plaintiff. . . was an independent contractor does not preclude a conclusion that defendant was his statutory employer.” Fowler-Flemister Concrete v. Sumner, 209 Ga. App. 312, 314 (433 SE2d 329) (1993). Further, “ ‘[t]he law does not permit the employer, simply by designating certain of his employees independent contractors, to by-pass the workmen’s compensation law, and this is true, although the employer may bona fide believe that the end referred to may be accomplished in the manner mentioned.’ ” Campbell v. Travelers Ins. Co., 100 Ga. App. 853, 854 (112 SE2d 311) (1959).

Here, the trial court held that Perry had not come forward with any evidence to show that any of the workers listed was covered by other workers’ compensation insurance, and therefore did not show that any of the workers had been “misclassified” by the audit. Likewise, on appeal, Perry merely argues that a jury should decide which workers were covered under the policy at issue but comes forward with no evidence creating an issue of fact for the jury to decide. Accordingly, the trial court did not err in granting Companion’s motion for summary judgment on this ground.

2. In an almost identical enumeration, Perry argues that the trial court erred in ruling that there was no factual issue as to whether the classifications of the workers were correct. Perry contends that the trial court erred in determining that there was nothing in the record to contradict the classifications of workers determined by the audit. In support of this, Perry points to seven workers that it claims were incorrectly classified. But, Perry does not argue that the misclassifi-cation as to job duties changes the determination that Perry was the workers’ statutory employer for purposes of the Workers’ Compensation Act, nor does it show that the alleged misclassifications resulted in an incorrectly calculated premium.

3. Perry also claims that the trial court erred in granting summary judgment because it relied on the affidavit of Companion’s collection manager. Perry contends that the conclusions in the affidavit were based on unsupported opinion evidence and states that it takes issue with the accuracy of the post-policy period audits and the amount owed as a result of those audits.

As the trial court stated, the affidavit provides a foundation for the admissibility of the business records upon which the affiant relied. The affidavit also states the amount of back premiums due on the policies. Although Perry claims the amounts are incorrect, beyond making these allegations, it provides no evidence of why the amounts are incorrect and no evidence of what it contends should be the proper calculation.

Home Ins. Co. v. Sunrise Carpet Indus., 229 Ga. App. 268, 270 (493 SE2d 641) (1997), cited by Perry, is not on point. In that case, the expert expressed no opinion on prior errors and miscalculations made by the insurance company and based his opinion testimony on the opinions of others. Id. at 270-272.

As previously stated, once Companion made a prima facie showing of entitlement to judgment as a matter of law, the burden shifted to Perry to come forward with specific rebuttal evidence showing that there is a genuine issue for trial. See Mansour Properties v. Reinhardt College, 252 Ga. App. 214, 216 (555 SE2d 877) (2001). Companion submitted evidence on the number of workers on Perry’s payroll, the amount of the payroll, the classifications of those workers, and the applicable rates. Perry was required to come forward with specific evidence showing that there was an issue of fact as to these calculations. Perry has not done so; therefore, there was no error in the trial court’s grant of summary judgment to Companion on its suit for premiums due under the policy.

Decided September 16, 2011

Nimmons & Malchow, Leland M. Malchow, for appellant.

Hays & Potter, James W. Hays, Alexander Yusupov, for appellee.

Judgment affirmed.

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

       It appears that, as the trial court noted, even the clerical workers at Perry were paid as independent contractors.


text:
    A11A1221.
    STOLTE v. HAMMACK.
    (716 SE2d 796)
   Andrews, Judge.

Edward Stolte sued Andrew Hammack for injuries received when a dog attacked him inside a townhouse owned by Hammack. Stolte sought recovery under the vicious animal statute (OCGA § 51-2-7) and the premises liability statute (OCGA § 51-3-1). The trial court granted summary judgment to Hammack as to both theories, concluding that Hammack did not have superior knowledge of the dog’s viciousness. For reasons that follow, we affirm.

“Summary judgment is appropriate when no genuine issues of material fact remain and the moving party is entitled to judgment as a matter of law.” Raith v. Blanchard, 271 Ga. App. 723 (611 SE2d 75) (2005). “On appeal, we review a trial court’s grant of summary judgment de novo, construing the evidence and all inferences drawn from it in a light favorable to the nonmovant.” Id.

Viewed in the light most favorable to the plaintiff, the record shows that Stolte, Hammack, Lauren Davis (Hammack’s girlfriend), and Chris Marek lived together in a townhouse owned by Hammack. Hammack and Davis shared a room, while Stolte and Marek had their own rooms. Davis’s dog Cujo, a pit bull, also lived in the townhouse.

On April 27, 2008, the dog bit Stephanie Gannon, a friend of Marek’s who was visiting at the townhouse. Gannon testified that there were four people in the house when she arrived, Stolte, Hammack, Marek, and Hammack’s stepbrother. She stated that Stolte, Hammack, and Hammack’s stepbrother were all in one area talking to her. At some point, Marek came down the stairs, and the dog suddenly attacked Gannon. Although Gannon initially said that it was her understanding that “everyone was in the room” at the time, she later stated that she could not remember who was there when the dog attacked her.

Stolte said that he was not present when the attack occurred but that he heard about it the following morning from Marek. Stolte also saw Gannon’s injuries the day after the attack. This was the first time that, to Hammack’s and Stolte’s knowledge, the dog had bitten or attacked anyone.

Following the attack, Gannon, who worked as an insurance adjustor, warned Hammack and Davis of their potential liability if the dog were to bite someone else. Davis, however, was reluctant to part with the dog, so Davis, Hammack, and Stolte agreed that the dog would stay locked up in Davis’s and Hammack’s room when they were not at home.

Before the attack on Gannon, Stolte said that he would play with the dog, take care of the dog, and, when Hammack and Davis were out of town, he occasionally let the dog sleep in his bed. Following the attack, however, Stolte testified that he was nervous about being around the dog and tried to have “as little contact with the dog as possible.”

Approximately three months after the dog attacked Gannon, Davis asked Stolte if he could walk the dog for her because she was late for work. Stolte said he would. When Stolte opened the bedroom door, the dog ran toward him and grabbed his right arm in his jaws. A struggle followed, during which Stolte received bites on his arms, chest and stomach. Stolte was hospitalized for three days and required numerous stitches and staples to close the wounds.

Stolte filed suit, and Hammack moved for summary judgment, contending that Stolte was equally aware of the dog’s vicious propensity. Hammack also argued that Stolte assumed the risk of attack when he opened the door to the bedroom where they were keeping the dog. The trial court granted the motion, and this appeal followed.

1. Stolte argues that the trial court erred in finding that Hammack did not have superior knowledge of the dog’s vicious propensity. Under OCGA § 51-2-7:

A person who owns or keeps a vicious or dangerous animal of any kind and who, by careless management or by allowing the animal to go at liberty, causes injury to another person who does not provoke the injury by his own act may be liable in damages to the person so injured. . . .

Thus,

a plaintiff in a dog bite case must show that the owner had knowledge that the dog had the propensity to commit the act that caused the injury. ... If the plaintiff does not present evidence that the owner had superior knowledge of his dog’s temperament, then the owner is entitled to summary judgment.

Durham v. Mason, 256 Ga. App. 467, 468 (568 SE2d 530) (2002).

Stolte argues that Hammack had superior knowledge because he actually witnessed the attack and Stolte did not. The record shows that Hammack stated that he was not present at the time of the attack; and, although Gannon said she thought that Hammack was present for the attack, she acknowledged that she could not be sure. Chris Marek testified that after the dog bit Gannon, he was holding the dog, calling for help, when Hammack and Davis came running downstairs.

Even assuming that Hammack was in the room at the time of the attack, the law is that when both plaintiff and owner have equal knowledge of the dog’s propensity to bite, the plaintiff cannot prove that the owner had superior knowledge of the dog’s temperament. Durham, supra at 468. Here, Stolte was told about the attack and saw the bite the next day. Stolte testified that after the dog bit Gannon, he avoided the dog and was nervous when he was around the dog. Accordingly, Stolte’s own testimony was that he was aware of the dog’s previous unprovoked attack and was nervous when around the dog, presumably because he was afraid that it could attack again. Therefore, Stolte had knowledge of the dog’s vicious propensity equal to that of Hammack’s, and the trial court did not err in granting summary judgment to Hammack on this claim.

This equal knowledge of the dog’s vicious propensity also bars recovery under Georgia’s premises liability statute. OCGA § 51-3-1 provides that a home owner can be liable for “injuries caused by [the home owner’s] failure to exercise ordinary care in keeping the premises and approaches safe.” A plaintiff in a dog bite case who asserts a cause of action under this statute is also required to produce evidence that the premises owner had superior knowledge of the dog’s vicious propensity. See Wade v. American Nat. Ins. Co., 246 Ga. App. 458, 461 (540 SE2d 671) (2000). Because Stolte cannot show Hammock’s superior knowledge of the dog’s temperament, Ham-mack is not liable for Stolte’s damages under OCGA § 51-3-1.

2. Stolte also argues that Hammack agreed to take the dog to obedience training and for a medical evaluation, but did not do either one. When asked at his deposition if there was ever a discussion after the attack about the dog going to obedience school, Stolte replied that there may have been a discussion, but he personally was not a party to it. In his affidavit, however, he claims that had he known that Hammack was not going to take the dog to the veterinarian or to obedience training, he would “have refused to interact” with the dog.

Decided September 16, 2011.

Davis & Desautel, Stephen B. Davis, Andrew C. Desautel, for appellant.

Downey & Cleveland, Jonathan C. Jones, for appellee.

This argument has no relevance to the “equal knowledge” holding discussed above. As his affidavit makes clear, Stolte knew that, as of the day of the attack, the dog had not been to obedience school or to a veterinarian. Accordingly, his equal knowledge of the dog’s vicious propensity remained unchanged. There is no merit to this enumeration of error.

3. Stolte also claims that his agreeing to take the dog outside on the day of the attack “was not completely voluntary and was not without coercion.” There is nothing in the record to support any claim that Stolte was “coerced” into taking the dog out on the day of the attack.

At his deposition, Stolte testified that Hammack did point out that he was lenient with Stolte about the bills and did ask Stolte to help with tasks like watering the plants and taking care of the dog. But Stolte testified that there was no coercion, stating that it was “[n]othing like, I’m kicking you out right now or anything like that.” Accordingly, there is no merit to this enumeration, and the trial court did not err in granting summary judgment to Hammack on Stolte’s claims.

Judgment affirmed.

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


author: BARNES, Presiding Judge.

text:
    A11A1085.
    DOZIER v. THE STATE.
    (716 SE2d 802)
   BARNES, Presiding Judge.

A jury convicted Wendell William Dozier of rape, aggravated sodomy, aggravated child molestation, child molestation, and incest, and he was sentenced to multiple life sentences. He argues on appeal that the trial court erred in allowing the State to impeach his testimony with a prior aggravated assault conviction, and that this error was harmful. For the reasons that follow, we find no error and thus affirm.

Dozier’s victim was his then-14-year-old daughter, who testified in graphic detail about numerous occasions when Dozier forced her to have sexual intercourse with him. She also testified that Dozier made her perform and receive oral sex during these occasions, which took place at her house and in other places to which Dozier drove her.

Dozier did not live with the victim. He retrieved her from school several times and drove his car behind a commercial building, where he made the victim get out and have sex with him at the back of his car. Other times he came over to her house and into her bedroom when her mother was at work, locked the door, and forced her to perform sexual acts. On one of those occasions, the victim’s two-year-old brother was crying and trying to get into the victim’s bedroom, so Dozier let him in, and then had sex with the victim.

The victim testified that she did not want Dozier to perform the sexual acts but did not fight back because she was afraid he would “body slam” and choke her. She did not tell anyone about the abuse right away because Dozier said if she did, she would get in trouble and “it all [would] come back on [her]” because no one would believe her. She also did not want to make her mother feel bad or be angry with her for not disclosing the abuse sooner.

The victim finally made an outcry to her boyfriend, who told the victim’s cousin. The cousin told her mother, who was the victim’s aunt, and the aunt drove the two girls to pick up the victim’s mother. In the car on the way back to the aunt’s house, the victim told her mother what had been happening with Dozier. The mother was upset but not angry at the victim, and took her to the police station immediately to make a report. Investigation and prosecution ensued.

In addition to the victim, her boyfriend, cousin, and mother all testified about the outcry. An expert in child sexual abuse examinations testified that she had examined the victim, who reported a year-long history of penile-vaginal penetration and oral sex that began the day before her fourteenth birthday. The victim’s gynecological examination was essentially normal, which the expert explained did not rule out sexual abuse because the tissue in that area tended to heal quickly.

An expert in forensic interviews of sexually abused children testified that she was the director of the non-profit Georgia Center for Child Advocacy, which works closely with the police and the Department of Family and Children Services. The center’s staff are specially trained to talk to children in a non-leading, non-suggestive way to obtain information when someone suspects that a child has been abused or can provide information about child abuse.

The expert explained that children who are abused by someone within their social or family circle often disclose the abuse more slowly than if the abuser were a stranger. When the abuser is someone in a position of authority in a child’s life, the expert said, the child may be used to obeying that person’s commands, such as “clean your room” or “eat your supper,” and thus obey the command not to tell anyone what is happening to them. Children also commonly fear that no one will believe them, that they are responsible for the abuse, and that they will be punished or be the cause of someone else’s punishment if discovered. Sometimes an abused child reveals no outward change in her demeanor, but once the abuse is disclosed the child may reveal more information as time passes and she assesses the reaction to her disclosure.

A detective who works in a special victims’ unit for crimes against women and children testified that he watched the forensic interview of the victim to observe her demeanor and to obtain basic background information about the incidents she had disclosed. She was “humble,” the detective said, showing neither sorrow nor happiness. The detective interviewed Dozier twice, at Dozier’s residence and then at the police station, and the State played recordings of both interviews during trial. The detective testified that he thought it was strange that Dozier remembered small details about a shopping trip with the victim but could not remember whether or not he had driven his car behind the building, where the victim said one of the assaults occurred.

Dozier testified and denied abusing the victim. He also testified on direct examination that he “took a plea bargain” on an aggravated assault charge in 1993 and spent time in prison. During cross-examination, Dozier admitted writing a letter to someone in which he said, “Please help me change her testimony,” but said he was referring to his ex-girlfriend, not to the victim.

For impeachment purposes, the State entered into evidence a certified copy of Dozier’s aggravated assault conviction. The jury subsequently convicted Dozier of all four felony charges. Dozier filed a motion for new trial, which was denied, and this appeal followed

Dozier contends on appeal that the trial court failed to apply the proper statutory standard in determining whether his aggravated assault conviction was admissible to impeach his testimony. Before Dozier testified, the trial court considered outside the jury’s presence whether the State could use evidence of Dozier’s prior aggravated assault conviction to impeach his testimony. Dozier was confined until 1998, and because his release occurred more than ten years before the trial, under OCGA § 24-9-84.1 (b) the trial court was required to consider whether the probative value of the evidence, as supported by specific facts and circumstances, substantially outweighed its prejudicial effect. The court asked the State why the evidence was compelling enough to overcome the prejudicial effect of its admission.

The State responded that Dozier had been charged with three counts of aggravated assault in 1993, and initially told the police that he and the other three men involved had engaged in mutual combat. The evidence eventually revealed that after Dozier had an altercation with the men, he “went after” them and pistol-whipped one of them. He then returned to the scene and removed the gun to hide the evidence. Dozier pled guilty to one count of aggravated assault and two counts of misdemeanor reckless conduct. The State argued that it should be allowed to impeach Dozier’s veracity with evidence of the aggravated assault conviction because Dozier was initially untruthful to the police about the circumstances surrounding the fight and because he tried to hide the evidence.

The trial court granted the State’s request to admit the prior conviction for impeachment purposes. The court reasoned that, because the crimes for which Dozier was being tried were “crimes of credibility,” with an alleged victim saying something happened and Dozier saying nothing happened, evidence of the prior conviction was probative enough on the issue of Dozier’s veracity and credibility to outweigh the potential prejudicial effect of admitting evidence of the conviction. Additionally, the court noted, evidence Dozier committed a violent act was relevant to the victim’s testimony that she did not disclose the crimes immediately for fear Dozier would hurt her. The court then commented:

The jury is going to decide who to believe and I think it’s important for them to have — if he wishes to testify, he has the right to testify, but I have never understood the artificial boundaries between other witnesses and parties in the case. I don’t understand that. It just doesn’t make any sense to me. That’s one of the requests to charge which you have made, which is he gets examined like everybody else, he gets sworn like everyone else. As far as I’m concerned, defendants ought to be subject to impeachment just like everybody else. So that’s the reason why I’m [allowing the State to impeach Dozier with the prior conviction],

Dozier argues that these comments show that the trial court failed to apply the proper test for determining whether an older conviction is admissible to impeach a defendant as opposed to a witness, which Dozier argues is illustrated by the difference between OCGA § 24-9-84.1 (a) (1) and (a) (2).

We review a trial court’s determination regarding impeachment of a defendant for abuse of discretion. Quiroz v. State, 291 Ga. App. 423, 429 (4) (662 SE2d 235) (2008). OCGA § 24-9-84.1 (a) (2) establishes a stricter standard for weighing the admissibility of a conviction less than ten years old when it is offered to impeach a defendant instead of an ordinary witness. If offered against a defendant, the statute requires that the probative value of the conviction substantially outweigh its prejudicial effect, and the trial court is “not authorized to admit evidence using a more liberal standard than that provided by OCGA § 24-9-84.1 (a) (2).” (Citation and punctuation omitted.) Lawrence v. State, 305 Ga. App. 199, 203 (3) (699 SE2d 406) (2010).

Under OCGA § 24-9-84.1 (b), however, if more than ten years has passed since the conviction or the release from confinement imposed for that conviction, the standard used to balance the probative value of evidence against its prejudicial effect is the same for defendants and witnesses. In either case, the court must find that the probative value of the conviction “supported by specific facts and circumstances substantially outweighs its prejudicial effect.” OCGA § 24-9-84.1 (b); Quiroz, 291 Ga. App. at 429 (4).

The trial court must make express findings regarding the relevant factors when balancing the probative value of the impeachment evidence against its prejudicial effect under OCGA § 24-9-84.1 (a) or (b), which include the kind of crime involved, the date of the conviction, and the importance of the witness’s credibility. Abercrombie v. State, 297 Ga. App. 522, 524 (1) (677 SE2d 719) (2009) (conviction reversed because trial court failed to list any factors and simply found that the evidence of three-year-old conviction would have probative value and thus was admissible under OCGA § 24-9-84.1 (a) (2)).

Dozier argues that, because the statute establishes a stricter standard to admit a conviction less than ten years old against a defendant rather than a witness, it must also require that the trial court apply a stricter standard to admit an older conviction against a defendant. He further argues that the trial court’s statement quoted above shows that the court “expressly failed to distinguish between the higher threshold required of a testifying defendant as compared to another witness, so there is no way that it could correctly weigh the necessary factors if the threshold for an over-age conviction is higher still.”

We disagree that the trial court’s observations questioning the reasons for having different impeachment standards for defendants and other witnesses negate its analysis or establish that the trial court “fails to grasp [the] difference,” as Dozier argues. In the first place, the statute itself contains no distinction between defendants and witnesses when more than ten years has passed since the applicable conviction or release. Secondly, the trial court properly considered the specific facts and circumstances of Dozier’s prior aggravated assault conviction, as required by OCGA § 24-9-84.1 (b), before concluding that the probative value of evidence of the conviction substantially outweighed its prejudicial effect. The trial court specifically addressed the relevant factors, including “the kind of felony involved, the date of the conviction, and the importance of the witness’s credibility.” Quiroz, 291 Ga. App. at 428.

Decided September 19, 2011.

Stephen A. Shea, for appellant.

Robert D. James, Jr., District Attorney, Deborah D. Wellborn, Assistant District Attorney, for appellee.

Accordingly, the trial court did not abuse its discretion in allowing the State to introduce evidence of Dozier’s prior aggravated assault conviction in this case involving rape, aggravated sodomy, aggravated child molestation, child molestation, and incest.

Judgment affirmed.

Adams and Blackwell, JJ., concur.


author: McFadden, Judge.

text:
    A11A0912.
    VILLAS AT STONE MOUNTAIN CONDOMINIUM ASSOCIATION, INC. v. BLAIR.
    (716 SE2d 718)
   McFadden, Judge.

Villas at Stone Mountain Condominium Association, Inc. appeals the grant of summary judgment to Pauline Blair in the association’s action to recover condominium assessments. The association argues that Blair became the condominium owner upon the death of her mother and that she is therefore obligated to pay the assessments that came due between the time of her mother’s death and the condominium’s subsequent sale at foreclosure. Although Blair never lived in the condominium, never rented it out, and never derived any other financial benefit from it, the unambiguous language of Georgia’s Probate Code and Condominium Act, when read together, entitles the association to the relief it claims. We therefore reverse the trial court’s grant of summary judgment to Blair.

Blair’s mother was the owner of a condominium unit when she died intestate on November 21, 2008. Blair never resided in the condominium, either before or after her mother’s death. She never received any financial benefit from the condominium. She never claimed ownership of the condominium.

After the mother’s death, the condominium was sold at foreclosure. A deed under power was recorded on March 29, 2010. In the meantime, the condominium association filed this action against Blair and her sister, Patsy McDonald, seeking past due monthly condominium assessments and late fees for the condominium. Blair answered the complaint and filed a counterclaim for her attorney fees. The condominium association filed a motion for partial summary judgment on the issue of liability as well as on Blair’s counterclaim. Blair also filed a motion for summary judgment. The trial court granted summary judgment to Blair on the issue of liability for the condominium assessments and to the condominium association on the counterclaim for attorney fees. The association now appeals, asserting that the trial court erred in granting summary judgment to Blair and denying its motion for partial summary judgment as to liability.

This case involves two statutes, OCGA § 53-2-7 (a) of the Probate Code and OCGA § 44-3-109 (a) of the Georgia Condominium Act, which appear not to have previously been construed together. The Probate Code, at OCGA § 53-2-7 (a), provides:

Upon the death of an intestate decedent who is the owner of any interest in real property, the title to any such interest which survives the intestate decedent shall vest immediately in the decedent’s heirs at law, subject to divestment by the appointment of an administrator of the estate.

As no estate administrator was appointed, the heirs were not divested of title under OCGA § 53-2-7 (a). “Heirs,” as defined at OCGA § 53-1-2 (9), are “those one or more individuals who survive the decedent and are determined under the rules of inheritance to take the property of the decedent that is not disposed of by will.” Consequently, Blair and her sister were their mother’s heirs and their mother’s interest in her condominium vested immediately in them upon their mother’s death.

The Georgia Condominium Act, at OCGA § 44-3-109 (a) (2), provides:

All sums lawfully assessed by the association against any unit owner . . . shall, from the time the same become due and payable, be the personal obligation of the unit owner and constitute a lien in favor of the association on the condominium unit prior and superior to all other liens whatsoever except . . . [t]he lien of any first priority mortgage covering the unit and the lien of any mortgage recorded prior to the recording of the declaration.

OCGA § 44-3-71 (29) defines “unit owner” as “one or more persons . . . who own a condominium. ...” Under these various statutes, Blair, as her mother’s heir, was immediately vested with her mother s title to the condominium unit, became a unit owner, and the condominium assessments became her personal obligation. Blair could have renounced her interest in the condominium. OCGA § 53-1-20. But that right is delineated by statute, and it expired nine months after her mother’s death. See OCGA § 53-1-20 (d).

Decided August 22, 2011

Reconsideration denied September 20, 2011

Lipshutz & Greenblatt, Randall M. Lipshutz, Jacob R. Davis, for appellant.

James W. Howard, Sharon E. Howard, for appellee.

Blair argues that she cannot be held liable for assessments on the condominium because she never acquired an interest in the condominium due to foreclosure. This argument is contrary to the plain language of OCGA § 53-2-7 (a), which provides that title vested immediately. Blair’s mother died on November 21, 2008, and the mortgage holder did not foreclose until February 2, 2010. It is the fees accrued during this period that the association seeks to recover.

Blair argues that she cannot be held liable for the assessments since she received no benefit from the condominium. She cites no legal authority in support of that argument. It is founded on policy considerations which are the province of the General Assembly.

Citing OCGA § 44-3-109 (a), she contends that the foreclosure extinguished the lien. The language of the statute does not concern the extinguishment of liens, however. And, in any event, under the statute, the assessments not only constituted a lien but also were “the personal obligation of the unit owner.”

Blair argues that the association cannot recover a judgment against her for her mother’s indebtedness. She cites in support Goff v. Nat. Bank of Tifton, 170 Ga. 691 (153 SE 767) (1930) (“A creditor of an intestate decedent can not recover judgment against the heirs at law of the intestate upon an indebtedness by note of the intestate to such creditor. . . .”). But the association is not seeking judgment for Blair’s mother’s indebtedness. Rather, it is seeking judgment for the assessments incurred during the period between the mother’s death and the foreclosure sale, a period in which the mother’s heirs-at-law were vested with the mother’s title and thus were the unit owners under OCGA § 44-3-71 (29). Accordingly, the trial court erred in granting summary judgment to Blair on the issue of liability and denying the association’s motion for partial summary judgment.

Judgment reversed.

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


author: Dillard, Judge.

text:
    A11A0852.
    NORMAN v. THE STATE.
    (716 SE2d 805)
   Dillard, Judge.

Following a bench trial, Marlon Ray Norman was convicted of four counts each of armed robbery and possession of a firearm during the commission of a crime. On appeal, Norman’s sole enumeration of error is that the evidence was insufficient to support these convictions. For the reasons noted infra, we affirm.

Viewed in the light most favorable to the trial court’s guilty verdict, the record shows that on the evening of November 23, 2001, Norman drove two men to a game room in McDuffie County and waited in the car as the men, with guns drawn, ordered the operator and a customer to get down on the floor. One of the men remained up front with his gun pointed at the operator while the other went to the back of the establishment, where various patrons were playing video-poker machines. Among the customers in this back room was Ann Ross, the operator’s granddaughter. The gunman in the front room commanded the operator to fill a bag with all of the money inside the front desk, which amounted to an estimated $3,600 in cash and checks. The customer who was in the front managed to sneak out of the establishment and called 911.

Meanwhile, in the back room, the other perpetrator — while waving his gun — demanded money from the customers. One customer handed over $150 and another gave the gunman what amounted to less than $10. A third customer refused to part with his cash and was struck on the head with the handgun, leaving “a big hole in the back of his head.” At some point, the gunman in the back room also fired his weapon into the roof. The gunmen then fled from the game room with their loot in tow.

A little more than one week later, on December 1, 2001, Norman again drove to another game room in McDuffie County. The operator of this establishment was aware of the robbery that had occurred the week before and was immediately suspicious of the two approaching individuals; however, they entered the establishment before she could lock the door. As with the previous robbery, guns were immediately drawn, and the three people in the game room were told to hit the floor. The operator was then ordered to fill a bag with money, but the gunmen were displeased with the amount of cash kept inside the counter (approximately $1,000). Consequently, the operator was forced at gunpoint to open each video-poker machine to retrieve the money from inside. Then, as the gunmen fled into the parking lot, one of the robbery victims followed them outside and shot one of the perpetrators. Police arrived a short time later and apprehended the gunman who was shot, but Norman and the other perpetrator had already left the scene.

Although it is unclear from the record how exactly law enforcement came to identify the persons involved in the robberies, various individuals were eventually indicted. Among those individuals were Ann Ross, who provided information to the robbers; Amos Sanders, who was one of the gunmen in both robberies; and the appellant, Marlon Norman, who drove the getaway car. During the investigation, each of these individuals gave statements to law enforcement; and Ross and Sanders pled guilty to the charges against them. Both Ross and Sanders also testified at Norman’s trial, at which he was found guilty of the aforementioned charges as a party to the crimes. This appeal by Norman follows.

At the outset, we note that after a criminal has been convicted, “the evidence must be construed in a light most favorable to the verdict and [Norman] no longer enjoys a presumption of innocence.” And in evaluating the sufficiency of the evidence, “we do not weigh the evidence or determine witness credibility, but only determine whether a rational trier of fact could have found the defendant guilty of the charged offenses beyond a reasonable doubt.”

On appeal, Norman contends that there was insufficient evidence to convict him of armed robbery and possession of a firearm during the commission of a crime as a party to those crimes. We disagree.

Pursuant to OCGA § 16-2-20, “[e]very person concerned in the commission of a crime is a party thereto and may be charged with and convicted of commission of the crime.” And a person is “concerned in the commission of a crime” if he intentionally aids or abets in the commission or intentionally “advises, encourages, hires, counsels, or procures another to commit the crime.” Indeed, “once a common design is shown by evidence tending to indicate that the [perpetrators] have associated themselves together to do an unlawful act, any act done in pursuance of that association by any one of the associates would ... be the act of each of them.” Furthermore, “criminal intent may be inferred from conduct before, during, and after the commission of a crime.”

Here, it was undisputed at trial that Norman drove the getaway vehicle in both of the robberies. And while Ross and Amos testified that Norman had no knowledge that the game rooms were going to be or had been robbed by the gunmen he transported, their testimony was impeached by their prior inconsistent statements to law enforcement, in which both explained Norman’s role in planning the robberies and his participation in dividing the stolen money. It was also undisputed that on the day of the first robbery, Norman called Ross to inquire as to how many customers were present in the game room; and on the day of the second robbery, Ross placed numerous calls to that game room to inquire as to same. Additionally, the State introduced the testimony of a law-enforcement officer to whom Norman admitted to helping plan the robberies, driving the getaway vehicle, and participating in the division of the proceeds. Norman’s account was almost identical to the accounts given by Ross and Amos immediately following their arrests, despite their altered statements on the day of trial.

Decided September 20, 2011.

Harold W Wallace III, for appellant.

Dennis C. Sanders, District Attorney, Durwood R. Davis, Kevin R. Majeska, Assistant District Attorneys, for appellee.

Given the foregoing, the trial court was presented with sufficient evidence to convict Norman of armed robbery and possession of a firearm during the commission of a crime as a party to those crimes by aiding and abetting. Accordingly, we affirm Norman’s convictions.

Judgment affirmed.

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

       Norman was also convicted of four counts of aggravated assault, but these convictions merged with the armed-robbery convictions at sentencing.

        See Joiner v. State, 299 Ga. App. 300, 300 (682 SE2d 381) (2009).

       Two indictments were issued for the separate incidents, but the cases were consolidated for trial.

       Norman was granted an out-of-time appeal by the trial court.

        Joiner, 299 Ga. App. at 300 (citation, footnote and punctuation omitted).

        Id. (citation and footnote omitted); see also Martin v. State, 305 Ga. App. 764, 765 (700 SE2d 871) (2010) (“[A]s long as there is some competent evidence, even though contradicted, to support each fact necessary to make out the State’s case, the finder of fact’s verdict will be upheld.” (citation and punctuation omitted)).

        See OCGA § 16-8-41 (a) (“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.”).

        See OCGA § 16-11-106 (b) (1), (5) (“Any person who shall have on or within arm’s reach of his or her person a firearm . . . during the commission of, or the attempt to commit! ] . . . [a]ny crime against or involving the person of another . . . and which crime is a felony, commits a felony and, upon conviction thereof, shall be punished by confinement for a period of five years, such sentence to run consecutively to any other sentence which the person has received.”).

       OCGA § 16-2-20 (a).

       OCGA § 16-2-20 (b) (3), (4); see also Whitehead v. State, 304 Ga. App. 213, 215-16 (1) (695 SE2d 729) (2010) (“One may be indicted, convicted and punished for a crime upon proof that he was a party to the crime, even where the indictment did not specifically allege that he was a party to the crime.” (footnote omitted)).

        Whitehead, 304 Ga. App. at 216 (1) (footnote omitted).

        McGordon v. State, 298 Ga. App. 161, 163 (2) (679 SE2d 743) (2009) (citation and punctuation omitted); see also Valentine v. State, 301 Ga. App. 630, 632 (689 SE2d 76) (2009) (“If the defendant had knowledge of the intended crime and shared in the criminal intent of the principal actor, he is an aider and abettor.” (citation and punctuation omitted)).

        See Howard v. State, 192 Ga. App. 813, 814 (2) (386 SE2d 667) (1989) (defendant properly convicted as party to crime of armed robbery when co-defendant testified at trial that defendant drove getaway vehicle but had no knowledge of crime and State impeached co-defendant with contradictory statement that was made to law enforcement shortly after commission); see also Sherrer v. State, 289 Ga. App. 156, 160 (2) (656 SE2d 258) (2008) (holding that despite testimony to the contrary by co-defendant, “the jury was entitled to believe [his] prior inconsistent statements showing that [the appellant] and [he] were jointly engaged” in the crime for which the appellant was convicted (citation omitted)).

        See Navarrete v. State, 283 Ga. 156, 158 (1) (656 SE2d 814) (2008) (“[C]riminal intent may be inferred from presence, companionship, and conduct before, during and after the offense.” (citations and punctuation omitted)).

        See Lucky v. State, 286 Ga. 478, 480 (1) (689 SE2d 825) (2010) (“The State’s evidence implicating appellant, including appellant’s statements to law enforcement officers, was not limited to the testimony of [the] co-defendant. . . and showed appellant was a party to the crimes in that he intentionally aided and abetted the commission of the crimes and intentionally advised, encouraged, and counseled another to commit the crimes.” (citation omitted)).

        See, e.g., Dorsey v. State, 297 Ga. App. 268, 270 (676 SE2d 890) (2009) (holding that evidence was sufficient to convict defendant as a party to the crime of armed robbery when “there was evidence that [he] discussed robbing the store, drove [others] there, and parked the car outside the lot for a quick getaway”); Victrum v. State, 203 Ga. App. 377, 379-80 (3) (416 SE2d 740) (1992) (upholding conviction as party to the crime of possessing a firearm during the commission of a crime when co-defendant was within arm’s reach of firearms). Compare Ratana v. State, 297 Ga. App. 747, 750 (678 SE2d 193) (2009) (“[D]riving a criminal perpetrator away from a crime scene with knowledge that he has committed the crime does not, in and of itself, render one guilty as a party to the crime . . . .” (footnote omitted)).


author: SMITH, Presiding Judge.

text:
    A11A0918.
    HARDING v. THE STATE.
    (719 SE2d 499)
   SMITH, Presiding Judge.

Dino Harding appeals from his convictions of armed robbery, false imprisonment, and possession of a firearm during the commission of a crime. In his sole enumeration of error, he contends the trial court erred by denying his motion for mistrial based upon the assistant district attorney’s violation of a motion in limine ruling during her opening statement. Because the curative instruction provided by the trial court was adequate to preserve Harding’s right to a fair trial, we affirm.

In order to analyze Harding’s claim, we must examine the facts supporting his convictions. The record shows that a movie theater employee saw a person standing by the manager’s door who asked him if the assistant manager, “JB,” was inside his office. Because no one called the assistant manager “JB” unless they knew him, the employee walked over and opened the door. The man then grabbed the employee by the shoulder, placed a gun next to his head, and ordered him to get down on the floor. Next, he ordered the assistant manager, who had been counting the cash in the safe, to get on the floor as well. After tying up the employee and the assistant manager, he took cash from the safe and left.

The assistant manager testified that he recognized the intruder as someone who had applied for a job earlier in the week. He knew the man by the name of Ansel Christopher and testified that “Christopher” had come into the theater “at least once a day for a week” to ask about a job. At trial, he identified Harding as the man he knew as Christopher.

Before the start of his trial, Harding moved to exclude evidence of a gun found at the time of his arrest, two weeks after the robbery. Harding was arrested after he ran from police and hid behind a dog house in a mobile home park. Harding asserted that evidence regarding the gun should be excluded because it did not match the description of the gun used in the robbery. The trial court withheld ruling on the motion and instructed the assistant district attorney not to talk about it during her opening statement. Before opening statements, the trial court instructed the jury “that the opening statement is not evidence. Remember that what the lawyers say is not evidence.” During her opening, the assistant district attorney made a reference to Harding telling the police after his arrest that he had “left a gun in the dog house.”

Harding’s counsel objected, and during a bench conference, the assistant district attorney immediately apologized for violating the court’s instruction about the gun. The trial court denied Harding’s motion for a mistrial, but noted that it would “have to revisit it again if it looks like when we get down to it that I don’t allow it in.”

Following testimony by the victims, the trial court granted Harding’s motion in limine with regard to the gun, but denied his renewed motion for a mistrial.

Before the State presented two additional witnesses, the trial court instructed the jury as follows:

Ladies and Gentleman, before we go on to the next witness I have one thing that I need ... to advise you. And this goes back to my discussion with you from the very beginning that, if you’ll remember, what the lawyers say during trial, in their opening statements and their closing arguments, that sort of thing is not evidence itself. The evidence is what you actually hear ... from the witness stand or those exhibits that are admitted during the trial of the case.

Decided September 20, 2011.

Jennifer R. Burns, Steven L. Sparger, for appellant.

Larry Chisolm, District Attorney, Nancy M. Smith, Assistant District Attorney, for appellee.

So with that as a backdrop let me also instruct you, Ladies and Gentleman, that in the opening statements in this case there was limited discussion from the State about an alleged firearm ... or about a firearm that was allegedly found during the arrest of the defendant in this case. This was in error. There is not such evidence and this should not be considered by you as evidence in this case.

Harding asserts on appeal that “no instruction could cure the impact of the State’s improper statement.” We disagree.

When prejudicial matter is improperly placed before the jury, a mistrial is appropriate if it is essential to the preservation of the defendant’s right to a fair trial. It is up to the trial court to decide whether a mistrial must be granted as the only corrective measure or whether the prejudicial effect can be corrected by withdrawing the testimony from the consideration of the jury under proper instructions.

(Citation and punctuation omitted.) Freeman v. State, 278 Ga. 349, 351 (2) (c) (603 SE2d 214) (2004). “Considering the nature of the statement, the other evidence in the case, and the action taken by the court and counsel concerning the impropriety, we find no abuse of discretion in the denial of [Harding]’s motion for mistrial.” (Citations and punctuation omitted.) Ramirez v. State, 279 Ga. 569, 576 (9) (619 SE2d 668) (2005) (affirming denial of mistrial based on adequate curative instruction given after State violated previous ruling by court).

Judgment affirmed.

Mikell and Dillard, JJ., concur.


text:
    A11A1206.
    SCOTT et al. v. SCOTT.
    (716 SE2d 809)
   SMITH, Presiding Judge.

John and Josephine Scott appeal from the trial court’s order dismissing their petition seeking custody of their two minor granddaughters. We reverse because the trial court erroneously concluded that the Scotts’ petition failed to state a claim.

1. On appeal, we review the trial court’s grant of a motion to dismiss de novo. South Point Retail Partners v. North American Properties, 304 Ga. App. 419, 420 (696 SE2d 136) (2010).

A motion to dismiss for failure to state a claim upon which relief can be granted should not be sustained unless (1) the allegations of the complaint disclose with certainty that the claimant would not be entitled to relief under any state of provable facts asserted in support thereof; and (2) the movant establishes that the claimant could not possibly introduce evidence within the framework of the complaint sufficient to warrant a grant of the relief sought. In deciding a motion to dismiss, all pleadings are to be construed most favorably to the party who filed them, and all doubts regarding such pleadings must be resolved in the filing party’s favor.

(Citations and punctuation omitted.) Stendahl v. Cobb County, 284 Ga. 525, 525-526 (1) (668 SE2d 723) (2008). In this case, the Scotts’ custody petition, filed on February 1, 2010, in Fulton County Superior Court, asserts in relevant part:

3.
On or about March 4, 2008, the father of the minor children, Ralph Clifton Scott, was brutally murdered, found shot in the parties’ marital residence by the children’s mother, Lona Lee Scott.
4.
The Defendant [Lona Lee Scott] is on trial for the murder in DeKalb County beginning Monday, February 1, 2010.
5.
Plaintiffs have standing to receive custody under OCGA § 19-7-1 (b.l) and [are] authorized to seek custody by OCGA § 19-9-2.
6.
Plaintiffs are fit and proper parties to receive custody.
8.
Plaintiffs are the only fit and proper parties to this litigation into which custody may be vested at this time and it is necessary for the Court to make an award of custody so that the children can be cared for pending further proceedings before this Court.

In their prayer for relief, the petitioners asked the trial court to “[f]ind the Defendant to be unfit as a parent.”

In her answer filed on March 31, 2010, Lona Scott filed a one-sentence motion to dismiss based upon “failure to state a claim” and insufficient service. On May 3, 2010, the Scotts filed a written response to the motion in which they asserted that they filed the custody petition because the mother was “facing her initial trial for the murder of their son. Had Lona Scott been convicted, the children would be without parental care and control.”

It is undisputed that the trial resulted in a hung jury. The Scotts argued that the trial court could hear evidence of the mother’s unfitness even in the absence of a conviction and asserted there was no dispute that the mother had killed their son. In a later brief, they stated that the mother testified in her criminal trial that one of the children was present in the home when she shot and killed her husband.

The mother responded that the Scotts failed
to make any sworn allegation of unfitness, either under the statute or the case law nor do they describe how the health or welfare of the children is in jeopardy. The only allegation in the complaint is that Lona Scott killed Cliff Scott and if she were tried, convicted, and imprisoned, the girls would be without a parent.

In its order granting the mother’s motion to dismiss, the trial court concluded:

[T]o succeed on their claim petitioners must show by clear and convincing evidence that parental custody would harm the child and that the award of custody to the parent is not in the best interest of the child. The harm which must be shown is physical harm or significant, long-term emotional harm. The current petition does not include any allegations that continued parental custody would harm the children at issue, much less any allegations that any such harm would be sufficiently significant to authorize the requested change in custody. . . . The only reference to the respondent’s fitness as a parent is a request in the prayer for relief for the Court to find that the respondent is unfit as a parent. These allegations are not sufficient to support a claim to change custody from a parent to a grandparent. In addition, the length of time that has passed while the respondent’s motion to dismiss for failure to state a claim has been pending, together with the fact that the petition has not been amended to address the shortcomings identified in the motion, convince the Court that no provable set of facts exists which would entitle the petitioners to the relief requested.

The trial court erred by concluding the Scotts were required to allege additional facts to survive the mother’s motion to dismiss. “Complaints do not have to allege facts sufficient to set forth a cause of action and are no longer to be construed most strongly against the pleader. [Cit.]” Richter v. D & M Assoc., 228 Ga. 599, 604 (1) (187 SE2d 253) (1972). And it is no longer necessary for a complaint to set forth all of the elements of a cause of action in order to survive a motion to dismiss for failure to state a claim. Christner v. Eason, 146 Ga. App. 139, 140 (245 SE2d 489) (1978); Hill v. Lariscy, 118 Ga. App. 699, 699-700 (165 SE2d 315) (1968). “If, within the framework of the complaint, evidence may be introduced which will sustain a grant of relief to the plaintiff, the complaint is sufficient.” (Citations and punctuation omitted.) Ga. Farm Bureau Mut. Ins. Co. v. Fowler, 177 Ga. App. 834 (341 SE2d 491) (1986).

In this case, the Scotts’ custody petition gave fair notice that they sought custody of the child under OCGA §§ 19-7-1 (b.l) and 19-9-2 based upon the mother’s alleged murder of the father. These allegations are sufficient to survive a motion to dismiss. See In the Interest of J. L. M., 204 Ga. App. 46, 47-48 (1) (418 SE2d 415) (1992) (murder of one parent by another can be considered as evidence of parental unfitness).

2. In her brief, the mother asserts we should affirm the trial court’s dismissal of the custody petition based upon a right for any reason analysis. See Santora v. American Combustion, 225 Ga. App.

771, 772 (1) (a) (485 SE2d 34) (1997) (“judgment right for any reason will be affirmed”)- She claims that the doctrines of collateral estoppel and res judicata apply to bar the Scotts’ petition for custody because a previous court denied their request for visitation. The record shows that she raised these defenses in her answer and attached the previous order denying visitation as an exhibit to her answer. Because the parties briefed these issues and the trial court ruled upon them, we will address them on appeal. See generally City of Gainesville v. Dodd, 275 Ga. 834, 838-839 (573 SE2d 369) (2002).

(a) The trial court properly determined that collateral estoppel does not bar the Scotts’ petition for custody. “Collateral estoppel precludes the re-adjudication of an issue that has previously been litigated and adjudicated on the merits in another action between the same parties or their privies.” (Citation and punctuation omitted.) Motherly v. Kinney, 227 Ga. App. 302, 304 (2) (489 SE2d 89) (1997). “Collateral estoppel. . . also precludes issues that necessarily had to be decided in order for the previous judgment to have been rendered.” (Citations and footnote omitted.) In re T. M. G., 275 Ga. 543, 544 (570 SE2d 327) (2002).

With regard to grandparent visitation, OCGA § 19-7-3 (c) provides in relevant part:

. . . [T]he court may grant any grandparent of the child reasonable visitation rights if the court finds the health or welfare of the child would be harmed unless such visitation is granted, and if the best interests of the child would be served by such visitation. The court shall make specific written findings of fact in support of its rulings. There shall be no presumption in favor of visitation by any grandparent. . . .

The record shows that the Scotts filed a petition for visitation in DeKalb County Superior Court in April 2008. On May 12, 2009, the DeKalb court issued a six-page order in which it concluded that it could not mandate grandparent visitation over the mother’s objection unless clear and convincing evidence demonstrated that the children would “experience actual physical, mental, or emotional harm if visitation was denied.” (Citation, punctuation and footnote omitted.) See Rainey v. Lange, 261 Ga. App. 491, 491-492 (1) (583 SE2d 163) (2003). After reviewing the evidence showing “animosity, whether warranted or not, that exists by the grandparents toward Lona Scott . . . that . . . may be affecting the children,” the oldest child’s feeling that she was “in the middle between the mother and grandparents,” that the grandparents saw the children only on major holidays during the life of the father, and the lack of testimony about the bond between the grandparents and the children, the DeKalb court denied the petition for visitation. At the time of the visitation ruling, the mother was out on bond after being arrested in connection with her husband’s death, but she had not yet been indicted.

The Scotts filed their petition for custody less than two years after filing their visitation petition. Under OCGA § 19-7-1 (b.l), a grandparent may obtain custody from a parent if the trial court “determines that an award of custody to [a grandparent] is for the best interest of the child or children and will best promote their welfare and happiness.” In Clark v. Wade, 273 Ga. 587 (544 SE2d 99) (2001), the Georgia Supreme Court interpreted this statute

to mean that the third party must prove by clear and convincing evidence that the child will suffer physical or emotional harm if custody were awarded to the biological parent. Once this showing is made, the third party must then show that an award of custody to him or her will best promote the child’s welfare and happiness.

Id. at 599 (V).

Based on the above, it is clear that different issues were actually and necessarily decided in the visitation action. In that action, the issues were harm to the child if visitation was not granted and whether visitation would be in the best interest of the children while they lived with their custodial parent, the mother. In the present action, the issues are whether the children will suffer physical or emotional harm if custody remains with their mother, and, only if that showing is made, whether it would be in their best interest for the trial court to award custody to the Scotts. The trial court properly concluded that collateral estoppel did not bar the Scotts’ petition for custody.

(b) The mother claims that the trial court could have granted her motion to dismiss based upon the alternative ground of res judicata under the Uniform Child Custody Jurisdiction and Enforcement Act, OCGA § 19-9-40 et seq., which provides:

A child custody determination made by a court of this state that had jurisdiction under this article binds all persons . . . who have submitted to the jurisdiction of the court, and who have been given an opportunity to be heard. As to those persons, the determination is conclusive as to all decided issues of law and fact except to the extent the determination is modified.

OCGA § 19-9-45. The Act defines “child custody determination” as “a judgment, decree, or other order of a court providing for the legal custody, physical custody, or visitation with respect to a child. . . OCGA § 19-9-41 (3).

Decided September 20, 2011.

James S. Altman, for appellants.

Larry A. Ballew, for appellee.

This statute does not provide, however, that the judgment is conclusive as to all issues which could have been put in issue. Compare OCGA § 9-12-40 (res judicata generally). Instead, it is “conclusive as to all decided issues of law and fact.” OCGA § 19-9-45. Since the previous visitation order related to the grandparent’s right to visitation, not custody, and the legal issues to be decided varied for the reasons stated in Division 2 (a) of this opinion, the trial court properly determined that res judicata did not bar the Scotts’ petition for custody.

Because neither the doctrine of collateral estoppel nor that of res judicata bars the Scotts’ petition for custody, we cannot affirm the trial court’s grant of the mother’s motion to dismiss through a right for any reason analysis.

Judgment reversed.

Mikell and Dillard, JJ., concur.

       Without citation to the record, the mother asserts that she was acquitted in her retrial. We cannot consider this evidence on appeal, however, because the trial court expressly stated that it “excluded from its consideration all materials outside of the pleadings. . . .” Additionally, nothing in the record demonstrates that the trial court was aware of the mother’s acquittal at the time it ruled on her motion to dismiss. Our review is therefore limited to whether the allegations in the Scotts’ petition were sufficient to state a claim for custody.

       Our opinion in Tirado v. Shelnutt, 159 Ga. App. 624 (284 SE2d 641) (1981) (physical precedent only), does not alter this result. In Tirado, we held that res judicata prevented the mother from relitigating the issue of the father’s molesting the child after that issue had already been determined based upon the same facts by another court in a previous visitation order. This result is consistent with the requirement of OCGA § 19-9-45 that child custody determinations be “conclusive as to all decided issues of law and fact.” Id.