author: Ellington, Presiding Judge.

text:
    A14A2238, A14A2333.
    HOOKS v. McCONDICHIE PROPERTIES 1, LP et al.; and vice versa.
    (767 SE2d 517)
   Ellington, Presiding Judge.

Michael Hooks filed this personal injury action against McCon-dichie Properties 1, LP, and McCondichie Properties 2, LP, collectively (“McCondichie”) in the Superior Court of Clayton County. He served the Secretary of State of Georgia, and obtained a default judgment. McCondichie filed a motion to set aside the default judgment. The trial court determined that Hooks was authorized to serve McCondichie by substituted service upon the Secretary of State but that Hooks failed to perfect such service in the statutorily prescribed manner. On that basis, the trial court granted McCondichie’s motion to set aside the default judgment. Pursuant to a granted application for an interlocutory appeal, both parties appeal.

In Case No. A14A2238, Hooks contends that the trial court erred in ruling that he failed to comply with the statutory requirements for substituted service upon a limited partnership. In Case No. A14A2333, McCondichie contends that the trial court erred in finding in the first instance that substituted service upon the Secretary of State was authorized. Based on this argument, McCondichie contends that, even if the trial court erred in ruling that Hooks failed to comply with the requirements for substituted service, such error was moot and the order granting its motion to set aside the default judgment nevertheless must be affirmed. For the reasons explained below, we hold that the trial court erred in setting aside the default judgment and reverse.

Under Georgia law, when the defense of lack of personal jurisdiction due to defective service is raised by way of a motion to set aside the judgment, the trial court sits as the trier of fact. Our standard of review in this regard is the any evidence rule, and absent an abuse of discretion, we will not reverse a trial court’s refusal to set aside a judgment.

(Footnote omitted.) Stokes & Clinton, P. C. v. Noble Systems Corp., 318 Ga. App. 497, 498 (734 SE2d 253) (2012). However, where the facts are undisputed and the question is one of law, we review the ruling de novo. Guthrie v. Wickes, 295 Ga. App. 892, 892 (673 SE2d 523) (2009).

So viewed, the facts relevant to both appeals are as follows: In his complaint, Hooks alleged that he was injured while on duty as a police officer, responding to a burglary call at property owned by McCond-ichie. On August 5, 2013, Hooks sent McCondichie a demand letter through its registered agent, James Tenney, at the address McCond-ichie had provided to the Secretary of State for its registered office. McCondichie acknowledged having received the demand letter. Further, McCondichie’s insurer notified Hooks’ counsel that it was investigating the claim. Hooks filed suit against McCondichie on December 12.

On December 30, 2013 and on January 6, 2014, Hook’s process server attempted to serve the complaint on McCondichie through Tenney at the registered office address. Neither Tenney’s name nor the name of his law firm was displayed at that address either on the outside of the building or inside the lobby. The address was for an executive office suite, and the receptionist at the front desk was answering calls for several different companies. When the process server asked the receptionist to notify Tenney that a complaint needed to be served, she took no action to call anyone; instead, she “immediately stated that [Tenney] was ‘out of the office.’ ” To the process server, the office appeared to be a “virtual office” rather than Tenney’s actual place of business. Hooks later learned that Tenney’s principal place of business was located at another address. The receptionist informed the process server that there was no one authorized to accept service of process for Tenney or McCondichie at the executive office suite. Hooks provided the court with a copy of the virtual office’s standard contract, highlighting a paragraph warning clients not to use the location as their registered office for service of process. The process server averred that, based on his experience, further attempts to serve Tenney at that address would have been futile.

On January 9, 2014, Hooks made substituted service upon McCondichie through the Secretary of State and forwarded a copy of the complaint to Tenney at the registered office address through a commercial courier service. On the same day, the courier service attempted delivery, but was informed by the receptionist that neither Tenney nor any employee or agent of his was present to accept the package. The courier returned the unclaimed package to Hooks’ attorney. The courier’s affidavit and receipt of delivery indicates that, when he attempted delivery, he was informed by the receptionist that Tenney was not available to accept delivery. The receptionist for the office suite stated in her affidavit that she was not employed by Tenney. Although she has no recollection of the delivery, she stated that she would have signed for and accepted Tenney’s mail as part of her duties as office receptionist, but that she would have declined to accept service of process because she was not authorized to do so.

McCondichie failed to answer the complaint, and the trial court granted Hooks a default judgment on March 10, 2014. On March 21, 2014, McCondichie moved to set aside and vacate the default judgment pursuant to OCGA § 9-11-60 (d) (1), arguing that Hooks failed to properly perfect service and that, therefore, the trial court lacked personal jurisdiction to enter the default judgment. The superior court found that Hooks exercised reasonable diligence in attempting to serve McCondichie and that substituted service on the Secretary of State was authorized. However, the trial court granted the motion to open default judgment on the narrow issue that Hooks failed to comply fully with OCGA § 14-9-104 (g) because forwarded process via “statutory overnight delivery,” as defined in OCGA § 9-10-12 (b) (3), requires a signed receipt from the addressee or an agent of the addressee.

1. McCondichie argues that whether Hooks failed to comply with the statutory requirements for substituted service on the Secretary of State is a moot point because the court committed a more fundamental error by finding, in the first instance, that substituted service on the Secretary of State was authorized. McCondichie argues that the trial court erred in finding that Hooks exercised reasonable diligence in serving McCondichie, contending that the record evidence does not support a finding that McCondichie failed to maintain a registered office within the meaning of the law. Consequently, McCondichie argues, the trial court’s order setting aside the default judgment should be affirmed, but on this alternate ground. We disagree.

Under Georgia law, a limited partnership “shall continuously maintain” a “registered office” and a “registered agent for service of process on the limited partnership.” OCGA § 14-9-104 (a). Further, “[t]he address of the business office of the registered agent shall be the same as the address of the registered office [.]” (Emphasis supplied.) OCGA § 14-9-104 (a) (2).

In this case, the record shows that McCondichie maintains both a registered agent for service of process and a registered office. The record also shows that the addresses listed with the Secretary of State for the agent and the office are the same, at least on paper. However, the record also supports a finding that the registered agent actually maintained his principal place of business elsewhere and that, while he was absent from the registered office, there was no one present in the registered office authorized to accept service of process.

OCGA § 14-9-104 (a)’s requirement that a limited partnership “continuously maintain” a registered office does not mean that a registered agent must be present in the office every moment of the day or that the agent must keep the office open outside of normal business hours. However, if the facts support a finding that the registered agent works principally from an office other than the registered office, or that the registered office is little more than a virtual or remote office that is generally unattended by the registered agent, then the registered office is not being “continuously maintained” within the meaning of the law. Under the facts and circumstances of this case, the superior court was authorized to conclude that Hooks’ efforts to serve McCondichie at an office that was not functioning as a registered office were reasonable and that further efforts were not required before substituting service upon the Secretary of State. See McClendon v. 1152 Spring St. Assocs.-Ga., 225 Ga. App. 333, 336-337 (484 SE2d 40) (1997) (The plaintiff’s four attempts to serve a registered agent who could not be found at the registered office constituted reasonable diligence and authorized substituted service on the Secretary of State.).

2. Hooks contends that the record shows that he complied with OCGA § 14-9-104 (g) in perfecting substituted service upon the Secretary of State and that the trial court erred in concluding otherwise. We agree.

OCGA § 14-9-104 (g) provides:

Whenever a limited partnership shall fail to appoint or maintain a registered agent in this state, or whenever its registered agent cannot with reasonable diligence be found at the registered office, then the Secretary of State shall be an agent of such limited partnership upon whom any process, notice, or demand may be served. Service on the Secretary of State of any such process, notice, or demand shall be made by delivering to and leaving with him or her or with any other person or persons designated by the Secretary of State to receive such service a copy of such process, notice, or demand. The plaintiff or his or her attorney shall certify in writing to the Secretary of State that he or she has forwarded by registered mail or statutory overnight delivery such process, service, or demand to the last registered office or agent listed on the records of the Secretary of State, that service cannot be effected at such office, and that it therefore appears that the limited partnership has failed either to maintain a registered office or appoint a registered agent in this state. Any such service by certification to the Secretary of State shall be answerable in not more than 30 days. The provisions of this subsection may be used notwithstanding any inconsistent provisions of Chapter 11 of Title 9.

The trial court held that Hooks complied in all respects with this Code section except one. The court concluded that, when forwarding process by “statutory overnight delivery” to the last registered office, Hooks was required to obtain a receipt for that delivery “signed by the addressee or an agent of the addressee.” In reaching this conclusion, the court relied on OCGA § 9-10-12 (b), which provides:

Whenever any law, statute, Code section, ordinance, rule, or regulation of this state or any officer, department, agency, municipality, or governmental subdivision thereof provides that a notice may be given by “statutory overnight delivery,” it shall be sufficient compliance if:
(1) Such notice is delivered through the United States Postal Service or through a commercial firm which is regularly engaged in the business of document delivery or document and package delivery; . . . and
(3) The sender receives from the United States Postal Service or the commercial firm a receipt acknowledging receipt of the document which receipt is signed by the addressee or an agent of the addressee.

However, in order to perfect substituted service upon the Secretary of State, OCGA § 14-9-104 (g) requires only that the plaintiff certify that suit papers have been “forwarded” by registered mail or statutory overnight delivery. It does not require a party to “notify” or to serve “notice” upon a defendant of the contents of the delivery. Rather, the statute contemplates that the Secretary of State is specifically substituted for the purpose of receiving such “notice.” Further, OCGA § 14-9-104 (g) does not require that an addressee actually sign for delivery of the forwarded papers or that the plaintiff obtain a receipt from the “addressee” proving that such delivery was made. Thus, OCGA § 9-10-12 (b) is not only inapplicable, it is inconsistent with the requirements of OCGA § 14-9-104 (g). Indeed, it defies logic that, in order to perfect substituted service upon the Secretary of State as agent of a limited partnership whose registered agent or registered office cannot be found with reasonable diligence, a plaintiff must locate the registered agent — the only “addressee or authorized agent of the addressee” in this case — and obtain his or her signature on a receipt acknowledging the delivery of forwarded suit papers. Because OCGA § 14-9-104 (g) did not impose upon Hooks an obligation to obtain such a receipt, the superior court erred in granting McCondichie’s motion to set aside the default judgment. Consequently, we must reverse the court’s order setting aside the default judgment.

Decided January 14, 2015

Reconsiderations denied February 3, 2015

David E. Ralston, Sams, Larkin, Huff & Balli, James A. Balli, Justin H. Meeks, for appellant.

Freeman Mathis & Gary, Jack R. Hancock, Sun S. Choy, Seth F. Kirby, for appellees.

Judgment reversed.

Phipps, C. J., and McMillian, J., concur.

       The executive office suite was advertised as providing “virtual office packages” for mail handling and telephone answering services.

       Hooks searched the Secretary of State’s records and discovered that the address of record for Tenney’s law firm is a private residence in Marietta and that the address listed for his principal place of business is a post office box. Although Tenney gave an affidavit averring that the registered office for McCondichie is an “active workplace” and that he “conduct[s] business” there, he did not aver that the registered office is his sole or principal place of business nor did he dispute that he has other “active workplace[s].” Further, notably absent from Tenney’s affidavit (and that of the receptionist for the virtual office) is any statement concerning the amount of time that Tenney was actually physically present in the registered office.

       We note that McCondichie bore the burden of proving that service of process was improper. Norman Svc. Indus. v. Lusty, 168 Ga. App. 164, 165 (1) (308 SE2d 411) (1983). Further, evidence of impropriety was required to be “not only clear and convincing, but the strongest of which the nature of the case will admit.” (Citation and punctuation omitted.) Id.

       In considering the meaning of a statute, our duty as an appellate court is to “presume that the General Assembly meant what it said and said what it meant.” (Citation and punctuation omitted.) Deal v. Coleman, 294 Ga. 170, 172 (1) (a) (751 SE2d 337)(2013).“And toward that end, we must afford the statutory text its plain and ordinary meaning, consider the text contextually, and read the text in its most natural and reasonable way, as an ordinary speaker of the English language would.” (Punctuation and footnotes omitted.) Martinez v. State, 325 Ga. App. 267, 273 (2) (750 SE2d 504) (2013).


source: Caselaw Access Project

author: BARNES, Presiding Judge.

license: Public Domain

text:
    A14A1758.
    GALVAN v. THE STATE.
    (768 SE2d 773)
   BARNES, Presiding Judge.

Based on allegations that he sexually abused his stepdaughter, a jury convicted Luis Galvan of two counts of aggravated child molestation and four counts of child molestation. Galvan filed a motion for a new trial, which the trial court denied. On appeal, Galvan contends that the evidence was insufficient to support his convictions because his stepdaughter recanted her allegations; that the trial court erred in allowing a rebuttal witness called by the State to testify to matters that went beyond rebuttal; and that the trial court erred in overruling his objections to allegedly improper comments made by the prosecutor during closing argument. Upon our review, we affirm.

“Following a criminal conviction, the defendant is no longer presumed innocent, and we view the evidence in the light most favorable to sustain the verdict.” Anthony v. State, 317 Ga. App. 807 (732 SE2d 845) (2012). So viewed, the evidence showed that on the morning of April 23, 2009, Galvan dropped off the 11-year-old victim, his stepdaughter, at her elementary school. As the victim got out of the car, Galvan tried to kiss her, but she refused to let him do so. Upset over the attempted kiss and because she did not want Galvan to pick her up from school that afternoon, the victim began to cry and approached a teacher she knew. The victim told the teacher that she was afraid and needed to speak with the school counselor. When asked why she was afraid, the victim disclosed for the first time that Galvan had been touching her inappropriately at her home. Following school procedure, the teacher did not ask for further details and instead took the victim to see the school counselor. The school counselor spoke with the victim and then with the school principal, who called the police.

Later that same day, the victim was taken to a child advocacy center where a recorded forensic interview was conducted. The victim disclosed to the forensic interviewer that Galvan had sexually abused her on several occasions beginning when she was eight or nine years old and continuing until shortly before her disclosure of the abuse at school that morning. The victim stated that the sexual abuse included instances where Galvan kissed her on the mouth and neck, touched her inappropriately, placed his mouth on her genitals, placed her hand on his penis, digitally penetrated her vagina with his finger, and had vaginal and anal intercourse with her. According to the victim, her mother had inadvertently walked into the room and witnessed two incidents in which Galvan had been touching her in a sexual manner. However, the mother did not report the sexual abuse to the police, the abuse continued, and the victim did not tell anyone else about it until her disclosure at school.

After the forensic interview, a nurse at the child advocacy center performed a physical examination of the victim and photographed the injuries that she observed. The victim told the nurse that she was at the child advocacy center because her stepfather had vaginally and anally raped her on several occasions and had touched her genitals, chest, and neck. During the vaginal examination, the nurse noted that the victim reported extreme discomfort when touched in her vagina with a Q-tip, which prevented the nurse from completing her evaluation of the hymen area for injuries. But the nurse did note that the victim had a wound that was healing in another area of her vagina consistent with vaginal penetration. Additionally, during her rectal examination of the victim, the nurse observed anal dilation, or anal laxity, which was consistent with repeated anal penetration, given that the victim did not have a medical history of any bowel problems.

After the nurse completed the physical examination, a police investigator conducted a recorded interview with the victim. The victim repeated to the police investigator the allegations of sexual abuse that she had made to the forensic interviewer earlier that day. The investigator also confirmed that the abuse had occurred in several residences where the victim had lived with her family in Dougherty County. Additionally, the investigator spoke with the victim’s mother, who admitted to him that she installed a lock on her children’s bedroom door in an effort to keep Galvan out of the room so that the victim and her sisters could sleep at night.

Galvan was arrested and indicted on two counts of aggravated child molestation and four counts of child molestation for sexually abusing the victim. At the ensuing jury trial, the State introduced and showed to the jury a video recording of the victim’s forensic interview, an audio recording of the victim’s interview with the police investigator, and pictures taken during the nurse’s physical examination of the victim. Additionally, the elementary school teacher, the forensic interviewer, and the police investigator testified about the victim’s disclosures to them about how Galvan sexually abused her, and the nurse testified about her physical examination of the victim.

However, the victim took the stand and recanted her allegations of sexual abuse. The victim testified that she had fabricated the allegations of abuse because she was mad that Galvan drove her to school and would not let her walk to school with her friends. According to the victim, she came up with the details of the sexual abuse based on what she had seen on a television show that she watched on the weekends. The prosecutor did elicit from the victim that she continued to live with her mother, who still was married to Galvan, and that her mother told her that she wanted the case to be “over” because the family had too many other problems in their lives.

The victim’s mother and one of her sisters also took the stand and denied ever having seen any instances of sexual abuse. The mother and sister further testified that shortly after her initial disclosure of abuse, the victim told them that she had lied. According to the mother and sister, they and the victim had been ready to explain to the police that the allegations had been fabricated, but the police had not given them an opportunity to do so and at one point told them it was “too late” for a recantation.

After the defense rested, the State called a former assistant district attorney and a deputy sheriff as rebuttal witnesses. The former assistant district attorney testified that he was initially assigned the case and met with the victim in September 2009 to speak with her about the abuse allegations. The victim’s mother and sister came with her to the interview and sat outside in the lobby, where the attorney spoke with them apart from the victim. According to the attorney, the victim, her mother, and her sister never suggested to him that the victim had fabricated her sexual abuse allegations against Galvan. Rather, the victim repeated to the attorney the same essential allegations of sexual abuse that she had told the forensic interviewer and the police detective in April 2009. The victim noted to the detective, however, that her family wanted Galvan “to come home.”

The deputy sheriff testified that he had spoken with the victim’s mother earlier in the week of trial when she had initially failed to show up at court. According to the sheriff, he discussed with the mother the facts surrounding the case, but she never suggested during the course of their discussion that the victim had lied about the sexual abuse.

After hearing the conflicting testimony, the jury found Galvan guilty of the charged offenses, and the trial court subsequently denied his motion for a new trial. This appeal followed.

1. Galvan contends that there was insufficient evidence to support his aggravated child molestation and child molestation convictions because the victim testified that her allegations of sexual abuse were a lie, and her mother and sister testified that the victim told them she had fabricated the allegations. We disagree in light of the other evidence presented at trial that supported Galvan’s conviction for the charged offenses.

When a criminal defendant challenges the sufficiency of the evidence supporting his . . . conviction, the relevant question is whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt. The jury, not this Court, resolves conflicts in the testimony, weighs the evidence, and draws reasonable inferences from the evidence. As long as there is some competent evidence, even though contradicted, to support each fact necessary to make out the State’s case, the jury’s verdict will be upheld.

(Citations and punctuation omitted.) Griffin v. State, 262 Ga. App. 87 (1) (585 SE2d 145) (2003). See Jackson v. Virginia, 443 U. S. 307, 319 (99 SCt 2781, 61 LE2d 560) (1979).

A person commits the offense of child molestation when he “ [d] oes any immoral or indecent act to or in the presence of or with any child under the age of 16 years with the intent to arouse or satisfy the sexual desires of either the child or the person.” OCGA § 16-6-4 (a). The person commits the offense of aggravated child molestation when he commits an act of child molestation involving an act of sodomy. OCGA § 16-6-4 (c). The allegations of aggravated child molestation and child molestation contained in the indictment in this case were predicated on the multiple acts of sexual abuse previously discussed.

It is true, as Galvan emphasizes on appeal, that the victim recanted her allegations of abuse at trial and her mother and sister testified that she told them her allegations were fabricated. But the State introduced the victim’s prior inconsistent statements detailing the abuse through the video recording of her forensic interview, the audio recording of her interview with the police investigator, and the testimony of the elementary school teacher, the forensic interviewer, the police investigator, the nurse, and the former assistant district attorney. Moreover, the nurse testified regarding her physical examination of the victim, which reflected injuries to the victim that were consistent with vaginal and anal penetration, and the State introduced photographs of the injuries taken during the examination.

The jury was entitled to rely on the victim’s prior inconsistent statements and the nurse’s observations from the physical examination, disbelieve the victim’s recantation on the stand and the testimony of her mother and sister, and find that Galvan had sexually abused the victim as alleged in the indictment. See Miller v. State, 300 Ga. App. 652, 655 (686 SE2d 302) (2009) (“[A] victim’s prior inconsistent statements are admissible as substantive evidence for the jury’s consideration. Thus, a jury is authorized to believe the victim’s pre-trial statements rather than her in-court disavowal.”) (footnote omitted); Griffin, 262 Ga. App. at 88 (1) (“The fact that at trial the victim disavowed her prior statements went to the weight and credibility that the jury wished to assign to the State’s otherwise sufficient evidence and presents no basis for reversal.”) (citation and punctuation omitted). Accordingly, we conclude that the evidence in this case was sufficient to authorize a rational jury to find Galvan guilty beyond a reasonable doubt of the charged offenses. See Jackson, 443 U. S. at 319.

2. Galvan next contends that the trial court erred in allowing the former assistant district attorney to testify to matters that went beyond rebuttal. We are unpersuaded.

Atrial court’s rulings concerning the scope of rebuttal testimony are subject to review only for an abuse of discretion. See Smith v. State, 260 Ga. 746, 748 (1) (399 SE2d 66) (1991). Here, the former assistant district attorney’s testimony regarding his conversations with the victim and her family in September 2009 was properly introduced to impeach the victim’s recantation with her prior inconsistent statement to the attorney, and to impeach the testimony of the mother and sister that they and the victim had been ready to explain that the allegations had been fabricated, but had not been given an opportunity to do so.

Furthermore, even if the attorney’s testimony at times went beyond rebuttal of the victim and her mother and sister’s testimony, it is well established that a trial court may exercise its discretion to permit the State to introduce “evidence after the defendant has closed his testimony, even if it was not strictly in rebuttal” and could have been introduced during the State’s case-in-chief. (Citation and punctuation omitted.) Smith, 260 Ga. at 748 (1). See Thompson v. State, 237 Ga. App. 91, 93 (2) (514 SE2d 870) (1999); Braddock v. State, 208 Ga. App. 843, 844 (1) (432 SE2d 264) (1993). As we have explained, “[a] trial court has discretion to allow relevant evidence during rebuttal even if such evidence tends to bolster the State’s case more than to directly impeach defense evidence.” Evans v. State, 225 Ga. App. 589, 591 (3) (484 SE2d 320) (1997). We thus discern no abuse of discretion by the trial court in this case.

3. Lastly, Galvan contends that the trial court erred by overruling his objections to the prosecutor’s closing argument. He maintains that the trial court should have sustained his objection (a) to the prosecutor’s argument that “there could have been” injury to the victim’s hymen, and (b) to the prosecutor’s comment that he usually handled “gangs and murders” and that this was the first child molestation case he had tried. We conclude that the trial court did not commit reversible error in failing to sustain Galvan’s objections.

(a) During closing argument, the prosecutor referred to the testimony of the nurse who performed the physical examination of the victim. The prosecutor noted that the nurse had been unable to dilate the victim’s hymen to evaluate it for injuries, and then stated to the jury:

And I asked [the nurse,] I said, so does that mean you could see injuries or couldn’t? She said I don’t know. Could there have been? There could have been, if I would have been able to see, but I wasn’t going to traumatize this girl anymore.

Galvan then objected on the ground that the prosecutor was misstating the facts, but the trial court overruled his objection.

As a general rule, prosecutors are granted wide latitude in conducting closing argument, and defining the bounds of such argument is within the trial court’s discretion. This wide latitude encompasses the prosecutor’s ability to argue reasonable inferences raised by the evidence.

(Punctuation and footnote omitted.) Wingfield v. State, 297 Ga. App. 476, 477-478 (2) (677 SE2d 704) (2009).

Here, the nurse testified that the victim expressed extreme discomfort when touched in her vagina with a Q-tip, preventing the nurse from completing her examination of the hymen area for injuries. The nurse further testified that while she did not see any injuries to the hymen, she could not say whether or not injuries to the hymen had occurred because she was unable to complete her examination. The nurse did note an injury to a different area of the victim’s vagina that was consistent with vaginal penetration.

Having reviewed the nurse’s testimony, we cannot say that the prosecutor misstated the testimony or drew an inference from it that was unreasonable. Accordingly, the trial court acted within its discretion in permitting the prosecutor’s argument and overruling Galvan’s objection.

(b) During closing argument, the prosecutor also remarked to the jury that he had tried 117 cases, but that he usually handled “gangs and murders” and that this was the first child molestation case he had tried. Galvan objected to the prosecutor’s remarks, but the trial court overruled the objection, stating that the court was “going to give [the prosecutor] some latitude ... [because] lawyers have an opportunity to talk about the process.”

Even if the trial court abused its discretion in overruling Gal-van’s objection to the prosecutor’s remarks about his prior experience handling criminal cases, we conclude that any error was harmless and thus does not entitle Galvan to a new trial. See Lewis v. State, 317 Ga. App. 218, 223 (3) (735 SE2d 1) (2012) (trial court should have sustained objection to prosecutor’s arguments regarding her prior criminal experience, but error was harmless). Error in a trial court’s failure to sustain an objection to improper closing argument is subject to harmless error analysis. See Arrington v. State, 286 Ga. 335, 345 (16) (a) (687 SE2d 438) (2009). In conducting such an analysis, we must determine whether it is highly probable that the trial court’s error did not contribute to the verdict. Id. See Lewis, 317 Ga. App. at 223 (3).

Decided February 4, 2015.

Troy E. Golden, for appellant.

Gregory W. Edwards, District Attorney, Heather H. Lanier, Assistant District Attorney, for appellee.

In this case, we fail to see how the prosecutor’s extraneous remarks about his experience trying gang and murder cases and lack of experience trying child molestation cases could have had any impact on the jury’s assessment of Galvan’s guilt or innocence. Moreover, although the victim recanted her allegations at trial, the State had strong evidence supporting her prior allegations of abuse, namely, medical evidence reflecting injuries to her vagina and anus that were consistent with vaginal and anal penetration. Additionally, the trial court charged the jury fully as to what constituted evidence, including instructing them that the evidence did not include the attorneys’ closing arguments. Under these circumstances, we conclude that it is highly probable that any error in the trial court’s failure to sustain Galvan’s objection to the prosecutor’s remarks did not contribute to the verdict. See Lewis, 317 Ga. App. at 223 (3).

Judgment affirmed.

Boggs and Branch, JJ., concur.

       Because Galvan was tried in 2011, the new Georgia Evidence Code does not apply to any evidentiary issues discussed in this case. See Ga. L. 2011, p. 99, § 101.

       By the time of trial, the attorney had left the district attorney’s office for private practice, and the case had been reassigned to a different assistant district attorney.

       In his appellate brief, Galvan makes reference to additional comments that the prosecutor made during closing argument to which he did not contemporaneously object. By failing to make such an objection, Galvan has waived appellate review of any claims of error relating to those additional comments. See Peoples v. State, 295 Ga. 44, 58 (5) (a) (757 SE2d 646) (2014); Ellington v. State, 292 Ga. 109, 143 (10) (b) (735 SE2d 736) (2012). Although not applicable here, see supra footnote 1, we note that the new Georgia Evidence Code allows for plain error review in the absence of an objection at trial. See OCGA § 24-1-103 (d) (allowing appellate courts to consider “plain errors affecting substantial rights although such errors were not brought to the attention of the court”); Durham v. State, 292 Ga. 239, 240 (2) (734 SE2d 377) (2012) (comparing old and new law regarding plain error review); Moses v. State, 328 Ga. App. 625, 632 (4) (760 SE2d 217) (2014) (same).


author: Dillard, Judge.

text:
    A14A1779.
    HOGAN v. THE STATE.
    (768 SE2d 779)
   Dillard, Judge.

Following a jury trial, Dexter Hogan was convicted of armed robbery and possession of a firearm during the commission of a crime. Hogan appeals his convictions and the denial of his motion for a new trial, arguing that (1) the evidence was insufficient to support his convictions; (2) he received ineffective assistance of counsel; (3) the trial court erred by failing to, sua sponte, conduct a Jackson-Denno hearing; and (4) the trial court erred by not declaring a mistrial when the State failed to prove venue beyond a reasonable doubt. For the reasons set forth infra, we affirm.

Viewed in the light most favorable to the jury’s verdict, the record reflects that on August 26, 2010, Terry Hightower was visiting his elderly mother at her residence on Vineville Avenue in Macon, Georgia. That evening, after eating his mother’s last (and highly prized) honey bun, Hightower walked to a nearby convenience store to replace it. Once he arrived at the store, he went inside and, while waiting to check out, two men in the back of the store caught his attention because they did not appear to be buying anything. High-tower made his purchase and left, but on his walk home, he encountered the men from the store. When they approached, the shorter of the two asked Hightower if he wanted to buy a DVD, and Hightower responded that he did not have any money to do so. After this exchange, Hightower continued walking to his mother’s house, but when he reached Vineville Avenue, he heard the same two men yelling at him. Hightower turned around and immediately noticed that the shorter man was pointing a gun at his groin, and then the taller man took the gun and pointed it at his face. While Hightower was being held at gunpoint, the shorter man frisked him and took everything in his possession, which included one dollar, his wallet, and his cell phone.

After the men left, Hightower walked back to the store and called the police. During the investigation that followed, Hightower viewed a picture of the two men that was taken with the convenience store’s security cameras, and he was “one hundred percent sure” that the men in the photo were the ones who robbed him. The detective who responded to the scene testified that, after publicizing the video footage from the store’s security cameras, he identified the men as Hogan and Charles Ottman and arrested them a few days later. The detective also corroborated Hightower’s testimony that there was a height disparity between the men by testifying that Hogan was several inches shorter than Ottman.

Subsequently, Hogan was charged with armed robbery and possession of a firearm during the commission of a crime. After a jury trial, Hogan was convicted of both counts. Hogan filed a motion for a new trial, which the trial court denied. This appeal follows.

1. Hogan argues that the evidence was insufficient to support his convictions. We disagree.

To begin with, we note that when a criminal conviction is appealed, “the evidence must be viewed in the light most favorable to the verdict, and the appellant no longer enjoys a presumption of innocence.” And, of course, 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.” Thus, we will uphold a jury’s verdict so long as there is “some competent evidence, even though contradicted, to support each fact necessary to make out the State’s case.” Bearing these guiding principles in mind, we turn now to Hogan’s specific offenses.

(a) Armed Robbery. Under 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.”

In the case sub judice, the evidence shows that Hogan and Ottman followed Hightower on his way home from the convenience store and robbed him at gunpoint of his cash, wallet, and cell phone. And as to Hogan’s role in the robbery, the evidence shows that he pointed a gun at Hightower’s groin and then took all of his possessions while Ottman pointed the gun at Hightower’s face. Nevertheless, Hogan maintains — without further explanation — that the evidence was “vague and ambiguous at best” as to whether he was identified from the convenience-store footage or from the crime scene. This argument is a nonstarter. Hightower plainly testified that he was one hundred percent sure that Hogan was one of the robbers. Given the foregoing, the evidence was sufficient to convict Hogan of armed robbery.

(b) Possession of a Firearm During the Commission of a Crime. Under OCGA § 16-11-106 (b) (1), “[a]ny 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 any crime against or involving the person of another” commits the offense of possession of a firearm during the commission of a crime. And given our holding in Division 1 (a) supra (i.e., that the evidence was sufficient to show that Hogan used a firearm to commit armed robbery), we likewise find that the evidence was sufficient to show that Hogan possessed a gun while committing the crime of robbery.

2. Next, Hogan argues that his trial counsel was ineffective for failing to object to the admission of his custodial statement to a police officer. Again, we disagree.

At the outset, we note that in evaluating claims of ineffective assistance of counsel, we apply the two-pronged test established in Strickland v. Washington. Under this test, the appellant first must show that counsel’s performance was deficient and, second, that he was prejudiced by counsel’s deficient performance. Moreover, there is a “strong presumption that trial counsel’s performance falls within the wide range of reasonable professional assistance, and that any challenged action by trial counsel might be considered sound trial strategy.” In applying the second prong, the question is whether “there exists a reasonable probability that, but for his counsel’s errors, the jury would have had reasonable doubt regarding appellant’s guilt, that is, but for counsel’s unprofessional errors, the result of the proceeding would have been different.”

When the voluntariness of a confession is questioned on the trial of a criminal case it is “necessary under the decision in Jackson v. Denno[]... to have a separate hearing as to the voluntariness before it is finally presented to the jury for consideration as to its voluntariness.” Here, in his statement to police, Hogan admitted to being in the convenience store with Ottman on the night of the robbery, but he repeatedly denied any involvement in the crime, claiming that he left the area before the robbery happened. And when asked why Ottman would have implicated him in the robbery, Hogan told police that Ottman was lying because Hogan was sleeping with Ottman’s wife. Hogan also denied owning a gun, but claimed that he saw Ottman with one.

Before the admission of this statement at trial, the trial court asked the parties if it should conduct a Jackson-Denno hearing, and Hogan’s trial counsel responded that such a hearing was not necessary because, in his statement, Hogan denied any involvement in the crime. Later, the court repeated its question about the necessity of a Jackson-Denno hearing, and Hogan’s counsel reiterated that such a hearing was unnecessary because Hogan’s statement was a denial of any wrongdoing, not a confession.

At the motion-for-new-trial hearing, trial counsel testified that he did not challenge the admission of Hogan’s custodial statement because, in the statement, Hogan denied any involvement in the crime, and the admission of the statement would obviate the need for Hogan to testify and be subjected to cross-examination. Further, counsel testified that he discussed the matter with Hogan, and it was part of their trial strategy for the jury to hear Hogan denying involvement in the robbery shortly after it occurred.

Thus, trial counsel’s decision not to challenge the admission of Hogan’s custodial statement was based upon a reasonable trial strategy of allowing the jury to hear that Hogan denied committing the robbery shortly after it occurred, instead of Hogan giving the same testimony at trial where he would be subjected to cross-examination. As such, Hogan cannot show that his counsel was ineffective for failing to request a Jackson-Denno hearing or otherwise challenge the admission of this evidence. Furthermore, Hogan has made no showing that his custodial statement was involuntary or that it would have been excluded if a hearing had taken place. Therefore, he cannot demonstrate that he was prejudiced by counsel’s decision not to request a Jackson-Denno hearing.

3. In a related claim, Hogan argues that the trial court erred by failing to conduct a Jackson-Denno hearing sua sponte to determine the admissibility of his custodial statement. This claim is likewise without merit.

Generally, Jackson-Denno hearings are required to determine the voluntariness of an incriminating custodial statement, but no such hearing was required here because in Hogan’s statement he vehemently denied any involvement in the crime. And even if Hogan’s statement had been incriminating, the trial court did not err in failing to hold a hearing sua sponte because Hogan did not challenge the admission of his statement at trial or assert that it was involuntarily made. In fact, the trial court twice asked Hogan if he wanted a Jackson-Denno hearing, and he declined both offers. Moreover, Hogan cannot show that the trial court erred by failing to hold such a hearing when he has made no proffer of what evidence he would have offered to show that his statement was involuntary. Thus, the trial court was not required to conduct a Jackson-Denno hearing sua sponte.

4. Lastly, Hogan argues that the trial court erred by failing to declare a mistrial based on the State’s failure to prove proper venue. Once again, we disagree.

To begin with, we note that whether to declare a mistrial is in the discretion of the trial court and will not be disturbed on appeal unless “it is apparent that a mistrial is essential to the preservation of the right to a fair trial.” Further, we have explained that the Georgia Constitution requires that “venue in all criminal cases be laid in the county in which the crime was allegedly committed.” Of course, the standard of review is whether, “considered in the light most favorable to the prosecution, the State proved the essential element of venue beyond a reasonable doubt.” And in this respect, our Supreme Court has held that “[v]enue may be proven by both direct and circumstantial evidence.” Finally, whether the evidence as to venue satisfied the reasonable-doubt standard is “a question for the jury, and its decision will not be set aside if there is any evidence to support it.”

Here, a detective with the Macon Police Department testified that he responded to Hightower’s call reporting an armed robbery at a convenience store located in “Macon, Bibb County, Georgia.” Further, Hightower testified that the robbery occurred on Vineville Avenue, and evidence showed that the convenience store was at the intersection of Vineville Avenue and Hardeman Avenue. And given the detective’s testimony that the convenience store was located in Bibb County; the close proximity between the store and the street where the robbery occurred; that the detective worked for the City of Macon, which he described as being in Bibb County; and that Hogan never claimed that he crossed county lines when he walked from the convenience store to the location of the robbery, there was sufficient circumstantial evidence to prove venue beyond a reasonable doubt.

Decided February 4, 2015.

Jonathan P. Waters, for appellant.

K. David Cooke, Jr., District Attorney, Dorothy V. Hull, Assistant District Attorney, for appellee.

For all of the foregoing reasons, we affirm Hogan’s convictions.

Judgment affirmed.

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

        See, e.g., Powell v. State, 310 Ga. App. 144, 144 (712 SE2d 139) (2011).

       Hogan was also charged with possession of a firearm by a convicted felon, but that charge was nolle prossed prior to trial. Further, Ottman was charged in the same indictment with the same offenses, hut it is unclear from the record how those charges were resolved.

        Sowell v. State, 327 Ga. App. 532, 534 (759 SE2d 602) (2014).

        Lee v. State, 317 Ga. App. 507, 508 (731 SE2d 768) (2012) (punctuation omitted).

        Sowell, 327 Ga. App. at 534 (punctuation omitted).

        See Rutledge v. State, 276 Ga. App. 580, 583 (623 SE2d 762) (2005) (finding the evidence sufficient to support a conviction for armed robbery when there was circumstantial evidence that the defendant displayed a plastic gun as he demanded money); Kirk v. State, 271 Ga. App. 640, 643-44 (1) (a) (610 SE2d 604) (2005) (finding that sufficient evidence supported a conviction for armed robbery when evidence showed that defendant stole a coin bag while brandishing a gun); Jackson v. State, 248 Ga. App. 7, 8-9 (1) (545 SE2d 148) (2001) (finding that evidence was sufficient to sustain a conviction for armed robbery when evidence showed that defendant used a knife to accomplish a robbery).

        See OCGA § 16-8-40 (a) (2) (“A person commits the offense of robbery when, with intent to commit theft, he takes property of another from the person or the immediate presence of another [b]y intimidation, by the use of threat or coercion, or by placing such person in fear of immediate serious bodily injury to himself or to another . . . .”); Gibbs v. State, 295 Ga. 92, 95 (1) (757 SE2d 842) (2014) (finding that, because evidence was sufficient to support a conviction for armed robbery, there was also sufficient evidence to support a conviction for possession of a firearm during the commission of a crime).

       466 U. S. 668 (104 SCt 2052, 80 LE2d 674) (1984); see also Ashmid v. State, 316 Ga. App. 550, 556 (3) (730 SE2d 37) (2012).

        Ashmid, 316 Ga. App. at 556 (3); Strickland, 466 U. S. at 687 (III).

        Ashmid, 316 Ga. App. at 556 (3) (punctuation omitted); Strickland, 466 U. S. at 689 (III) (A).

        Ashmid, 316 Ga. App. at 556 (3) (punctuation omitted); Strickland, 466 U. S. at 694 (III) (B).

       378 U. S. 368 (84 SCt 1774, 12 LE2d 908) (1964).

        Elder v. State, 162 Ga. App. 425, 426 (291 SE2d 565) (1982) (punctuation omitted).

        See Lowe v. State, 259 Ga. App. 674, 676 (2) (578 SE2d 284) (2003) (finding that counsel was not ineffective for failing to request a Jackson-Denno hearing when the custodial statement was exculpatory and counsel wanted the jury to hear it); see also Davis v. State, 290 Ga. 584, 586-87 (2) (b) (723 SE2d 431) (2012) (finding that counsel presented a reasonable trial strategy and was not ineffective for introducing a videotape of defendant’s interrogation by police when counsel believed the video supported defendant’s self-defense claim and that it cast a favorable light on the defendant); Floyd v. State, 293 Ga. App. 235, 237 (3) (a) (666 SE2d 611) (2008) (noting that “[d]eciding what evidence to present or to forego in defending a client charged with a crime is a matter of strategy and tactics, and matters of reasonable trial strategy and tactics do not amount to ineffective assistance of counsel” (punctuation omitted)).

        See Bryant v. State, 320 Ga. App. 838, 843 (4) (b) (740 SE2d 772) (2013) (finding that appellant could not show that he was prejudiced by counsel’s failure to request a Jackson-Denno hearing when appellant made no showing that his statements were involuntary or would have been excluded at such a hearing); Mitchell v. State, 250 Ga. App. 292, 296 (2) (a) (551 SE2d 404) (2001) (finding that counsel was not ineffective for failing to request a formal Jackson-Denno hearing when defendant made no showing that his custodial statement was involuntary).

        See Jackson v. State, 225 Ga. 39, 46 (6) (165 SE2d 711) (1969) (holding that a Jackson-Denno hearing was not required when no confession or incriminating statements were made); Lowe, 259 Ga. App. at 676 (2) (finding that no Jackson-Denno hearing was required when, inter alia, defendant did not confess to any crime in his statement); Carter v. State, 239 Ga. App. 549, 550 (1) (521 SE2d 590) (1999) (explaining that “[a] Jackson-Denno hearing provides a mechanism for a defendant to challenge the voluntariness of a confession” (emphasis supplied)); Elder, 162 Ga. App. at 426 (noting that Jackson-Denno hearings are required when “the voluntariness of a confession is questioned’ (emphasis in orginal)).

        See Smith v. State, 263 Ga. 782, 784 (2) (a) (439 SE2d 483) (1994) (noting that “[ajbsent a proper objection to a statement’s admission, due process does not require a separate hearing as to the voluntariness of the statement”); Wilson v. State, 254 Ga. 679, 681 (2) (333 SE2d 589) (1985) (explaining that “[i]t is well settled that [when] there is no challenge to the voluntariness of a statement the court is under no duty to sua sponte call for a separate hearing”); Richardson v. State, 265 Ga. App. 880, 883 (2) (595 SE2d 678) (2004) (finding that the trial court did not err in admitting appellant’s custodial statement when appellant never challenged the voluntariness of the statement).

        See Jackson, 225 Ga. at 46-47 (6) (rejecting appellant’s argument that the trial court erred in failing to conduct a Jackson-Denno hearing when appellant neglected to show what evidence he would have presented at such a hearing).

        Rafi v. State, 289 Ga. 716, 720 (4) (715 SE2d 113) (2011) (punctuation omitted).

        Muldrow v. State, 322 Ga. App. 190, 192 (2) (a) (744 SE2d 413) (2013) (punctuation omitted); Ga. Const, art. VI, sec. II, par. VI (“[A]ll criminal cases shall be tried in the county where the crime was committed, except cases in the superior courts where the judge is satisfied that an impartial jury cannot be obtained in such county.”); OCGA § 17-2-2 (a).

        Brewster v. State, 300 Ga. App. 143, 144 (684 SE2d 309) (2009).

        Armstrong v. State, 286 Ga. 420, 421 (2) (688 SE2d 629) (2010).

        Barkley v. State, 302 Ga. App. 437, 438 (691 SE2d 306) (2010) (punctuation omitted).

        See Trammell v. State, 328 Ga. App. 45, 49 (2) (b) (761 SE2d 470) (2014) (finding that there was sufficient circumstantial evidence to prove venue when, inter alia, the crime occurred less than a block from a house located in the relevant county); Perkins v. State, 319 Ga. App. 651, 654 (2) (738 SE2d 106) (2013) (noting that establishing the venue of a nearby site does not establish venue of the crime scene, but finding that there was sufficient circumstantial evidence to prove venue when there was a close proximity between those two locations and a police detective who on the case was employed by the relevant county).

        See Chapman v. State, 275 Ga. 314, 317 (4) (565 SE2d 442) (2002) (noting that, in holding that the state proved venue, it is a “well-settled principle that public officials are believed to have performed their duties properly and not to have exceeded their authority unless clearly proven otherwise”); accord Price v. State, 303 Ga. App. 859, 865 (4) (a) (694 SE2d 712) (2010). But see In the Interest of B. R., 289 Ga. App. 6, 9 (2) (656 SE2d 172) (2007) (explaining that “the investigating officers’ county of employment does not, in and of itself, constitute sufficient proof of venue to meet the beyond a reasonable doubt standard”).

        See Brewster, 300 Ga. App. at 145 (finding that there was sufficient evidence to prove venue when, inter alia, the arresting officer first encountered defendant in the relevant county and defendant made no claim that he crossed county lines while being pursued by the officer).


text:
    A14A2015.
    THOMASON v. FIA CARD SERVICES, N.A.
    (768 SE2d 785)
   Dillard, Judge.

Phillip L. Thomason, pro se, appeals the trial court’s grant of summary judgment to FLA Card Services, N.A. (“FIA”) on its complaint on a credit-card account, contending that FIA failed to establish that it was the real party in interest with standing to sue and that the trial court erred in summarily disposing of his counterclaims. For the reasons noted infra, we reverse.

Viewed in the light most favorable to the nonmovant (Thomason), the record reflects that on September 8, 2010, FIA filed suit against Thomason to recover what it alleged was an outstanding balance upon a credit card with a 14-digit account number ending in 3030. Specifically, FIA asserted that Thomason owed an outstanding balance of $76,114.19, plus court costs of $255.00. And in support of its claim, FIA attached to the complaint a copy of a certificate issued and signed by its assistant secretary on July 20,2009, which certified that on October 20, 2006, Bank of America, N.A. “merged into and under the charter and title of FIA Services . . . .”

On October 5,2010, Thomason filed his answer to the complaint, denying that he had a credit card with FIA under the account number ending in 3030 or that he was otherwise indebted to FIA as claimed. Thomason also asserted that FIA had failed to show that it was the real party in interest to sue upon the account. FIA filed a motion for summary judgment on July 27, 2011.

In support of its motion for summary judgment, FIA attached the affidavit of a custodian of records and an authorized officer, who averred to having personal knowledge of the “manner and method by which [FIA] maintains its normal business books and records.” He further averred that FIA’s records show that Thomason “opened an account with FIA Card Services, N. A., or a predecessor in interest, for the purpose of obtaining an extension of credit and did thereafter use and authorize the use of the account for the acquisition of goods, services, or cash advances in accordance with the customer agreement.” The customer agreement, also attached as an exhibit, was dated 2006 and provides that its terms apply to the user of the account and that, as a result of a merger, the customer’s Bank of America account would thereafter be issued and administered by FIA.

Additionally, the FIA officer averred that the company’s records showed that Thomason was in breach of his agreement by failing to make periodic payments and, accordingly, he was indebted to FIA in the sum of $76,114.19 on a 14-digit account number that ended in 1238. Bank of America account billing statements were attached as exhibits referenced in support of same. Those statements, dating back to May 2007, referenced a credit line under a 14-digit account number that ended in 3030, which in December 2009 had an outstanding balance of $76,114.19 with a minimum payment of $10,151.00 due, after a November 2009 statement warned that the account was “scheduled to be written off as bad debt in your next billing cycle.”

Thomason filed a response to the motion for summary judgment, once again denying that he was indebted to FIA and challenging its standing to collect upon the alleged debt. Then, in October 2012, Thomason sought leave to amend his answer to include counterclaims against FIA for breach of fiduciary duty, “failure to exhibit fair dealing and acts of bad faith,” fraud, violation of the Fair Debt Collection Practices Act, intentional infliction of emotional distress, and “infliction of willful harm.”

On December 27, 2012, the trial court granted FIA’s motion for summary judgment, noting that FIA’s “detailed affidavit setting forth the evidentiary basis of [its] claim against [Thomason]... made out a prima facie case.” The trial court also ruled that the counterclaims Thomason sought to add “were of a nature such that their validity was dependent upon [FIA] not prevailing in [its] [complaint,” and, as such, determined that they should be “dismissed.” Ultimately, the trial court awarded FIA the requested $76,114.19, plus costs. This appeal by Thomason follows.

Thomason argues first and foremost that the trial court erred in granting summary judgment to FIA when it failed to demonstrate that it was in privity of contract with him. And while Thomason attacks FIA’s manner of attempting to prove privity by attaching a copy of the customer agreement that it alleged applied to his account, we focus instead on a more obvious problem in the proof submitted by FIA — the failure to properly authenticate any document attached in support of its motion for summary judgment.

The FIA officer’s affidavit refers to outstanding debt owed on an account ending in 1238, while the complaint and exhibits attached to the affidavit refer to an account ending in 3030. This obvious inconsistency between the account number referenced in the affidavit and that reflected on the attached exhibits results in a failure to properly authenticate the documents that FIA claims establish both privity of contract and the amount owed upon the account. Accordingly, the trial court erred in granting summary judgment to FIA and, likewise, in summarily disposing of Thomason’s request to add counterclaims against FIA when the trial court did so on the basis that the counterclaims were contingent upon FIA’s failure to prevail on its complaint.

Decided February 4, 2015.

Phillip L. Thomason, pro se.

Hanna & Associates, Christopher R. Yarbrough, S. Louis Schiappa, for appellee.

For all of the foregoing reasons, we reverse the trial court’s grant of summary judgment to FLA.

Judgment reversed.

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

        See Angel Bus. Catalysts, LLC v. Bank of the Ozarks, 316 Ga. App. 253, 254 (728 SE2d 854) (2012); Kensington Partners, LLC v. Beal Bank Nevada, 311 Ga. App. 196, 196 (715 SE2d 491) (2011).

       Thomason amended his answer in November 2010.

       The latest attached statement, dated January 2010, showed an outstanding balance of $0.00 with a $76,114.19 charge-off adjustment.

       Thomason’s brief is comprised of six enumerations of error, but enumerations 1, 2, 3, and 5 make essentially the same argument (i.e., that FIAfailed to show it was in privity of contract with Thomason), and enumeration 6 encompasses all other enumerations of error by asserting that the trial court abused its discretion by failing to consider Thomason’s arguments as to privity and by summarily disposing of his counterclaims.

       In Melman v. FIA Card Srvs., N.A., 312 Ga. App. 270 (718 SE2d 107) (2011), we approved the use of the identical credit-card agreement that was attached to the affidavit in the case sub judice to establish a prima facie case of an account balance allegedly owed to FIA, id. at 272-74 (2). But we also noted in that case that the affiant “averred that the agreement was sent to [appellant]” and, additionally, that the attached credit-card statements from Bank of America also indicated that the “account is issued and administered by FIA Card Services, N.A.” Id. at 273 (2). As an aside, we note that neither is true here.

        See Ezeoke v. FIA Card Srvs., N.A., 320 Ga. App. 73, 75-76 (739 SE2d 81) (2013) (physical precedent only) (noting that documents attached to affidavit were insufficient to establish damages in motion for judgment on the pleadings when affidavit referenced an entirely different account number than the account noted on the attached statements); cf. Rutledge v. Gemini Capital Group, LLC, 327 Ga. App. 454, 456 (757 SE2d 893) (2014) (“[Appellee] provided an affidavit from its CEO, based on personal knowledge and properly authenticated business records attached to the affidavit, showing that [appellant] established a credit card account issued by Chase. The affidavit and supporting documents further show that Chase’s interest in the account was ultimately transferred to [appellee] and that [appellant] failed to pay the amounts listed on the statements issued to him and attached to the affidavit. This was sufficient to make a prima facie case supporting [appellee’s] suit on the account.”); Ware v. Multibank

        2009-1 RES-ADC Venture, LLC, 327 Ga. App. 245, 248-49 (2) (758 SE2d 145) (2014) (holding that affiant sufficiently authenticated records under Georgia’s new Evidence Code when she, after setting out her role and personal access to and knowledge of the records created and maintained by the appellee in the ordinary course of business and the appellee’s acquisition of the documents through a transfer, referenced and authenticated the various documents attached to her affidavit as exhibits).

        See Taquechel v. Chattahoochee Bank, 260 Ga. 755, 756 (2) (400 SE2d 8) (1991) (reversing award of damages in grant of summary judgment when the affidavit “recited that it was based in part on bank records, and it [was] clear from the context that the portion of the affidavit which set out the amount owed by defendants was based on bank records,” but such records were not attached to the affidavit); Jackson v. Calvary Portfolio Srvs., LLC, 314 Ga. App. 175, 177 (723 SE2d 475) (2012) (reversing grant of summary judgment when affidavit and attached exhibits failed to sufficiently prove the amount allegedly due); cf. League v. Citibank (South Dakota), N.A., 291 Ga. App. 866, 869 (2) (663 SE2d 266) (2008) (affirming grant of summary judgment to bank and noting that “[o]nce the party moving for summary judgment has made a prima facie showing that it is entitled to judgment as a matter of law, the nonmovant must then come forward with rebuttal evidence to show the existence of a genuine issue of material fact”).


author: Miller, Judge.

text:
    A14A1508.
    WILLIAMS v. THE STATE.
    (768 SE2d 788)
   Miller, Judge.

Following a jury trial, Clinton Delray Williams was convicted of aggravated assault (OCGA § 16-5-21 (b)), possession of a firearm during the commission of a crime (OCGA § 16-11-106 (b)), and aggravated battery (OCGA § 16-5-24 (a)). He appeals from the denial of his motion for new trial, contending that the trial court erred by overruling his objection to particular testimony and that he received ineffective assistance of counsel. For the reasons that follow, we affirm.

On appeal from a criminal conviction, a defendant no longer enjoys the presumption of innocence, and the evidence is viewed in the light most favorable to the guilty verdict. .. . [W]e neither weigh the evidence nor assess the credibility of witnesses, but merely ascertain that the evidence is sufficient to prove each element of the crime beyond a reasonable doubt. Moreover, conflicts in the testimony of the witnesses are a matter of credibility for the jury to resolve. As long as there is some competent evidence, even though contradicted, to support each fact necessary to make out the [Sjtate’s case, the jury’s verdict will be upheld.

(Punctuation and footnotes omitted.) Goss v. State, 305 Ga. App. 497, 497-498 (1) (699 SE2d 819) (2010).

So viewed, the evidence shows that, at about 1:00 a.m. on the day in question, the victim walked from his apartment in Clayton County to a nearby gas station to buy cigarettes. After making his purchase, the victim approached Williams’s car, a red Corvette parked near the gas pumps. The victim asked Williams for a light. Williams did not like the way the victim was looking at his car, so he rolled down his window and told the victim to “get the ‘F’ away from [Williams’s] car.” The victim backed away from Williams’s car, toward the front of the store, and borrowed a lighter from someone else. Williams drove up to the front of the store, where he and the victim engaged in a heated argument. While the men were arguing, Williams walked back to his car, retrieved a gun, and started shooting at the victim. The victim began running as soon as he heard the first gunshot, but was shot in his legs and buttocks. He ran to the apartment complex behind the gas station, knocked on the first door he saw, and asked the woman who answered the door to call 911.

Clayton County Police Department officers responded to a call that there was an armed person at the gas station, and when they arrived, Williams was standing beside a red Corvette and holding a gun. At the officers’ direction, Williams put down his gun, and the officers detained him. The officers then received a second call from the apartment complex behind the gas station, indicating that a person had been shot. Police officers, as well as EMTs, responded to the apartment complex. The victim gave the officers a quick statement, reporting that he had been shot at the gas station by a black man who was driving a red Corvette. Then, an ambulance took the victim to the hospital, where he was treated for gunshot wounds.

Following his arrest, Williams waived his right to remain silent and agreed to be interviewed by police officers. During his interview, Williams admitted that he shot the victim because he was not comfortable with the way the victim had been looking at his car and he wanted to protect his property.

1. Williams contends that the trial court erred by overruling his objection to a certain portion of the arresting officer’s testimony, regarding whether the officer had visited the victim at the hospital. In the relevant exchange, the arresting officer testified that, although he went to the hospital to check on the victim, he did not speak to the victim at that time. This testimony appeared to be inconsistent with the victim’s testimony that a police officer interviewed him at the hospital. The State asked the officer if he believed the victim would be “mistaken” to the extent he reported an in-hospital conversation with the police. Defense counsel objected to this testimony as speculative. The court overruled the defense’s objection. The arresting officer then testified that the victim would be mistaken on this point, and reiterated his testimony that the only time he spoke to the victim was in the apartment complex breezeway.

On appeal, Williams argues that the trial court erred by allowing the arresting officer to testify that the victim was mistaken about speaking to the officer at the hospital. Williams contends, first, that this testimony was impermissible bolstering because the officer was sharing his belief that the victim’s misstatements were innocent mistakes rather than calculated lies. Before the trial court, however, Williams did not object to the testimony on this ground. He has therefore waived this argument. See Arnold v. State, 301 Ga. App. 714, 716 (2) (688 SE2d 656) (2009) (where defendant objected to officer’s testimony on the grounds that it was improper opinion and speculation, but not on the ground of improper bolstering, the bolstering objection was waived on appeal).

Williams also contends that this testimony was impermissible speculation, because the arresting officer could not have known the reason for the victim’s misstatement. Williams’s argument is not persuasive. Pretermitting whether the trial court erred by overruling Williams’s speculation objection, any error was harmless in light of the overwhelming evidence against Williams, including the surveillance video from the gas station, the victim’s testimony, and Williams’s custodial statements admitting to the offense. See Archer v. State, 291 Ga. App. 175, 177-178 (2) (661 SE2d 230) (2008) (any error in admitting hearsay evidence was harmless in light of overwhelming evidence of guilt).

2. Williams also contends that his trial counsel was ineffective for failing to request a curative instruction or mistrial after the challenged testimony. We disagree.

To prevail on a claim of ineffective assistance of counsel, a defendant must show that counsel’s performance was deficient and that the deficient performance so prejudiced the defendant that there is a reasonable likelihood that, but for counsel’s errors, the outcome of the trial would have been different. See Strickland v. Washington, 466 U. S. 668, 687 (104 SC 2052, 80 LE2d 674) (1984). If an appellant fails to meet his or her burden of proving either prong of the Strickland test, the reviewing court does not have to examine the other prong. In reviewing the trial court’s decision, we accept the trial court’s factual findings and credibility determinations unless clearly erroneous, but we independently apply the legal principles to the facts. Furthermore, there is a strong presumption that the performance of counsel was within the wide range of reasonable professional lawyering, and we cannot reach a contrary conclusion unless defendant successfully rebuts the presumption by clear and convincing evidence. Judicial scrutiny of counsel’s performance must be highly deferential.

(Citations and punctuation omitted.) Littlejohn v. State, 320 Ga. App. 197, 205-206 (5) (739 SE2d 682) (2013).

At the motion for new trial hearing, trial counsel testified that one of his most important goals during the trial was to discredit the victim and the arresting officer by highlighting any inconsistencies between their testimony. Trial counsel believed that the officer’s testimony that the victim was “mistaken” as to whether they spoke at the hospital was “extremely favorable” to his trial strategy, because it highlighted an inconsistency and because it could be construed as the officer making an excuse for the victim’s misstatement. Trial counsel explained that he did not request a curative instruction because he saw no basis for one, and he did not request a mistrial because he believed that, if the case was re-tried, the State would cure any inconsistencies between the victim’s testimony and the officers’ accounts. Accordingly, trial counsel believed that the defense would lose any ground it had gained during the original cross-examinations.

Decided February 5, 2015.

Jevarik Rogers, for appellant.

Tracy Graham-Lawson, District Attorney, Elizabeth A. Baker, Assistant District Attorney, for appellee.

Here, counsel’s decisions on how to address the arresting officer’s testimony were matters of trial strategy and, therefore, will not support a claim of ineffective assistance. See Littlejohn, supra, 320 Ga. App. at 207 (5) (a) (ii) (counsel’s strategic decisions as to which defense theories to pursue are within the exclusive province of the attorney and do not constitute ineffective assistance). Trial counsel’s failure to request a curative instruction or mistrial also will not support a claim of ineffective assistance because it affirmatively appears that the court would have denied such requests, given that it overruled counsel’s objection to the same testimony. See Owens v. State, 271 Ga. App. 365, 370 (5) (609 SE2d 670) (2005) (“Failure to make a meritless or futile objection or motion cannot be evidence of ineffective assistance.”) (citations omitted). Moreover, as counsel explained at the motion for new trial hearing, the challenged testimony actually supported the defense’s primary trial strategy because it highlighted an inconsistency in the State’s case. Under these circumstances, Williams cannot show that counsel’s failure to request a curative instruction or mistrial caused him any prejudice.

Judgment affirmed.

Doyle, P. J., and Dillard, J., concur.

       Williams was also charged with another count of aggravated assault (OCGA § 16-5-21 (b)) and with criminal trespass (OCGA § 16-7-21). The trial court merged the two aggravated assault counts and granted Williams a directed verdict on the criminal trespass count.

       Later in the trial, another officer testified that he interviewed the victim at the hospital.


text:
    A14A2111.
    CURRY v. THE STATE.
    (768 SE2d 791)
   Dillard, Judge.

Following a jury trial, Darryl Curry was convicted of two counts of trafficking of persons for sexual servitude, two counts of pimping for person under 18, two counts of sexual exploitation of children, two counts of false imprisonment, two counts of cruelty to children in the first degree, two counts of simple battery, and one count of obstruction of a law-enforcement officer. Curry appeals, arguing that the trial court erred by admitting similar-transaction evidence and by instructing the jury in a manner that was inconsistent with the indictment. For the reasons set forth infra, we affirm.

Viewed in the light most favorable to the jury’s verdict, the evidence shows that A. E., who is originally from Texas, began running away from home when she was 14 or 15 years old, and eventually, she relocated to Georgia. A. E. testified that she began running away because she had a difficult home life and experienced physical and sexual abuse. When she was almost 16 years old, A. E. joined “the life,” which she described as becoming the “property of somebody else.” Between the ages of 16 and 17, A. E. worked for eight or nine pimps in Texas and Georgia, and she lost count of how many men she had been sold to for sex. When she was 17 years old, A. E. posted an advertisement online seeking work as a prostitute because she was low on money, and Curry responded. Although she did not remember his exact words, A. E. could tell from Curry’s response that he was a pimp and wanted her to work for him.

Subsequently, A. E. met Curry at a hotel, and after a brief conversation, she agreed to go live with him at a residence in Decatur. In the beginning, A. E. had her own bedroom, but later, she moved into Curry’s room and began a sexual relationship with him. A. E. felt that she had no choice but to have sex with Curry because she thought he would harm her if she refused.

While living with Curry, A. E. and the other girls would solicit clients to pay them for sex, and they would have sex with these men at Curry’s house in the “work room.” Curry set the prices and time frames for A. E. to meet clients, and she was required to give him all of the money that she earned. Additionally, while working for Curry, A. E. was not allowed to leave the house without him, say no to him, or have any money. A. E. testified that Curry provided her with alcohol and drugs, and she could not recall going a day sober.

At some point, Curry instructed A. E. to recruit another girl to work for him, and she contacted her 16-year-old friend, S. S., in an attempt to do so. A. E. lied to S. S. to lure her to Curry’s house, but after meeting Curry, S. S. ultimately agreed to move in and begin working for him. And while living with Curry, S. S. — just like A. E.— was sold to men to perform sexual acts, and she too was required to give all of the proceeds to Curry. S. S. testified that she was “very, very scared” of Curry, and that she wanted to go home.

On one occasion, Curry learned that A. E. had communicated with another pimp, and he beat her with a belt and a wire hanger. Nonetheless, she continued to comply with his directives because it was the only way to keep “from getting harmed” and she did not want to “get beat” again. On another occasion, Curry took A. E. and S. S. to a club where he gave them ecstasy, and when they returned home, he “took advantage” of A. E. Later that night, after Curry fell asleep, A. E. ran out of the house half naked and screaming for help. A neighbor heard her screams and called the police, who then transported her to a nearby hospital for examination. The next morning, police officers went to Curry’s house, kicked down the door, and found Curry and S. S. inside. After inspecting the home, the officers arrested Curry and took S. S. to a hospital.

Thereafter, Curry was charged with two counts of trafficking of persons for sexual servitude, two counts of pimping for person under 18, two counts of sexual exploitation of children, two counts of false imprisonment, two counts of cruelty to children in the first degree, two counts of aggravated assault, two counts of contributing to the delinquency of a minor, one count of obstruction of a law-enforcement officer, one count of conspiracy to commit false statements, one count of keeping a place of prostitution for person under 18, and one count of giving false information to a law-enforcement officer. Curry moved for a directed verdict as to one charge of contributing to the delinquency of a minor and the charge of conspiracy to commit false statements, and the trial court granted that motion. After a jury trial, Curry was found not guilty of both aggravated-assault charges and one count of contributing to the delinquency of a minor, but he was convicted on all remaining counts. This appeal follows.

1. In his first enumeration of error, Curry argues that the trial court violated OCGA § 24-4-404 (b) by admitting, over his objection, the testimony of L. B., a third woman who claimed that Curry sold her to men as a prostitute. We disagree.

At the outset, we note that our review of a trial court’s decision to admit similar-transaction evidence is for a “clear abuse of discretion.” And here, the record reflects that, prior to trial, the State notified Curry that it intended to present similar-transaction evidence under OCGA § 24-4-404 (b). Specifically, the State planned to present testimony from L. B. that Curry “forced her to perform acts of prostitution” in a “crack house” when she was 17 years old. Curry then filed a motion in limine to exclude this evidence, arguing that it was not being offered for a proper purpose and that any potential relevance of L. B.’s testimony would be substantially outweighed by unfair prejudice. Ultimately, the trial court denied Curry’s motion, finding that L. B.’s testimony was not improper character evidence, but rather, it was admissible to show intent, motive, plan, and identity. Further, the court found that the probative value of this evidence was not substantially outweighed by unfair prejudice.

At trial, L. B. testified that she and her 16-year-old friend met Curry at Underground Atlanta in 2009 and agreed to leave with him. Afterward, Curry took them to a house, where L. B. lived for about a month, during which time he forced her to have sex with him, and L. B. did not resist because she was frightened of Curry. L. B. described Curry as a “pimp,” for whom she earned money as a prostitute against her will. And while L. B. worked for Curry, he set the prices for her services, had control over her at all times, and collected all of the money that she earned.

In considering Curry’s argument that L. B.’s testimony was inadmissible, we begin with the text of recently enacted OCGA § 24-4-404 (b), which provides:

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. . . ,

And as we have previously explained, because our new Evidence Code is comparable to the Federal Rules of Evidence, this Court will “give consideration and great weight to constructions placed on the Federal Rules by the federal courts.” As such, we — like the Eleventh Circuit — employ “a three-part test for evidence of other crimes or acts to be admissible pursuant to Federal Rule of Evidence 404 (b),” requiring that

(1) it must be relevant to an issue other than the defendant’s character; (2) there must be sufficient proof to enable a jury to find by a preponderance of the evidence that the defendant committed the act(s) in question; and (3) the probative value of the evidence cannot be substantially outweighed by undue prejudice, and the evidence must satisfy Federal Rule of Evidence 403.

As to the first prong of the test, Curry argues that the evidence was not admissible for any proper purpose and served only as improper evidence of his character and propensity to commit the crimes. Further, as to the trial court’s finding that the similar-transaction evidence was relevant to prove his intent, he argues that his intent was not at issue because his defense strategy was to show that the victims were not credible, not that he did not intend to commit the crimes charged. This argument, however, is belied by the record. Indeed, contrary to Curry’s argument, a defendant who enters a not-guilty plea “makes intent a material issue which imposes a substantial burden on the government to prove intent, which it may prove by qualifying Rule 404 (b) evidence absent affirmative steps by the defendant to remove intent as an issue.”

In the case sub judice, Curry pleaded not guilty, thereby making his intent a material issue and placing a substantial burden on the State to prove intent, and he took no affirmative steps to remove intent as an issue. In fact, contrary to Curry’s contention that his defense strategy was not to show that he lacked intent to commit the offenses, his defense counsel argued to the jury that the victims were “very close friends” who took advantage of Curry when he was only trying to help them. Suffice it to say, Curry’s position that he intended only to help the victims, but not to commit any criminal offenses, squarely challenges the element of intent. And under these circumstances, the trial court did not err in finding that the first prong of the similar-transaction test was satisfied because the evidence at issue was admissible for a purpose other than Curry’s character.

Curry does not dispute that the second prong of our (and the Eleventh Circuit’s) similar-transaction test is satisfied. And as to the third prong, Curry summarily asserts that, because intent was not a disputed issue in the case, the prejudicial effect of L. B.’s testimony substantially outweighed its probative value. But we have already determined that Curry’s criminal intent was indeed a material issue in this case, and he provides no further argument or citation to authority to support his contention that the similar-transaction evidence was inadmissible on this basis. Thus, Curry has waived this argument.

Lastly, Curry maintains that — unlike A. E. and S. S. — L. B. testified that she did not solicit clients on chat lines, he did not give her drugs, and he made her walk the streets to meet potential clients. But to the extent Curry argues that his offenses against L. B. and the charged offenses are not sufficiently similar to be admissible, we are not persuaded.

As we have previously explained, there is no requirement that “the prior crime or transaction be absolutely identical in every respect.” Moreover, when considering the admissibility of similar-transaction evidence, “the proper focus is on the similarities, not the differences, between the separate crime and the crime in question.” Here, as noted supra, L. B. testified that Curry sold her as a prostitute and held her against her will, just like he did with the victims in this case. Indeed, the evidence presented below shows that Curry sold all three victims to men as prostitutes; required them to solicit their own clients; controlled the time, prices, and location for their services; exerted control over them at all times; kept all proceeds; and prevented them from leaving his house through threats and intimidation. And given the striking similarities between these offenses, we conclude that the extrinsic evidence of Curry’s prior bad acts was sufficiently similar to the charged offenses to be admissible under OCGA § 24-4-404 (b).

Thus, for all of the foregoing reasons, we conclude that the trial court did not abuse its discretion in finding that Curry’s prior bad acts were admissible under OCGA § 24-4-404 (b).

2. Next, as to the false-imprisonment counts, Curry argues that the trial court erred by charging the jury that unlawful detention may mean that the victim’s will is overborne by her fear of the defendant causing her harm. Specifically, he claims that this instruction allowed the jury to convict him based on a theory of guilt that the grand jury never authorized. Again, we disagree.

As an initial matter, we note that appellate review of a jury charge is de novo. And here, in Counts 7 and 8 of the indictment, the grand jury charged Curry “with the offense of FALSE IMPRISONMENT in violation of OCGA § 16-5-41 for the said accused person... in violation of the personal liberty of [the victim], did unlawfully confine [her] without legal authority.” Then, at the conclusion of trial, and over Curry’s objection, the trial court gave the following jury instruction:

Counts 7 and 8 charge [Curry] with the offense of false imprisonment. A person commits the offense of false imprisonment when, in violation of the personal liberty of another, he confines or detains such person without legal authority. Unlawful detention may mean when a victim’s will is overborne by her fear of the defendant causing her physical harm.

In Georgia, a person commits the offense of false imprisonment when, “in violation of the personal liberty of another, he arrests, confines, or detains such person without legal authority.” Furthermore, as our Supreme Court has explained:

[I]f a jury charge recites the entire statutory definition of a crime and the indictment does not, the deviation may violate due process unless a limiting instruction is given. Without the remedial instruction, the conviction is defective because there is a reasonable possibility that the jury convicted the defendant of the commission of a crime in a manner not charged in the indictment.

However, it is a fundamental rule that jury instructions “must be read and considered as a whole in determining whether the charge contained error.” And pretermitting whether the trial court erred in the case sub judice, it cured any defect in its jury charge on false imprisonment by instructing the jury that the State must prove every material allegation in the indictment beyond a reasonable doubt, further instructing that the jury could only find the defendant guilty if it found beyond a reasonable doubt that he committed the crime charged, and sending the indictment out with the jury during its deliberations.

Decided February 5, 2015.

Michael W. Tar letón, James C. Bonner, Jr., for appellant.

Robert D. James, Jr., District Attorney, Leonora Grant, Assistant District Attorney, for appellee.

For all of the foregoing reasons, we affirm Curry’s convictions.

Judgment affirmed.

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

        See, e.g., Powell v. State, 310 Ga. App. 144, 144 (712 SE2d 139) (2011).

        Jones v. State, 326 Ga. App. 658, 661 (757 SE2d 261) (2014).

        See OCGA § 24-4-404 (b) (“The prosecution in a criminal proceeding shall provide reasonable notice to the defense in advance of trial, unless pretrial notice is excused by the court upon good cause shown, of the general nature of any such evidence it intends to introduce at trial. . . .”).

       Because this case was tried after January 1, 2013, our new Evidence Code applies. See Ga. L. 2011, pp. 99, 214, § 101 (providing that Georgia’s new Evidence Code applies “to any motion made or hearing or trial commenced on or after” January 1, 2013).

       OCGA § 24-4-404 (b). Curry correctly notes that, under the old Evidence Code, “course of conduct” and “bent of mind” were listed among the purposes for introducing similar-transaction evidence, but “under the new Evidence Code, ‘course of conduct’ and “bent of mind’ are no longer acceptable bases for admitting similar transaction evidence.” Frost v. State, 328 Ga. App. 337, 342 (2) (761 SE2d 875) (2014); see also Johnson v. State, 292 Ga. 22, 25 (2), n.3 (733 SE2d 736) (2012).

        Jones, 326 Ga. App. at 660 (1) (punctuation omitted); see also Flading v. State, 327 Ga. App. 346, 351 (2), n.6 (759 SE2d 67) (2014); Oliver v. State, 329 Ga. App. 377, 380, n.7 (765 SE2d 606) (2014); Williams v. State, 328 Ga. App. 876, 879 (1), n.14 (763 SE2d 261) (2014).

        Jones, 326 Ga. App. at 660 (1) (punctuation omitted); see also Lingo v. State, 329 Ga. App. 528, 531 (765 SE2d 696) (2014) (physical precedent only); United States v. Edouard, 485 F3d 1324, 1345 (II) (C) (1) (11th Cir. 2007) (punctuation omitted).

        Jones, 326 Ga. App. at 660 (1) (punctuation omitted); see also Lingo, 329 Ga. App. at 531; United States v. Lamons, 532 F3d 1251, 1265-66 (II) (B) (11th Cir. 2008). Under OCGA § 24-4-403, which mirrors Federal Rule of Evidence 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.” Jones, 326 Ga. App. at 660 (1), n.9 (punctuation omitted); see also Butler v. State, 292 Ga. 400, 406 (3) (a), n.11 (738 SE2d 74) (2013); Williams, 328 Ga. App. at 879 (1); Flading, 327 Ga. App. at 351 (2); Ronald L. Carlson & Michael Scott Carlson, Carlson on Evidence, p. 74 (2d ed. 2014).

        Edouard, 485 F3d at 1345 (II) (C) (1) (punctuation omitted); accord United States v. Delgado, 56 F3d 1357, 1365 (III) (B) (11th Cir. 1995); see United States v. Cardenas, 895 F2d 1338, 1342 (II) (A) (11th Cir. 1990) (explaining that “when a defendant charged with conspiracy enters a not guilty plea, he makes intent a material issue in the case and imposes a substantial burden on the government”); Johnson v. State, 276 Ga. App. 505, 510 (4) (623 SE2d 706) (2005) (finding that by pleading guilty, defendant required the State to prove his intent to commit theft, and therefore, similar-transaction evidence was properly admitted).

        See supra note 9.

        See Jones, 326 Ga. App. at 660 (1), n.9. Because we find that the similar-transaction evidence was relevant to show Curry’s intent, we need not address the trial court’s findings that it was also relevant to show motive, plan, and identity.

        See Mathis v. State, 299 Ga. App. 831, 839 (2) (c) (684 SE2d 6) (2009) (finding that because appellant “failed to support [his] assertion with cogent argument or citation of authority or to cite to the record to demonstrate where the purportedly improper testimony was admitted, we will not consider it”); McBee v. State, 296 Ga. App. 42, 46 (2) (b) (673 SE2d 569) (2009) (finding that appellant waived any challenges to the sufficiency of the evidence because appellant failed to support his claim with any cogent argument or citation to authority).

        See Humphrey v. State, 249 Ga. App. 805, 807 (1) (549 SE2d 144) (2001) (noting that to he admissible as a similar transaction, prior offense must both he offered for a proper purpose and there must be a sufficient connection between that offense and the crime charged so that proof of the former tends to prove the latter).

        Williams v. State, 263 Ga. App. 22, 24 (2) (587 SE2d 187) (2003) (punctuation omitted); see Scruggs v. State, 295 Ga. 840, 841 (2) (764 SE2d 413) (2014); Humphrey, 249 Ga. App. at 807 (1).

        Evans v. State, 300 Ga. App. 180, 182 (684 SE2d 311) (2009) (punctuation omitted); see Scruggs, 295 Ga. at 841 (2); Johnson v. State, 289 Ga. 22, 24 (2) (709 SE2d 217) (2011); Whitehead v. State, 287 Ga. 242, 249 (3) (695 SE2d 255) (2010); Garvin v. State, 292 Ga. App. 813, 814 (665 SE2d 908) (2008).

        See Scruggs, 295 Ga. at 840-41 (2) (holding that the defendant’s attempt to burn his sister’s house down was sufficiently similar to his charged offense of malice murder in connection with torching and burning his longtime girlfriend to be admitted as similar-transaction evidence); Thompson v. State, 323 Ga. App. 790, 793-94 (748 SE2d 465) (2013) (finding that three acts of forgery were sufficiently similar when, in each case, defendant participated with others in attempts to cash fraudulent payroll checks at small convenience stores, the checks were for similar amounts, and the checks were all purportedly drawn from the same account); Walley v. State, 298 Ga. App. 483, 484-85 (1) (680 SE2d 550) (2009) (finding that rape of an adult woman was sufficiently similar to sex acts committed against a minor when both victims were women with whom defendant had a prior good relationship and over whom he had a position of authority); Williams, 263 Ga. App. at 24 (2) (finding that prior acts of child molestation were sufficiently similar to a later act of child molestation even though the sexual activity was different; the prior victim was a nonfamily member and the later victim was the defendant’s daughter; and the prior bad act occurred ten years earlier); Garvin, 292 Ga. App. at 815 (finding that two crimes were sufficiently similar when both armed robbery victims were over 55 years of age and lived alone, and in both cases, the defendant initially disavowed any knowledge of the crime before later claiming mere presence at the crime scene); Evans v. State, 235 Ga. App. 577, 581 (3) (510 SE2d 313) (1998) (finding that two acts of selling cocaine were sufficiently similar even though the two sales were made in different ways and in different locations); see also Delgado, 56 F3d at 1366 (III) (B) (noting that “when other crimes evidence goes to intent rather than identity a lesser degree of similarity between the charged crime and the uncharged crime is required”).

        Jordan v. State, 322 Ga. App. 252, 255 (4) (a) (744 SE2d 447) (2013).

       OCGA § 16-5-41 (a).

        Hall v. Wheeling, 282 Ga. 86, 86 (1) (646 SE2d 236) (2007) (punctuation omitted); see also Martin v. State, 303 Ga. App. 117, 120 (3) (692 SE2d 741) (2010) (explaining that “[a] criminal defendant’s right to due process may he endangered when an indictment charges the defendant with committing a crime in a specific manner and the trial court’s jury instruction defines the crime as an act which may be committed in a manner other than the manner alleged in the indictment” (punctuation omitted)).

        Alexander v. State, 308 Ga. App. 245, 246 (707 SE2d 156) (2011) (punctuation omitted); see also Campbell v. State, 292 Ga. 766, 769 (3) (740 SE2d 115) (2013); Lee v. Swain, 291 Ga. 799, 800 (2) (a) (733 SE2d 726) (2012); Guajardo v. State, 290 Ga. 172, 176 (4) (718 SE2d 292) (2011).

        See Wheeler v. State, 327 Ga. App. 313, 319-20 (3) (758 SE2d 840) (2014) (“[I]n the case sub judice, the trial court instructed the jury that the State had the burden of proving every material allegation in the indictment beyond a reasonable doubt, further instructed that the jury could only find the defendant guilty if it found beyond a reasonable doubt that he committed the offenses ‘as described in the indictment,’ and sent the indictment out with the jury during its deliberations. Accordingly, these instructions, when considered in their entirety, cured any potential error pertaining to the enticing-a-child-for-indecent-purposes charge.”); Machado v. State, 300 Ga. App. 459, 462-63 (5) (685 SE2d 428) (2009) (finding that any potential problem with a child-molestation charge was cured when “the trial court read the indictment to the jury, instructed the jury that the state had the burden of proving every material allegation in the indictment beyond a reasonable doubt and sent the indictment out with the jury during its deliberations”); Heath v. State, 291 Ga. App. 594, 597 (5) (662 SE2d 362) (2008) (finding that a “potential due process violation can he cured if the trial judge ... gives a limiting instruction directing the jury to consider only whether the defendant committed the offense charged in the indictment”).