author: Per curiam.

text:
    A17A0868.
    HUGHES v. THE STATE.
    (802 SE2d 30)
   Per curiam.

A jury found Marvin Hughes guilty of child molestation and statutory rape. The trial court merged the child molestation conviction into the statutory rape conviction, for which the court imposed a 20-year prison sentence. Hughes appeals from the denial of his motion for a new trial, contending that the trial court erred in admitting similar transaction evidence during his trial and that his sentence should be vacated and his case remanded for the trial court to clarify that his child molestation conviction merged into his statutory rape conviction. For the reasons that follow, we conclude that the trial court committed no error in its admission of the similar transaction evidence and that the trial court’s sentencing order made clear that Hughes’s child molestation conviction merged into his statutory rape conviction for sentencing purposes. However, the trial court erred in failing to impose a split-sentence for Hughes’s statutory rape conviction, as required by OCGA § 17-10-6.2. Accordingly, we affirm Hughes’s conviction, vacate his sentence, and remand for resentencing in compliance with OCGA § 17-10-6.2.

Viewed in the light most favorable to the verdict, the evidence shows that Hughes is related by marriage to the family of the victim’s mother. In April 2011, when the victim was 13 years old, one of the victim’s cousins used the victim’s telephone to ask Hughes to give them a car ride. Before that time, the victim had few interactions with Hughes. Shortly thereafter, Hughes and the victim began exchanging text messages. Sometime between April and May 2011, the victim visited her cousin. After the cousin went to bed, Hughes arrived, and he and the victim watched television while exchanging text messages. At some point, Hughes walked over to the victim, and the two engaged in sexual intercourse on a sofa. The two engaged in intercourse several more times between that night and the end of the school year, including twice in Hughes’s car. In April and May 2011, Hughes was 28 years old.

The State also presented evidence that Hughes had engaged in sexual relations with a 14-year-old girl in 2004, as a result of which he had pled guilty to statutory rape. The victim in that case — D. G. — testified that Hughes was a family friend whom she met when he gave her and her brother a ride home. On the day they met, at Hughes’s request, he and D. G. exchanged telephone numbers. Later that night, Hughes visited D. G.’s home, and the two engaged in intercourse in Hughes’s truck. Hughes was 22 years old at the time.

The jury found Hughes guilty of child molestation and statutory rape. The trial court merged Hughes’s child molestation conviction into his statutory rape conviction and imposed a 20-year prison term for the statutory rape conviction. Hughes filed a motion for a new trial, which the trial court denied, and this appeal followed.

1. Hughes challenges the admission of evidence at trial that he had sexual relations with a 14-year-old girl several years earlier. In particular, Hughes contends that: (1) the trial court erred when it improperly weighed the probative value of the prior act evidence against its prejudicial effect; and (2) the prior act evidence was not needed to prove intent, which, he claims, was “easily inferred.” We discern no error.

When the State seeks to introduce prior acts of the defendant as similar transaction evidence,

it first must identify a proper purpose for the admission of such evidence, establish that the defendant, in fact, committed the prior acts, and show enough of a similarity or connection between the prior acts and the crimes charged that proof of the former tends to prove the latter. Upon such a showing, a trial court may admit evidence of a similar transaction, unless the probative value of the evidence is substantially outweighed by a risk that it would unfairly prejudice the defendant. When we consider the admission of similar transaction evidence, we focus on the similarities, not the differences, between the prior acts and the crimes charged, and we must bear in mind that the standard for the admission of similar transaction evidence is most liberally construed in cases involving sexual offenses.

Bibb v. State, 315 Ga. App. 49, 50 (2) (726 SE2d 534) (2012); see also Mills v. State, 319 Ga. App. 131, 133 (1) (735 SE2d 134) (2012) (in prosecutions for sexual offenses involving children, evidence that the defendant previously molested young children or teenagers, regardless of the type of act, is sufficiently similar to be admissible). We review a trial court’s decision whether to admit similar transaction evidence for abuse of discretion. Bibb, 315 Ga. App. at 50 (2).

We first note that, in his appellate brief, Hughes at times misstates the proper analysis by contending that a court must determine “whether the probative worth of the evidence outweighs its potential for undue prejudice.” This is not the law. The law mandates exclusion of otherwise probative similar transaction evidence only if the risk of unfair prejudice substantially outweighs its probative value. See Bibb, 315 Ga.App. at 50 (2); accord Dillard v. State, 297 Ga. 756, 758-760 (3) n. 4 (778 SE2d 184) (2015); Jones v. State, 316 Ga. App. 442, 445 (2), 447 (2) (b) (729 SE2d 578) (2012). Put another way, this test does not require exclusion where the risk of unfair prejudice equals — or even slightly outweighs — the probative value of the similar transaction evidence. See Dillard, 297 Ga. at 758-760 (3); Jones, 316 Ga.App. at 445 (2), 447 (2) (b); Bibb, 315 Ga.App. at 50 (2).

The trial court here conducted a similar transaction hearing and determined that the prior acts Hughes engaged in with D. G. were admissible to prove his intent and to show that he engaged in a common scheme or plan in the prior and charged acts. The court gave a limiting instruction to this effect before the similar transaction testimony was introduced and in the court’s final charge to the jury

“Guided by the liberal standard applicable in cases involving sexual offenses against children,” Kirkland v. State, 334 Ga. App. 26, 30 (1) (778 SE2d 42) (2015), we conclude that, on the facts of this case, the trial court was authorized to find that the risk of unfair prejudice did not bar the admission of the similar transaction evidence. Pre-termitting whether Hughes’s prior statutory rape conviction was probative of intent in the instant case, it was relevant, as the court found, to showing that Hughes engaged in a common plan or scheme of (a) befriending young girls from families he knew (b) by giving them rides and (c) engaging in sexual relations with them in his vehicles. See Miller v. State, 325 Ga. App. 764, 764-765, 768-769 (2) (b) (754 SE2d 804) (2014) (in a rape prosecution, the defendant’s prior rapes were relevant to show his course of conduct, as the prior and charged offenses each began when the defendant offered the victims rides in his truck); see also Kirkland, 334 Ga. App. at 30 (1) (a similar transaction was properly admitted in a prosecution for aggravated child molestation where both the prior act and the charged offense “involved instances where [the defendant] preyed on young girls to whom he had access because of his relationship with his girlfriend and her family”). “Moreover, the trial court provided jury instructions that limited consideration of the similar transaction evidence to the appropriate purposes and provided guidance so as to diminish its prejudicial impact.” Miller, 325 Ga. App. at 769 (2) (b); see Mills, 319 Ga. App. at 135 (1) (c) (in a prosecution for several sexual offenses involving children, evidence that the defendant previously had engaged in various acts of sexually inappropriate conduct with other children “was not unfairly prejudicial, in light of the trial court’s limiting instruction to the jury, and because the prior transactions . . . corroborated the victims’ testimony”) (punctuation omitted). Given the relevance of the prior act evidence to show a common plan or scheme and the trial court’s multiple limiting instructions, we conclude that the court did not abuse its discretion when it determined that the danger of unfair prejudice did not substantially outweigh the probative value of the challenged evidence.

2. Hughes contends that his sentence should be vacated and remanded for the trial court to clarify that he stands convicted only of statutory rape, as his child molestation conviction merged into his statutory rape conviction. We disagree.

“Under Georgia law, certain convictions merge and multiple punishment is precluded where the same conduct establishes the commission of more than one crime, and the one crime is included in the other.” Jones v. State, 290 Ga. 670, 672 (2) (725 SE2d 236) (2012) (citations and punctuation omitted). We review the application of the merger doctrine de novo. See Brown v. State, 314 Ga. App. 198, 205 (6) (723 SE2d 520) (2012).

Hughes’s written sentence properly indicates that: (1) he was tried for (a) child molestation, which the sentence identifies as Count 1, and (b) statutory rape, which the sentence identifies as Count 2; (2) the jury rendered a guilty verdict; and (3) “Count 1 merges into Count 2 for sentencing purposes.” In its order denying Hughes’s motion for a new trial, the trial court likewise correctly stated that: (1) his conviction for child molestation merged with his conviction for statutory rape; and (2) he therefore was sentenced only on the statutory rape conviction. Consequently, we discern no error in this regard. To the extent that, as Hughes suggests, the Department of Corrections may misunderstand these rulings, that is a matter that Hughes must raise directly with the Department, which is not a party to these proceedings.

3. Although not addressed by either party, the trial court committed a sentencing error that requires us to vacate Hughes’s sentence and remand this case for resentencing. A person over the age of twenty-one who is convicted of statutory rape is subject to a split sentence, which must include a mandatory minimum ten-year prison sentence, to be followed by atleast one year of probation. OCGA §§ 16-6-3 (b); 17-10-6.2 (a) (4), (b); McCranie v. State, 335 Ga. App. 548, 554-556 (4) (782 SE2d 453) (2016). A sentence that does not comply with the OCGA § 17-10-6.2 split-sentence requirement is void. See New v. State, 327 Ga. App. 87, 106-109 (5) (755 SE2d 568) (2014). We are required to correct a void sentence, regardless of whether either party has raised the error on appeal. See von Thomas v. State, 293 Ga. 569, 573 (2) (748 SE2d 446) (2013) (“[A] sentence which is not allowed by law is void, and its illegality may not be waived.”) (citation, punctuation and emphasis omitted).

Decided June 6, 2017.

J. Wrix Mcllvaine, for appellant.

Jacquelyn L. Johnson, District Attorney, Andrew J. Ekonomou, Assistant District Attorney, for appellee.

Under OCGA § 17-10-6.2, the trial court was required to impose a total sentence for Hughes’s statutory rape conviction that included at least one year of probation. See OCGA §§ 16-6-3 (b); 17-10-6.2 (a) (4), (b). Consequently, Hughes’s 20-year prison sentence, which includes no probation, is void. See New, 327 Ga. App. at 106-109 (5); see also McCranie, 335 Ga. App. at 556 (4) (holding that a sentence for statutory rape that did not comply with OCGA § 17-10-6.2 was void); accord Spargo v. State, 332 Ga. App. 410, 411-412 (773 SE2d 35) (2015) (holding that 20-year prison sentences for child molestation convictions were void for failure to comply with OCGA § 17-10-6.2).

For each of the above reasons, we affirm Hughes’s conviction, vacate his sentence, and remand this case for resentencing under OCGA § 17-10-6.2 in accordance with this opinion.

Judgment affirmed in part and vacated in part, and case remanded for resentencing. Division Per Curiam.

All Judges concur.

       See Jackson v. Virginia, 443 U. S. 307, 319 (III) (B) (99 SCt 2781, 61 LE2d 560) (1979).

       Because Hughes was tried in September 2012, the new Georgia Evidence Code does not apply to any of the evidentiary issues addressed in this case. See Ga. L. 2011, pp. 99, 214, § 101; Miller v. State, 325 Ga. App. 764, 766 (1) n. 1 (754 SE2d 804) (2014).


source: Caselaw Access Project

author: Ellington, Presiding Judge.

license: Public Domain

text:
    A15A0527.
    FLETCHER v. WATER APPLICATIONS DISTRIBUTION GROUP, INC. et al.
    (801 SE2d 336)
   Ellington, Presiding Judge.

The Supreme Court of Georgia affirmed in part and reversed in part our decision in this case as it concerned CertainTeed Corporation, holding that, “[w]hile we conclude that CertainTeed owed no duty to warn [Marcella] Fletcher of the possible hazards of asbestos dust from its products, the Court of Appeals correctly reversed the trial court’s judgment with respect to Fletcher’s defective design claim.” CertainTeed Corp. v. Fletcher, 300 Ga. 327, 327-328 (794 SE2d 641) (2016). Accordingly, our ruling with respect to CertainTeed is vacated and the judgment of the Supreme Court is made the judgment of this Court.

Decided June 7, 2017.

Buck Law Firm, Robert C. Buck, Juliana Y. Sleeper, for appellant.

Schiff Hardin, Leah Ward Sears; Hawkins, Parnell, Thackston & Young, E. Elaine Shofner, David C. Marshall; Demahy, Labrador, Drake, Victor & Cabeza, Michael J. Crist, for appellees.

Judgment affirmed in part and reversed in part.

Barnes, P. J., Dillard, P. J., McFadden, P J., Ray, McMillian, and Reese, JJ., concur.

        In Fletcher v. Water Applications Distrib. Group, 333 Ga. App. 693 (773 SE2d 859) (2015), we held that the trial court erred in granting summary judgment in favor of the manufacturer, CertainTeed, on Fletcher’s design defect and negligent failure-to-warn claims. However, we affirmed the grant of summary judgment to the distributor, Water Applications Distribution Group, Inc., on Fletcher’s negligent failure-to-warn claim, holding that a seller or a distributor does not have a continuing duty to warn. Fletcher sought a writ of certiorari to the Supreme Court of Georgia challenging our opinion with respect to the distributor, which the Court denied.


author: Reese, Judge.

text:
    A17A0446.
    CALCATERRA v. THE STATE.
    (801 SE2d 337)
   Reese, Judge.

A Gordon County jury found Mark Calcaterra (hereinafter, “Appellant”) guilty beyond a reasonable doubt of trafficking in cocaine, OCGA § 16-13-31 (a) (1) (C), and possession of marijuana with intent to distribute, OCGA § 16-13-30 (j) (1). He appeals from the trial court’s denial of his motion for new trial, contending that there was insufficient evidence to support his conviction. For the reasons set forth infra, we affirm.

On appeal from a criminal conviction, we view the evidence in the light most favorable to the verdict and an appellant no longer enjoys the presumption of innocence. This Court determines whether the evidence is sufficient under the standard of Jackson v. Virginia,[ ] and does not weigh the evidence or determine witness credibility Any conflicts or inconsistencies in the evidence are 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 State’s case, we must uphold the jury’s verdict.

Viewed in this light, the evidence showed that, at approximately 9:40 p.m. on March 27, 2012, Appellant was a passenger in a car driven by his wife, Nakenya Calcaterra (hereinafter, “Ms. Calcaterra”), as they traveled northbound on 1-75 in Gordon County A law enforcement officer conducted a traffic stop, approached the passenger side of the car, and obtained Ms. Calcaterra’s Illinois driver’s license. When the officer asked Ms. Calcaterra if she owned the vehicle, she first said that it belonged to her brother-in-law. When the officer asked her for the registration, however, she backtracked and said that her brother-in-law had rented the car and loaned it to her. The rental agreement showed that a person named “Gary Owens” had rented the car in Ohio. According to the officer, while he was speaking with Ms. Calcaterra, he observed that Appellant was looking straight ahead, his hands were “clench[ing]” a cell phone, and he did not participate in the conversation.

The officer asked Ms. Calcaterra to step out of the vehicle so he could determine if she was impaired, and she complied. The officer asked her why she had traveled to Georgia, and Ms. Calcaterra gave conflicting answers about when she had driven down and whom she had been visiting. She also told the officer that her passenger was a friend who had traveled with her on the trip, but then immediately told him, instead, that her friend had been staying in Georgia before she came down and that he was now riding back to Ohio with her.

The officer walked to the passenger-side window and asked Appellant if he had any identification. Appellant responded that he did not, but said that his name was Mark Calcaterra. When asked how he knew Ms. Calcaterra, Appellant said that she was his wife and that they had been married since 2005. Appellant expressed surprise when the officer told him that Ms. Calcaterra had said he was just a friend. When asked why he was in Georgia, Appellant told the officer that he came down to visit family members.

Based upon the couple’s inconsistent responses, the officer suspected that there might be contraband in the vehicle, and he obtained the consent of both Ms. Calcaterra and Appellant to search the car. When the officer started looking around the passenger compartment of the car, he smelled an odor that he recognized as the smell of raw marijuana. While searching the trunk, the officer observed two small, plastic grocery bags — one containing men’s clothing and the other containing women’s clothing. The officer also discovered over 554 grams of cocaine of at least 60 percent purity and over 445 grams of marijuana hidden in the trunk’s side panels.

The officer arrested Appellant and Ms. Calcaterra, and the State jointly indicted them, charging them with trafficking in cocaine and possession of marijuana with intent to distribute. In addition to the evidence concerning the traffic stop, as recounted above, the following evidence was presented during their joint trial.

Appellant and his wife had seven children between the ages of five months and eighteen years, as well as two grandchildren. In March 2012, Appellant was physically disabled and was not employed, while Ms. Calcaterra worked delivering pizza. The couple was experiencing financial troubles and were behind in paying their rent, car payment, and other bills to the extent that they were feeling “desperate.” According to Ms. Calcaterra, the financial problems were causing her and Appellant to fight a lot, so they decided to take a “spur-of-the-moment” trip “to get away for a little while” and spend time together.

The couple borrowed a car from Appellant’s brother, left their children and grandchildren in his care, and started driving to Georgia just after midnight on March 27, 2012. They drove to the home of Appellant’s cousin in Atlanta, arriving at about 10:00 a.m. The couple took a nap, and then Appellant watched television with his cousin for the rest of the day. Ms. Calcaterra, however, left for a few hours before returning to the cousin’s house that evening. She picked up Appellant, and they started driving back to Ohio. As they were leaving, Appellant told his cousin that he had to “go handle some business.” They then traveled for less than an hour before the traffic stop took place. In addition, Ms. Calcaterra admitted that, despite their serious financial troubles, they spent at least $140 on gas and food between leaving Ohio around midnight and the traffic stop later that evening, for the sole purpose of spending a few hours with family members.

After considering the evidence, the jury found both Appellant and Ms. Calcaterra guilty of trafficking in cocaine and possession of marijuana with intent to distribute. The trial court denied Appellant’s motion for new trial, and this appeal followed.

Appellant argues that the evidence showed that he was merely present in the car and did not know that the drugs were hidden in the trunk.

A participant to a crime may be convicted although he is not the person who directly commits the crime. A person who intentionally aids or abets in the commission of a crime or intentionally advises, encourages, hires, counsels or procures another to commit the crime may be convicted of the crime as a party to the crime. Mere presence at the scene is not sufficient to convict one of being a party to a crime, but criminal intent may be inferred from conduct before, during, and after the commission of a crime.

In support of his “mere presence” argument on appeal, Appellant relies solely on his wife’s exculpatory trial testimony Ms. Calcaterra testified that, during a stop at a gas station on the way to Georgia, her stepbrother called her on her cell phone while Appellant was in the station buying food. According to Ms. Calcaterra, her stepbrother asked her to do him a “favor,” offering to pay her $2,000. She did not ask what the favor was, nor did she tell Appellant about the call. After arriving at Appellant’s cousin’s home and taking a quick nap, Ms. Calcaterra left and went to her stepbrother’s home, which was a few minutes away in Decatur. Her stepbrother asked her to transport some drugs to Ohio, and, when she agreed, he hid the drugs in the car’s trunk. Ms. Calcaterra then picked up Appellant at his cousin’s house and started driving back to Ohio. She testified that she did not tell Appellant about the drugs in the trunk or the money she was paid because she knew he would not have approved of what she was doing.

During her testimony, however, Ms. Calcaterra contradicted herself as to whether the couple’s ten-hour trip to Georgia had been a “spur-of-the-moment” idea or had been planned in advance. And, during cross-examination by the State, Ms. Calcaterra admitted that, in the four months since she and her husband had been arrested, she had never told authorities that her husband was innocent or otherwise tried to exonerate him.

Decided June 7, 2017.

Kearston M. Gill, for appellant.

Rosemary M. Greene, District Attorney, Elizabeth M. York, Assistant District Attorney, for appellee.

The issue of whether Appellant was a party to the crimes by aiding and abetting Ms. Calcaterra in the commission of the drug offenses was a question for the jury to decide. Further, “[a] jury is authorized to believe or disbelieve all or any part of the testimony of witnesses, and it serves as the arbiter of conflicts in the evidence before it.” Thus, the jury was authorized to reject as incredible Ms. Calcaterra’s testimony regarding the couple’s reasons for traveling to Georgia and her claim that Appellant had no knowledge of the crimes she was committing.

Consequently, after viewing the evidence in the light most favorable to the jury’s verdict, we conclude that it was sufficient for the jury to find that Appellant was guilty beyond a reasonable doubt as a party to the crimes committed by Ms. Calcaterra.

Judgment affirmed.

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

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

        Rankin v. State, 278 Ga. 704, 705 (606 SE2d 269) (2004) (citations omitted).

       A video-recording of the stop was played for the jury at trial.

       At trial, the State showed that Appellant had a brother named Gary Owens and that Owens lived in Ohio.

       This Court affirmed the trial court’s denial of Ms. Calcaterra’s motion to suppress, which had challenged the legality of the traffic stop and the detention that followed. See Calcaterra v. State, 321 Ga. App. 874 (743 SE2d 534) (2013).

       Ms. Calcaterra unsuccessfully appealed her conviction. See Calcaterra, 321 Ga. App. at 874-877.

       The record shows that the trial court instructed the jury on, inter alia, circumstantial evidence, parties to a crime, mere presence, mere association, knowledge, criminal intent, active and constructive possession of contraband, and joint possession.

        Huntley v. State, 331 Ga.App. 42, 43 (1) (769 SE2d 757) (2015) (citation and punctuation omitted). See also OCGA §§ 16-2-6 (The trier of fact may find that a person acted with criminal intent through “consideration of the words, conduct, demeanor, motive, and all other circumstances connected with the act” for which the person is being tried.); 16-2-20 (a), (b) (3) (when a person may be convicted as a party to a crime).

       See Huntley, 331 Ga. App. at 43 (1).

        Lewis v. State, 287 Ga. App. 379, 381 (651 SE2d 494) (2007) (citations and punctuation omitted).

       See Lewis, 287 Ga. App. at 381; see also Gordon v. State, 329 Ga. App. 2, 4 (1) (763 SE2d 357) (2014) (The jury determines the credibility of the witnesses and, thus, was authorized to disbelieve the defense offered by the defendant.); Gaskins v. State, 318 Ga. App. 8, 11 (1) (b) (733 SE2d 338) (2012) (The jury was authorized to disbelieve the defendant’s explanation for how she obtained the property and to conclude that she obtained it fraudulently.); see generally Buruca v. State, 278 Ga. App. 650, 653 (1) (629 SE2d 438) (2006) (The evidence, although circumstantial, was sufficient for the jury to find that the defendant was the “getaway” driver who assisted others in committing an armed robbery and, as a result, to convict him as a party to the crime, noting that the jury “heard and clearly rejected [the defendant’s] claim that the robbery was a spur of the moment idea of which he had no knowledge.”) (punctuation omitted).

        See Rankin, 278 Ga. at 705.


text:
    A17A0481.
    REID v. THE STATE.
    (802 SE2d 42)
   Reese, Judge.

A Fulton County jury found Eddie Reid guilty beyond a reasonable doubt of rape, aggravated sodomy, kidnapping, false imprisonment, aggravated assault, and possession of a firearm during the commission of a felony. He appeals from the denial of his motion for new trial, contending, inter alia, that the trial court abused its discretion in admitting certain evidence, that the judge improperly commented on the evidence, that the jury instruction contained errors, that the oath was not properly given to some of the witnesses, and that he received ineffective assistance of counsel. F or the reasons that follow infra, we affirm.

Viewed in the light most favorable to the jury’s verdict, the evidence shows the following facts. Around 11:00 p.m. on May 28, 2010, a 27-year-old woman left her brother’s home in Atlanta and started walking home along Jonesboro Road. A car pulled up and stopped along the road, and the driver, whom she did not know, asked her if she needed a ride. She got into the car and, as they traveled, she gave the driver directions, eventually asking him to make a right turn. The driver did not turn but drove onto the expressway instead. The woman (hereinafter, “the victim”) started yelling at him and asking him what he was doing. The driver, whom the victim later identified as Reid, said something about “pimping,” took her phone and purse, and told her to put her head down. The victim could not see where they were going and was frightened, and she repeatedly asked him to let her go. Reid kept telling her, “B***h, shut the f up.” The victim would have tried to get out of the car, but the passenger-side door handle was missing.

Reid took the victim to an abandoned house, but, before he let her out of the car, he got something out of the trunk. When he opened the passenger-side door, she got out and tried to run, but he caught her and choked her, telling her that he would kill her right there. She saw that he had a 9 millimeter handgun, and she started screaming for help. Reid told her to shut up, accusing her of trying to send him to prison, and he dragged her into the house. Once inside, he took her through the house and appeared to be looking for some place to put the victim, while she begged him to let her go. Still holding the handgun, Reid took the victim upstairs, forced her to perform oral sex on him, and then raped her. When he was finished, Reid made her take off her clothes, shutting her inside a room while he went downstairs and made a phone call. He returned and tied her hands behind her back with stereo wire and duct tape, then used a shirt to hog-tie her hands and feet. Reid went downstairs, and the victim thought he had left the house. She moved around until she freed her legs from the restraints. However, Reid came back into the room, told her he was going to kill her, and tried to throw her out an upstairs window. When that failed, he took her downstairs and threw her through a window that was about eight feet above the ground, shattering the glass and seriously wounding the victim. The victim heard Reid say something like, “I killed that b***h,” before he left in his car.

The victim got up and ran to a neighbor’s house, screaming that she had been kidnapped and raped and kicking the door because her hands were still tied behind her back. She begged the neighbor to let her in. The neighbor saw the victim on his front stairs through a window and saw that she was naked, bleeding severely, and had her hands tied behind her back. Although he did not let her in, he told his grandmother to call 911 while he kept an eye on the victim.

A few minutes later, Reid returned in his car, jumped out and ran toward the victim with his gun drawn, and told her that he was going to kill her. He grabbed her, slammed her against the neighbor’s door, dragged her by her hair through the yard, hit her repeatedly, and threw her into his car, hitting her face against the car in the process. He drove away before police officers arrived, and, as he drove, he started crying, saying that he had kids and that he should not have done it. He took the victim to a hotel, where they stayed until the next morning, when the victim convinced him that she needed to go to the hospital. Reid dropped off the victim at a hospital emergency room and told her that he was going to come back and get her. The victim told the hospital staff what had happened to her, and a staff member called the police.

An Atlanta police officer arrived at the hospital and spoke with the victim before calling the Special Victims Unit of the police department. According to the detective who interviewed the victim at the hospital, the victim had deep cuts all over her body, she was in pain and appeared to be in shock, and she was crying and scared. While speaking with the detective, the victim received some texts from Reid on her cell phone. After reading the texts, the detective had another officer trace the phone number. After confirming that the number belonged to Reid, the officer compiled a photographic array of six pictures, one of which was Reid’s. The detective showed the victim the photos, and the victim picked out Reid’s picture and identified him as her assailant. The detective took pictures of the victim’s injuries, then transported her to police headquarters, where the detective interviewed the victim again before obtaining warrants for Reid’s arrest.

In the meantime, at 1:47 a.m. that morning, Atlanta police officers were dispatched in response to the neighbor’s 911 call and spoke with the neighbor. The officers observed blood on the neighbor’s porch and stairs and drag marks across the yard, where they also found braids that looked as if they had been pulled from someone’s head. The house next door had a broken window with the blinds pushed outside the window and shattered glass and a screen on the ground. There was blood on the windowsill and the screen. Fearing that there might be someone in danger inside the house, the officers broke through the front door and went into the house. Upstairs, the officers found blood on the floor and women’s clothing and underwear.

On June 1, 2010, officers with the Atlanta Police Department’s Fugitive Squad arrested Reid pursuant to several warrants arising from the instant offenses. After transporting Reid back to the public safety headquarters, investigators with the Special Victims Unit conducted a custodial interview of Reid. Reid told investigators that, while driving on the night at issue, he picked up the victim, whom he did not know, at random from the side of the road with the intention of forcing her to become a prostitute. He took the victim to a house, showed her his handgun, and took her inside the house. Reid admitted that the victim was “upset” and “scared.” Inside the house, he had sex with her. Reid admitted to the investigators that he did not think she would have had sex with him if he had not had the handgun. Reid tied the victim’s hands with speaker wire, then he left the house. According to Reid, when he came back, he saw the victim walking down the sidewalk, naked, trying to “get away” He tried to “convince” her to get into his car, but, when she refused, he grabbed her hair and pulled her into the car against her will. Reid admitted that he punched the victim, that she was screaming and physically resisting him, that he knew she was afraid and did not want to leave with him, that he knew what he was doing was wrong, and that he was very “sorry that he had to do that to her.” Reid also told the investigators that a “pimp” and drug dealer named “Mike” had forced him to pick up the victim so that “Mike” could make her a prostitute. Reid claimed that “Mike” had control over him and had threatened to kill him and his family.

The evidence also showed that, when officers arrested Reid, they impounded a car that was registered to him and was parked at the house where he was apprehended. The detective in charge of the case obtained a search warrant for the car, and the officer who conducted the search found a handgun, blood residue, speaker wire, pliers, and a shirt with blood on it. They also observed that the inside passenger-side door handle was missing.

The State indicted Reid for rape, aggravated sodomy, kidnapping, false imprisonment, armed robbery, aggravated battery, three counts of aggravated assault, and possession of a firearm during the commission of a felony. At trial, Reid testified in his own defense, telling the jury that, as he was driving on the night at issue, the victim waved him down and asked him for a ride. The victim directed him to a house and went inside while he waited in the car. According to Reid, two men drove up and forced him at gunpoint to go into the house and to lie on the floor. A man inside the house, who was named “Mike,” took Reid’s wallet, found out Reid’s address, and threatened to kill his family. Reid testified that he and “Mike” got into his car and drove to his (Reid’s) house, leaving the victim behind. “Mike” took Reid’s phone, warned him not to call the police, and then left with the other men in a separate car. Reid told the jury that “Mike” had framed him for the crimes against the victim.

During cross-examination, however, Reid admitted that, during his custodial interview, he had not told the investigators about being accosted by the two men. Reid also admitted that he had told the investigators that he had taken the victim to an abandoned house; that she saw his handgun; that he had sex with her; that he tied her hands with speaker wire; that he bound her feet with a shirt; that, after he returned to the house, he grabbed her and pulled her by her hair; that he had his gun when he forced her into his car; and that, throughout most of this encounter, she was naked, afraid, panicking, and screaming. Even so, he specifically denied that he raped the victim, threw her out of the window, hit her with his gun, dragged her through the yard, or threw her into his car.

The jury found Reid guilty of rape, aggravated sodomy, kidnapping, false imprisonment, aggravated assault, and possession of a firearm during the commission of a felony. Following the court’s denial of his motion for new trial, he appeals.

1. Reid contends that the trial court abused its discretion in allowing the State to introduce evidence of “improper matters” during the trial. This Court reviews a trial court’s ruling on the admission of evidence under an abuse of discretion standard.

(a) Reid challenges the admission of a statement by the victim that he characterizes as a statement about his potential “future dangerousness.” The trial transcript shows that, when the prosecutor asked the victim why she reported the assault to the police, she responded, “Because I felt like if he did it to me, he’ll do it to somebody else.” Defense counsel objected on the basis that the prosecutor’s question was “improper,” and the court overruled the objection. However, Reid did not object to the evidence at issue (the victim’s answer) on the basis that it constituted inadmissible “future dangerousness” evidence.

“Where an entirely different objection is presented on appeal, we cannot consider it because this is a court for review and correction of error committed in the trial court.”

Reid argues that, even though his counsel did not raise this specific objection at trial, the admission of this evidence may be reviewed for “plain error” on appeal under OCGA § 24-1-103 (d). However, the General Assembly enacted that provision as part of the new Evidence Code, which does not apply in this case because Reid’s trial was conducted in April 2011. And, under the former Evidence Code, evidentiary rulings are not subject to appellate review in the absence of a timely objection at trial.

Consequently, because Reid’s counsel did not object to the victim’s answer on the basis that it constituted inadmissible “future dangerousness” evidence, this alleged error is waived.

(b) Reid contends that the State improperly presented a “victim impact statement” when it elicited the victim’s testimony about how her life had changed since her assault. Reid did not object to the testimony, however, so this claim of error is not preserved for appellate review.

(c) Reid contends that the trial court abused its discretion in admitting bad character evidence, specifically, an officer’s reference to him as a “violent felon,” in violation of former OCGA §§ 24-2-2 and 24-9-20 (b). He argues that the statement was false, irrelevant, and prejudicial.

The trial transcript shows that an officer with the Fugitive Task Force of both the Atlanta Police Department and the Federal Bureau of Investigation testified that, on June 1, 2010, three days after the victim was assaulted, his squad was tasked with apprehending Reid pursuant to several arrest warrants. As the officer explained, “It’s a common procedure for the fugitive unit... to be assigned cases where violent felons have . . . outstanding warrants [ ] for their apprehension.” Reid did not object to this testimony at trial, but the record shows that he filed a motion in limine to exclude bad character evidence. Although the trial court’s order on this motion is not in the appellate record, we find that the motion has preserved this issue for our review.

Pretermitting whether the officer’s general reference to “violent felons” appeared to label Reid, specifically, as a “violent felon,” the overwhelming evidence presented prior to the officer’s testimony showed that Reid had, in fact, committed several extremely violent felonies against the victim and that, as a result, investigators had obtained multiple felony warrants for his arrest. And, shortly before making the statement at issue, the same officer testified that, as a detective with the Fugitive Task Force, “my primary responsibility is apprehending people that are wanted for violent crimes.” Moreover, there was no evidence that there were any other outstanding felony warrants for Reid for offenses arising from a separate, unrelated incident, nor was there any evidence that he had previously been convicted of other violent crimes. Therefore, based upon the evidence presented, the only reasonable inference the jury could have made from the term “violent felons” was that it referred to Reid’s commission of the instant crimes.

We conclude that, when read in context, the reference to “violent felons” was not false, irrelevant, or unfairly prejudicial to Reid, and the trial court did not abuse its discretion in allowing the testimony.

2. Reid contends that the trial court abused its discretion in allowing the State to present “victim impact” evidence when the State failed to provide advance notice of its intent to present such evidence and failed to get the court’s permission. Because Reid failed to object on this basis before or during the trial, this alleged error is waived.

3. Reid contends that a witness for the State improperly commented on his right to remain silent. We disagree.

The trial transcript shows that, when the prosecutor asked the arresting officer if Reid was given his Miranda warnings at the time of his arrest, the officer responded, “Not by me, but I also didn’t ask him any questions or anything like that.” The prosecutor then asked him, “Did he speak to you?” The officer responded “Not. . . about the case. We might have had a brief conversation like, you know. . . Defense counsel objected, stating, “This is improper,” and the court sustained the objection. But, when counsel added that he wanted to make a motion, the court told him, “No, you can make it later.” After the State rested its case-in-chief, Reid’s counsel moved for a mistrial on the basis that the officer’s testimony impermissibly commented on his right to remain silent. The court denied it, and counsel did not ask for a curative instruction.

[A]n improper comment on the defendant’s silence does not necessarily require a reversal. The grant or denial of a mistrial is within the trial court’s sound discretion, and the appellate court will not interfere with the trial court’s exercise of that discretion unless it is clear that a mistrial was essential to preserve the right to a fair trial. Furthermore, testimony about the defendant remaining silent is not deemed to be prejudicial if it is made during a narrative on the part of the authorities of a course of events and apparently was not intended to, nor did it have the effect of, being probative on the guilt or innocence of the defendant. Indeed, to warrant a reversal of a defendant’s conviction, the evidence of the election to remain silent must point directly at the substance of the defendant’s defense or otherwise substantially prejudice the defendant in the eyes of the jury.

In this case, the statement at issue was elicited while the officer was describing the circumstances surrounding Reid’s arrest, the officer affirmatively stated that he had not asked Reid any questions, the comment did not point directly at the substance of Reid’s defense, and the comment could not reasonably be interpreted as commenting on Reid’s guilt or innocence. And, although the trial court did not give a curative instruction after sustaining the objection, Reid cannot assert on appeal that the “court erred in failing to take any additional, unrequested curative actions.”

Under these circumstances, we find that the court did not abuse its discretion in denying Reid’s motion for a mistrial.

4. Reid argues that the trial court improperly invited a hearsay objection to his testimony about his coercion defense. According to Reid, this made it appear that the court was advising the prosecutor, was biased in favor of the State, and was commenting on Reid’s credibility

As shown in the recitation of facts supra, while testifying at trial, Reid gave a lengthy, uninterrupted narrative about his interaction with the victim, the man who had allegedly threatened him (“Mike”), and the two other men who he claimed accosted him on the night at issue. Reid repeatedly testified, without objection, about what the men said to him and to each other but then started testifying about what he heard “Mike” say to the victim. The court interrupted, asking, “Is there an objection to hearsay?” The prosecutor responded with a hearsay objection, and the court told Reid, “Don’t tell us what anybody else said.” Reid then testified that “Mike” took information about where he lived and then threatened him. Although the State objected to the hearsay, the court allowed it because the evidence was relevant to Reid’s claim of coercion.

Later, during jury instructions, the court gave the following charge: “By no ruling or comment that the court has made during the progress of the trial has the court intended to express any opinion upon the facts of this case, upon the credibility of the witnesses, upon the evidence, or upon the guilt or innocence of the defendant.”

Former OCGA § 17-8-57 provided, in part, as follows: “It is error for any judge in any criminal case, during its progress or in his charge to the jury, to express or intimate his opinion as to what has or has not been proved or as to the guilt of the accused.” However,

[t]he trial judge is more than a mere moderator of a debate, he is a minister of justice, whose duty it is to govern the progress of the trial and, where possible, to prevent introduction of redundant or inadmissible matters. Because of the trial court’s broad discretion in regulating and controlling the business of the court, the reviewing court should never interfere with the exercise of that discretion unless it is made to appear that wrong or oppression has resulted from its abuse, or the court in some manner takes away the rights the parties have under the law.

Here, the trial judge did not express or intimate his opinion as to Reid’s guilt or what had or had not been proven, nor did he demean or admonish Reid or his counsel or suggest any bias toward the State. Further, Reid was not prevented from testifying about what the men purportedly said to him, explaining how their statements and actions affected him, and otherwise presenting his defenses. Under these circumstances, we find no error.

5. Reid complains that the trial court erred in charging the jury

(a) Reid claims that the court committed reversible error by failing to give the coercion charge he requested in writing before trial. We disagree.

Reid requested the following instruction:

A person is not guilty of a crime (except murder) if the act upon which the supposed criminal liability is based is performed under such coercion that the person reasonably believes that performing the act is the only way to prevent his/her imminent death or great bodily injury.
Coercion involves the involuntary performance of a criminal act under fear induced by threats or menaces involving a direct danger to life or great bodily injury when the danger can be avoided only by the performance of the criminal act. In order for duress or fear produced by threats or menaces to be a valid legal excuse for doing something that would otherwise be criminal, the act must have been committed under threats or menaces that show that the defendant’s life or part of the defendant’s body was in danger or that there was reasonable cause to believe that there was such danger and that the accused, in order to protect himself/ herself from the threat of harm, had no alternative course of conduct but to commit the alleged criminal act. The danger must not have been one of future violence but rather must have been one of present, imminent, and immediate violence at the time the alleged act was committed.
The burden rests upon the State to disprove coercion beyond a reasonable doubt.

It is axiomatic that “[a] jury charge must be adjusted to the evidence, apt, and a correct statement of the applicable law.” Here, there was no evidence presented to show that Reid or his family was at risk of “present, imminent, and immediate violence” at the time Reid kidnapped and repeatedly assaulted the victim. In fact, the overwhelming evidence showed that no one other than he and the victim was present from the time Reid picked her up in his car until she ran, naked and severely bleeding, to a nearby house seeking help after he pushed her through a window. Although Reid told investigators that “Mike” had coerced him into picking up a woman so “Mike” could make her a prostitute, any threat by “Mike” was, at most, a threat of future violence. More importantly, there was no evidence that “Mike” or anyone else forced Reid to commit the offenses for which he was convicted, i.e., raping the victim, forcing her to perform oral sodomy on him, repeatedly assaulting and seriously injuring her, tying her up and holding her against her will, and kidnapping her by taking her from the abandoned house to the hotel.

It follows that the trial court did not err in refusing to give the requested jury instruction because it was not adjusted to or supported by evidence presented at trial.

Further, to the extent Reid contends that the court was required to give the instruction because coercion was his sole defense, the trial transcript shows that Reid asserted another defense at trial, to wit: he denied that he had committed the offenses at issue and claimed, instead, that “Mike” had framed him. Consequently, this contention lacks merit.

(b) Reid also contends the court erred in failing to give a charge on “victim impact” evidence, even though Reid did not request such an instruction. As explained further in Division 7 (d) (ii), infra, any error was harmless in light of the overwhelming evidence of Reid’s guilt.

6. Reid contends that the trial court erred by not giving some of the witnesses the oath in front of the jury and by not telling the jury that the witnesses had been sworn. Pretermitting whether this alleged oversight constituted error, the Supreme Court of Georgia has ruled that “[o]ne who, without objection, allows a witness to go on the stand and give evidence against him without first being sworn can not, after conviction, urge the failure of the witness to take the oath, as a ground of a motion for new trial.” Because Reid failed to object on this basis at trial, this alleged error is waived.

7. Reid contends that his trial counsel provided ineffective assistance, citing to several alleged omissions.

In order to prevail on a claim of ineffective assistance of counsel, a criminal defendant must show that counsel’s performance was deficient and that the deficient perfor-manee so prejudiced the client that there is a reasonable likelihood that, but for counsel’s errors, the outcome of the trial would have been different. [] The criminal defendant must overcome the strong presumption that trial counsel’s conduct falls within the broad range of reasonable professional conduct. We accept the trial court’s factual findings and credibility determinations unless clearly erroneous, but we independently apply the legal principles to the facts.

“An appellate court evaluates counsel’s performance from counsel’s perspective at the time of trial. As a general rule, matters of reasonable tactics and strategy, whether wise or unwise, do not amount to ineffective assistance of counsel.”

(a) Reid asserts that his counsel failed to interview the victim and failed to locate and interview potential defense witnesses. During the motion for new trial hearing, however, trial counsel testified that he attempted to interview the victim, but was unable to do so, and that Reid did not tell him about any alibi or other witnesses who might testify on his behalf. Nor did Reid proffer the testimony of any such witness during the hearing. Moreover, he “failed to present any evidence as to what further research would have revealed or how any additional information would have improved his position. It is not enough to speculate that such information exists and would have made a difference.” Therefore, this claim lacks merit.

(b) Reid contends that counsel was ineffective for failing to file a motion to suppress evidence recovered from his car and from the abandoned house where he committed some of the crimes.

It is clearly settled that the mere failure to file a suppression motion does not constitute per se ineffective assistance of counsel. For example, it is not deficient to fail to file a motion which is frivolous. Even if a deficiency did result from trial counsel’s failure to file a motion to suppress, [the defendant’s] burden is to make a strong showing that if trial counsel had made a motion to suppress, the damaging evidence would have been suppressed.

(i) Reid complains that his car had been legally parked on public property and that officers illegally seized and impounded the car without a warrant. He argues that, as a result, counsel was ineffective for failing to move to suppress evidence officers subsequently recovered from the car pursuant to a search warrant.

Impoundment of a vehicle is valid only if there is some necessity for the police to take charge of the property. [] In each instance, the ultimate test for the validity of the police’s conduct is whether, under the circumstances then confronting the police, their conduct was reasonable within the meaning of the Fourth Amendment.

In this case, the arresting officer testified that the car was registered to Reid and was parked outside the house where Reid was located and arrested. According to the officer, the description of the vehicle matched the car used in the kidnapping and other crimes against the victim, and he believed that the car, itself, was evidence. Moreover, impounding was necessary to ensure that no one else gained access to the car and removed or destroyed evidence. Under these circumstances, we conclude that the officer was authorized to impound the car as an instrumentality of the crime. It follows that, because the car was lawfully impounded, there was no basis to suppress the evidence recovered pursuant to a valid search warrant. Thus, counsel cannot be deemed ineffective for failing to file a meritless or futile motion to suppress.

(ii) Reid argues that trial counsel should have moved to suppress evidence seized during the warrantless entry into the abandoned house because, in order to gain entry, police officers had to force the door open. No evidence was presented, however, to show that Reid lived in the house or had an ownership interest in it. As such, he had no expectation of privacy in the house and lacked standing to challenge the validity of the search. Thus, a motion to suppress evidence recovered from the house would have been meritless, and the failure to file such a motion does not constitute ineffective assistance of counsel.

(c) Reid contends that his arrest was illegal because (i) the magistrate who issued the warrant was not given sufficient information to determine if probable cause existed, and (ii) the officers did not have a search warrant for the house where he was arrested, which he claims belonged to a third party He argues, therefore, that counsel was ineffective for not moving to exclude his custodial statement on the basis that it was obtained following an illegal arrest.

(i) Regarding whether the arrest warrant was sufficiently supported by a showing of probable cause, the record shows that each of the ten warrants issued complied with OCGA § 17-4-41 (a), which provides as follows:

An affidavit made or warrant issued for the arrest of a person who is accused of violating the penal laws of this state shall include, as nearly as practicable, the following facts:
(1) The offense, including the time, date, place of occurrence, against whom the offense was committed, and a statement describing the offense; and
(2) The county in which the offense was committed.

Further, the detective who had interviewed the victim within hours of the crimes signed the affidavits under oath that, to the best of her knowledge and belief, Reid had committed the crimes alleged.

“A magistrate’s decision to issue a warrant based on a finding of probable cause is entitled to substantial deference by a reviewing court.” We conclude that Reid has failed to demonstrate that the arrest warrants were not supported by probable cause. It follows that counsel cannot be deemed ineffective for failing to challenge the validity of the arrest warrants, as such a challenge would have been futile.

(ii) Although Reid claims that the house where he was arrested belonged to a third party, there is no evidence in the record to support this. On the contrary, the evidence showed that Reid was arrested at the address that was listed on his car registration. Further, if Reid had no ownership or possessory interest in the house, as he claims, then he lacked standing to object to the officers’ warrantless entry to the house. Thus, this argument lacks merit.

(d) Reid claims trial counsel was ineffective for not objecting to inadmissible evidence elicited by the prosecutor’s improper questioning of witnesses.

(i) Reid claims that counsel was deficient for failing to object to evidence of his “future dangerousness,” specifically, the victim’s statement that she reported the crimes to the police because she “felt like if he did it to [her], he’ll do it to somebody else.” Pretermitting whether counsel was deficient for not objecting to this single, isolated, and brief response by the victim, Reid has failed to demonstrate that he was prejudiced thereby Given the overwhelming evidence of his guilt, he has failed to show that there is a reasonable probability that the outcome of the trial would have been different if that statement had been excluded.

(ii) Reid argues that counsel was ineffective for failing to object to the admission of a “victim impact” statement and for failing to request a jury instruction on the consideration of such statement. Reid contends, inter alia, that such testimony is inadmissible during the guilt/innocence stage of trial.

The testimony at issue is as follows: When the prosecutor asked the victim how her life had changed in the year since she was assaulted, the victim responded that she “[djropped out of school. Stopped going to school. Losing weight. I’m not sleeping. I have nightmares and stuff. Just, basically, it just — people [are] always asking me how I [got] that scar on my face. Like when it’s hot outside, ask[ing] me how I [got the] scars on my body and stuff.”

It is unnecessary for this Court to decide whether the admission of this statement was, in fact, improper or whether counsel was deficient for failing to object to it or request a jury instruction. We conclude that, given the overwhelming evidence of Reid’s guilt, there is no reasonable probability that the outcome of the trial would have been different but for the admission of this statement. “Since an appellant claiming ineffective assistance of counsel must show both deficient performance and actual prejudice stemming from that deficiency, an insufficient showing on either of these prongs relieves the reviewing court of the need to address the other prong.” Thus, Reid cannot prevail on this ineffective assistance claim.

(e) Reid claims that his counsel was ineffective for not objecting when the trial court failed to give some of the witnesses the oath in the jury’s presence. However, as noted above, Reid has failed to show that any witnesses testified without being “duly sworn,” nor has he cited to any authority that requires the court to give witnesses the oath in the jury’s presence or that requires the court to inform the jury that the witness has been sworn. Thus, he has not carried his burden of showing that counsel’s failure to object in this case constituted deficient performance.

Moreover, Reid failed to assert this ineffective assistance claim in his original motion for new trial or his two amended motions for new trial. A defendant must raise all allegations of ineffective assistance of trial counsel as soon as practicable and, when appellate counsel raises the issue of ineffective assistance in a motion for new trial, any ineffective assistance claims not raised at that time are waived. Consequently, this claim has been waived.

Decided June 7, 2017.

John W. Kraus, for appellant.

Paul L. Howard, Jr., District Attorney, Paige Reese Whitaker, Marc A. Mallon, Assistant District Attorneys, for appellee.

Judgment affirmed.

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

       See OCGA §§ 16-6-1 (a) (1); 16-6-2 (a) (2); 16-5-40 (a); 16-5-41 (a); 16-5-21 (b) (2); 16-11-106 (b) (1).

       See Jackson v. Virginia, 443 U. S. 307, 319 (III) (B) (99 SCt 2781, 61 LE2d 560) (1979).

       Although the interview was video-recorded and later transcribed, the recording was not played for the jury at trial, nor was the transcript read to the jury during trial or provided to the jury during deliberations.

        Carter v. State, 296 Ga. App. 598, 601, n. 7 (675 SE2d 320) (2009).

         Rogers v. State, 298 Ga. App. 895, 903 (6) (681 SE2d 693) (2009) (citations and punctuation omitted).

       See Ga. L. 2011, pp. 99, 100, § 2. The new Evidence Code applies only to any motion made or hearing or trial commenced on or after January 1, 2013. See Ga. L. 2011, pp. 99, 214, § 101.

        Pyatt v. State, 298 Ga. 742, 745-746 (2), n. 7 (784 SE2d 759) (2016).

       See Division 7 (d) (i), infra, regarding a related claim of ineffective assistance of counsel.

       See Pyatt, 298 Ga. at 745-746 (2), n. 7.

       See Division 7 (d) (ii), infra, regarding a related claim of ineffective assistance of counsel.

        See Pyatt, 298 Ga. at 745-746 (2), n. 7; see also Tollette v. State, 280 Ga. 100, 103 (6) (621 SE2d 742) (2005) (The defendant challenged the admissibility of testimony by the victim’s widow that the grief the victim’s mother carried over the murder of her son indirectly led to her death. Without ruling on the admissibility of this testimony, the Court held that the defendant waived his right to complain about it on appeal because he failed to object at trial.).

       See Hinton v. State, 253 Ga. App. 69, 70 (1) (557 SE2d 481) (2001) (“Generally, a party’s character and conduct in other transactions are irrelevant, and evidence of a criminal defendant’s general bad character is not admissible unless the defendant first puts his character in issue. [Former] OCGA §§ 24-2-2; 24-9-20 (b).”). In 2011, the Georgia General Assembly adopted a new Evidence Code that revised and renumbered these former Code sections, but the new Code became effective on January 1, 2013, after the 2011 trial in this case. See Ga. L. 2011, pp. 99, 100, 214, §§ 2, 101.

       The parties appear to agree that the court denied the motion at least in part, ruling that the officers would be allowed to testify about the “Fugitive Squad.”

       See Tollette, 280 Ga. at 103 (8) (“ [A] n adverse ruling by a trial court to a motion in limine seeking to limit a specific argument at trial serves to preserve the issue of the argument’s propriety for appellate review[.]”) (citation omitted).

       See Davis v. State, 272 Ga. 327, 329 (2) (528 SE2d 800) (2000) (“Evidence relevant to an issue in the case is not rendered inadmissible because it may incidentally place the defendant’s character in issue.”).

       See Williams v. State, 277 Ga. App. 106, 108 (2) (625 SE2d 509) (2005) (“We are a court for the correction of errors of law committed by the trial court where proper exception is taken, and we will not consider issues and grounds for objection, even of a constitutional magnitude, which were not raised and determined by the trial court.”).

        Miranda v. Arizona, 384 U. S. 436, 478-479 (III) (86 SCt 1602, 16 LE2d 694) (1966).

        Whitaker v. State, 283 Ga. 521, 524 (3) (661 SE2d 557) (2008) (citations and punctuation omitted).

       See Whitaker, 283 Ga. at 524 (3); see also Berryhill v. State, 285 Ga. 198, 203 (5) (674 SE2d 920) (2009).

       See Evans v. State, 190 Ga. App. 302 (2) (378 SE2d 903) (1989) (citations, punctuation and emphasis omitted).

       See Whitaker, 283 Ga. at 524-525 (3) (The Court ruled that the trial court did not abuse its discretion in denying a motion for mistrial based upon a detective’s testimony that the defendant initially waived his Miranda rights during a custodial interview but later invoked his right to remain silent, ending the interview. The testimony was part of the detective’s explanation of events, was not directed at evidence or defenses offered by the defendant, and was not probative of his guilt or innocence, and the court gave a curative instruction.).

       None of the men testified at trial.

       The Georgia General Assembly amended the statute in 2015. See Ga. L. 2015, pp. 1050, 1051, § 1.

        Haas v. State, 146 Ga. App. 729, 732 (5) (247 SE2d 507) (1978) (citation omitted).

        See Alexander v. State, 294 Ga. 345, 348 (3) (751 SE2d 408) (2013).

        Marryott v. State, 263 Ga.App. 65, 69 (5) (587 SE2d 217) (2003) (citation and punctuation omitted).

       See Marryott, 263 Ga. App. at 69 (5) (a jury charge must be adjusted to the evidence presented).

       See State v. Alvarez, 299 Ga. 213, 214-215 (1) (790 SE2d 66) (2016) (The Court affirmed the grant of a new trial based on plain error in the court’s failure to give a requested jury instruction on the defendant’s sole defense, justification, which was supported by evidence at trial.).

        See Brown v. State, 289 Ga. 259, 260-261 (2) (710 SE2d 751) (2011) (holdingthat, because the evidence of the defendant’s guilt was overwhelming, the court’s failure to give a requested charge on impeachment constituted harmless error).

       Notably, Reid does not contend that any witness was allowed to testify without taking the required oath, and the trial transcript shows that all witnesses were “duly sworn.”

       None of the cases cited by Reid in his brief hold that a witness must swear an oath in the jury’s presence or that the court must explicitly inform the jury that the witness has been sworn.

        Montes v. State, 262 Ga. 473, 475 (3) (421 SE2d 710) (1992) (citations and punctuation omitted). See also Bennett v. State, 334 Ga. App. 381, 383 (1) (a) (779 SE2d 420) (2015) (“[I]t is well settled that the failure to object to unsworn testimony waives the issue for appeal.”).

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

        Robinson v. State, 277 Ga. 75, 75-76 (586 SE2d 313) (2003) (citations and punctuation omitted).

        Grier v. State, 273 Ga. 363, 365 (4) (541 SE2d 369) (2001) (citations and punctuation omitted).

        Davis v. State, 299 Ga. 180, 191 (2) (c) (787 SE2d 221) (2016) (citation omitted); see also Domingues v. State, 277 Ga. 373, 374 (2) (589 SE2d 102) (2003) (holdingthat a defendant could not show prejudice based on his trial counsel’s alleged failure to thoroughly investigate the case and call potential witnesses because he made no proffer as to what additional investigation would have uncovered or what the witnesses would have said if they had testified).

        Mayes v. State, 229 Ga. App. 372, 373 (1) (494 SE2d 34) (1997) (citation, punctuation and emphasis omitted).

       But see Strobhert v. State, 165 Ga. App. 515 (301 SE2d 681) (1983) (“It is well established that a police seizure and inventory is not dependent for its validity upon the absolute necessity for the police to take charge of property to preserve it. They are permitted to take charge of property under broader circumstances than that.”) (citation and punctuation omitted; emphasis supplied).

        Canino v. State, 314 Ga. App. 633, 640 (3) (725 SE2d 782) (2012) (punctuation and footnote omitted).

       See Collins v. State, 171 Ga. App. 906, 907-910 (2) (321 SE2d 757) (1984) (Officers were authorized to seize an automobile when there was probable cause to believe it was used in the kidnapping and rape of the victim, even though the car was parked in the drive way of a house belonging to the defendant’s accomplice, which is where the defendant was arrested.).

       Reid does not challenge the validity of the search warrant on appeal.

        See Burke v. State, 316 Ga. App. 386, 389 (1) (a) (729 SE2d 531) (2012).

       See Brown v. State, 240 Ga. App. 321, 322 (1) (523 SE2d 333) (1999).

       See Burke, 316 Ga. App. at 389 (1) (a).

       See OCGA §§ 17-4-40 (a) (“Any judge of a superior, city, state, or magistrate court... may issue a warrant for the arrest of any offender against the penal laws, based on probable cause either on the judge’s or officer’s own knowledge or on the information of others given to the judge or officer under oath.”); 17-4-45 (form of affidavit for arrest warrant).

        Waters v. State, 281 Ga. 119, 120 (3) (636 SE2d 538) (2006).

       See Burke, 316 Ga. App. at 389 (1) (a).

       See Brown, 240 Ga. App. at 323 (1) (“[Rjights such as those conferred by the Fourth Amendment are personal in nature, and cannot bestow vicarious protection on those who do not have a reasonable expectation of privacy in the place to be searched.”) (citation and punctuation omitted).

       See Division 1 (a), supra.

       See McClain v. State, 267 Ga. 378, 383 (3) (a) (477 SE2d 814) (1996) (while reiterating that the issue of the defendant’s future dangerousness may be relevant to sentencing but not to the question of his guilt, the Court concluded that, given the overwhelming evidence of the defendant’s guilt, it was highly unlikely that the improper portion of the prosecutor’s closing argument contributed to the jury’s verdict); cf. Collier v. State, 266 Ga. App. 345, 351-355 (2) (596 SE2d 795) (2004) (holding that trial counsel’s failure to object to the prosecutor’s repeated, pervasive, and clearly improper references during closing arguments to similar transactions committed by the defendant constituted deficient performance and amounted to prejudice that required a new trial); Williams v. State, 261 Ga. App. 511, 517-518 (3) (583 SE2d 172) (2003) (This Court held that trial counsel provided ineffective assistance by failing to object to the prosecutor’s closing argument, during which she referenced the Columbine High School tragedy and improperly focused on the defendant’s future dangerousness, suggesting that, if the jury acquitted the defendant, he might commit mass murder. The Court characterized the argument as incendiary, inflammatory, and distracting, noted that the improper comments were “neither isolated nor offhand,” and found that prejudice was more likely because the evidence against the defendant “was hardly overwhelming.”).

       See Divisions 1 (b), 2, and 5 (b), supra.

        Williams v. State, 277 Ga. 853, 858 (6) (a) (596 SE2d 597) (2004) (citation and punctuation omitted).

       See footnotes 30 and 31, supra.

       See Robinson, 277 Ga. at 75-76 (defendant asserting ineffective assistance must demonstrate both deficient performance and resulting prejudice).

       See McGlocklin v. State, 292 Ga. App. 162, 163 (664 SE2d 552) (2008); see also Sparks v. State, 277 Ga. 72, 75 (4) (586 SE2d 645) (2003).


author: Rickman, Judge.

text:
    A17A0520.
    CITY OF ATLANTA v. HOGAN CONSTRUCTION GROUP, LLC.
    (801 SE2d 606)
   Rickman, Judge.

Hogan Construction Group, LLC (“Hogan”), sued the City of Atlanta (the “City”) for breach of contract and violation of Georgia’s Prompt Pay Act, alleging that the City failed to pay all amounts due for services provided on a construction project. The City sought summary judgment on both claims, and the trial court denied the motion. Following the grant of its application for interlocutory appeal, the City appeals, contending that the trial court erred by denying its motion for summary judgment on Hogan’s breach of contract claim because the requirements of City of Atlanta Code of Ordinances § 2-1292 (b) were not met and on Hogan’s Prompt Pay Act claim because the claim was waived. For reasons that follow, we affirm in part and reverse in part.

Summary judgment is proper “if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law.” OCGA § 9-11-56 (c). “We review the grant or denial of a motion for summary judgment de novo, and we must view the evidence, and all reasonable inferences drawn therefrom, in the light most favorable to the nonmovant.” (Citation and punctuation omitted.) Courtland Hotel v. Salzer, 330 Ga. App. 264 (767 SE2d 750) (2014).

So viewed, the evidence showed that in June 2011, the Atlanta City Council (the “City Council”) approved legislation authorizing the City of Atlanta Mayor (the “Mayor”) to enter into a contractual agreement with Hogan for the construction of Fire Station 28 in an amount not to exceed $3,017,000. On November 15, 2011, the City and Hogan entered into a Contractor Agreement for the construction of Fire Station 28. The agreement documents included, inter alia, the agreement between the City and Hogan, General Conditions, Legislation, and any modifications, which collectively formed the Agreement. In September 2012, the City Council authorized the Mayor to execute an amendment to the Agreement for additional funding in an amount not to exceed $181,525. The total “not to exceed amount” authorized for construction of Fire Station 28 was $3,198,525.

Hogan began work on the fire station project in “winter 2011.” A stop work order was issued when a state waterway was discovered on the project site, which resulted in delays at the project and required the relocation of the retention pond. Hogan submitted change order proposal 16 for general condition costs associated with the delay. The discovery of a Georgia Power transmission pole in the middle of the driveway where the fire trucks were to exit necessitated the relocation of the building, and the relocation resulted in a need for additional soil testing. Hogan submitted change order proposal 57 for additional third-party soil testing resulting from “revisions to the civil site plan and the relocation of the building.” Hogan submitted change order proposal 58 for work done to remediate unsuitable soils at the building site, which were discovered during the additional third-party testing.

The City paid $3,506,805.02 to Hogan for construction of Fire Station 28. In its complaint, Hogan sought payment of an additional $90,063.66, which included $68,397 for change orders 16, 57, and 58, as well as charges in the amount of $21,666.66 for millwork, cabinet work, electrical work, and signage that Hogan asserts were included in the original scope of work. The City denied liability for the amounts sought by Hogan.

In its motion for summary judgment, the City argued that it was not obligated to pay the amounts sought by Hogan because the City Council and the Mayor had not approved any contract modifications or change orders that exceeded the “not to exceed” amount authorized for the project by more than ten percent. To support this argument, the City relied upon City of Atlanta Code of Ordinances § 2-1292 (b), which provides:

Modifications exceeding ten percen t. When the cumulative dollar amount for all contract modifications and change orders exceeds ten percent of the total “not to exceed” cost authorized for the contract, all subsequent contract modifications or change orders that involve additional cost to the city shall be approved by the city council and mayor.

The City further argued that the parties waived the applicability of the Prompt Pay Act to the Agreement. The trial court denied the City’s motion in its entirety, ruling that “the fact that the City Council and Mayor have not yet approved payments exceeding the ‘not to exceed’ amount does not excuse the City from payment as a matter of law.” Although the trial court did not specifically mention the Prompt Pay Act claim, it ruled that the case “shall proceed to trial on all of the counts enumerated in Hogan’s complaint.”

1. The City contends that the trial court erred by denying its motion for summary judgment on Hogan’s breach of contract claim because the amounts sought were not approved as required by City of Atlanta Code of Ordinances § 2-1292 (b). The City argues that the failure to obtain the necessary approval entitles it to summary judgment on Hogan’s breach of contract claim in its entirety “or at the very least, in part.”

Initially, the City focuses on the limitations imposed on a municipality’s ability to enter contracts, specifically that “[wjhere a city charter specifically provides how a municipal contract shall be made and executed, the city may only make a contract in the method prescribed” and “if a local government enters a contract in abrogation of its delegated power or in excess of its authority to enter contracts, then the contract is deemed ultra vires and void.” H. G. Brown Family Ltd. Partnership v. City of Villa Rica, 278 Ga. 819, 820 (1) (607 SE2d 883) (2005); see also City of Baldwin v. Woodard & Curran, 293 Ga. 19, 27-28 (2) (c) (743 SE2d 381) (2013) (where proposal was not approved by the city council as required by the city charter, it was ultra vires and void). As the City acknowledges, however, this is not a case about the City’s authority to enter the Agreement or the validity of the Agreement. The City of Atlanta Charter gives the City the authority to “contract and be contracted with,” Ga. L. 1996, pp. 4469, 4471, § 1-102 (a), and provides that all “contracts shall be approved as to form by the city attorney” and signed by the Mayor or someone designated by the Mayor. Ga. L. 1996, pp. 4469, 4543, § 6-401 (a). Here, the City Council authorized the Mayor to enter into a contractual agreement with Hogan for the construction of Fire Station 28 and an amendment to that agreement. The Agreement was approved as to form by the City Attorney, approved by the Chief Procurement Officer, and signed by the Mayor. Thus, the Agreement was not entered by the City “in abrogation of its delegated power or in excess of its authority to enter contracts.” H. G. Brown Family, 278 Ga. at 820 (1).

Next, the City argues that the language and purpose of § 2-1292 (b) demonstrate that the City is not obligated to pay the amounts sought by Hogan.

The principles that guide our consideration of the meaning of statutes are settled ones, and we apply those same principles when we consider the meaning of an ordinance. As such, we look first to the text of the ordinance, and if the text is clear and unambiguous, we look no further, attributing to the ordinance its plain meaning. As we look to the words of the ordinance, we attribute to those words their ordinary, logical, and common meanings, unless a clear indication of some other meaning appears. And we read the ordinance as a whole according to the natural and most obvious import of the language, without resorting to subtle and forced constructions, for the purpose of either limiting or extending its operation.

(Citations and punctuation omitted.) Daniel Corp. v. Reed, 291 Ga. 596, 597 (732 SE2d 61) (2012).

The language of the ordinance is clear and unambiguous with respect to the threshold amount requiring approval of the City Council and Mayor. It is undisputed that the City paid Hogan $308,280.02 over the “not to exceed” cost of the Agreement, which is $11,572.48 less than ten percent of the total “not to exceed” cost. Thus, at least as to the $11,572.48 that falls below the ten percent threshold, the provisions of § 2-1292 (b) would not apply.

With respect to the remaining amounts, the City contends that it has no liability because those amounts have not been approved. The City is correct that the language of the ordinance clearly states that the City Council and the Mayor must approve any contract modifications and change orders that exceed ten percent of the total “not to exceed” cost authorized for the contract. But as noted by the trial court, the ordinance does not state when the approval must take place. And we cannot add such a provision to the ordinance. See Great West Cas. Co. v. Bloomfield, 303 Ga. App. 26, 29 (2) (693 SE2d 99) (2010) (court’s duty is neither to add to nor to take away from laws that are passed but to apply them as written). Although we take no position on whether the amounts sought by Hogan shouldbe approved, the plain language of § 2-1292 (b) does not relieve the City of any obligation to pay Hogan these amounts solely because they were not approved prior to the work being performed, or, as the City suggests, at the precise moment when the costs exceeded the ten percent threshold.

The City also contends that it had no duty to seek approval of the amounts sought by Hogan. The Agreement does not address how approval from the City Council and Mayor was to be obtained for amounts in excess of ten percent of the contract price, but here, one of the City’s project managers for this project deposed that he told Hogan that he would present its claims to the City Council if he was convinced that the amounts were legitimately due. Furthermore,

in Georgia, every contract imposes upon each party a duty of good faith and fair dealing in the performance of their respective duties and obligations. This implied duty requires both parties to a contract to perform their promises and provide such cooperation as is required for the other party’s performance.

(Citations and punctuation omitted.) U. S. Lawns v. Cutting Edge Landscaping, 311 Ga. App. 674, 678 (1) (716 SE2d 779) (2011). Under the terms of the Agreement, the City had an express duty to consider any claims properly submitted by Hogan in a timely manner, to issue a written determination, “and if it deems appropriate accept such parts of the claim as they find in good faith to be proper.” The record does not show that the City ever issued a written determination as to the claims at issue or that the City ever sought approval of those claims from the City Council and Mayor. Whether the City exercised good faith in the performance of the Agreement and the consideration of Hogan’s claims is a factual question for the jury to resolve. See Capital Health Mgmt. Group v. Hartley, 301 Ga. App. 812, 817-818 (1) (689 SE2d 107) (2009). We conclude that the trial court did not err in denying the City’s motion for summary judgment on Hogan’s breach of contract claim and therefore affirm that ruling.

Decided June 7, 2017.

2. The City contends that the trial court erred by denying its motion for summary judgment on Hogan’s claims under the Georgia Prompt Pay Act because the claims were waived in the Agreement.

The Georgia Prompt Pay Act sets forth time limits for payments to contractors and provides for interest on late payments and attorney fees to the prevailing party in an action to enforce a claim under the Act. OCGA §§ 13-11-4, 13-11-7 (a), 13-11-8. The Act also provides:

Nothing in this chapter shall prohibit owners, contractors, and subcontractors from agreeing by contract to rates of interest, payment periods, and contract and subcontract terms different from those stipulated in this Code section, and in this event, these contractual provisions shall control. . . .

OCGA § 13-11-7 (b).

The Agreement includes a provision addressing when progress payments will be paid and a provision for the payment of interest based on the prime rate for failure to issue progress payments within 60 days of approval. General Condition 38.4 (J) addresses the basis for the prime rate and specifically states that “[t]his clause shall supersede the Georgia Prompt Pay Act and any modifications or successors to it.” These contractual provisions would control any claim for timely payment or interest that Hogan has asserted, and the Prompt Pay Act would not apply to those claims. Accordingly, we reverse the denial of summary judgment to the City on Hogan’s claims for prompt payment and interest under the Prompt Pay Act. See OCGA § 13-11-7 (b); see generally Pipe Solutions v. Inglis, 291 Ga. App. 328, 331 (2) (661 SE2d 683) (2008) (where Prompt Pay Act clearly provides that it is inapplicable to certain claims, court should follow plain language of statute).

The Agreement does not, however, address attorney fees and would not bar any valid claim for attorney fees under the Prompt Pay Act. We therefore affirm the denial of the City’s motion for summary judgment as to Hogan’s claim for attorney fees under the Prompt Pay Act.

Judgment affirmed in part and reversed in part.

Ellington, P. J., and Andrews, J., concur.

Cathy Hampton, Alisha I. Wyatt-Bullman, Laura S. Burton, for appellant.

Hudson Parrott Walker, Brad C. Parrott, Claire A. Williamson, for appellee.

       In addition to the amounts below the ten percent threshold, Hogan contends that the ordinance does not apply to $21,666.66 of the amounts sought because they were included in the original scope of work and are not contract modifications or change orders. We agree that § 2-1292 (b) only applies to additional costs associated with “contract modifications or change orders,” but take no position on whether these particular amounts are otherwise recoverable.

       We note that as a practical matter, it would have been impossible for Hogan to comply with the terms of the Agreement and to obtain prior approval of its change order proposals because the Agreement required Hogan to continue working regardless of any disputes or disagreements with the City about change orders or other matters.

       Contrary to the City’s argument, General Condition 38.4 (J) only applies to interest.