text:
    A13A1897.
    McALLISTER v. THE STATE.
    (754 SE2d 376)
   DOYLE, Presiding Judge.

Daniel J. McAllister was arrested and charged with driving under the influence with an unlawful blood alcohol level (“DUI per se”); driving under the influence while less safe to do so (“DUI less safe”); and failure to maintain his lane. McAllister filed a motion to suppress the results of his blood alcohol test, arguing that the warrant acquired for the blood draw was invalid based on his previous refusal to submit to testing under Georgia’s Implied Consent Law. The trial court denied his motion, and this appeal followed. For the reasons that follow, we affirm.

First, when a motion to suppress is heard by the trial judge, that judge sits as the trier of facts. The trial judge hears the evidence, and his findings based upon conflicting evidence are analogous to the verdict of a jury and should not be disturbed by a reviewing court if there is any evidence to support them. Second, the trial court’s decision with regard to questions of fact and credibility must be accepted unless clearly erroneous. Third, the reviewing court must construe the evidence most favorably to the upholding of the trial court’s findings and judgment.

So viewed, the evidence presented at the hearing on the motion to suppress establishes that Officer Daniel Higgins of the Cherokee County Sheriff’s office was manning a vehicle safety checkpoint on March 30, 2012. Approximately 500 feet before the roadblock, signs alerted drivers to have their license ready, and the drivers were detained for only a few seconds if the officers did not detect any violations.

Deputy George Rose, a POST-certified officer trained in detecting intoxicated drivers, testified that he was standing at the checkpoint at approximately 10:35 p.m., guiding traffic with his flashlight, when he witnessed a white Cadillac approach the checkpoint. The vehicle’s left turn signal was activated, and as it approached him, Deputy Rose noticed the vehicle’s passenger side tires twice cross over the middle line dividing the lanes of traffic. McAllister stopped his vehicle beside Deputy Rose, and he inquired about what was happening, to which inquiry Deputy Rose responded by asking whether McAllister had seen the bright orange “checkpoint” signs indicating that drivers should have their licenses ready to present.

Deputy Rose noticed that McAllister was nervous while speaking and that his eyes were red and glassy. McAllister’s speech was slurred and vacillated from being overly slow to speeding up, he seemed generally confused, and he had to pause before answering the deputy’s questions. After asking McAllister for his license twice, Deputy Rose noted that he fumbled with his wallet to produce it. The deputy also detected the odor of alcoholic beverage emanating from the vehicle, but McAllister stated he had not had anything to drink that evening.

Thereafter, in order to conduct further investigation without impeding traffic, Deputy Rose asked McAllister to pull off to the side of the road, indicating a spot directly in front of the deputy; however, McAllister traveled well past the spot, to the point at which the deputy had to yell for him to stop. McAllister slammed on his brakes, and after stepping out of the car, he appeared unsteady on his feet.

Deputy Rose began performing several field sobriety evaluations, including the horizontal gaze nystagmus, during which the deputy observed six out of six clues for impairment. McAllister, however, stated that he had spinal problems, so Deputy Rose did not perform the walk and turn or one-leg stand evaluations; McAllister also stated that “medical problems” would prevent him from completing the Romberg Evaluation, which consisted of silently counting to 30. McAllister then became uncooperative when Deputy Rose attempted to perform other evaluations of him, and at that point, based on the totality of his observations of McAllister, Deputy Rose arrested him for driving under the influence.

Deputy Rose read McAllister the implied consent warning for individuals 21 and over, and McAllister refused to submit to chemical testing. The deputy placed McAllister in a patrol car and transported him to the local jail, where the deputy completed an application for a warrant for a blood test of McAllister. Deputy Rose presented his warrant application in person to a local magistrate, who signed it, and thereafter, McAllister was transported to a local hospital for a blood draw, the results of which established a blood alcohol level of 0.127 grams.

At the conclusion of the suppression hearing, the trial court denied McAllister’s motion, finding that a valid search warrant could be used to acquire a blood sample for the purpose of procuring evidence of intoxication even if, like here, a defendant previously refused to submit to testing pursuant to the implied consent law. This appeal followed.

1. McAllister first argues that the trial court erred by finding that the search warrant was valid because he had refused testing under OCGA § 40-5-67.1, and therefore, the officer was prohibited from applying for a warrant. We disagree.

In 2005, the Supreme Court of Georgia addressed such an argument regarding the implied consent law in effect at that time, and the Court determined that

[u] nder the... law, the consequences of refusing the requested testing are the possibility of admission of such refusal at a criminal trial as well as suspension of the driver’s license. These legislatively-created sanctions do not include being compelled to submit to testing through the use of a search warrant. Otherwise, the right of refusal under the implied consent law would be rendered meaningless. The prohibition against forced testing is not altered by the fact that the investigating officer might have the probable cause necessary to support the issuance of a search warrant. Inasmuch as the implied consent law contemplates arrest, the presence of probable cause that the individual was operating a motor vehicle in violation of OCGA § 40-6-391 is a prerequisite.

Had OCGA § 40-5-67.1 remained as written at that time, then McAllister could not have his blood drawn pursuant to the warrant. In 2006, however, the legislature amended OCGA § 40-5-67.1, adding subsection (d.l), which states that “[n]othing in this Code section shall be deemed to preclude the acquisition or admission of evidence of a violation of Code Section 40-6-391 if obtained by voluntary consent or a search warrant as authorized by the Constitution or laws of this [S]tate or the United States.” The plain meaning of this language and its addition to OCGA § 40-5-67.1 on the heels of the Supreme Court’s decision in Collier support the State’s argument that the search warrant used to take McAllister’s blood was valid under the implied consent statute.

While McAllister asserts that this reading of the statute renders meaningless the language of OCGA § 40-5-67.1 (d): “no test shall be given” if a driver refuses to submit to chemical testing after an officer reads the implied consent notice, his argument is without merit. The legislature’s addition of subsection (d.l) clarified that this language applies only to warrantless chemical tests given by the State in the event that a driver has refused such testing after the implied consent warning. Practically speaking, the language to which McAllister points also is not meaningless simply because the State may now apply for a warrant to perform the test because it is only a possibility, and in the face of a refusal the officer must be able to present sufficient evidence of probable cause to a magistrate in order to obtain a warrant for the test. Thus, if the officer does not have sufficient cause to obtain the warrant, then no warrant could be issued, and such a test will not be authorized.

Accordingly, this enumeration is without merit, and the trial court did not err by denying McAllister’s motion to suppress evidence on this ground.

2. McAllister also contends that as applied, the statutory scheme in the amended OCGA § 40-5-67.1 (d.l) violated his right to due process. Specifically, McAllister contends that Deputy Rose’s failure to explain that he could still obtain a search warrant in order to force chemical testing during his explanation of the implied consent law resulted in a violation of McAllister’s right to due process.

McAllister raised this constitutional issue in his amended motion to suppress, but McAllister did not raise this issue at the hearing on the motion to suppress nor did the trial court explicitly rule on it in its order denying the motion. Thus, McAllister failed to obtain a distinct ruling on the constitutional issue, and therefore, this enumeration presents nothing for this Court to review.

Accordingly, the trial court did not err by denying McAllister’s motion to suppress the result of his blood alcohol test obtained by a warrant after he declined to submit to chemical testing pursuant to the implied consent statute.

Judgment affirmed.

McFadden and Boggs, JJ., concur.

Decided January 22, 2014.

Hetzel Weeks, Russell Z. Hetzel, for appellant.

Jessica K. Moss, Solicitor-General, Barry W. Hixson, Assistant Solicitor-General, for appellee.

       OCGA § 40-6-391 (a) (5).

       OCGA § 40-6-391 (a) (1).

       OCGA § 40-6-48.

         The trial court issued a certificate of immediate review on March 21, 2013.

       (Punctuation omitted.) Brown v. State, 293 Ga. 787, 803 (3) (b) (2) (750 SE2d 148) (2013), quoting Miller v. State, 288 Ga. 286 (1) (702 SE2d 888) (2010).

       (Citations omitted.) State v. Collier, 279 Ga. 316, 317-318 (612 SE2d 281) (2005).

       See Ga. L. 2006, p. 329, § 2.

       See McMullen v. State, 316 Ga. App. 684, 693-694 (3) (a), n. 43 (730 SE2d 151) (2012), citing Reeves v. Upson Regional Med. Center, 315 Ga. App. 582, 586 (2) (726 SE2d 544) (2012) (“[W]hen we consider the meaning of a statute, we always must presume that the General Assembly means what it says and says what it means, and an unambiguous statute must be afforded its plain meaning.”) (citation and punctuation omitted); In the Interest ofL. J., 279 Ga. App. 237,238 (630 SE2d 77Í) (2006) (“[When] the language of a statute is plain and susceptible to only one natural and reasonable construction, courts must construe the statute accordingly”). Cf. Williams v. State, 297 Ga. App. 626, 627-628 (677 SE2d 773) (2009) (addressing the retroactive effect of this subsection and determining that the amendment constituted a substantive change thereby preventing retroactive application).

       See City of Decatur v. DeKalb County, 284 Ga. 434, 436 (1) (668 SE2d 247) (2008). Compare with Rouse v. Dept. of Natural Resources, 271 Ga. 726, 727-728 (1) (524 SE2d 455) (1999).


source: Caselaw Access Project

author: MCMILLIAN, Judge.

license: Public Domain

text:
    A13A1684.
    EMERY v. CHATTOOGA COUNTY.
    (753 SE2d 149)
   MCMILLIAN, Judge.

Appellant Gerald W. Emery appeals following the denial of his petition to set aside a declaration of taking filed by Chattooga County, Georgia (“County”). As more fully set forth below, we now affirm.

The record shows that the property that is the subject of the taking (the “Property”) is a 60-foot ingress and egress easement across an unpaved road that runs through Emery’s property and provides access to approximately 20 residents living along Hairs Lake Road. Pursuant to OCGA § 32-3-1, the County filed a declaration of taking to acquire Emery’s interest in the easement after the other property owners adjoining the road approached the County and agreed to convey their interest in the easement to the County for the purpose of the road being made part of the county road system, meaning, in this case, that it would be paved and maintained by the County. Emery filed a petition to set aside the taking, which he thereafter amended several times. Following a hearing, the trial court denied the petition, and this appeal ultimately followed.

As stated above, the County filed its declaration of taking in this case under OCGA § 32-3-1 (a), which allows the condemning authority to acquire a fee simple, or lesser interest, in property for “present or future public road or other transportation purposes.” Under subsection (b) of that Code section, public road purposes include, among other things, “rights of way... and any and all other purposes which may be reasonably related to the development, growth, or enhancement of the public roads of Georgia.” The County stated in the declaration of taking that the Property would be used for the purpose of establishing a public road right-of-way and for the specific purpose of construction, maintenance and repair of a road right-of-way and other related purposes.

OCGA § 32-3-11 authorizes the superior court to set aside, vacate or annul a declaration of taking under certain restricted circumstances, including the “abuse or misuse of the powers of this article.” OCGA § 32-3-11 (b) (3). But the statute further provides that the “power of the court in this respect shall not be construed as extending to a determination of questions of necessity, [and] there shall be a prima-facie presumption that the property or interest condemned is taken for and is necessary to the public use provided for in this article.” OCGA § 32-3-11 (a). Further, Emery, as the condemnee, has the burden of proof to show that the taking should be set aside under OCGA § 32-3-11. Chamlee v. Dept. of Transp., 189 Ga. App. 334, 336 (5) (375 SE2d 626) (1988).

In two related enumerations of error, Emery argues the County abused or misused its discretion when it condemned the property because the evidence showed that the condemnation was done for a few private citizens, served no public purpose and was not “ ‘reasonably related to the development, growth, or enhancement of the public roads of Georgia.’ ”

It is true, as Emery argues, that “[t]he condemnor is not authorized to exercise the power of eminent domain to acquire property to be used by private individuals for private use and private gain.” Dept. of Transp. v. Livaditis, 129 Ga. App. 358, 361 (3) (199 SE2d 573) (1973). And it is likewise true that the evidence in this case showed that the decision to condemn the property was not made until the surrounding landowners approached the county commissioners and requested that the County acquire the road. Further, the record reflects that the road primarily would be used for ingress and egress by the approximately 20 residents who lived there or who currently owned land there and might build there in the future and that the general public would not frequently use the road.

However, there is nothing to show that the general public would not have the right to use the road. As we have explained,

[i]f the public generally have a right and but one person uses the [road], the purpose is deemed to be public; but if the public generally are excluded, and the use of the [road] is limited to that of an individual enterprise, it is not public, and the power of eminent domain can not be exercised for [that] purpose.

Decided January 6, 2014

Reconsideration denied January 23, 2014

Gammon, Anderson & McFall, Bryan C. Villarreal, for appellant.

Farrar & Corbin, Christopher L. Corbin, for appellee.

Livaditis, 129 Ga. App. at 362 (3). In other words, “[t]he amount of usage by the general public is not controlling.” Id. at 363 (3). Austin Enterprises v. DeKalb County, 222 Ga. 232, 233 (149 SE2d 461) (1966). See also Back v. City of Warner Robins, 217 Ga. App. 326, 328 (3) (457 SE2d 582) (1995). Further, evidence was also presented that the fire chief had approached the County about acquiring the road after the fire department had responded to a fire in the area, and testimony was presented that paving and maintaining the road would be of benefit to emergency responders. Lastly, the decision to condemn the property was consistent with the County’s policy to acquire, improve and maintain roads as parts of the county were developed, and the residents requested that they do so. Under these circumstances, we cannot say that the County acted in bad faith, that it abused or misused its discretion, or that it exceeded its authority when it acted to condemn the property. Accordingly, the superior court did not err by refusing to set aside the taking under OCGA § 32-3-11. Back, 217 Ga. App. at 328 (3).

Judgment affirmed.

Andrews, R J., and Dillard, J., concur.

       The superior court originally issued an order denying the petition on November 1, 2012, and Emery filed a notice of appeal from that order on November 19, 2012. The County moved to dismiss this appeal because Emery’s demand for a jury trial on the issue of value of the property remained pending in the superior court. The superior court vacated its original order denying Emery’s petition to set aside, and Emery dismissed his challenge to the value of the property with prejudice. The superior court entered another order denying Emery’s motion to set aside on April 1, 2013, and Emery timely filed an appeal from that order to this Court. Because it now appears that no issue concerning value remains pending below and that the appeal from the April 1, 2013 order was timely filed, we have jurisdiction of this appeal. TJW Enterprises, LLLP v. Henry County, 261 Ga. App. 547 (583 SE2d 144) (2003); Skipper v. Dept. of Transp., 197 Ga. App. 634, 635 (1) (a) (399 SE2d 538) (1990).

       Emery argues that under Brannen v. Bulloch County, 193 Ga. App. 151 (387 SE2d 395) (1989), the public interest is not served if the taking is based solely on what is best for private entities. But, as we explained in Back, Brannen “was an extreme case in which ‘the evidence established that the project was undertaken with the improper intent to benefit one private powerful entity,’ id. at 156, and its holding is limited to its extreme facts.” (Punctuation omitted.) Back, 217 Ga. App. at 328 (3) (quoting Brannen, 193 Ga. App. at 156).


author: Boggs, Judge.

text:
    A11A2257.
    THE STATE v. BROWN.
    (754 SE2d 380)
   Boggs, Judge.

In Brown v. State, 293 Ga. 787 (750 SE2d 148) (2013), the Supreme Court reversed the judgment of this Court in State v. Brown, 315 Ga. App. 154 (726 SE2d 654) (2012). We therefore vacate our earlier opinion, adopt the opinion of the Supreme Court as our own, and affirm the trial court’s judgment.

Decided January 23, 2014.

Patrick H. Head, District Attorney, Anna Green Cross, Richele P. Anderson, Assistant District Attorneys, for appellant.

John A. Steakley, for appellee.

Judgment affirmed.

Barnes, P. J., Miller, Dillard, Ray, Branch and McMillian, JJ., concur.


author: Dillard, Judge.

text:
    A13A1848.
    IN THE INTEREST OF L. T., a child.
    (754 SE2d 380)
   Dillard, Judge.

L. T., a minor child, appeals the trial court’s denial of his motions to seal his juvenile-court record. Because we conclude that L. T.’s motions were filed prematurely, we affirm.

L. T. was 13 years old when he was arrested and charged with, inter alia, two counts of aggravated child molestation. The matter was ultimately transferred to juvenile court with the consent of the State. L. T. entered an Alford plea and contracted with the State to accept the imposition of sentence, including psychological treatment. He was thereafter adjudicated delinquent and received 30 days’ detention in the Regional Youth Detention Center (“RYDC”), two years’ probation with one year of house arrest, and he was ordered to complete Project Pathfinder and juvenile sex offender treatment. During the adjudication proceedings, L. T. filed a motion to seal the juvenile-court record, which the juvenile court denied.

Following adjudication and during the pendency of probation, L. T. filed three additional motions to seal the juvenile-court record. The juvenile court denied each motion based, in part, upon the court’s determination that the motions were filed prematurely under the terms of the relevant statute, OCGA § 15-11-79.2 (b), but the court expressly stated that it would consider sealing the record at a later date. L. T. contends that the juvenile court erred in its interpretation of the statutory requirements of OCGA § 15-11-79.2 (b), which provides as follows:

On application of a person who has been adjudicated delinquent or unruly or on the court’s own motion, and after a hearing, the court shall order the sealing of the files and records in the proceeding ... if the court finds that:
(1) [t]wo years have elapsed since the final discharge of the person;
(2) [sjince the final discharge of the person he or she has not been convicted of a felony or of a misdemeanor involving moral turpitude or adjudicated a delinquent or unruly child and no proceeding is pending against the person seeking conviction or adjudication; and
(3) [t]he person has been rehabilitated.

At issue in the case sub judice is the meaning of the phrase “final discharge” in the context of subsection (b) (1). The juvenile court concluded (in denying L. T.’s motions) that the statute requires that at least two years elapse from the time L. T. completes the terms of his sentence and is released from probation before he is entitled to a sealed record. L. T, on the other hand, contends that “final discharge” refers to the date of adjudication (i.e., the date on which L. T. was discharged from the delinquency petition) or, alternatively, the date on which L. T. was released from detention at the RYDC.

And in considering this question of statutory interpretation, we necessarily begin our analysis “with familiar and binding canons of construction.” Indeed, in analyzing the meaning of a statute, our charge as an appellate court is to “presume that the General Assembly meant what it said and said what it meant.” And toward that end, “we must afford the statutory text its plain and ordinary meaning,” consider the text contextually, read the text “in its most natural and reasonable way, as an ordinary speaker of the English language would,” and seek to “avoid a construction that makes some language mere surplusage.” In sum, where the language of a statute is plain and susceptible of only one natural and reasonable construction, an appellate court must construe the statute accordingly.

Construing the aforementioned text with the foregoing principles in mind, we conclude that the juvenile court was correct in its determination that L. T.’s motions were prematurely filed. And while it is certainly true that the General Assembly did not define the phrase “final discharge” in the statute, it used this same phrase in subsection (c) of the statute, noting that “[reasonable notice of the hearing required by subsection (b) of this Code section shall be given to... [t]he authority granting the discharge if the final discharge was from an institution or from parole . . . .” Suffice it to say, this language would have absolutely no meaning if a child was considered to have been granted a final discharge upon the adjudication of delinquency. Further, the General Assembly’s inclusion of “parole” in subsection (c) indicates that it did not intend to limit its reference to “final discharge” from confinement, but instead sought to include the State’s continued exercise of supervision or control over a child.

Consequently, we conclude that L. T.’s motions to seal the record were indeed premature and the juvenile court did not err in denying them. This holding renders moot L. T.’s challenge to any additional language and/or secondary reasoning that the juvenile court employed in its denial orders.

Decided January 23, 2014.

Corso, Kennedy & Campbell, Arturo Corso, for appellant.

Lee Darragh, District Attorney, J. David West, Jr., Elizabeth D. Simmons, Assistant District Attorneys, for appellee.

Judgment affirmed.

Andrews, P. J., and McMillian, J., concur.

        See North Carolina v. Alford, 400 U. S. 25 (91 SCt 160, 27 LE2d 162) (1970).

       Effective January 1, 2014, OCGA § 15-11-79.2 has been repealed and replaced by OCGA § 15-11-701, which applies to all offenses that occur and juvenile proceedings that commence on or after that date. Although some amendments were made to the statute, the essential language addressed herein remains unchanged.

        Martinez v. State, 325 Ga. App. 267, 273 (750 SE2d 504) (2013).

        Deal v. Coleman, 294 Ga. 170, 172 (1) (a) (751 SE2d 337) (2013) (citation and punctuation omitted); see also Arby’s Restaurant Group, Inc. v. McRae, 292 Ga. 243, 245 (1) (734 SE2d 55) (2012) (same); Martinez, 325 Ga. App. at 273 (same).

        Martinez, 325 Ga. App. at 273; see also Deal, 294 Ga. at 172 (1) (a) (“To that end, we must afford the statutory text its plain and ordinary meaning”) (citation and punctuation omitted); State v. Able, 321 Ga. App. 632, 636 (742 SE2d 149) (2013) (“A judge is charged with interpreting the law in accordance with the original and/or plain meaning of the text at issue (and all that the text fairly implies)... .”); Singletary v. State, 310 Ga. App. 570, 572 (713 SE2d 698) (2011) (“In construing these statutes, we apply the fundamental rules of statutory construction that require us to construe the statutes according to their terms, [and] to give words their plain and ordinary meaning . .. .”) (citation and punctuation omitted).

        Martinez, 325 Ga. App. at 273; see also Arizona v. Inter Tribal Council of Arizona, Inc.,_ U. S._(133 SCt 2247, 2254, 186 LE2d 239) (2013) (“Words that can have more than one meaning are given content, however, by their surroundings.”) (citation and punctuation omitted); Deal, 294 Ga. at 172 (1) (a) (“[W]e must view the statutory text in the context in which it appears].]”); Scherr v. Marriott Intern., Inc., 703 F3d 1069, 1077 (7th Cir. 2013) (“In statutory construction cases, we begin with the language of the statute itself and the specific context in which that language is used”) (citation and punctuation omitted); see OCGA § 1-3-1 (b) (“In all interpretations of statutes, the ordinary signification shall be applied to all words . . . .”).

        Deal, 294 Ga. at 172-73 (1) (a); see also Martinez, 325 Ga. App. at 273.

        Ga. Transmission Corp. v. Worley, 312 Ga. App. 855, 856 (720 SE2d 305) (2011) (punctuation omitted); see also Singletary, 310 Ga. App. at 572 (same).

        See Deal, 294 Ga. at 172-73 (1) (a); Martinez, 325 Ga. App. at 273.

       OCGA § 15-11-79.2 (c).

       We flatly reject L. T.’s assertion that the juvenile court abused its discretion in denying L. T.’s motion to seal the record pursuant to OCGA § 15-11-79.2 (e), which provides that “[t]he court may seal any record containing information identifying a victim of an act which, if done by an adult, would constitute a sexual offense under Chapter 6 of Title 16 [including aggra vated child molestation].” It was well within the juvenile court’s discretion to reject then thirteen-year-old L. T.’s meritless assertion that he was a victim within the meaning of subsection (e) based upon the acts that the four-year-old victim named in the delinquency petition allegedly performed on him during the events in question. See OCGA § 15-11-79.2 (e). And it is worth noting that the four-year-old victim’s parents explicitly requested that the juvenile court not seal the record, expressing their concern and belief that L. T. had yet to accept any responsibility for his actions.


author: Phipps, Chief Judge.

text:
    A13A2144.
    DOWDELL v. THE STATE.
    (754 SE2d 383)
   Phipps, Chief Judge.

In connection with a bar room brawl that left Carvetta Moore with injuries, Hadji Dowdell was convicted (along with others) of: (i) aggravated assault, by striking Moore with glass bottles, fists, and feet; and (ii) violation of the Georgia Street Gang Terrorism and Prevention Act, by, as a person associated with a criminal street gang, participating in criminal gang activity through the commission of the aggravated assault. In this appeal, Dowdell challenges the sufficiency of the evidence; he also challenges the admission of certain evidence as hearsay. Because Dowdell has shown no reversible error, we affirm.

1. When an appellant challenges the sufficiency of the evidence to support the 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 evidence, as presented through testimony of the state’s witnesses, showed the following. One evening in July 2009, Dowdell, his brother, and their associate Manasseh Skinner were at a nightclub. The three were among several members of the Black Gangster Disciples street gang who were present at the club. In keeping with gang practice to assert dominance over their territory, various gang members including Dowdell’s brother and Skinner were on the dance floor flashing gang hand signs and dancing roughly, purposefully bumping into other club patrons. As other patrons began to protest, a physical altercation ensued.

Dowdell’s brother struck Moore, who was not a gang member, in the back of her head with a beer bottle. And as one witness recounted, “[J]ust out of reflex, [Moore] turned around and swung and knocked [Dowdell’s brother] into the chair.” Moore similarly testified, “After [Dowdell’s brother] hit me, that’s when I struck him. I punched him. ... I hit him with my fist.” During the escalating altercation, Skinner was among several others who struck Moore and punched her in the head. When Moore walked toward the exit door, Dowdell hit her across the face with a bottle. Moore was also kicked by Skinner. Bleeding profusely from the back of her head and from her face, Moore was taken by ambulance, to a hospital. Dowdell, his brother, and Skinner were later arrested.

Dowdell argues that the evidence did not authorize the jury to find that he had committed aggravated assault upon Moore. He cites evidence that he struck Moore only after she knocked down his brother with her fist. Further, Dowdell cites evidence that, before the night in question, Moore had participated in bar and street fights and was already on probation for a 2007 aggravated assault.

But any evidentiary weaknesses, conflicts, or inconsistencies were for the jury to resolve. We do not speculate which evidence the jury chose to believe or disbelieve. Where as here, there was sufficient evidence, even though contradicted, to support each fact necessary to make out the state’s case, we must uphold the jury’s verdict.

Dowdell’s evidentiary challenge consequently demonstrates no basis for reversing his convictions.

Decided January 23, 2014.

Troy E. Golden, for appellant.

Gregory W. Edwards, District Attorney, for appellee.

2. Dowdell contends that the trial court erred by allowing hearsay testimony when the state called an officer to lay the foundation for demonstrative exhibits displaying hand signs, clothing, and other traits identified by the officer to be associated with street gangs. Dowdell objected on the ground that the officer’s knowledge of these traits was based on hearsay.

The officer’s testimony was based on his personal dealings and interviews with gang members and leadership, as well as his training and field experience with gangs as a member of the local law enforcement Gang Task Force. Pretermitting whether the testimony was hearsay because it amounted to the officer repeating what he had been told by others, the record demonstrates that the content of the testimony — identifying gang hand signs, dress, and behavior — was cumulative of testimony by other witnesses (including a gang member) who testified from personal knowledge of the gang and who also identified the hand signs, dress, greetings, and behavior at issue as street gang activity.

The erroneous admission of hearsay is harmless where, as here, legally admissible evidence of the same fact is introduced. In such a case, the hearsay is cumulative and without material effect on the verdict. Because it is highly probable that the cumulative and immaterial hearsay did not contribute to the guilty verdict . . . , a reversal of [the judgment of] conviction is not necessary.

Judgment affirmed.

Ellington, P. J., and Branch, J., concur.

       OCGA §§ 16-2-20; 16-5-21 (a) (2); 16-15-1 et seq.

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

       There was conflicting evidence as to whether Skinner was a member of the Black Gangster Disciples or a different gang, but the evidence was consistent that Skinner was in a gang, and any conflict was for resolution by the jury. See generally Rankin v. State, 278 Ga. 704, 705 (606 SE2d 269) (2004).

       Dowdell, his brother, and Skinner were tried together and convicted of their respective charges. This court has affirmed Dowdell’s co-defendants’ convictions. Skinner v. State, 318 Ga. App. 217 (733 SE2d 506) (2012).

        Dix v. State, 307 Ga. App. 684, 686 (1) (705 SE2d 903) (2011) (punctuation and footnote omitted).

       See Jackson, supra; OCGA § 24-4-8 (2010) (providing that the testimony of a single witness is generally sufficient to establish a fact). “Georgia adopted a new Evidence Code effective January 1,2013.” Leslie v. State, 292 Ga. 368, 369 (2) (a), n. 3 (738 SE2d 42) (2013). See Ga. L. 2011, pp. 99, 214, § 101 (providing that the new Evidence Code “shall apply to any motion made or hearing or trial commenced on or after [January 1,2013]”). Dowdell’s trial was held in 2010.

        Felder v. State, 270 Ga. 641, 646 (8) (514 SE2d 416) (1999) (citations omitted); see Skinner, supra at 218-219 (1).


author: McFadden, Judge.

text:
    A13A2209.
    CANNELLA v. GRAHAM.
    (754 SE2d 385)
   McFadden, Judge.

Angelina Cannella appeals the grant of a directed verdict to Leon Graham on Cannella’s petition for modification of custody, visitation, child support and contempt. Because the trial court’s written order reflects that the trial court applied the wrong standard, we must vacate and remand.

Cannella and Graham are the parents of a daughter born in August 2008. Cannella and Graham never married, but Graham legitimated the child in September 2011. As part of the legitimation proceedings, on December 21, 2011, the trial court awarded the parties joint legal custody and awarded primary physical custody to Cannella and visitation to Graham.

On November 9, 2012, Cannella filed the instant action, seeking sole legal custody of the child and asking that Graham’s visitation with the child be supervised or eliminated. The trial court conducted a hearing and, after Cannella completed the presentation of her evidence, granted Graham’s motion for a directed verdict. Cannella then filed this appeal.

“Visitation rights of non-custodial parents are subject to review and modification upon the motion of either parent every two years without the necessity of showing a material change in circumstances.” In the Interest of R. E. W., 220 Ga. App. 861, 862 (471 SE2d 6) (1996) (citations omitted). OCGA § 19-9-3 (b) provides:

In any case in which a judgment awarding the custody of a child has been entered, on the motion of any party or on the motion of the judge, that portion of the judgment effecting visitation rights between the parties and their child or parenting time may be subject to review and modification or alteration without the necessity of any showing of a change in any material conditions and circumstances of either party or the child, provided that the review and modification or alteration shall not be had more often than once in each two-year period following the date of entry of the judgment. . . .

“The standard to be applied in deciding visitation rights is the best interests of the child.” In the Interest of R. E. W., supra, 220 Ga. App. at 862.

Because Cannella’s petition for modification was apparently the only modification petition filed within two years following the date of entry of the initial judgment awarding visitation, she was not required to show a material change in circumstances. However, the trial court’s order denying Cannella’s petition and granting Graham’s directed verdict motion states that Cannella failed “to show a substantial change of condition affecting the minor child which would justify a modification of custody.” The order does not mention the child’s best interest. The order therefore reflects that the trial court applied the wrong standard.

Decided January 23, 2014.

Kupferman & Golden, Gregory D. Golden, for appellant.

Nathaniel H. Blackmon III, for appellee.

It is true that the trial court orally announced at the hearing that it would not “be in the child’s best interest to terminate visitation with her father and [found] that [Cannella had] failed to show a substantial change of condition that would affect the welfare of this child.” But “a trial court’s oral pronouncements are not binding because, while they may provide insight on the intent of the subsequent written judgment, any discrepancy between the written judgment and oral pronouncements is resolved in favor of the written judgment.” In the Interest of J. J., 317 Ga.App. 462, 463 (2) (731 SE2d 766) (2012) (citations omitted).

Because the written order reflects the application of the wrong standard, the order must be vacated and this case remanded for a determination under the proper standard. See In re R. L. L., 258 Ga. 628 (373 SE2d 363) (1988) (because it was “unclear, from the trial court’s order, which of the two standards was relied on” in awarding custody, case was remanded for a determination under the proper standard).

Judgment vacated and case remanded.

Doyle, P. J., and Boggs, J., concur.


author: Miller, Judge.

text:
    A13A1789.
    PIRKLE v. QUIKTRIP CORPORATION.
    (754 SE2d 387)
   Miller, Judge.

Carlos Ross Pirkle, injured when he slipped and fell in a QuikTrip Store, appeals from the trial court’s grant of summary judgment to QuikTrip, contending that the trial court erred in ruling that there was no evidence that QuikTrip had actual or constructive knowledge of the hazard which caused his fall. For the reasons set forth below, we deny QuikTrip’s Motion to Dismiss the appeal and affirm the trial court’s judgment.

1. QuikTrip’s Motion to Dismiss Appeal.

(a) Here, the record shows that Pirkle filed his notice of appeal from the trial court’s grant of summary judgment to QuikTrip on January 8, 2013. Thereafter, QuikTrip moved to dismiss the notice of appeal in the trial court because Pirkle failed to pay the $25 filing fee required by OCGA § 15-6-77.3 (b). The trial court denied QuikTrip’s motion, noting that the fee was paid on January 28,2013. Because the trial court’s order was entered on April 15,2013, after the filing of the notice of appeal, it may not be enumerated as error in this appeal. Bloomfield v. Bloomfield, 282 Ga. 108,112 (5) (646 SE2d 207) (2007); Long v. Long, 303 Ga. App. 215, 217, n. 2 (692 SE2d 811) (2010).

(b) QuikTrip then filed a motion to dismiss the appeal in this Court, citing the same rationale. As did the trial court, we find unavailing QuikTrip’s reliance on Brown v. Webb, 224 Ga. App. 856 (482 SE2d 382) (1997). There, Brown attempted to file a notice of appeal without paying the filing fee. Rather than filing the notice, as the clerk did here, the clerk’s office in Brown stamped the notice “received.” Brown, supra, 224 Ga. App. at 856. As noted by this Court,

having someone in the clerk’s office stamp a pleading as received is not the same as filing the pleading. A paper is said to be filed when it is delivered to the proper officer, and by him received to be kept on file, and a certificate of the clerk, entered upon the paper at the time it is filed, is the best evidence of such filing.

(Citation and punctuation omitted.) Brown, supra, 224 Ga. App. at 857.

While it is true that the state court clerk could have justifiably refused to file the notice of appeal until the proper fees had been paid, Slater v. Spence, 246 Ga. App. 365, 367 (540 SE2d 638) (2000), the clerk in this case chose to file the notice of appeal and deal with the fee thereafter. This would seem to be in line with the Supreme Court’s admonition that we follow “the route toward less technical and more expeditious handling of cases involving minor procedural errors.” (Citation and punctuation omitted.) Hughes v. Sikes, 273 Ga. 804, 805 (546 SE2d 518) (2001). Had the legislature wanted to make the payment of the fee a condition precedent to marking a pleading “filed,” it could have enacted a statute for the trial courts similar to OCGA § 5-6-4, which provides that in this Court and the Supreme Court, “[t]he clerk is prohibited from receiving the application for appeal or the brief of the appellant unless the costs have been paid or a sufficient affidavit of indigence is filed or contained in the record.”

Therefore, we deny QuikTrip’s motion to dismiss this appeal.

2. We now consider Pirkle’s argument that the trial court erred in granting summary judgment to QuikTrip.

To prevail on a motion for summary judgment, the moving party must show that there is no genuine issue of material fact, and that the undisputed facts, viewed in a light most favorable to the party opposing the motion, warrant judgment as a matter of law. Lau’s Corp. v. Haskins, 261 Ga. 491 (405 SE2d 474) (1991). When reviewing the grant of a motion for summary judgment, we conduct a de novo review of the law and evidence. Matjoulis v. Integon Gen. Ins. Corp., 226 Ga. App. 459 (1) (486 SE2d 684) (1997).

So viewed, the evidence was that, on the morning of May 5, 2008, Pirkle, his brother, Hugh, and a co-worker stopped to get drinks at the Austell QuikTrip on their way to a work site. The video from QuikTrip’s security camera showed Pirkle at 7:06:13 a.m. walking into the store directly across the area where he would later fall at 7:08:28 a.m. Pirkle was looking down at the floor in front of the cash register as he walked by at 7:06:14 a.m. Between 6:59 a.m. to 7:08:25 a.m., the video shows several customers who walk across, check out, and stand in the area where Pirkle later fell. There were no reports of any spills made by any customer to QuikTrip employees prior to Pirkle’s fall.

The video showed that, at 7:04:51 a.m., a customer walks from the cash register holding a drink in one hand and a shrink-wrapped package of 24 bottles of water in the other. Although the customer appeared to drop the package of water bottles as he approached the front door and he bent down below the counter for approximately ten seconds, his drink was visible and the lid was still on it. After the customer retrieved the water bottle package and left the store, several people successfully walked through this area before Pirkle fell.

Pirkle did not recall seeing any liquid on the floor when he walked into the QuikTrip. After paying for his bottled water at the counter, however, he turned to leave and slipped on liquid on the floor. Pirkle’s brother, Hugh, saw Pirkle fall. After helping Pirkle up, Hugh saw some hand-sized spots of what looked like water on the floor. Hugh did not know what caused the water on the floor or how long it had been there. After Pirkle’s fall, Chad Fields, the manager, examined the area and saw a “little splotch of water” on the floor, which did not appear to have been disturbed. He described the splotch as approximately the size of a half-dollar coin.

“[A]n owner/occupier of land owes persons invited to enter the premises a duty of ordinary care to have the premises in a reasonably safe condition and not to expose the invitees to unreasonable risk.” (Punctuation and footnote omitted) American Multi-Cinema v. Brown, 285 Ga. 442, 447 (3) (679 SE2d 25) (2009). To survive QuikTrip’s motion for summary judgment here, Pirkle had to come forward with evidence that (1) QuikTrip had actual or constructive knowledge of the hazard, and (2) he lacked knowledge of the substance or for some reason attributable to QuikTrip was prevented from discovering it. Davis v. Bruno’s Supermarkets, 263 Ga. App. 147, 148 (1) (587 SE2d 279) (2003).

(a) Actual Knowledge

In an effort to show that QuikTrip had actual knowledge of the liquid on the floor, Pirkle relies solely on the deposition of James McCleary. McCleary went into the QuikTrip at some unidentified time before Pirkle fell and turned down the first aisle in the store where he observed an employee midway down the aisle mopping. McCleary testified that the employee with the mop took his bucket and mop and set them to the right side of the checkout counter and started checking people out. A wet floor sign in the first aisle was visible on the video, which began at 6:59 a.m., but no mop or bucket could be seen.

Although Pirkle argues that McCleary’s testimony is circumstantial evidence that the water was caused by QuikTrip’s employee’s mop,

[o]nly reasonable inferences can give rise to a genuine issue of fact sufficient to preclude summary judgment. An inference based on mere possibility, conjecture, or speculation is not a reasonable inference sufficient to establish a genuine issue of fact and preclude summary judgment. Where a plaintiff’s proof of causation in a negligence case is based on mere possibilities, or the matter remains one of pure speculation or conjecture, or the probabilities are at best evenly balanced, it is the duty of the trial court to grant summary judgment for the defendant.

(Citations omitted.) Patrick v. Macon Housing Auth., 250 Ga. App. 806, 809 (552 SE2d 455) (2001).

Pirkle argues that the fact that an employee carried a bucket and mop and leaned the mop against the counter to the side of the door at least nine minutes before he fell provides circumstantial evidence that this was the cause of water on the floor in front of the cash register. We find this argument to be speculative at best. Therefore, we find that Pirkle did not produce evidence of actual knowledge.

(b) Constructive Knowledge

Because no evidence was produced that QuikTrip possessed actual knowledge of any liquid on the floor, we must determine whether a genuine issue of material fact remains as to its constructive knowledge. To establish constructive knowledge, Pirkle “must show that (1) a store employee was in the immediate area of the hazard and could have easily seen the substance or (2) the foreign substance remained long enough that ordinary diligence by the store employees should have discovered it.” (Citation and punctuation omitted; emphasis supplied.) Davis, supra, 263 Ga. App. at 148 (1). See Chastain v. CF Ga. North DeKalb L.P., 256 Ga. App. 802, 803-804 (569 SE2d 914) (2002) (no evidence reasonable inspection would have discovered a “two and a half foot line of dribbled water” where plaintiff testified that the water was not “easily visible”).

(i) A review of the video shows that no QuikTrip employee was in the area in front of the checkout counter for eight minutes before Pirkle’s fall. Moreover, cashier Rodney Johnson, who was behind the four-foot-high checkout counter, stated in his affidavit that he could not see the area directly in front of the counter where the half-dollar or hand-sized drops of water were later found. Therefore, Pirkle failed to show that a store employee was in the immediate area of the hazard and could have easily seen the substance before his fall. See Brown v. Host/Taco Joint Venture, 305 Ga. App. 248, 250 (699 SE2d 439) (2010) (showing that an employee was working in the immediate area of a foreign substance is not enough; employee must have been in a position to have easily seen the substance and removed it); Mucyo v. Publix Super Markets, 301 Ga. App. 599, 601 (1) (688 SE2d 372) (2009) (plaintiff did not show that cashier in the area of her fall could easily have seen and removed the hazard, which was not readily visible).

(ii) Constructive knowledge may also be inferred where there is evidence that the owner lacked a reasonable inspection procedure. Davis, supra, 263 Ga. App. at 148-149 (1). In order to prevail at summary judgment based on lack of constructive knowledge, the owner must demonstrate not only that it had a reasonable inspection program in place, but that such program was actually carried out at the time of the incident. Id.

QuikTrip had an inspection procedure in place which required employees to inspect the store’s floors every 30 minutes and spot mop if needed. In addition, at the beginning of each shift, the manager or assistant manager was required to do a shift walk through the store. On the morning of May 5, 2008, Y Nguyen was working at the QuikTrip and inspected the floors and spot mopped where needed. As he stated in his affidavit, “I completed the Daily Assignment Worksheet for the morning of May 5, 2008, showing I performed the ‘sweep/mop floor’ inspections at 7:00 am then again at 7:30 am.” On the videotape, a wet floor sign can be seen in the aisle nearest the door at 6:59:59 a.m. Pirkle never walked in this aisle. Chad Fields, the manager, performed the shift walk through the store when he came on duty at 6:00 a.m. that day. According to Fields, the front area near the cash registers is very difficult to mop because the store gets busy and this area had not been mopped within 15 minutes prior to Pirkle’s fall.

Even accepting Pirkle’s speculation that the man carrying the shrink-wrapped package of water bottles must have caused water to spill during the ten seconds he cannot be seen on the videotape, this is also insufficient to prove constructive knowledge of QuikTrip because it occurred only four minutes before Pirkle’s fall. Host/Taco, supra, 305 Ga. App. at251-252 (manager’s inspection of area offall 15 minutes before plaintiff fell was proof that defendant did not have constructive knowledge as a matter of law). As discussed above, QuikTrip presented evidence of its inspection procedures and evidence that those procedures had been done that morning approximately eight minutes before Pirkle’s fall and the store had been found free of spills.

In cases where a proprietor has shown that an inspection occurred within a brief period prior to an invitee’s fall, we have held that the inspection procedure was adequate as a matter of law. Under circumstances similar to those presented here, we have held that inspections conducted within 15 minutes prior to the plaintiff’s fall were reasonable.

(Citations and punctuation omitted.) Host/Taco, supra, 305 Ga. App. at 252.

Decided January 24, 2014.

Jack F. Witcher, Daniel B. Greenfield, for appellant.

Gray, Rust, St. Amand, Moffett &Brieske, Michael J. Rust, Nicole C. Leet, for appellee.

Therefore, we affirm the trial court’s grant of summary judgment to QuikTrip.

Judgment affirmed.

Barnes, P. J., and Ray, J., concur.

       OCGA § 15-6-77.3 (b) provides that, “[i]n addition to the fees specified by Code Section 15-6-77, the clerk of the superior court... shall be entitled to charge and collect an advance fee of $25.00 on each civil. . . appeal, and such fee shall be paid at the time of filing the notice of appeal.” (Emphasis supplied.) Although this case was in state court, “[t]he general laws and rules of appellate practice and procedure which are applicable to cases appealed from the superior courts of this state shall he applicable to and govern appeals from the state courts.” OCGA § 15-7-43 (a).

       Appellant refers to “James McNealy” in his brief. There is no witness by this name in the record and we assume he is referring to James McCleary.

       We reject Pirkle’s effort to attempt to use semantics to interpret Nguyen’s affidavit to say that he only checked the form indicating an inspection, not that he actually did the inspection. We note that there is no deposition of Nguyen in the record, only his uncontradicted affidavit.


author: BARNES, Presiding Judge.

text:
    A13A1860.
    LAMBERT v. THE STATE.
    (754 SE2d 392)
   BARNES, Presiding Judge.

A jury found Charlie James Lambert guilty of aggravated assault, terroristic threats, possession of a firearm during the commission of a crime, and possession of a firearm by a convicted felon. Lambert appeals from the denial of his motion for new trial, contending that the evidence was insufficient to support the verdict. Upon our review, we affirm.

Following a criminal conviction,

we view the evidence in the light most favorable to the verdict, with the defendant no longer enjoying a presumption of innocence. We neither weigh the evidence nor judge the credibility of witnesses, but determine only whether, after viewing the evidence in the light most favorable to the prosecution, a rational trier of fact could have found the essential elements of [each] crime beyond a reasonable doubt.

(Citations and punctuation omitted.) Sidner v. State, 304 Ga. App. 373, 374 (696 SE2d 398) (2010). See Jackson v. Virginia, 443 U. S. 307 (99 SCt 2781, 61 LE2d 560) (1979).

Construed in favor of the prosecution, the evidence showed that Lambert did yard work for the victim at her house in Burke County. Three or four weeks after meeting Lambert, the victim allowed him to move into a bedroom in her house “[b]ecause he needed a place to live and [she] had extra rooms.” While Lambert lived with her, the victim would sometimes drive him to the store where she would purchase alcohol for him.

On the day in question, Lambert asked the victim to drive him to the store and purchase some alcohol. When she refused, he became angry. The victim then went outside to speak with her next-door neighbor. While the victim was speaking with her neighbor in the yard, Lambert came out of the house carrying a Winchester 30-30 rifle owned by the victim. At that point, Lambert’s sister drove up and saw Lambert holding the rifle. Lambert “ran... off” the neighbor and his sister and then forced the victim into the house at gunpoint.

Once inside the house, Lambert made the victim get down on the floor in the living room and begin to pray. Lambert told the victim that he had one bullet for him, one for her, and one for her granddaughter who lived next door. While pointing the rifle at her face and chest, Lambert asked the victim where she wanted the bullet. He cursed at the victim and threatened to kill her.

While Lambert was inside the house with the victim, his sister called the police, who responded to the scene and established a perimeter. One of the responding officers interviewed Lambert’s sister, who said that Lambert had a rifle, was holding the victim hostage inside the house, and had threatened to “blow [the victim’s] head off.” Lambert’s brother was contacted by another family member and came to the police staging area, where he spoke with Lambert on speaker phone while the police listened. Lambert told his brother that he was “too late” because the victim was already dead. However, Lambert then let the victim speak briefly with his brother before hanging up the phone.

Lambert held the victim at gunpoint in the house for approximately three hours. He ultimately allowed the victim to leave the house when she feigned a heart attack and begged to go to the hospital. Officers took Lambert into custody after the victim left the house. They found the Winchester 30-30 rifle on the living room floor.

At trial, the victim testified to the events discussed above. Lambert’s brother testified about his phone conversation with Lambert in the presence of the police. Lambert’s sister took the stand and denied telling the responding officer that Lambert was holding the victim hostage or had threatened to blow her head off, but the officer later testified otherwise. One of the responding officers also testified regarding the rifle that had been found in the living room after Lambert was apprehended. Lambert did not testify or call any witnesses on his behalf.

After hearing all of the testimony, the jury found Lambert guilty of aggravated assault, terroristic threats, and possession of a firearm during the commission of a crime. The State then introduced evidence of Lambert’s prior conviction for rape, and the jury found him guilty of possession of a firearm by a convicted felon. Lambert filed a motion for new trial, which the trial court denied, resulting in this appeal.

1. Lambert contends that there was insufficient evidence to convict him of aggravated assault. A defendant is guilty of simple assault if he “[attempts to commit a violent injury to the person of another” or “[cjommits an act which places another in reasonable apprehension of immediately receiving a violent injury.” OCGA § 16-5-20 (a). If the assault is committed “with a deadly weapon,” the defendant is guilty of aggravated assault. OCGA § 16-5-21 (a) (2). Here, the indictment averred that Lambert committed aggravated assault by pointing the rifle at the victim.

The victim testified that Lambert held her at gunpoint with the Winchester rifle, that she thought he was going to kill her, and that she was afraid for her life. The testimony of the victim, standing alone, was sufficient to sustain Lambert’s conviction for aggravated assault. See Lomax v. State, 319 Ga. App. 693, 694 (1) (738 SE2d 152) (2013). See also former OCGA § 24-4-8 (“The testimony of a single witness is generally sufficient to establish a fact.”). Although Lambert asserts that the victim “was an incredible witness and was contradicted on several points,” “[it] is for the jury to determine the credibility of the witnesses and to resolve any conflicts or inconsistencies in the evidence.” (Citations and punctuation omitted.) Farris v. State, 290 Ga. 323, 324 (1) (720 SE2d 604) (2012).

2. Lambert also contends that there was insufficient evidence to convict him of terroristic threats because there purportedly was no evidence corroborating the victim’s testimony regarding the threat. “A person commits the offense of a terroristic threat when he or she threatens to commit any crime of violence with the purpose of terrorizing another.” (Citation and punctuation omitted.) Maskivish v. State, 276 Ga. App. 701, 703 (2) (624 SE2d 160) (2005). See OCGA § 16-11-37 (a). Here, the indictment averred that Lambert committed the crime of terroristic threats by threatening to murder the victim.

It is true, as Lambert argues, that a defendant cannot be convicted of terroristic threats based on “the uncorroborated testimony of the party to whom the threat is communicated.” OCGA § 16-11-37 (a).

Nevertheless, it is well established that the quantum of corroboration need not in itself be sufficient to convict, but need only be that amount of independent evidence which tends to prove that the incident occurred as alleged. Slight circumstances may be sufficient for corroboration and the question of corroboration is one solely for the jury. If there is any evidence of corroboration, this court will not go behind the jury verdict and pass on its probative value.

Decided January 24, 2014.

(Citation and punctuation omitted.) Schneider v. State, 312 Ga. App. 504, 506 (1) (718 SE2d 833) (2011).

Lambert’s brother testified about the phone conversation in which Lambert told him that the victim was already dead. The State also presented evidence that, contrary to her trial testimony, Lambert’s sister told a responding officer that Lambert was holding the victim hostage and had threatened to blow her head off. See generally Thompson v. State, 320 Ga. App. 150, 156 (3) (739 SE2d 434) (2013) (noting that “a prior inconsistent statement of a witness who takes the stand and is subject to cross-examination is admissible as substantive evidence”) (citations and punctuation omitted). Lastly, one of the responding officers testified that the Winchester rifle identified by the victim as the one used to hold her at gunpoint was found on the floor in the living room upon Lambert being taken into custody. This combined testimony clearly was sufficient to corroborate the victim’s testimony regarding the threat made by Lambert and thus to sustain his terroristic threats conviction. See, e.g., Mullins v. State, 298 Ga. App. 368, 371-372 (2) (680 SE2d 474) (2009) (witness’s testimony that she overheard defendant threaten victim provided sufficient corroboration); Wilson v. State, 291 Ga. App. 263, 264 (1) (661 SE2d 634) (2008) (testimony that gun was recovered from presence of defendant minutes after the incident constituted some evidence corroborating the victim’s testimony about the threat).

3. Lambert further contends that because there was insufficient evidence to convict him of aggravated assault and terroristic threats, the “logical conclusion” is that there likewise was insufficient evidence to convict him of possession of a firearm during the commission of a crime. Because there was sufficient evidence to support Lambert’s convictions for aggravated assault and terroristic threats as discussed supra in Divisions 1 and 2, his contention is misplaced.

Judgment affirmed.

Miller and Ray, JJ., concur.

T. Mack Taylor, for appellant.

Ashley Wright, District Attorney, Madonna M. Little, Assistant District Attorney, for appellee.

       Because the present case was tried in January 2012, the new Georgia Evidence Code does not apply. See Ga. L. 2011, p. 99, § 101 (“This Act shall become effective on January 1,2013, and shall apply to any motion made or hearing or trial commenced on or after such date.”).

       Lambert does not challenge his conviction for possession of a firearm by a convicted felon.


text:
    A13A1973.
    MYRICK v. THE STATE.
    (754 SE2d 395)
   BARNES, Presiding Judge.

Herbert Wesley Myrick was indicted on two counts of aggravated assault, two counts of aggravated stalking, two counts of battery, and one count of violation of a limited driving permit. He entered a negotiated plea of guilty, and the trial court sentenced him to twenty years, with three years to serve in confinement and the balance on probation. Myrick filed a motion to modify his sentence, which the trial court denied. Proceeding pro se, Myrick now appeals the denial of his motion to modify his sentence. For the reasons set forth below, we affirm.

1. Myrick first contends that the trial court should have applied the rule of lenity to reduce his sentence because “aggravated assault and aggravated stalking allow more than one sentence for the same offense and it is axiomatic that any ambiguities must be construed most favorably to the defendant.” Myrick’s contention is without merit.

The rule of lenity applies where two or more statutes prohibit the same conduct while differing only with respect to their prescribed punishments. According to the rule, where any uncertainty develops as to which penal clause is applicable, the accused is entitled to have the lesser of the two penalties administered.

(Citations, punctuation and footnote omitted.) White v. State, 319 Ga. App. 530, 531 (2) (737 SE2d 324) (2013). See Daniels v. State, 320 Ga. App. 340, 344 (3) (739 SE2d 773) (2013). “However, the rule does not apply when the statutory provisions are unambiguous.” (Citations omitted.) Lightning v. State, 297 Ga. App. 54, 60 (6) (676 SE2d 780) (2009).

A person may be found guilty of aggravated assault if the State proves (1) an assault and (2) aggravation by use of “any object, device, or instrument which, when used offensively against a person, is likely to or actually does result in serious bodily injury.” OCGA § 16-5-21 (a) (2). See Lee v. State, 320 Ga. App. 573, 576 (1) (a) (740 SE2d 307) (2013). “The State may prove an assault by showing that the defendant committed an act that placed the victim in reasonable apprehension of immediately receiving a violent injury.” (Citation and punctuation omitted.) Id. See OCGA § 16-5-20 (a) (2). The indictment averred that Myrick committed aggravated assault by doing an act that placed the victim in reasonable apprehension of immediately receiving a violent injury, namely, by striking the victim with a motor vehicle, an object which, when used offensively against a person, is likely to result in serious bodily injury.

In contrast, a person may be found guilty of aggravated stalking if the State proves that, in violation of a bond “prohibiting the behavior described in this subsection, [he]... contacts another person at or about a place or places without the consent of the other person for the purpose of harassing and intimidating the other person.” OCGA § 16-5-91 (a). See Reed v. State, 309 Ga. App. 183, 184 (1) (709 SE2d 847) (2011). In two separate counts, the indictment averred that Myrick committed aggravated stalking on two sequential dates by unlawfully contacting the victim at her residence in violation of a bond order, without the consent of the victim, and for the purpose of harassing and intimidating her.

Clearly, the aggravated assault and aggravated stalking statutes do not define the same offense and do not address the same criminal conduct, the former offense addressing an assault with an object likely to result in serious bodily injury, and the latter offense addressing the harassment and intimidation of a victim in violation of a bond condition. Thus, no ambiguity exists regarding the statutory provisions at issue in this case, the rule of lenity does not apply, and the trial court committed no error in refusing to modify Myrick’s sentence.

2. Although somewhat unclear, Myrick also appears to contend that the trial judge’s signature on the order denying his motion to modify his sentence is fraudulent because it allegedly differs materially from the judge’s signature on other orders. As such, Myrick contends that the trial court’s order is procedurally defective and should be reversed. Having reviewed the record in its entirety, we conclude that Myrick’s contention is without merit and provides no basis for reversal.

Decided January 24, 2014.

Herbert W. Myrick, pro se.

Rosemary M. Greene, District Attorney, Suzanne Z. Brookshire, Assistant District Attorney, for appellee.

Judgment affirmed.

Miller and Ray, JJ., concur.

       Because Myrick filed his motion to modify within one year of sentencing, his motion was timely. See OCGA § 17-10-1 (f). See also Rooney v. State, 318 Ga. App. 385 (734 SE2d 104) (2012) (“Pursuant to OCGA § 17-10-1 (f), a court may correct or reduce a sentence during the year after its imposition, or within 120 days after remittitur following a direct appeal, whichever is later.”) (footnote omitted). Furthermore, the trial court’s order denying Myrick’s timely motion was directly appealable. See Bradberry v. State, 315 Ga. App. 434, 435 (727 SE2d 208) (2012).

       A second count of aggravated assault was merged into the first count of aggravated assault for sentencing purposes.


text:
    A13A2296.
    MASON v. THE STATE.
    (754 SE2d 397)
   BARNES, Presiding Judge.

A jury convicted Charles Edwin Mason of one count of burglary, one count of criminal trespass, two counts of possession of tools for the commission of a crime, one count of felony theft by taking, and two counts of forgery in the second degree. The trial court denied his motion for new trial, resulting in the present appeal in which Mason argues that the trial court erroneously denied his right to self-representation and failed to discharge his trial counsel; that his trial counsel rendered ineffective assistance; and that his prior convictions were improperly admitted for the purpose of impeachment. For the reasons set forth below, 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). Guided by this standard, we turn to the evidence presented in this case.

The Furnished Townhouse Break-In. In the early morning hours of June 21, 2011, police officers were dispatched to a residential address in Cobb County in response to a security alarm that had been triggered. The address was for a furnished model townhouse in a newly built subdivision. The responding officers discovered that a side window to the townhouse had been pushed open and had glove prints on it. Upon entering the townhouse, the officers noticed that a television had been removed from a bracket on the living room wall and had been taken from the home. In an upstairs bedroom, the officers noticed that another television had been moved, as if someone had attempted to remove it from the wall bracket. Some of the bedding from the master bedroom also had been taken.

When the officers continued their search outside the townhouse, they discovered a flat screen television together with a pillow and comforter in the bushes. The pillow and comforter matched the bedding that had been taken from the master bedroom, and a salesperson employed by the subdivision developer who had an office in the furnished townhouse identified the television as the one that had been mounted on the living room wall. Believing that the perpetrator might still be in the area, more officers and the tactical SWAT unit arrived to establish a perimeter around the subdivision and to check neighboring townhouses. A K9 unit also arrived at the scene but was unable to track a scent.

The Vacant Townhouse Break-In. As the tactical SWAT team searched a vacant townhouse located a few doors down on the same road in the subdivision, they noticed that a string to the attic door was swaying and that there was some insulation on the carpet floor below the door. When one of the officers looked around the attic, he noticed something red protruding from the white insulation. Believing that someone was hiding underneath the insulation, the officer ordered the person to show his hands. The person hiding in the insulation was Defendant Mason, who complied with the officer’s directive and started to move toward him. As Mason approached the officer, he stepped on the drywall between the wooden trusses and fell through the ceiling into a bathtub right below the attic. Another officer immediately apprehended Mason.

In the attic near where Mason had been hiding, officers found a ball cap, a pair of work gloves, and a backpack. Inside the backpack were several items, including a television power cord that fit the television found in the bushes, and a pair of needle-nose pliers. The weave and texture on the palms of the work gloves appeared consistent with the prints found on the side window of the furnished townhouse that had been burglarized.

Later that morning, the police were called back to the vacant townhouse to retrieve additional items that had been discovered there. A project manager for the subdivision had been repairing the bathroom in the townhouse and had discovered a wallet, a personal check, and a set of keys underneath the insulation that had fallen into the bathtub where Mason crashed through the ceiling. A second personal check subsequently was found underneath the insulation by a worker repairing the drywall.

The wallet found in the bathtub contained the driver’s license of an individual named Reginald Degraffenreaidt and a Strayer University identification card that had his name but Mason’s photo on it. Further investigation revealed that Degraffenreaidt did not know Mason, and that his wallet recently had been stolen from the armrest of his vehicle.

The First Forged Check. The first check found in the bathtub belonged to an individual named Brett Barksdale, who did not realize that his check was missing until he was contacted by the police. Barksdale kept his checkbook in the glove compartment of his car, and the missing check had been removed from the middle of his checkbook. The check was made payable to Reginald Degraffenreaidt and was signed, but Barksdale did not know Degraffenreaidt and the signature on the check was not his. According to Barksdale, the check had been blank the last time it was in his possession.

The Second Forged Check. The second check belonged to an individual named Remy Bulbekian, who also did not realize that he was missing the check until contacted by the police. The check had been removed from the middle of his checkbook in his car. Like the first check, the second check was made payable to Reginald Degraffenreaidt and was signed. Bulbekian testified that he did not know Degraffenreaidt, the signature on the check was not his, and the check had been blank the last time it was in his possession.

The Car, Tools, and Stolen Laptop Computer. After he was arrested and informed of his rights, Mason told the police that his girlfriend had dropped him off in the subdivision after they had fought. However, the detective assigned to the case believed that the set of keys found underneath the insulation in the bathtub might belong to a getaway car parked near the subdivision, which was gated and could not be driven into at night. The detective took the keys with him to an apartment complex located next to the subdivision and pressed the alarm activator on the key chain to see if it matched any cars. The keys activated the alarm on a Nissan Sentra parked in the complex approximately 200 to 300 feet from the furnished townhouse. The car was registered to Mason’s girlfriend, and Mason later admitted that he had borrowed the car from her on the night of the break-ins.

The detective had the car impounded and obtained a search warrant. While executing the warrant, the police found a wallet in the driver’s side door containing a driver’s license, Social Security card, and credit cards belonging to Mason. In the trunk, the police found a crowbar, a pry bar, bolt cutters, a screwdriver, a set of hand trucks, a laptop computer inside a bag, and a flat screen television wrapped in a blanket. Based on his experience and expertise, the detective opined that tools such as a crow bar, a pry bar, and bolt cutters are often used in burglaries to break locks and force open doors.

While the detective was unable to determine the owner of the television found in the car trunk, he determined that the laptop computer belonged to an individual named Paul Allen. Allen had been friends with Mason when they were teenagers, and Mason had lived in Allen’s home at one point. Allen’s home in DeKalb County had been burglarized in 2010 and several items had been stolen, including the computer.

The detective also discovered a thumb drive inside the laptop computer bag. The thumb drive contained several images, including an image of a Strayer University identification card under the name of Reginald Degraffenreaidt with Mason’s photo on it, an image of a photo of Mason, and an image of a fake signature for Degraffenreaidt. The images of the Strayer University identification card and of the photo of Mason on the thumb drive matched the fake identification card discovered in the wallet in the bathtub of the vacant townhouse.

The Criminal Trial. Following the police investigation, Mason was indicted and tried before a jury on two counts of burglary (one count for the break-in of the furnished townhouse and another count for the break-in of the vacant townhouse); two counts of possession of tools for the commission of a crime (one count for the work gloves found in the attic and another count for the crowbar, pry bar, and bolt cutters found in the car trunk); one count of theft by taking (for the laptop computer belonging to Allen); and two counts of forgery in the second degree (one count for the check belonging to Barksdale and another count for the check belonging to Bulbekian). At trial, the State called multiple witnesses who testified to the events as previously discussed, including witnesses pertaining to the two forged checks (Degraffenreaidt, Barksdale, and Bulbekian) and the stolen laptop computer (Allen), a representative of the developer of the townhouses, the project manager who discovered items in the bathtub, the responding police officers, and the lead detective.

The State also introduced evidence of a similar transaction. In the early morning hours of July 25,2007, an officer on patrol observed Mason running across the road and between a set of houses in a Cobb County subdivision located approximately five miles from the subdivision in the present case. When Mason saw the officer, he attempted to hide in the woods but was quickly apprehended. At the time of his arrest, Mason was wearing a backpack that contained several items, including gloves, needle-nose pliers, screwdrivers, and a rachet set. Mason also had a credit card that belonged to another individual and a set of car keys.

Like in the present case, the officer pressed the car door activator on the key chain, and it activated the doors on a car parked in the driveway of a nearby vacant house in the subdivision. The car had been stolen. Inside the car, the officer found a laptop, digital camera, and a checkbook belonging to someone else. Those three items had been stolen the day before the incident from the owner’s truck. While Mason initially denied any wrongdoing and claimed that he had been in the subdivision because his girlfriend had dropped him off to jog there, he ultimately pled guilty to possession of tools for the commission of a crime, theft by receiving stolen property, and theft by receiving a stolen vehicle.

After the State presented its similar transaction evidence and rested, Mason presented his theory of the case. The defense theory was that Mason had simply gone into the vacant townhouse to sleep after fighting with his girlfriend and had hidden in the attic upon seeing the police in the subdivision because he had a criminal record, was scared of returning to prison, and was currently on probation. Mason claimed that he was not involved in the burglary of the furnished townhouse and had seen two other men fleeing from the area that night; that he had obtained Degraffenreaidt’s wallet and the two forged checks from a third party but had decided not to use them because he did not want to go back to prison; and that he had bought the laptop computer found in his girlfriend’s car from a friend and was unaware that it had been stolen. In an effort to support these claims, the defense introduced — after obtaining a stipulation from the State regarding its admissibility — a police incident report reflecting that the tracking dog brought to the scene by the K9 unit had been unable to pick up a scent and thus was unable to track any scent from the furnished townhouse to anywhere else in the subdivision. Mason also elected to testify.

During the cross-examination of Mason, the State tendered — over objection from the defense that the convictions were unduly prejudicial — certified copies of several of Mason’s prior convictions for impeachment purposes. The documents tendered also included the sentences that Mason had received in those cases, but the defense did not object specifically to the admission of the sentencing sheets.

After the close of the evidence and charge of the court, the jury found Mason guilty on all counts of the indictment, except for the burglary count relating to the vacant townhouse. On that count, the jury found Mason guilty of the lesser included offense of criminal trespass. Mason filed a motion for new trial, alleging, among other things, that his appointed trial counsel should have been discharged from the case, that he should have been permitted to represent himself, and that his trial counsel rendered ineffective assistance in several respects. After conducting a hearing, the trial court denied Mason’s motion, resulting in this appeal.

1. The evidence adduced at trial and summarized above was sufficient to authorize a rational jury to find Mason guilty beyond a reasonable doubt of the offenses for which he was convicted. Jackson v. Virginia, 443 U. S. 307 (99 SCt 2781, 61 LE2d 560) (1979).

2. Over the course of the case, Mason and his appointed counsel had a strained relationship. In a letter penned to the trial court before trial, Mason complained that his appointed counsel had tried to “muzzle” him during a hearing on his motion to suppress, expressed that he “no longer [felt] comfortable with his counsel,” and stated that he wanted his counsel “replaced immediately.” Later, during the State’s case-in-chief, Mason requested that his counsel be discharged from the case after the two had a heated argument over issues of trial strategy, but the trial court denied his request. Then, on the beginning of the third day of trial, Mason requested that he be permitted to represent himself. The trial court denied his request but appointed additional standby counsel to assist the defense. Subsequently, Mason complained to the trial court after his counsel got angry with him for asking so many questions and said to him, “I don’t want to hear any more questions, I’m sick of you,” but he did not request any relief from the court at that point.

On appeal, Mason raises two enumerations of error pertaining to the issue of appointed counsel. We will address each in turn.

(a) Mason first contends that he unequivocally asserted his constitutional right to represent himself at the beginning of the third day of trial and that the trial court erred in denying his request. We are unpersuaded.

“Both the federal and state constitutions guarantee a criminal defendant the right to self-representation. See Faretta v. California, 422 U. S. 806 (95 SCt 2525, 45 LE2d 562) (1975); 1983 Ga. Const., Art. I, Sec. I, Par. XII.” Thaxton v. State, 260 Ga. 141, 142 (2) (390 SE2d 841) (1990). But to be timely, “[a] request for self-representation must be made before trial.” (Emphasis in original.) Mallory v. State, 225 Ga. App. 418, 422 (4) (483 SE2d 907) (1997). See Thaxton, 260 Ga. at 142 (2); Stewart v. State, 267 Ga. App. 100, 101 (1) (598 SE2d 837) (2004). It follows that “[t]he denial of such a request made after the beginning of trial is not reversible error [because a] defendant cannot frivolously change his mind in midstream by asserting his right to self-representation in the middle of his trial.” (Citation and punctuation omitted.) Mallory, 225 Ga. App. at 422 (4). See Thaxton, 260 Ga. at 142 (2); Coley v. State, 272 Ga. App. 446, 448 (1) (612 SE2d 608) (2005); Stewart, 267 Ga. App. at 101 (1). Because Mason’s request to represent himself was made in the middle of trial, the trial court did not err in denying it.

(b) Mason next contends that the trial court should have discharged his trial counsel (and presumably appointed new counsel) because the record demonstrates a “complete breakdown of communication” between them. Again, we are unpersuaded.

The Sixth Amendment guarantees effective assistance of counsel, not preferred counsel or counsel with whom a meaningful relationship can be established. An indigent defendant is not entitled to have his appointed counsel discharged unless he can demonstrate justifiable dissatisfaction with counsel, such as conflict of interest, an irreconcilable conflict, or a complete breakdown in communication between counsel and client. . . . We evaluate a trial court’s decision regarding whether to appoint new trial counsel for an indigent defendant under an abuse of discretion standard.

(Citations, punctuation and footnotes omitted.) Holsey v. State, 291 Ga. App. 216, 218-219 (2) (661 SE2d 621) (2008).

A breakdown in communication between a defendant and his counsel must be extreme before it mandates that the trial court remove appointed counsel. For example, we have held that a disagreement between a defendant and his counsel over trial strategy “causing tension in their relationship” and leading the defendant to lose “confidence” in his counsel was insufficient to require the trial court to grant counsel’s motion to withdraw from the case. See Johnson v. State, 283 Ga. App. 524, 528-529 (5) (642 SE2d 170) (2007). Likewise, our Supreme Court has held that a trial court did not err in refusing to discharge appointed counsel where the defendant “felt counsel had neglected and ignored him” but failed to show a complete breakdown in their communication. Bryant v. State, 268 Ga. 616, 617 (2), n. 4 (491 SE2d 320) (1997). Thus, tension in the attorney-client relationship, disagreements over trial strategy, and a general loss of confidence or trust in counsel are insufficient, without more, to demonstrate the type of complete breakdown in communication necessary to mandate the removal of counsel from the case.

The record reflects that Mason and his appointed counsel had a strained relationship and had several heated disagreements over trial strategy during the course of the case. Nevertheless, there is no evidence that these disagreements prevented Mason from having his version of events heard by the jury or otherwise inhibited counsel from providing an adequate defense on behalf of Mason. Indeed, the testimony of Mason’s counsel at the hearing on his motion for new trial reflects that Mason communicated his version of events to trial counsel “from the beginning” and that counsel then tried to construct a defense around that version of events despite knowing that “there was a mountain of evidence against [his] client.” Indeed, Mason’s counsel ultimately was able to persuade the jury to convict Mason of the lesser included offense of criminal trespass rather than burglary for his entry into the vacant townhouse. Under these circumstances, the evidence did not establish a complete breakdown of communication between Mason and his counsel, and the trial court acted within its discretion in refusing to discharge counsel from the case.

3. Mason also contends that his trial counsel rendered ineffective assistance in several respects. To prevail on a claim of ineffective assistance under the two-pronged test set forth in Strickland v. Washington, 466 U. S. 668, 687 (III) (104 SCt 2052, 80 LE2d 674) (1984), “[Mason] must show that [his] counsel’s performance was deficient and that the deficient performance so prejudiced him that there is a reasonable likelihood that, but for counsel’s errors, the outcome of the trial would have been different.” (Citation and punctuation omitted.) Anthony, 317 Ga. App. at 813 (4). Mason has failed to carry his burden with regard to any of his ineffective assistance claims.

(a) Mason first argues that his trial counsel was ineffective for failing to timely subpoena and secure the attendance of the K9 unit officer whose dog unsuccessfully attempted to locate and track a scent at the scene. We disagree and instead conclude that counsel’s decision not to secure the officer’s testimony was strategic and did not constitute deficient performance, and that Mason cannot show that he suffered any prejudice.

It is well established that the decision as to which defense witnesses to call is a matter of trial strategy and tactics; tactical errors in that regard will not constitute ineffective assistance of counsel unless those errors are unreasonable ones no competent attorney would have made under similar circumstances.

(Citations and punctuation omitted.) Dickens v. State, 280 Ga. 320, 321 (2) (627 SE2d 587) (2006).

As we have emphasized, “reviewing courts do not evaluate trial counsel’s tactics and strategic decisions in hindsight.” (Citation and punctuation omitted.) Taylor v. State, 318 Ga. App. 115, 117 (2) (a) (733 SE2d 415) (2012).

Based on a stipulation entered into with the State, Mason’s trial counsel introduced a police incident report reflecting that the tracking dog brought to the scene by the K9 unit officer had been unable to pick up a scent that night. The incident report had been prepared by the K9 unit officer whom Mason now contends that his trial counsel should have subpoenaed for trial. However, at the hearing on Mason’s motion for new trial, Mason’s trial counsel testified that he decided to use the stipulated incident report in lieu of making further efforts to secure the officer’s testimony because he believed that the report would be more favorable to the defense. Trial counsel explained that the stipulated incident report was a “short blurb paragraph” that was “[v] ery positive for [his] client” which he was able to “turn” and “twist” to his advantage in his closing argument to assert that the dog should have found Mason if he had broken into the furnished townhouse. In contrast, trial counsel, based on his 37 years of experience as an attorney, believed that “there would probably be some hems and haws about what happened” if the officer himself had testified. Trial counsel went on to explain that if the State had not stipulated to the admissibility of the incident report, he would have asked the trial court to secure the officer’s attendance at the trial.

Trial counsel was correct that the K9 unit officer’s testimony would not have aided Mason in his defense, as shown by the officer’s testimony at the motion for new trial hearing. The officer testified that his dog does not “scent discriminate,” meaning that his dog can successfully track only where one dominant odor is present, as in an open wooded area, not in places where lots of people are present. Thus, according to the officer, in cases like the present one where there were many officers at the crime scene, it “ruins any tracking” by his dog.

In light of counsel’s testimony presented at the new trial hearing, it is clear that his decision not to secure the K9 unit officer as a witness and instead rely on the stipulated incident report was a matter of reasonable trial strategy and did not constitute deficient performance. Moreover, Mason is unable to show that he was prejudiced by his trial counsel’s failure to secure the officer as a witness, given that the officer’s testimony at the new trial hearing shows that his trial testimony would not have been favorable to the defense. Consequently, Mason cannot carry his burden of establishing either prong of the Strickland test. See Bradley v. State, 322 Ga. App. 541, 547-548 (3) (b) (745 SE2d 763) (2013) (decision not to subpoena witness was strategic and thus not deficient where counsel determined that the witness “would not have been helpful” and “was negative”); Taylor, 318 Ga. App. at 117 (2) (a) (defendant failed to show that tactical decision not to call witness was deficient or prejudicial).

' (b) Mason further argues that his trial counsel was ineffective for failing to object when the State elicited certain testimony from Degraffenreaidt regarding the theft of his wallet and other personal items. We disagree and conclude that counsel’s failure to object did not constitute deficient performance because an objection would have been meritless.

As previously discussed, the wallet containing the driver’s license of Degraffenreaidt and a Strayer University identification card that had his name but Mason’s photo on it were found in the bathtub where Mason had fallen through the ceiling of the vacant townhouse. The two checks which formed the basis for the forgery charges and which were made payable to Degraffenreaidt also were found in the bathtub.

Degraffenreaidt testified that he had never before seen the forged checks, that he did not know Mason or the check owners, and that his wallet had been stolen from the armrest in his car “probably around June” of 2011. Degraffenreaidt further testified that the items taken from his wallet included his driver’s license, his Strayer University identification card, and his personal and company American Express credit cards, which had been used to run up approximately $1,000 in expenses. Additionally, Degraffenreaidt testified that two checks were taken out of his checkbook kept in his car, which had been forged with his name, made payable to Mason, and had been cashed.

Mason argues that his trial counsel should have objected to Degraffenreaidt’s testimony regarding his stolen American Express cards and his stolen personal checks made payable to Mason because these were allegations of additional, uncharged criminal offenses and thus was inadmissible. According to Mason, if the State wanted to introduce this testimony, it should have followed the procedures for admission of similar transaction evidence set forth in Uniform Superior Court Rule 31.3 and Williams v. State, 261 Ga. 640, 642 (2) (b) (409 SE2d 649) (1991), which the State failed to do.

The general rule is, that, on a prosecution for a particular crime, evidence which in any manner shows or tends to show that the accused has committed another crime wholly independent from that for which he is on trial is irrelevant and inadmissible. However, an exception exists where evidence of other criminal transactions is a part of the res gestae or tends to show motive, or to show a course of conduct pointing toward and leading to the crime. Moreover, decíarations and circumstances forming a part of the continuation of the main transaction are admissible as res gestae.

(Punctuation and footnotes omitted; emphasis in original.) Rogers v. State, 292 Ga. App. 90, 93 (2) (663 SE2d 789) (2008). Evidence that qualifies as part of the res gestae does not constitute similar transaction evidence requiring notice and a hearing. See Smith v. State, 302 Ga. App. 128, 131 (1) (a) (690 SE2d 449) (2010); Rogers, 292 Ga. App. at 93 (2).

The theft of the American Express cards and personal checks about which Degraffenreaidt testified were not “wholly independent” from the forgery crimes charged in the present case. Rather, evidence of the theft of these items by Mason established that Mason had stolen Degraffenreaidt’s identity and thus linked Mason to the two forged checks at issue and explained why Degraffenreaidt’s name appeared on those checks. As such, the theft of the American Express cards and personal checks were part of Mason’s course of conduct pointing toward and leading up to Mason’s forgery of the two checks using Degraffenreaidt’s name and were aspects of the same criminal scheme.

Under these circumstances, Degraffenreaidt’s testimony was part of the res gestae of the forgery offenses and did not constitute similar transaction evidence requiring notice and a hearing. See Rogers, 292 Ga. App. at 93 (2). See also Chandler v. State, 311 Ga. App. 86, 89-90 (3) (714 SE2d 597) (2011) (evidence of other crimes admissible “because they showed the planning process for the forgeries in question”); McKenzey v. State, 127 Ga. App. 304, 304-305 (2) (193 SE2d 226) (1972) (prior burglary associated with credit card forgery for which defendant was charged was admissible because it was not a “transaction independent” from the use of the forged card). It follows that the trial court did not err in admitting Degraffenreaidt’s testimony. Because any objection to the admission of the testimony would have been meritless, Mason cannot show that his trial counsel was deficient for failing to object and thus cannot establish his ineffective assistance claim. See Henry v. State, 279 Ga. 615, 617 (3) (619 SE2d 609) (2005) (“Failure to make a meritless objection cannot be evidence of ineffective assistance.”) (citations and punctuation omitted).

(c) When the State introduced certified copies of Mason’s prior convictions for impeachment purposes during his cross-examination, the copies included the sentences for those convictions. Mason argues that his trial counsel was ineffective for failing to object to the admission of the sentencing sheets as part of the proof of his prior convictions. According to Mason, the sentences imposed for his prior convictions had no relevance to this case, were unnecessary to prove the existence of the convictions, and were highly prejudicial. Pretermitting whether admission of the sentences was improper and whether Mason’s trial counsel was deficient for failing to object, we conclude that Mason cannot show prejudice resulting from their admission.

During his direct examination, Mason admitted that he had several prior convictions and had spent time in prison. Indeed, central to Mason’s defense was that he had decided to hide in the attic of the vacant townhouse upon seeing the police not because he was involved in a burglary scheme, but because he had prior theft-related convictions, had spent two years in prison for burglary, and was scared of being seen in the townhouse because he was on probation. Furthermore, as previously discussed, the State introduced similar transaction evidence of prior crimes committed by Mason, the admission of which he does not challenge on appeal.

Given these circumstances, there is no reasonable probability that trial counsel’s failure to object to the admission of the sentencing sheets had any impact on the jury’s verdict. See Daniel v. State, 292 Ga. App. 560, 563-564 (4) (a) (665 SE2d 696) (2008) (trial counsel’s failure to object to admission on cross-examination of sentencing sheets as part of prior convictions was not prejudicial, where defendant already admitted to the prior convictions on direct examination). See also Hoffler v. State, 292 Ga. 537, 540 (2) (739 SE2d 362) (2013) (admission of prior conviction to impeach witness was harmless, where witness “made an unsolicited reference to his ‘rap sheet’ ” during his testimony and thus there was “other evidence before the jury of [the witness’s] criminal record”); Harris v. State, 279 Ga. 522, 527 (5) (615 SE2d 532) (2005) (admission of defendant’s prior convictions was harmless in light of defendant’s admissions during his testimony before the State brought up his convictions). Consequently, because Mason cannot establish prejudice, he cannot succeed on his ineffective assistance claim.

4. Lastly, Mason argues that the trial court erred in allowing the State to introduce, over objection that they were unduly prejudicial, several of his prior convictions for impeachment purposes. Pretermitting whether the admission of the prior convictions was improper, we conclude that their admission was harmless for the same reasons discussed supra in Division 3 (c).

Judgment affirmed.

Miller and Ray, JJ., concur.

Decided January 24, 2014

Benjamin D. Goldberg, for appellant.

D. Victor Reynolds, District Attorney, Amelia G. Pray, Assistant District Attorney, for appellee.

       Because this case was tried in March 2012, the new Georgia Evidence Code does not apply. See Ga. L. 2011, p. 99, § 101 (“This Act shall become effective on January 1, 2013, and shall apply to any motion made or hearing or trial commenced on or after such date.”).