text:
    A12A0232.
    ELLIS v. THE STATE.
    (729 SE2d 492)
   Miller, Judge.

Following a jury trial, Anthony Ellis was convicted of aggravated assault (OCGA § 16-5-21 (a) (2)), aggravated sodomy (OCGA § 16-6-2 (a) (2)), rape (OCGA § 16-6-1 (a) (1)), and false imprisonment (OCGA § 16-5-41 (a)). The trial court denied Ellis’s motion for new trial, as amended. Ellis now appeals, contending that (1) the evidence was insufficient to support his convictions; (2) the State failed to provide him with information pertaining to the victim’s criminal history or mental health status; (3) the trial court erred in admitting Ellis’s custodial statements; (4) the trial court erred in denying his motion for mistrial where certain portions of the jury charge were allegedly interrupted by courtroom distractions; (5) he was denied a fair trial because the courtroom deputy allegedly made inappropriate gestures and facial expressions in front of the jury; (6) the trial court erred in excluding witness testimony regarding the victim’s prior false allegations of sexual misconduct; (7) the trial court erred in failing to allow Ellis to present evidence in mitigation of his sentence; and (8) the trial court erred in denying his motion for new trial based on Ellis’s claims of ineffective assistance of counsel. For the reasons set forth below, we affirm.

“On appeal from a criminal conviction, a defendant no longer enjoys the presumption of innocence, and the evidence is viewed in the light most favorable to the guilty verdict.” (Punctuation and footnote omitted.) Goss v. State, 305 Ga. App. 497 (699 SE2d 819) (2010) . “It is solely within the purview of the factfinder to weigh conflicting evidence and judge the credibility of the witnesses.” (Footnote omitted.) Benyard v. State, 311 Ga. App. 127 (714 SE2d 746) (2011) .

So viewed, the evidence shows that the victim was Ellis’s ex-girlfriend at the time of the relevant incident, April 17, 2008. On that day, the victim was returning to her mother’s home, where she resided at the time, when Ellis jumped into her vehicle with a crowbar-type weapon and grabbed the victim’s face. When the victim’s mother heard her screaming, she came out of the house and proceeded to engage in a “tug-of-war” with Ellis to get the victim out of the vehicle. The victim’s mother was ultimately successful, whereupon the victim and her mother ran into the house, and the victim went to call 911. Ellis followed them into the house, kicked the door in, and grabbed a knife from the kitchen. When Ellis raised the knife to the victim’s mother, the victim offered to leave with Ellis to prevent him from doing any harm to her mother. Ellis pushed the victim’s mother to the ground and left with the victim; the victim’s mother then called the police.

Ellis took the victim to his father’s house in Henry County. Ellis held the victim in a back bedroom and ordered the victim to take her clothes off. The victim complied because Ellis had a knife in his hand. Ellis initially attempted to have anal intercourse with the victim, but when that proved unsuccessful, Ellis had the victim turn onto her back and held a knife in his hand while he told her to open her legs. Ellis then had vaginal intercourse with the victim against her will. Ellis eventually withdrew his penis from the victim’s vagina in order to ejaculate into the victim’s mouth. Ellis told the victim to get up and put her clothes back on, and they went into the living room together, where he told the victim to spit out the semen in her mouth. The victim felt that she could not leave the house because Ellis had a knife and she was uncertain about his mental state.

Meanwhile, the police responded to the 911 call placed by the victim’s mother. The officers located Ellis and the victim at Ellis’s father’s house. When an investigator approached the house, Ellis cracked open the door and said he had a gun. Ellis engaged the responding officers in a stand-off that lasted for several hours. Eventually, the officers were able to negotiate the victim’s release from the house. Once the victim was released, the police immediately entered the house and took Ellis into custody.

1. Ellis contends that the evidence was insufficient to convict him beyond a reasonable doubt of aggravated assault, aggravated sodomy, rape, and false imprisonment. After viewing the evidence in the light most favorable to the prosecution, the relevant question on appeal is whether any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt. Jackson v. Virginia, 443 U. S. 307, 319 (III) (B) (99 SC 2781, 61 LE2d 560) (1979). We address each of Ellis’s convictions in turn.

(a) Aggravated assault. The indictment alleges that Ellis committed aggravated assault by making an assault upon the victim with a knife, a deadly weapon, by holding the knife in a threatening manner toward the victim. Ellis claims that the evidence was insufficient to support his conviction on this count because there was no corroboration that Ellis used the knife in a threatening manner and because there was no evidence of a wound to the victim’s thighs. Ellis’s claims are without merit.

A person commits the offense of aggravated assault when he assaults with a deadly weapon that, when used offensively against a person, is likely to or actually does result in serious bodily injury. OCGA § 16-5-21 (a) (2).

The victim testified that Ellis held a knife in his hand when he told her to take her clothes off, and when he told her to open her legs so that he could have vaginal intercourse with her against her will. This testimony alone was sufficient to support the conviction. See OCGA § 24-4-8. The fact that there was no evidence of a wound to the victim’s thighs does not change our conclusion. See Gilbert v. State, 209 Ga. App. 483, 484 (1) (433 SE2d 664) (1993) (“[T]here is no requirement that the victim actually be injured by the deadly weapon before a conviction for aggravated assault is authorized.”) (citation and punctuation omitted).

Ellis also contends that venue was not proven on the aggravated assault charge because some of the evidence was from a different county. This argument is likewise without merit. “Generally, a criminal action must be tried in the county in which the crime was committed, and the State may establish venue by whatever means of proof are available to it, including direct and circumstantial evidence.” (Citation and punctuation omitted.) White v. State, 312 Ga. App. 421, 423 (1) (a) (718 SE2d 335) (2011). Here, the victim testified. that the aggravated assault offense occurred at Ellis’s father’s house, which was located in Henry County. The responding officer likewise testified that the house was located in Henry County. This testimony was sufficient evidence to prove venue in Henry County.

Finally, Ellis contends that the victim’s testimony should be discounted as incompetent because of the victim’s potential mental illness. Even assuming Ellis’s claim as true,

a mental disease does not necessarily render a witness incompetent to testify. ... If the allegedly incompetent person understands her obligation to tell the truth and is capable of giving material evidence upon the subject matter in question, she is competent to testify, and it is then up to the jury to determine the appropriate weight to give her testimony.

(Citations and punctuation omitted.) Dorsey v. State, 206 Ga. App. 709, 713 (3) (426 SE2d 224) (1992). Here, there was no indication that the victim did not understand her obligation to tell the truth, and it was therefore up to the jury to determine the credibility of her testimony. See id. Moreover, “absent an objection to competence, [as is the case here,] it is not error to allow a witness to testify without first determining her competence.” (Citation and punctuation omitted.) Austin v. State, 286 Ga. App. 149, 151 (1), n. 3 (648 SE2d 414) (2007).

Therefore, the evidence was sufficient to support Ellis’s aggravated assault conviction.

(b) Aggravated sodomy. The indictment alleges that Ellis committed aggravated sodomy by unlawfully performing a sexual act involving his sexual organ and the victim’s mouth. Ellis contends that the evidence was insufficient to sustain his conviction on this count because there was “no evidence of physical trauma or sexual assault to that area.” We disagree.

Sodomy is any sexual act involving the sex organs of one person and the mouth or anus of another. See OCGA § 16-6-2 (a) (1). “A person commits the offense of aggravated sodomy when he or she commits sodomy with force and against the will of the other personf.]” OCGA § 16-6-2 (a) (2). The victim testified that Ellis, while holding a knife in his hand, and after having vaginal intercourse with her against her will, put his penis into her mouth to ejaculate. The victim also testified that she did everything Ellis wanted her to do because she did not feel like she had a choice, specifically pointing to the fact that he had a knife and that she was unsure as to his mental state. Her testimony alone was sufficient to support a finding of guilt beyond a reasonable doubt. See Summerour v. State, 242 Ga. App. 599, 601 (1) (530 SE2d 494) (2000); Thompson v. State, 203 Ga. App. 339 (1) (416 SE2d 755) (1992) (citing OCGA § 24-4-8). Contrary to Ellis’s contentions, “evidence of physical trauma or sexual assault” to the victim’s mouth was not necessary to sustain Ellis’s conviction for aggravated sodomy. Cf. Green v. State, 249 Ga. App. 546, 549 (1) (b) (547 SE2d 569) (2001) (“Proof of penetration is not required for a conviction of sodomy. All that is required is some contact.”) (citations and punctuation omitted). As there is sufficient evidence to support the jury’s verdict as to this count, we will not disturb it.

(c) Rape. Ellis contends that the evidence was insufficient to support this charge, citing the absence of evidence corroborating the victim’s testimony that the sexual intercourse with Ellis was non-consensual. Ellis’s argument is unavailing.

To prove the offense of rape, the State must show that a defendant had “carnal knowledge of... a female forcibly and against her will.” OCGA § 16-6-1 (a) (1). Here, the victim testified that she kept her legs tightly closed to prevent Ellis from having sexual intercourse with her, and that she opened her legs only because Ellis had a knife in his hand. “[Ljack of resistance, induced by fear, is not legally cognizable consent but is force.” (Citation and punctuation omitted.) Littleton v. State, 225 Ga. App. 900, 901 (1) (485 SE2d 230) (1997). The victim also testified that Ellis had sexual intercourse with her against her will. “As for [Ellis’s] argument that the only evidence of the rape came from the victim, corroboration of a victim’s testimony is unnecessary to support a rape conviction.” (Citation omitted.) Id. In any event, there was in fact forensic evidence corroborating the victim’s account of vaginal penetration. The foregoing evidence was sufficient for the jury to find Ellis guilty of rape. See id.

(d) False imprisonment. Ellis argues that the evidence was insufficient to support his conviction on the false imprisonment charge because there was no independent corroboration showing that Ellis detained the victim against her will. Again, Ellis’s argument lacks merit.

“The essential elements of the crime of false imprisonment are: violating the personal liberty of another, by arresting, confining or detaining a person, without legal authority.” Austin, supra, 286 Ga. App. at 151 (1) (citing OCGA § 16-5-41 (a)). Here, the victim testified that she initially went with Ellis only because she did not want him to hurt her mother; that she did everything Ellis wanted her to do because she felt like she had no choice; and that after Ellis finished raping her, she felt like she could not leave the house because Ellis had a knife and his mental state appeared unstable. In addition, the responding officers attested to Ellis’s hours-long detention of the victim before he was willing to release her. One of the responding officers also testified that the victim was “visibly traumatized,” physically shaking, and crying upon her release from the house. This evidence was more than sufficient to support the false imprisonment conviction. See, e.g., Brigman v. State, 282 Ga. App. 481, 482-483, 484 (1) (639 SE2d 359) (2006) (holding that testimony of victim alone, coupled with the evidence surrounding the hours-long detention in one room, amply supported the jury’s conviction on the charge of false imprisonment); Scott v. State, 268 Ga. App. 889, 891 (a) (602 SE2d 893) (2004) (concluding that evidence was sufficient to support conviction for false imprisonment where the victim testified that she got into the defendant’s vehicle to keep him from hitting her and because she was afraid he would kill her if she refused, and where an eyewitness testified that victim was crying and bleeding after ordeal).

In sum, there is no merit to Ellis’s insufficiency claims, and we affirm his convictions for aggravated assault, aggravated sodomy, rape, and false imprisonment.

2. Ellis contends that the State failed to provide him with information pertaining to the victim’s criminal history or mental health status, in violation of Brady v. Maryland, 373 U. S. 83 (83 SC 1194, 10 LE2d 215) (1963). We disagree.

To prevail on a Brady claim, a defendant must show that the State possessed evidence favorable to the defendant; defendant did not possess the evidence nor could he obtain it himself with any reasonable diligence; the prosecution suppressed the favorable evidence; and had the evidence been disclosed to the defense, a reasonable probability exists that the outcome of the proceeding would have been different.

(Citation omitted.) Blackshear v. State, 285 Ga. 619, 622 (5) (680 SE2d 850) (2009); see also Belins v. State, 210 Ga. App. 259, 261 (2) (435 SE2d 675) (1993) (“Impeachment evidence showing bias or interest on the part of a key prosecution witness falls within the Brady rule.”) (citations and emphasis omitted).

Here, pretermitting the issue of whether Ellis met his burden with respect to the other prongs, we find no reversible error because Ellis failed to satisfy the first prong. That is, there is no evidence that the State was in possession of any criminal history regarding the victim or any information concerning the victim’s mental health history. “Brady does not impose an affirmative obligation on the prosecution to seek out information for the defense, even if such information is more accessible to the prosecution than to the defense.” (Citations and punctuation omitted.) Ferguson v. State, 226 Ga. App. 681, 685 (3) (487 SE2d 467) (1997). Therefore, we find no merit to this enumeration of error.

3. Ellis next argues that the trial court erred in allowing the admission of his custodial statements, because they were not made willingly, voluntarily, or with informed consent. Again, there is no merit to Ellis’s claim of error.

The trial court determines the admissibility of a defendant’s statement under the preponderance of the evidence standard considering the totality of the circumstances. Unless clearly erroneous, a trial court’s findings as to factual determinations and credibility relating to the admissibility of the defendant’s statement at a Jackson-Denno hearing will be upheld on appeal.

(Citations and punctuation omitted.) Sosniak v. State, 287 Ga. 279, 279-280 (1) (695 SE2d 604) (2010) (citing Jackson v. Denno, 378 U. S. 368 (84 SC 1774, 12 LE2d 908) (1964)).

The testimony at the Jackson-Denno hearing in this case showed the following. Ellis was interviewed on April 17, 2008, after he was in custody at the Henry County Police Department. Upon entering the interview room, Detective Reid with the Henry County Police Department introduced himself, removed Ellis’s handcuffs, and told Ellis why he wanted to speak with him. Detective Reid testified that Ellis was not free to leave at that time. In response to Detective Reid’s questions, Ellis indicated that he was not under the influence of drugs or alcohol, that he could read and write English, and that he had completed the twelfth grade. Thereafter, Detective Reid, reading from a standardized form, advised Ellis of his Miranda rights and had Ellis read the form as well. When asked whether he understood each of those rights, Ellis indicated that he did, and he initialed beside each right on the standardized form. Ellis then agreed to waive his rights and speak willingly with the detective. Detective Reid testified that he did not threaten Ellis in any way to make a statement after signing the waiver form. Thereafter, Ellis made statements to Detective Reid concerning the events that had transpired before and at the house in Henry County. After speaking with Ellis for approximately 15 minutes, Detective Reid asked Ellis to write a statement, but Ellis refused without the presence of his attorney. The interview ended at that point.

The foregoing evidence authorized the conclusion that Ellis made a knowing, intelligent, and voluntary decision to speak with the detective and give his oral statements. Cf. Gilliam v. State, 268 Ga. 690, 693 (3) (492 SE2d 185) (1997); Williams v. State, 214 Ga. App. 423, 424-425 (447 SE2d 716) (1994). Ellis nevertheless argues that he did not understand that he was being charged with aggravated assault, aggravated sodomy, rape, and false imprisonment. There is no merit to Ellis’s contention. Notably, Detective Reid testified that he advised Ellis of the accusations against him as of the time of the interview. “Moreover, a law enforcement officer’s failure to advise a suspect as to the crimes about which he is to be questioned prior to the suspect’s waiver of his Miranda rights is not relevant to the question of whether the suspect’s waiver was knowing and voluntary.” (Punctuation and footnote omitted.) Rivera v. State, 279 Ga. App. 1, 4 (2) (630 SE2d 152) (2006); see also Gaines v. State, 179 Ga. App. 623, 623-624 (1) (347 SE2d 673) (1986) (“The police have no duty, as part of the Miranda warnings, to inform a suspect of the crime which they are investigating.”) (citation and punctuation omitted). Thus, it was not error for the trial court to rule in favor of admitting Ellis’s custodial statements.

4. Ellis contends that the trial court erred in denying his motion for mistrial on the grounds that certain portions of the trial court’s jury charge were interrupted by courtroom distractions. We disagree.

“Whether to grant a motion for mistrial is within the trial court’s sound discretion, and the trial court’s exercise of that discretion will not be disturbed on appeal unless a mistrial is essential to preserve the defendant’s right to a fair trial.” (Citation and punctuation omitted.) Watson v. State, 289 Ga. 39, 42 (7) (709 SE2d 2) (2011).

Here, Ellis complains that a probation officer walked into the courtroom during the reasonable doubt jury charge, and that a beeper sounded during the jury charge on the voluntariness of a defendant’s statements. Ellis contends that he was denied a fair trial as a result of these distractions. Ellis, however, has presented no evidence that the jury was in fact distracted or confused about the jury charges that were allegedly interrupted. Indeed, the trial court later indicated that it stopped reading the reasonable doubt jury charge when the probation officer walked into the courtroom. The trial court also noted that the beeper “was as far away as you can get from the jury in this room,” and that the trial court did in fact pause in reading the jury charge while the owner of the beeper removed himself from the courtroom (which is reflected in the record). Moreover, since a copy of the charge as a whole was available to the jury during deliberations, any juror who was in fact distracted during a particular charge would have had an opportunity to reread those charges. Finally, the record does not reflect, nor could the trial court recall, that the jury requested clarification on any of the charges. Based on the foregoing circumstances, we cannot say that the trial court abused its discretion in denying Ellis’s motion for mistrial.

5. Ellis contends that he was denied a fair trial because the courtroom deputy made alleged inappropriate gestures and facial expressions in front of the jury. We disagree.

“When a trial court determines that a juror has received an improper communication it may, but is not required to, determine whether the communication had in fact prejudiced the juror before granting a mistrial.” (Citations omitted.) Reed v. State, 267 Ga. 482, 484 (1) (480 SE2d 27) (1997); see also Cooke v. State, 230 Ga. App. 326, 327 (496 SE2d 337) (1998).

Ellis first raised this issue at his motion for new trial hearing. The only evidence he proffered in support of his claim was his own testimony and that of his mother that they had witnessed the deputy shaking his head while Ellis was testifying and that the jury could have seen him. However, as the trial court pointed out at the motion for new trial hearing, neither Ellis, his counsel, nor his mother ever notified the court, or otherwise objected to, any alleged inappropriate expressions or gestures on the part of the deputy, either at the time it occurred or any other point during the trial. Nor does the trial record reflect any improper behavior by the deputy during Ellis’s testimony. Moreover, the trial court had no memory or knowledge of such behavior by the deputy during the trial. Based on the foregoing, the trial court denied Ellis’s motion for new trial on this ground. And given the absence of any evidence that the jury, either individually or as a group, in fact witnessed any alleged gestures or facial expressions made by the deputy during Ellis’s testimony, we cannot say that the trial court abused its discretion in doing so.

6. Ellis argues that the trial court erred at the motion for new trial hearing insofar as it excluded witness testimony regarding the victim’s allegedly prior false accusations of sexual abuse of her daughter. We disagree.

Ellis contends that this testimony was relevant to the victim’s credibility and showed that the victim had a pattern of making false accusations of sexual misconduct. However, “testimony which is merely impeaching is irrelevant in the context of the hearing on a motion for new trial. The time for making a proffer of the witnesses] impeaching testimony was at trial, not at the hearing on the motion for new trial.” (Citation and punctuation omitted.) Stephens v. State, 264 Ga. 761, 763 (7) (450 SE2d 192) (1994).

Furthermore, to the extent this witness testimony was relevant to a claim of ineffective assistance of counsel, insofar as Ellis contends that he sought to show that counsel failed to call the witness at trial, any error in excluding the testimony at the motion for new trial hearing was harmless. Indeed, “[a] strong presumption exists that counsel’s conduct falls within the broad range of professional conduct.” (Citation omitted.) Coggins v. State, 275 Ga. 479, 482 (3) (569 SE2d 505) (2002). Here, despite Ellis’s claim otherwise, the trial court was entitled to believe counsel’s testimony that Ellis never shared with him any information about the victim’s prior false allegations of sexual misconduct. See id. Thus, Ellis could not show that his trial counsel was deficient in failing to investigate a matter of which he was unaware at the time. Consequently, any error in excluding testimony about the matter at the motion for new trial hearing was harmless.

7. Ellis contends that the trial court erred in failing to allow him the opportunity to present evidence in mitigation of his sentence. Ellis specifically claims that he had several witnesses prepared to speak on his behalf in mitigation of sentencing, but that the witnesses were not presented at the pre-sentence hearing. Ellis’s enumeration is without merit.

“OCGA § 17-10-2 provides that a trial judge must conduct a pre-sentence hearing to determine punishment, and the record shows that such a hearing was held.” Scott v. State, 213 Ga. App. 84, 88 (5) (444 SE2d 96) (1994) (rejecting defendant’s claim that trial court erred in failing to reschedule pre-sentence hearing to allow her an opportunity to possibly present witnesses to testify in mitigation of her punishment where record showed that pre-sentence hearing was held). During the hearing in this case, the trial court specifically asked Ellis’s counsel if he had anything to present to assist the court in fixing punishment. Trial counsel provided some argument as to sentencing, but made no indication that he had evidence or witnesses to present in mitigation of Ellis’s punishment. Significantly, the trial court did not rule that Ellis could not present witnesses to testify on his behalf; nor did Ellis make an offer of proof as to the content of the alleged witnesses’ testimony. Cf. Wainwright v. State, 208 Ga. App. 777, 780-781 (3) (432 SE2d 555) (1993) (rejecting defendant’s claim that trial court erred in refusing to allow him to testify on his own behalf in mitigation of his sentence where the trial court never made a ruling that defendant could not testify, and where defendant did not object or request to make an offer of proof as to the content of his testimony). When the trial court announced the sentence and the reasons for it, Ellis made no objection.

Given that a pre-sentence hearing was held, coupled with the fact that Ellis declined any opportunity to present his alleged witnesses in mitigation of punishment and then failed to raise any objection when the court imposed its sentence, we find no merit to his claim of error. See Evans v. State, 240 Ga. App. 297, 300 (6) (523 SE2d 103) (1999).

8. Finally, Ellis argues that the trial court erred by denying his motion for new trial based on his claims of ineffective assistance of counsel. We disagree.

To establish ineffective assistance of counsel under Strickland v. Washington, 466 U. S. 668 (104 SC 2052, 80 LE2d 674) (1984), a criminal defendant bears the burden of showing “that counsel’s performance was deficient and that the deficient performance so prejudiced defendant that there is a reasonable likelihood that, but for counsel’s errors, the outcome of the trial would have been different.” (Citations omitted.) Johnson v. State, 287 Ga. 767, 769 (2) (700 SE2d 346) (2010). However, a court addressing the ineffective assistance issue is not required “to address both components of the inquiry if the defendant makes an insufficient showing on one.” Strickland, supra, 466 U. S. at 697 (IV). “In particular, a court need not determine whether counsel’s performance was deficient before examining the prejudice suffered by the defendant as a result of the alleged deficiencies.” Id. “When reviewing a trial court’s ruling on an ineffective assistance of counsel claim, we defer to its factual findings unless they are clearly erroneous, but we review the court’s legal conclusions de novo.” (Citation omitted.) Strong v. State, 308 Ga. App. 558, 561 (707 SE2d 914) (2011).

Here, Ellis enumerates a lengthy list of errors allegedly committed by trial counsel. We address each in turn.

(a) Ellis claims that trial counsel was ineffective in failing to adequately investigate the victim’s criminal and mental health history. Ellis relies solely upon the victim’s testimony at the motion for new trial hearing — that she had a conviction for theft by shoplifting, and that she had been hospitalized at a mental institution after the incident with Ellis.

With respect to the victim’s criminal history, OCGA § 24-9-84.1 (a) pertinently provides that evidence of a witness’s prior conviction shall be admitted if (i) the crime was punishable by death or imprisonment of one year or more if the court determines that the probative value of admitting the evidence outweighs its prejudicial effect; or (ii) the crime involved dishonesty or making a false statement, regardless of the punishment that could be imposed for such offense. See OCGA § 24-9-84.1 (a) (1), (3). With respect to a conviction for theft by shoplifting, the punishment imposed depends upon certain factors set forth in the statute, including the dollar amount of the stolen property and whether the defendant had previous shoplifting convictions. See OCGA § 16-8-14 (b). Moreover, because (Citations omitted.) Boatright v. State, 308 Ga. App. 266, 270-271 (1) (c) (707 SE2d 158) (2011). Here, without more information or evidence as to the factual basis for the victim’s prior theft by shoplifting conviction or the punishment imposed, Ellis has failed to show that this conviction would have been admissible for impeachment purposes at trial. Cf. id. at 271. Accordingly, Ellis cannot show that he was prejudiced by trial counsel’s failure to investigate or present evidence of the victim’s prior theft by shoplifting conviction. Cf. id. at 271 & n. 4.

theft is not a crime that necessarily involves dishonesty or making a false statement of the sort contemplated by this statutory subsection [,] ... the party seeking to use a misdemeanor theft conviction as impeachment evidence must show that the conviction involved fraud or deceit.

With respect to the victim’s prior mental health history, trial counsel testified at the motion for new trial hearing that he did not believe that any mental health issues of the victim were relevant to Ellis’s defense, given the nature of the crimes charged against him. Indeed, “[wjhether to impeach prosecution witnesses and how to do so are tactical decisions.” (Citation and punctuation omitted.) McMich-ael v. State, 305 Ga. App. 876, 878 (700 SE2d 879) (2010). And “[t]his Court will not, with benefit of hindsight, second-guess defense trial strategies therein. Absent a strong showing that counsel’s actions were not reasonable, we will presume that these strategies were not deficient.” (Citation and punctuation omitted.) Raymond v. State, 298 Ga. App. 549, 550-551 (1) (a) (680 SE2d 598) (2009). In light of trial counsel’s testimony, Ellis has failed to show that trial counsel’s decision not to use the victim’s mental health history to impeach her credibility was an unreasonable one.

(b) Ellis next contends that trial counsel was ineffective in failing to produce an eyewitness, Ellis’s son, to a prior alleged aggravated assault incident between Ellis and the victim. Ellis relied upon the testimony of his son at the motion for new trial hearing — that he was present on the date when the victim instigated a fight with Ellis and threw a lamp at him. However, his son’s testimony would have been cumulative of testimony provided by Ellis at trial. And “[tjrial counsel’s failure to present cumulative evidence does not amount to ineffective assistance.” (Footnote omitted.) Lyons v. State, 269 Ga. App. 27, 31 (3) (d) (602 SE2d 917) (2004).

(c) Ellis claims that trial counsel was ineffective in failing to object to the State’s similar transaction evidence, specifically Ellis’s prior conviction for simple battery. As stated in the trial court’s similar transaction instruction given to the jury, this evidence was admitted for the limited purpose of showing the nature of the relationship between Ellis and the victim. Ellis contends that because the conviction was a result of a nolo contendere plea, it should not have been used against Ellis pursuant to OCGA § 17-7-95 (c). Pretermit-ting the question of whether trial counsel was deficient in failing to object to the admission of this evidence, however, Ellis has failed to establish prejudice as a result of any failure on the part of trial counsel. Notably, in light of the overwhelming evidence described in Division 1 above, Ellis cannot show that the admission of the similar transaction evidence resulted in a guilty verdict. See Moore v. State, 301 Ga. App. 220, 225 (3), 227-228 (6) (687 SE2d 259) (2009) (concluding that any error in admitting similar transaction evidence was harmless where the overwhelming evidence of the defendant’s guilt made it highly unlikely that the admission of the similar transaction evidence contributed to the verdict, and that as a result, defendant could not establish prejudice from trial counsel’s failure to object to the similar transaction evidence).

(d) Ellis argues that trial counsel was ineffective in failing to request jury instructions on the lesser included offense of battery and any other lesser included offenses. At the motion for new trial hearing, trial counsel testified that based on the evidence and the fact that Ellis’s entire defense was based on the alleged consent of the victim, he did not believe there was a valid basis for requesting any lesser included offenses. Indeed, the failure to request a jury instruction on a lesser included offense cannot support a claim of ineffective assistance where, as here, the evidence does not reasonably raise the issue that Ellis may be guilty only of the lesser crimes. See Gross v. State, 312 Ga. App. 362, 365 (2) (718 SE2d 581) (2011); Chancey v. State, 258 Ga. App. 319, 321 (4) (a) (574 SE2d 383) (2002).

(e) Finally, Ellis claims that trial counsel was ineffective in failing to use an expert witness regarding the issue of consensual intercourse. “The decision whether to call an expert witness is a matter of trial strategy within the broad range of professional conduct afforded trial attorneys.” (Citation omitted.) Davis v. State, 290 Ga. 584, 586 (2) (a) (723 SE2d 431) (2012). Here, trial counsel testified that he did not believe an expert witness would have been helpful to Ellis’s defense. Moreover, Ellis failed to make a proffer of any favorable evidence that could have been elicited if an expert witness had been called. See Hendricks v. State, 290 Ga. 238, 241-242 (4) (b) (719 SE2d 466) (2011). Thus, Ellis failed to meet his burden of showing both deficient performance on the part of trial counsel and prejudice arising from such performance. See id.

Decided June 25, 2012.

Veronica E. Brinson, Jimmonique R. S. Rodgers, for appellant.

Tommy K. Floyd, District Attorney, Atha H. Pryor, Thomas L. Williams, Sandra G. Rivers, Assistant District Attorneys, for appellee.

In conclusion, the trial court did not err in denying Ellis’s motion for new trial on the grounds of his ineffective assistance of counsel claims.

Judgment affirmed.

Mikell, P. J., and Blackwell, J., concur.

       Assault is defined in OCGA § 16-5-20 (a) in pertinent part as when a person either “(1) Attempts to commit a violent injury to the person of another; or (2) Commits an act which places another in reasonable apprehension of immediately receiving a violent injury.”

       Ellis similarly contends that the victim’s testimony was insufficient to sustain his convictions because his trial counsel failed to impeach the victim’s credibility with evidence of her prior conviction for theft by shoplifting. Ellis’s contention is without merit. As discussed in Division 8 (a) below, Ellis failed to show that this conviction would have been admissible for impeachment purposes at trial.

       See generally Miranda v. Arizona, 384 U. S. 436 (86 SC 1602, 16 LE2d 694) (1966).

       Embedded as a footnote in the argument section of his brief, Ellis also contends that the trial court erred in denying Ellis’s motion for mistrial because lesser included offenses were not included in the jury charges. “But an appealing party may not use its brief to expand its enumeration of errors by arguing the incorrectness of a trial court ruling not mentioned in the enumeration of the errors.” (Citation, punctuation and footnote omitted.) Tucker v. State, 299 Ga. App. 278, 280 (2) (683 SE2d 356) (2009). Accordingly, we decline to review this argument on appeal. To the extent this issue pertains to Ellis’s claim of ineffective assistance of counsel, however, we address that claim in Division 8 (d) below.

       Ellis again seeks to expand his enumerations of error to include a somewhat incoherent claim regarding the trial court’s finding as to the completeness of the trial transcript. As we noted previously, however, Ellis cannot expand his enumerations of error through argument in his brief. See Tucker, supra, 299 Ga. App. at 280 (2).

       See Osborne v. State, 291 Ga. App. 711, 712-713 (2) (662 SE2d 792) (2008) (“[Evidence that the witness made prior false allegations of sexual misconduct by persons other than the defendant... is admissible to attack the credibility of the witness and as substantive evidence tending to prove that the charged offense did not occur.”) (citations and punctuation omitted).

       We decline, however, to address Ellis’s ineffectiveness claims that are not set forth in his enumerations of error - specifically, those regarding the videotape of the victim’s interview with the investigators, the number of law enforcement witnesses produced by the State, and the use of character witnesses during Ellis’s pre-sentence hearing. See Tucker, supra, 299 Ga. App. at 280 (2).

       OCGA § 17-7-95 (c) provides in relevant part that “[e]xcept as otherwise provided by law, a plea of nolo contendere shall not be used against the defendant in any other court or proceedings as an admission of guilt or otherwise or for any purpose).]”


source: Caselaw Access Project

author: Miller, Judge.

license: Public Domain

text:
    A12A0545, A12A0546.
    CAMP CHEROKEE, INC. v. MARINA LANE, LLC et al.; and vice versa.
    (729 SE2d 510)
   Miller, Judge.

Camp Cherokee, Inc. filed this suit for nuisance and trespass against Marina Lane, LLC, Clara Ruth Brooks, and Jerry Kyle (collectively “Marina Lane”) after Marina Lane built a dock on Camp Cherokee’s property at Lake Burton in Rabun County, Georgia. The case was referred to an auditor pursuant to OCGA § 9-7-1 et seq. Following an evidentiary hearing, the auditor issued a report with findings in favor of Marina Lane. Camp Cherokee filed its exceptions to the auditor’s report pursuant to OCGA § 9-7-14 (a). The trial court reversed the auditor’s conclusion that Marina Lane had a right to erect the dock. The trial court ruled as a matter of law that the erection of the dock on Camp Cherokee’s property constituted a nuisance and trespass; ordered that the dock be removed; and found that the issue of damages would be submitted to the jury. Although the trial court initially ruled that Camp Cherokee was also entitled to attorney fees under OCGA § 13-6-11 and punitive damages under OCGA § 51-12-5.1 (b), it later reconsidered its ruling and dismissed those claims.

We granted the parties’ respective applications for interlocutory appeal to review the trial court’s rulings. In Case No. A12A0545, Camp Cherokee contends that the trial court erred in dismissing its claims for attorney fees and punitive damages. In Case No. A12A0546, Marina Lane contends that the trial court erred in setting aside the auditor’s finding that they had a legal right to erect and maintain the dock; erred in ruling that the auditor’s report could not be submitted to the jury; and erred in ruling that Camp Cherokee would be allowed to present new evidence to the jury as to its damages. For the reasons that follow, we affirm the trial court’s rulings in Case No. A12A0546. However, we conclude that there was some evidence that would authorize an award of attorney fees and punitive damages; therefore, we reverse the trial court’s dismissal of those claims in Case No. A12A0545.

The record evidence shows that Camp Cherokee, a family owned corporation, owns certain property, including the land under the lake (“the lake bed”) and the shoreline, surrounding Lake Burton in Rabun County (“the property”). Camp Cherokee’s property was subject to a perpetual easement granted to Georgia Power Company, which allowed Georgia Power to flow and back water upon the property extending up to the 1866-foot contour line. Notwithstanding Georgia Power’s easement, Camp Cherokee retained fee simple ownership in the lake bed and shoreline.

In the 1920s, Camp Cherokee created the Cherokee Camp subdivision. Camp Cherokee retained ownership of the property, and conveyed to other individuals internal land lots in Block 11 that neither fronted nor abutted the lake. Brooks, Kyle, and the members of Marina Lane acquired ownership of lots in Block 11 of the subdivision. The chain of title and deeds of record conveying the subdivision lots in Block 11 did not contain express easements for access to the subject lake property or to the lake.

In May 2007, Marina Lane approached Georgia Power to request a permit to erect a floating dock in the waters of the lake. Upon learning of Marina Lane’s efforts to obtain dock permits on the lake, Camp Cherokee retained counsel to protect its property interest. In October 2007, and again in November 2007, Marina Lane was advised that Camp Cherokee owned the property and that it had not given permission for the proposed erection of a dock on its property. In January 2008, Georgia Power’s counsel advised Marina Lane that it did not own fee simple title to the land under the lake, and that Marina Lane was required to deal with the owner of the lake bed.

In March 2008, Georgia Power issued a license to Marina Lane for the erection of a dock within Georgia Power’s easement on the lake. The license expressly provided that “[Georgia Power] has not and does not now extend any invitation, either expressed or implied, to use said lake or lands in, on and adjacent thereto... for the erection of . . . docks, boat ramps, or other structures[.]” The license further provided that Marina Lane did not and would not claim any property rights to the lake or the lands “in, on and adjacent to the [l]ake[.]”

In April 2008, the property owners officially formed Marina Lane, LLC for the sole purpose of erecting and maintaining the dock on the lake. In July 2008, they obtained a county building permit to erect a floating dock, contending that the property owner was the “Cherokee Subdivision.” Marina Lane also obtained a construction permit from Georgia Power for a floating dock.

On September 16, 2008, Marina Lane erected the dock on the lake. Brooks and Kyle acknowledged that Camp Cherokee owned the lake bed, and that the dock was not allowed to touch the lake bed. Brooks and Kyle also testified that they did not request Camp Cherokee’s permission to erect the dock because they knew that Camp Cherokee would reject their request. The evidence and photographs nevertheless established that the dock had been erected on and attached to Camp Cherokee’s lake bed and property.

On the same day that the dock was erected, Camp Cherokee’s counsel sent Marina Lane letters again notifying it that Camp Cherokee owned both the shoreline and the lake bed, that Camp Cherokee had not given permission for the erection and attachment of a dock on the property, and that the dock’s erection would constitute a trespass on the property. Camp Cherokee’s counsel further directed Marina Lane to remove the poles that attached the dock onto the property, and advised that Camp Cherokee would pursue a civil action and seek attorney fees and punitive damages if the removal was not timely completed.

Marina Lane failed to take any action to remove the poles and the dock that were attached to Camp Cherokee’s property. The instant lawsuit ensued.

Case No. A12A0546

1. Marina Lane contends that the trial court erred in reversing the auditor’s ruling that it had legal rights to access the lake and to maintain the dock. We disagree.

The trial court was not obligated to accept the auditor’s erroneous legal conclusions. See OCGA § 9-7-16 (“Exceptions of law [from an auditor’s report] shall be for the exclusive consideration of the judge.”); see, e.g., Eardley v. McGreevy, 279 Ga. 562, 564-565 (2) (615 SE2d 744) (2005) (ruling that in submitting a land title case to a special master, the trial court does not cede jurisdiction to render a final decision and is not obligated to accept a special master’s erroneous legal conclusion). Based upon the evidence presented in this case, the trial court was authorized to reject the auditor’s erroneous legal rulings.

It is undisputed that the deeds conveying the subdivision lots to the Marina Lane owners did not contain express easements to access the lake. Marina Lane nevertheless argues that it acquired an irrevocable implied easement for lake access since Camp Cherokee had sold the subdivision lots pursuant to a recorded subdivision plat that showed the lake and there since had been a newspaper advertisement for an auction sale of residence and business lots at the lake with a representation that “[e]ach lot will carry [b]oating, [s]wim-ming and [fjishing [privilege.” In this regard, Marina Lane relies upon the legal principles set forth in Walker v. Duncan, 236 Ga. 331, 332 (223 SE2d 675) (1976), stating that

[i]t is well-established that where a developer sells lots according to a recorded plat, the grantees acquire an easement in any areas set apart for their use. An easement acquired in this manner is considered an express grant, and is an irrevocable property right. The rationale is that the grantees of the property have given consideration for its enhanced value in the increased price of their lots.

(Citations and punctuation omitted.) Id. Applying this principle, the Supreme Court of Georgia has previously ruled that owners of lakefront property can establish an irrevocable easement in the lake upon presenting evidence that “they purchased their lots according to a subdivision plat which had a lake area designated on it and paid more for their lakefront lots than the purchase price for non-lakefront lots[.]” (Citations and punctuation omitted.) Forsyth County v. Martin, 279 Ga. 215, 217 (1) (610 SE2d 512) (2005).

Here, the evidence fails to establish Marina Lane’s claims under this principle. As an initial matter, Marina Lane has failed to point to any evidence showing that they paid a premium or increased price for their lots based upon their proximity to the lake. In addition, the recorded plat of the subdivision reflects that Marina Lane’s lots in Block 11 were not adjacent to the lake. Cf. Higgins v. Odom, 246 Ga. 309, 309-310 (271 SE2d211) (1980) (ruling that neighboring property owner had an easement in the lake since she purchased her lot pursuant to a subdivision plat showing the lake, and paid more for her lot adjacent to the lake). The evidence and recorded plat also fail to reflect that the lake was specifically set aside as a common area for the subdivision owners’ use. See De Castro v. Durrell, 295 Ga. App. 194, 201-202 (2) (a) (671 SE2d 244) (2008) (ruling that the subdivision lot owners did not have an implied easement or easement by estoppel to a soccer field located in the subdivision since the recorded subdivision plat did not reflect that the field was a common recreational area).

The newspaper advertisement that Marina Lane relies upon was for lots that “front the [l]ake adjoining the Government Reservation and Power Company’s property[.]” The plats revealed that Marina Lane’s subdivision lots in Block 11 did not adjoin the properties referenced in the advertisement. The plats showed instead that the referenced properties were adjoined by other lots in different sections or blocks. As such, the evidence did not reflect that the advertisement applied to Marina Lane’s lots. There likewise was no evidence that the Marina Lane owners viewed or relied upon the newspaper advertisement when they purchased their lots. In the absence of evidence supporting Marina Lane’s claim to an easement under this principle, the trial court’s ruling that Marina Lane did not have a legal right to lake access was proper as a matter of law. See, e.g., Peck v. Lanier Golf Club, 315 Ga. App. 176, 181 (a) (726 SE2d 442) (2012) (property owner in a subdivision failed to show that he had acquired an implied easement in an adjacent golf course as a matter of law).

Marina Lane further argues that it acquired an irrevocable license to access the lake and erect a dock pursuant to OCGA § 44-9-4. That statute pertinently provides that “[a] parol license is not revocable when the licensee has acted pursuant thereto and in so doing has incurred expense; in such case, it becomes an easement running with the land.” OCGA § 44-9-4. In this regard, Marina Lane relies upon evidence that Camp Cherokee had previously allowed a property owner in the subdivision to erect and maintain a dock on its property. Nevertheless, the evidence was undisputed that the prior dock fell into disrepair and was no longer in existence. Significantly, it also was undisputed that the dock erected by Marina Lane was not in the same location as the prior dock. Consequently, even assuming that the prior dock created an irrevocable license in favor of the prior property owner, the evidence failed to show that Marina Lane’s dock fell within the property covered by the alleged license. Since Marina Lane’s claims were not supported by the evidence, the trial court’s ruling was authorized.

2. Marina Lane next argues that the trial court erred in ruling that the auditor’s report could not be presented to the jury. Again, we discern no reversible error.

OCGA § 9-7-8 mandates that the auditor shall file a report that “shall clearly and separately state all rulings made by him, classify and state his findings, and report his conclusions upon the law and facts.” An auditor’s report that commingles findings of fact and conclusions of law does not comply with the statute and places a party desiring to except to the findings at a disadvantage when the whole findings and conclusions are read to the jury. See Exchange Nat. Bank &c. v. McDonald, 179 Ga. 464, 469-470 (176 SE 18) (1934); Southern Pine Co. v. Dickey, 136 Ga. 662, 663 (a) (71 SE 1110) (1911). It has been acknowledged that if the commingled factual findings, arguments, and legal conclusions are read during the jury trial, the jury “might be unduly influenced by the matters of argument and law to the prejudice of the excepting party.” (Citation and punctuation omitted.) Exchange Nat. Bank, supra, 179 Ga. at 470. When an auditor’s report is noncompliant, the trial judge may recommit the report for correction. See OCGA§ 9-7-13 (a).

Here, it is undisputed that the auditor’s report erroneously commingled the factual findings and legal conclusions. Camp Cherokee filed exceptions to the report, as well as a motion to recommit the auditor’s report for the separation of the conclusions of law from the findings of fact. In ruling upon these matters, the trial court noted that at a status conference, the parties had stipulated to a procedure in which the trial court would not recommit the auditor’s report, but would instead proceed in ruling upon the exceptions matter by considering certain statements as conclusions of law rather than factual findings.

Since the auditor’s noncompliant report would impose a disadvantage and prejudice Camp Cherokee in its efforts to obtain a fair resolution of its exceptions before a jury, and since the parties stipulated to a procedure in which the case would be decided without recommitting the auditor’s report for correction, the trial court did not err in refusing to present the noncompliant auditor’s report to the jury. “It is a well-settled appellate rule that one cannot complain about a ruling of the trial court which the party’s own trial tactics or conduct procured or aided in causing.” Wallace v. Swift Spinning Mills, 236 Ga. App. 613, 617 (2) (511 SE2d 904) (1999). “[A party] cannot now complain of a result he aided in causing, because induced error is not an appropriate basis for claiming prejudice.” (Citations and punctuation omitted.) Shaver v. Kawasaki Motors Corp., 273 Ga. App. 140, 141-142 (614 SE2d 240) (2005).

3. Marina Lane further contends that the trial court erred in granting Camp Cherokee’s request to present new evidence as to its damages. We disagree.

In ruling upon Camp Cherokee’s exceptions to the auditor’s report, the trial court concluded that Camp Cherokee was entitled to damages from the date of the erection of the dock through the date the dock was removed. It was undisputed that at the time of the auditor’s proceedings in November 2009, the dock was still standing. It is likewise undisputed that Marina Lane removed the dock after the trial court entered its ruling on the exceptions in May 2010. Camp Cherokee, in turn, moved to introduce new evidence of its damages covering the period of time after the auditor’s proceedings through the subsequent removal of the dock, as authorized by the trial court’s ruling on the measure of damages. The trial court granted Camp Cherokee’s motion to present this new evidence.

OCGA § 9-7-19 (a) provides that in proceedings on exceptions to an auditor’s report, “[n] o new testimony shall be considered, except in those cases where, according to the principles of law, a new trial would be granted for newly discovered evidence.” Since the evidence of the damages incurred after the auditor’s proceedings amounted to newly discovered evidence, the trial court’s decision granting Camp Cherokee’s motion to present the new evidence was proper.

Case No. A12A054S

4. Camp Cherokee challenges the trial court’s dismissal of its claims for attorney fees and expenses of litigation under OCGA § 13-6-11 and for punitive damages under OCGA § 51-12-5.1, arguing that the claims should be submitted to a jury. We agree and reverse the trial court’s rulings on both grounds.

(a) Under OCGA § 13-6-11,

[t]he expenses of litigation generally shall not be allowed as a part of the damages; but where the plaintiff has specially pleaded and has made prayer therefor and where the defendant has acted in bad faith, has been stubbornly litigious, or has caused the plaintiff unnecessary trouble and expense, the jury may allow them.

Generally, the question of whether a defendant has acted in bad faith must be determined by the jury based upon its consideration of the facts and circumstances in the case. See Tyler v. Lincoln, 272 Ga. 118, 122 (2) (527 SE2d 180) (2000). The commission of an intentional tort invokes a species of bad faith that authorizes the recovery of expenses of litigation and attorney fees. Id. A trespass is an intentional act. Id. at 120 (1). The failure to ameliorate a continuing trespass and nuisance may amount to intentional acts authorizing the jury to consider an award of attorney fees. Id. at 120 (1), 122 (2); see also Merlino v. City of Atlanta, 283 Ga. 186, 190-191 (4) (657 SE2d 859) (2008); Paine v. Nations, 283 Ga. App. 167, 171 (2) (d) (641 SE2d 180) (2006). Where there is some evidence from which a jury could determine that the defendant acted in bad faith during the transaction out of which the lawsuit arose, the claim for attorney fees should be submitted to the jury for resolution. See Merlino, supra, 283 Ga. at 191 (4).

Here, the evidence showed that despite having prior knowledge that the lake bed was owned by Camp Cherokee and that Camp Cherokee had not granted permission for the dock to be attached to its lake bed and property, Marina Lane, Brooks, and Kyle nevertheless proceeded to build and attach the dock to Camp Cherokee’s lake bed. Notably, Brooks and Kyle both testified that they did not request Camp Cherokee’s permission to erect the dock because they knew that Camp Cherokee would reject their request. “Because this constitutes some evidence from which the jury could determine that [Marina Lane, Brooks, and Kyle] acted in bad faith during the [erection of the dock] out of which the lawsuit arose, we must reverse the trial court’s grant of summary judgment... on [Camp Cherokee’s] claim for attorney fees.” (Citation and punctuation omitted.) Merlino, supra, 283 Ga. at 191 (4).

The trial court ruled that the evidence did not rise to the level of bad faith since Marina Lane exercised due diligence in obtaining and relying upon the license and permit granted by Georgia Power prior to erecting the dock. Significantly, however, the evidence established that Georgia Power had repeatedly advised Marina Lane that it did not own the lake bed, and that Marina Lane was required to deal with the lake bed owner, Camp Cherokee, in order to erect the dock onto the lake bed. In addition, Camp Cherokee’s counsel wrote letters forwarded to Marina Lane’s members, Brooks, and Kyle, which confirmed that Camp Cherokee owned the lake bed and had not given permission for the dock’s erection onto its property. Notwithstanding this advance notice, Marina Lane erected the dock onto Camp Cherokee’s lake bed. Although Marina Lane knew that Camp Cherokee opposed having the dock on its property, Marina Lane took no action to remove it thereafter. This evidence presented a jury question as to whether Marina Lane, Brooks, and Kyle had engaged in wilful acts exhibiting an entire want of care and indifference as to the property rights of Camp Cherokee. See LN West Paces Ferry Assocs. v. McDonald, 306 Ga. App. 641, 644-645 (1) (a), (b) (703 SE2d 85) (2010) (evidence established intentional trespass and authorized attorney fees and punitive damages where the defendant property owner directed a contractor to tie his plumbing into the plaintiff neighbor’s manhole with knowledge that he did not have the plaintiff’s permission or an easement authorizing the intrusion onto the plaintiff’s property).

(b) Punitive damages may be awarded in accordance with OCGA § 51-12-5.1 (b) when there is “clear and convincing evidence that the defendant’s actions showed willful misconduct, malice, fraud, wantonness, oppression, or that entire want of care which would raise the presumption of conscious indifference to consequences.” As set forth in Division 4 (a) above, the evidence presented a material question as to whether the trespass and nuisance of Marina Lane, Brooks, and Kyle onto Camp Cherokee’s property was knowing, wilful, and a conscious indifference to the property rights of Camp Cherokee. It thus follows that the issue regarding Camp Cherokee’s claim for punitive damages was required to be submitted to the jury. See Tyler, supra, 272 Ga. at 120-121 (1) (ruling that material questions of fact existed that would allow a jury to consider a claim for punitive damages where the developers knew of the unauthorized trespass and nuisance, but took no action to ameliorate it); LN West Paces Ferry Assocs., supra, 306 Ga. App. at 645 (1) (a) (ruling that the jury was entitled to award punitive damages based upon evidence that the defendant was informed that his entry onto the plaintiff neighbor’s property would constitute an unlawful trespass, but defendant told his contractor to “do it anyway”) (punctuation omitted). The trial court therefore erred in ruling that the punitive damages issue could not be presented to the jury.

Decided June 25, 2012.

Jenkins & Bowen, Robert L. Walker, Peter R. Olson, for appellant.

Sanders & Ranck, Janney E. Sanders, for appellees.

Judgment reversed in Case No. A12A0545. Judgment affirmed in Case No. A12A0546.

Mikell, P. J., and Blackwell, J., concur.


author: Dillard, Judge.

text:
    A12A0594.
    IN THE INTEREST OF L. R., a child.
    (729 SE2d 520)
   Dillard, Judge.

L. R., a juvenile, entered an admission to acts which, if committed by an adult, would constitute the crime of aggravated assault, and further admitted to possession of a weapon by an underage person. Following a dispositional hearing, the juvenile court adjudicated L. R. to be a designated felon and entered a restrictive custody commitment order requiring that he be confined in a youth development center for a statutorily authorized period of time, but expressly declined to give him credit for the time he served in pre-disposition detention. On appeal, L. R. argues that his sentence is unlawful because the governing statute requires that the juvenile court give him credit for time served. For the reasons noted infra, we vacate the trial court’s order and remand for resentencing.

The undisputed facts show that the State filed a delinquency petition alleging that L. R. committed criminal attempt to commit murder, aggravated assault, possession of a weapon by an underage person, and participation in a criminal street gang. The allegations arose out of an incident in which L. R. engaged in a fight with the victim and subsequently shot him, inflicting a nonlethal wound.

At the time of the dispositional hearing on July 15, 2011, L. R. had been detained since December 3, 2010 — a total of 225 days — as his case was being transferred between the juvenile and superior courts. The juvenile court accepted L. R.’s admission to acts which, if committed by an adult, would constitute aggravated assault and to possession of a weapon by an underage person. The court also adjudicated L. R. to be a designated felon. The juvenile court then recognized that L. R. had “been incarcerated for quite a while,” but nonetheless ordered that L. R. be committed to the Department of Juvenile Justice for roughly 45 months, with no less than 24 months to be served in a youth development center, and expressly stated in its order that L. R. would receive “no credit for time served.”

L. R. does not challenge the juvenile court’s findings of fact nor does he assert that the court’s imposition of restrictive custody fell outside of the statutorily authorized range of confinement. Rather, in his sole enumeration of error, L. R. contends that the juvenile court’s failure to give him credit for time served renders the restrictive custody order unlawful pursuant to OCGA § 15-11-63 (e) (1) (B), which provides, in pertinent part, that when a court orders

restrictive custody in the case of a child found to have committed a designated felony act . . . [t]he order shall provide that . . . [t]he child shall initially be confined in a youth development center for a period set by the order, to be not less than 12 nor more than 60 months; provided, however, that time spent in secure detention prior to placement in a youth development center shall be counted toward the period set by the order . . . .

Given the foregoing statutory language, we are constrained to agree with L. R. that the juvenile court’s commitment order on its face violates the plain language of OCGA § 15-11-63 (e) (1) (B) to the extent that the statute mandates that a juvenile’s pre-disposition detainment must be credited to the time set for confinement. We note, however, that to the extent the juvenile court intended that L. R. serve 24 months in restrictive custody above and beyond the pre-disposition detainment time served, the extended period of confinement would still fall within the statutorily authorized range. We nonetheless must vacate the trial court’s dispositional order of commitment as written and remand this case to the trial court for resentencing in accordance with this opinion.

Decided June 25, 2012.

Stephen M. Reba, L. Elizabeth Lane, for appellant.

Gregory W. Winters, District Attorney, Ashley A. Cooper, Assistant District Attorney, for appellee.

Judgment vacated and case remanded.

Ellington, C. J., and Phipps, P. J., concur.

       Although the dates of L. R.’s uninterrupted detention are undisputed in the record, L. R. asserts that the pre-disposition detention totaled 141 days. According to our calculations, the total pre-disposition detention from December 3, 2010 to July 15, 2011 was 225 days.

        See OCGA §§ 15-11-28 (b) (1); 15-11-30.2 (a); 17-7-50.1 (a), (b).

        See OCGA§§ 16-5-21 (a) (2) (aggravated assault); 16-11-132 (b) (possession of handgun by persons under 18).

        See OCGA § 15-11-63 (a) (2) (B) (ii) (defining an act which, if done by an adult, would constitute aggravated assault as a “designated felony act” for which the juvenile court may impose restrictive custody).

       OCGA § 15-11-63 (e) (1) (B) (emphasis supplied).

        See In the Interest of L. J., 279 Ga. App. 237, 238 (630 SE2d 771) (2006) (“Where the language of a statute is plain and susceptible to only one natural and reasonable construction, courts must construe the statute accordingly.”); see also Reeves v. Upson Regional Medical 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)); Antonin Scalia, AMatter of Interpretation: Federal Courts and the Law 22 (Princeton Univ. Press 1997) (“The text is the law, and it is the text that must be observed.”).

        See OCGA § 15-11-63 (e) (1) (B).

        See generally In the Interest of P. R., 282 Ga. App. 480, 481 (638 SE2d 898) (2006) (remanding case to the juvenile court for resentencing when restrictive custody order failed to comport with the requirements of OCGA § 15-11-63); see also In the Interest of T. C. S., 307 Ga. App. 707, 710 (2) (706 SE2d 101) (2011); In the Interest of A. Z., 301 Ga. App. 524, 530-31 (2) (b) (687 SE2d 887) (2009); In the Interest of M. D. L., 271 Ga. App. 738, 742 (3) (610 SE2d 687) (2005).


text:
    A12A0644.
    FUTCH v. THE STATE.
    (730 SE2d 14)
   Dillard, Judge.

Following a bench trial, Mark D. Futch was convicted of one count of battery (family violence-first offense) and one count of influencing a witness. Futch appeals his convictions, arguing that the evidence was insufficient to prove his guilt beyond a reasonable doubt and that the trial court erred in admitting evidence of prior and subsequent bad acts without first conducting an explicit balancing test. For the reasons set forth infra, we affirm in part and reverse in part.

Viewed in the light most favorable to the trial court’s guilty verdict, the evidence shows that Futch and his wife had been married for approximately five years at the time of the alleged battery on December 23, 2007, but at that time they were estranged and living separately. Futch and his wife have a daughter who was approximately two years old at the time, and who lived with her mother after the couple separated. A few days before the incident, Futch’s wife permitted him to see their child. But when Futch refused to give the child back, his wife decided to arrange a meeting to recover her daughter.

On December 23, 2007, she met Futch and their daughter at Futch’s father’s home. They then traveled to Statesboro where they ate at a local restaurant. There, Futch tried to persuade his wife to reconcile, but this discussion quickly devolved into an argument, which in turn resulted in Futch taking the keys to his wife’s car. Futch’s wife then suggested that they go to the local Walmart to do Christmas shopping, hoping that this would give her an opportunity to escape with her daughter in tow.

Once at Walmart, Futch noticed his wife’s nervousness. Suspecting that she would try to escape, he “put his hand” on his wife’s neck and warned: “You can think it, don’t try it. I’ll kill you, I’ll kill her and Fll kill myself.” Shortly thereafter, Futch’s wife noticed that their daughter’s hands had become sticky from a lollipop, and — seizing the opportunity — suggested that she take their daughter to the bathroom to wash the child’s hands. In the bathroom, Futch’s wife started “shaking and crying” with fear, and asked a woman in the bathroom “if she could please help [her]” by locating a manager or police officer. The Good Samaritan then tracked down a manager, who called the police.

Shortly thereafter, a local police officer responded to the call. And upon arriving at Walmart, the officer found Futch’s wife sitting in her car, and observed that “[s]he was visibly upset, she was crying, [and] her voice was very shaky.” The officer took a statement from Futch’s wife, and arrested Futch for family-violence simple battery and family-violence simple assault.

Subsequently, Futch was indicted on one count of making ter-roristic threats and one count of battery (family violence-first offense). And then, prior to a trial scheduled for March 28, 2008, Futch contacted his wife and threatened her not to testify, against him, warning, “[i]f you testify against me I’ll kill you.” Based on this threat, the charge of influencing a witness was added and presented as a Special Presentment to the Grand Jury on May 5, 2008, and ultimately true billed.

Thereafter, Futch waived his right to a jury trial and proceeded with a bench trial, during which Futch’s wife testified to the alleged battery on December 23, 2007, and to Futch’s threat to kill her if she testified against him. In addition, she testified about three other domestic incidents between the estranged couple. Specifically, she testified that Futch pulled her out of bed by the ankles in November 2005, that Futch hit her and tried to strangle her on November 5, 2006, and that Futch cut her on the neck, causing a small puncture wound, on April 11, 2008. A detective with the Richmond Hill Police Department investigated this last incident and took pictures of the injury that Futch’s wife suffered. The defense called Futch’s father, mother, and brother to the stand, all of whom testified that they believed Futch’s wife to be dishonest.

At the trial’s conclusion, the court found Futch guilty on the counts of battery (family violence-first offense) and influencing a witness. In explaining his ruling, the trial judge addressed Futch’s wife:

And, Ms. Futch, just that you don’t misunderstand, I think that about half of your testimony was a lie too. And that truth is stuck somewhere in between all of it. But I think there is enough truth there to convict and that’s the reason I’m doing it. And I don’t have any reasonable doubt that both of them happened.

Subsequently, Futch moved for a new trial, which the trial court denied. This appeal follows.

1. In his first enumeration of error, Futch contends that the evidence was insufficient to support his convictions of family-violence battery and influencing a witness. Specifically, he argues that because the trial judge noted his belief that “half of [the victim’s] testimony was a lie,” the victim’s testimony is insufficient evidence to support his convictions. For the reasons noted infra, we affirm the conviction for influencing a witness. However, because the State failed to introduce sufficient evidence to support an essential element of family-violence battery, we are constrained to reverse Futch’s conviction on that particular count.

At the outset, we note that when a criminal conviction is appealed, the evidence must be viewed in the light most favorable to the verdict, and the appellant no longer enjoys a presumption of innocence. In evaluating the sufficiency of the evidence, “we do not weigh the evidence or determine witness credibility but only determine whether a rational trier of fact could have found the defendant guilty of the charged offenses beyond a reasonable doubt.” Accordingly, the trier of fact’s verdict will be upheld “[a]s long as there is some competent evidence, even though contradicted, to support each fact necessary to make out the State’s case . . . .”

(a) Family-Violence Battery. A defendant commits the offense of battery when he “intentionally causes substantial physical harm or visible bodily harm to another.” As defined in the statute, the term “visible bodily harm” means bodily harm “capable of being perceived by a person other than the victim and may include, but is not limited to, substantially blackened eyes, substantially swollen lips or other facial or body parts, or substantial bruises to body parts.” And when a defendant commits the offense of battery against a spouse or other family member, then the offense constitutes family-violence battery.

Whether substantial physical harm or visible bodily harm occurs is typically a question for the trier of fact. That does not mean, however, that any type of physical contact with the victim is sufficient to support a conviction for battery. To establish battery, the State must introduce evidence of pain or harm. Moreover, the State must introduce some evidence that the physical harm is substantial or visible to others. Indeed, the severity of the harm inflicted is precisely what distinguishes battery from the lesser offense of simple battery: Simple battery requires offensive touching or physical harm, whereas battery requires substantial physical harm or visible bodily injury. Our General Assembly has established harsher penalties for batteries that result in more severe physical harm, allowing a battery to be punished as a felony under certain circumstances, while generally punishing simple battery as a misdemeanor.

In family-violence-battery cases, the State typically establishes substantial physical harm or visible bodily injury by introducing evidence that the defendant’s conduct produced bruises, swelling, cuts, or some other physical mark. Additionally, evidence that the victim suffered significant pain is also sufficient to support a conviction for family-violence battery. However, in the case sub judice, the victim’s testimony that Futch “put his hand” on her neck falls short of the evidence required to permit a reasonable trier of fact to infer that she suffered substantial physical harm or visible bodily harm. The State has accordingly failed to carry its burden of establishing the severity of harm required for the offense of battery under OCGA § 16-5-23.1 (a). Consequently, the evidence is insufficient to authorize a rational trier of fact to conclude beyond a reasonable doubt that Futch was guilty of family-violence battery. We are, therefore, constrained to reverse Futch’s conviction on that offense.

(b) Influencing a Witness. A defendant commits the offense of influencing a witness when “with intent to deter a witness from testifying freely, fully and truthfully to any matter pending in any court,” he “communicates, directly or indirectly, to such witness any threat of injury or damage to the person, property, or employment of the witness . . . ”

As noted supra, Futch contends that his wife’s testimony is insufficient evidence to support his conviction because the trial judge noted his belief that “about half of [her] testimony was a lie.” We disagree. Assessing the credibility of witnesses properly belongs to the trier of fact. Indeed, this Court does not assess the credibility of witnesses on appeal. Moreover, it is within the discretion of the trier of fact to believe part of a witness’s testimony while disbelieving another part. Furthermore, the factfinder may even rely on a witness’s prior statements when that witness’s testimony at trial contradicts those statements.

Here, the trial court was entitled to rely on the testimony of Futch’s wife that Futch threatened to kill her if she testified against him. And the testimony of a single witness is generally sufficient to establish a fact. The State thus presented sufficient evidence that Futch acted with the requisite criminal intent to deter his wife from testifying and that he directly communicated a threat to her. Accordingly, the trial court did not err in finding that Futch was guilty beyond a reasonable doubt of influencing a witness.

2. Futch also contends that the trial court erred in admitting evidence regarding three other incidents of physical abuse of his wife as prior and subsequent bad acts without conducting an explicit balancing test. We disagree.

We first note that “[a]s a general rule, admission of evidence is a matter resting within the sound discretion of the trial court, and appellate courts will not disturb the exercise of that discretion absent evidence of its abuse.” Moreover, because this was a bench trial, “there is a presumption, in the absence of a strong showing to the contrary, that the trial judge sifted the wheat from the chaff, ignored illegal evidence and considered only legal evidence.” We address Futch’s claim of error with these guiding principles in mind.

In Wall v. State, the Supreme Court of Georgia held that evidence of the defendant’s prior bad acts toward the victim, such as a prior assault, quarrel, or threat, is admissible when

the defendant is accused of a criminal act against the victim, as the prior acts are evidence of the relationship between the victim and the defendant and may show the defendant’s motive, intent, and bent of mind in committing the act against the victim which results in the charges for which the defendant is being prosecuted.

Importantly in Wall, our Supreme Court dispensed with the requirement that the trial court conduct a pre-trial hearing and make certain findings before allowing evidence of prior difficulties between the defendant and the victim. Furthermore, because subsequent bad acts arise from the relationship between the defendant and victim in the same way that prior bad acts do, they are admissible under the same analysis. Of course, as with any evidence, evidence of prior and subsequent difficulties may not be unduly prejudicial, remote, or confusing to the jury.

Contrary to Futch’s contention, however, there is no requirement that the trial judge conduct an “explicit” balancing test in order to conclude that the probative value of the evidence outweighs its prejudicial effect. And here, Futch’s prior and subsequent physical abuse of his wife was relevant to showing the type of relationship that existed between them, as well as Futch’s motive, intent, and bent of mind in committing the charged offenses. Accordingly, the trial court did not abuse its discretion in admitting evidence of prior and subsequent bad acts.

Decided June 25, 2012.

Stuart H. Patray, for appellant.

Richard A. Mallard, District Attorney, Daphne H. Jarriel, Assistant District Attorney, for appellee.

For all the foregoing reasons, we reverse the trial court’s conviction on the count of battery (family violence-first offense) and affirm the trial court’s conviction on the count of influencing a witness.

Judgment affirmed in part and reversed in part.

Ellington, C. J., and Phipps, P. J., concur.

        See, e.g., Joiner v. State, 299 Ga. App. 300, 300 (682 SE2d 381) (2009); see also Jackson v. Virginia, 443 U. S. 307, 319 (III) (B) (99 SC 2781, 61 LE2d 560) (1979).

       The State dismissed the charge of terroristic threats.

        See, e.g., English v. State, 301 Ga. App. 842, 842 (689 SE2d 130) (2010).

        Joiner, 299 Ga. App. at 300 (citation omitted); see also Lott v. State, 303 Ga. App. 775, 775 (1) (694 SE2d 698) (2010).

        Miller v. State, 273 Ga. 831, 832 (546 SE2d 524) (2001) (citation and punctuation omitted).

       OCGA§ 16-5-23.1 (a).

       OCGA§ 16-5-23.1 (b).

       OCGA§ 16-5-23.1 (f).

        Richards v. State, 222 Ga. App. 853, 854 (1) (b) (476 SE2d 598) (1996); see also Williams v. State, 248 Ga. App. 316, 318 (1) (546 SE2d 74) (2001) (holding that what constitutes serious disfigurement for the purposes of aggravated battery is almost always a question for the jury).

        See Cox v. State, 243 Ga. App. 582, 582 (1) (532 SE2d 697) (2000) (reversing a battery conviction on the grounds of insufficiency of the evidence where the defendant splashed beer on his wife); see also Williams, 248 Ga. App. at 318 (1) (noting that the jury’s role to determine what constitutes serious disfigurement does not mean that “no threshold exists”).

        See Cox, 243 Ga. App. at 582 (1).

        See OCGA§ 16-5-23.1 (a).

        See OCGA §§ 16-5-23 (a); 16-5-23.1 (a); see also Williams, 248 Ga. App. at 318 (1).

        See OCGA §§ 16-5-23 (b); 16-5-23.1 (e), (f) (2), (i); see also Williams, 248 Ga. App. at 318 (1).

        See, e.g., Powell v. State, 304 Ga. App. 221, 222 (1) (695 SE2d 736) (2010) (upholding conviction based on evidence that the victim suffered bruises on her face and arm); Simmons v. State, 285 Ga. App. 129, 130 (645 SE2d 622) (2007) (upholding conviction based on evidence that the defendant caused the victim’s head to bleed); Buice v. State, 281 Ga. App. 595, 596 (1) (636 SE2d 676) (2006) (upholding conviction based on evidence that the victim’s face was swollen and back was bruised); Gilbert v. State, 278 Ga. App. 765, 766 (629 SE2d 587) (2006) (upholding conviction based on evidence that the victim’s face was red from the defendant’s blow); Kuykendoll v. State, 278 Ga. App. 369, 369-70 (1) (629 SE2d 32) (2006) (upholding conviction based on evidence that the victim suffered a nose bleed, bruises, a cut lip, and loosened teeth); Griffin v. State, 262 Ga. App. 87, 87-88 (1) (585 SE2d 145) (2003) (upholding conviction based on evidence that there were visible injuries on the victim’s head and blood spattered at the scene); Cobble v. State, 259 Ga. App. 236, 237 (1) (576 SE2d 623) (2003) (upholding conviction based on evidence that the defendant pulled the victim’s hair, leaving her head bloody); Downs v. State, 240 Ga. App. 740, 741 (1) (524 SE2d 786) (1999) (upholding conviction based on evidence that the victim suffered bruising and cuts on her arm and leg); Holland v. State, 239 Ga. App. 436, 437 (1) (521 SE2d 255) (1999) (upholding conviction based on evidence that the victim had a bleeding lower lip and finger marks on her neck).

        See Harris v. State, 257 Ga. App. 819, 820-21 (1) (572 SE2d 370) (2002) (finding the evidence sufficient to sustain a conviction for family-violence battery when the defendant squeezed the victim’s head and pushed her into a window, causing her to fall to the floor and scream in pain).

        Compare Mize v. State, 135 Ga. App. 561, 561 (1) (218 SE2d 450) (1975) (holding that some physical harm may be presumed from being “firmly grabbed” and “squeezed” in cases of simple battery); Owens v. State, 173 Ga. App. 309, 312 (3) (326 SE2d 509) (1985) (same).

        See Cox, 243 Ga. App. at 582 (1); see generally Jackson, 443 U. S. at 319 (III) (B).

       OCGA§ 16-10-93 (a).

       OCGA § 24-9-80.

        See, e.g., Odett v. State, 273 Ga. 353, 353-54 (1) (541 SE2d 29) (2001); Berry v. State, 268 Ga. 437, 438 (1) (490 SE2d 389) (1997).

        See OCGA § 24-9-85 (a) (“When a witness shall be successfully contradicted as to a material matter, his credit as to other matters shall be for the jury.”).

        See, e.g., Buice, 281 Ga. App. at 596 (1); Griffin, 262 Ga. App. at 88 (1); Bailey v. State, 254 Ga. App. 420, 421 (1) (562 SE2d 803) (2002).

       OCGA § 24-4-8; see also Temple v. State, 238 Ga. App. 146, 148 (2) (517 SE2d 850) (1999); Mooney v. State, 221 Ga. App. 420, 423 (1) (471 SE2d 904) (1996).

        See Johnson v. State, 277 Ga. App. 499, 505-06 (2) (627 SE2d 116) (2006) (indicating that it is for the factfinder to infer criminal intent from the defendant’s words, conduct, and demeanor).

        See id.

        Smith v. State, 302 Ga. App. 128, 130 (1) (690 SE2d 449) (2010) (punctuation omitted).

        Mays v. State, 306 Ga. App. 507, 512 (2) (703 SE2d 21) (2010) (punctuation omitted).

       269 Ga. 506, 509 (2) (500 SE2d 904) (1998).

        Id.

        Id.

        See Freeman v. State, 269 Ga. App. 435, 437-38 (1) (604 SE2d 280) (2004) (“[W]e believe that evidence of a defendant’s subsequent act toward the same victim is admissible as evidence of the relationship between the victim and the defendant, and it may show the defendant’s motive, intent, and bent of mind in committing the act against the victim which results in the charges for which the defendant is being prosecuted.”); see also Reed v. State, 309 Ga. App. 183, 187-88 (2) (709 SE2d 847) (2011).

        See Tuff v. State, 278 Ga. 91, 92 (2) (597 SE2d 328) (2004).

        Cf. Newman v. State, 233 Ga. App. 794, 795 (2) (504 SE2d 476) (1998) (holding that, in similar transaction evidence hearings, the trial court is not required to make an express finding that the probative value of the similar transaction evidence outweighs its prejudicial effect).

        See Hayes v. State, 275 Ga. 173, 175 (3) (562 SE2d 498) (2002) (affirming the admissibility of evidence of prior bad acts to support convictions of malice murder and family-violence battery); see also Cuzzort v. State, 307 Ga. App. 52, 54 (1) (703 SE2d 713) (2010) (relying partially on evidence of prior difficulties to sustain convictions of family-violence battery, simple battery, and simple assault); Simmons, 285 Ga. App. at 130 (relying partially on evidence of prior difficulties to sustain convictions of family-violence battery and aggravated assault); Buice, 281 Ga. App. at 596 (1) (relying partially on evidence of prior difficulties to sustain a conviction of family-violence battery).


text:
    A12A0666.
    WILLIAMS v. THE STATE.
    (729 SE2d 517)
   Miller, Judge.

Following a jury trial, Bernard Carrode Williams was convicted of possession with intent to distribute methamphetamine (OCGA § 16-13-30 (b)). Williams appeals from the denial of his motion for new trial, contending that he received ineffective assistance of counsel because his trial counsel failed to file a timely motion to suppress. Finding no error, we affirm.

In reviewing a trial court’s ruling on an ineffective assistance of counsel claim, we accept the trial court’s factual findings and credibility determinations unless clearly erroneous, but we independently apply the legal principles to the facts. To prevail on a claim of ineffective assistance of trial counsel, a defendant bears the burden of showing both that trial counsel was deficient and that he was prejudiced by the deficiency. To demonstrate deficient representation, a convicted criminal defendant must show that counsel’s representation fell below an objective standard of reasonableness. Strickland v. Washington, 466 U. S. 668, 688 (104 SC 2052, 80 LE2d 674) (1984).

(Citations and punctuation omitted.) Thrasher v. State, 300 Ga. App. 154 (684 SE2d 318) (2009).

Viewed in the light most favorable to the jury’s verdict, the evidence showed that upon receiving a tip from a confidential informant, police officers obtained and executed a warrant to search the residence occupied by Williams and his co-defendant. During their search, the officers found 11.01 grams of methamphetamine, digital scales, and packaging material consistent with drug sales and distribution. Williams was subsequently arrested and charged with possession of methamphetamine with intent to distribute, in violation of OCGA § 16-13-30 (b).

On the day of Williams’s trial, he filed an untimely motion to suppress the evidence, contending that the search warrant application, including the supporting affidavit, was legally insufficient. The trial court refused to consider the motion to suppress since it was untimely filed. Following the presentation of evidence, the jury found Williams guilty of possession of methamphetamine with intent to distribute.

Williams contends that his trial counsel was ineffective for failing to file a motion to suppress the evidence found during the execution of the search warrant. Williams asserts that the search warrant was not supported by probable cause because it was issued based upon information provided by an informant who was not shown to be reliable, who did not have a sufficient basis of knowledge, and whose information was not sufficiently corroborated. We disagree.

“To establish ineffective assistance of counsel on the basis of counsel’s failure to file a timely motion to suppress, [Williams] must make a strong showing that had the motion been considered, the damaging evidence would have been suppressed.” (Footnote omitted.) Brown v. State, 311 Ga. App. 405, 407 (2) (715 SE2d 802) (2011).

[A] defendant may seek to suppress evidence seized during a warrant search if the warrant was not supported by probable cause. Where the State seeks to establish probable cause through information provided by unidentified informants, the informants’ veracity and basis of knowledge are major considerations in the probable cause analysis. An affidavit submitted in support of a search warrant must set forth sufficient facts from which the magistrate or judge can independently determine the reliability of both the information and the informant. In determining whether an affidavit provided sufficient probable cause, the issuing magistrate or judge must make a practical, common-sense decision whether, given all the circumstances set forth in the affidavit before him, including the veracity and basis of knowledge of persons supplying hearsay information, there is a fair probability that contraband or evidence of a crime will be found in a particular place.

(Punctuation omitted.) Land v. State, 259 Ga. App. 860, 861 (1) (578 SE2d 551) (2003). Further,

[t]his Court’s review of the magistrate’s decision is limited to determining if the magistrate had a substantial basis for concluding that probable cause existed to issue the search warrant. Substantial deference is afforded to a magistrate’s decision to issue a search warrant based on a finding of probable cause. And a presumption of validity attaches to an affidavit supporting a search warrant. Further, doubtful cases should be resolved in favor of upholding search warrants.

(Punctuation omitted.) Williams v. State, 303 Ga. App. 222, 226 (3) (692 SE2d 820) (2010).

Pretermitting whether trial counsel was deficient for failing to timely file a motion to suppress, Williams has failed to establish that he was prejudiced by such failure. Cf. Brown, supra, 311 Ga. App. at 407 (2). The record shows that the informant personally observed the methamphetamine at Williams’s residence, establishing the informant’s basis of knowledge. See Rocha v. State, 284 Ga. App. 852, 853 (644 SE2d 921) (2007) (basis of informant’s knowledge was strong where he personally observed methamphetamine at the address to be searched). The informant’s reliability was established by his personal observation, along with evidence that the informant had provided the current tip within the past 72 hours and had previously supplied accurate information to police officers that led to more than five arrests and the recovery of illegal narcotics. See Zorn v. State, 291 Ga. App. 613, 615-616 (1), (2) (662 SE2d 370) (2008) (informant considered reliable where he saw methamphetamine at defendant’s house, furnished current tip within 72 hours, and had previously supplied drug-related information that had been confirmed); Williams, supra, 303 Ga. App. at 227-228 (3) (informant’s reliability established where informant saw marijuana at defendant’s residence, had promptly reported the information to police, and had previously provided information to officers that led to arrests and convictions). Given that the methamphetamine was personally observed by a reliable informant, the informant’s tip was sufficient to establish probable cause without the need for independent corroboration. See, e.g., Rocha, supra, 284 Ga. App. at 854; Zorn, supra, 291 Ga. App. at 615-616 (2). Since Williams has not shown that the motion to suppress would have been granted had it been timely filed, he has failed to make the necessary showing to establish ineffective assistance of counsel. See, e.g., Brown, supra, 311 Ga. App. at 408 (2); Davis v. State, 267 Ga. App. 245, 246 (2) (599 SE2d 237) (2004).

Decided June 25, 2012.

Robert M. Patten, David J. Dunn, Jr., for appellant.

Leigh E. Patterson, District Attorney, Finnis K. Salmon, Assistant District Attorney, for appellee.

Judgment affirmed.

Mikell, P. J., and Blackwell, J., concur.

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