text:
    A16A0055.
    SPRATLIN v. THE STATE.
    (785 SE2d 427)
   Peterson, Judge.

Santonio Spratlin, convicted of armed robbery, aggravated assault, and possession of a firearm during the commission of a crime, appeals from the denial of his motion for a new trial and argues that the evidence was insufficient to sustain his armed robbery conviction. We affirm because the trial evidence authorized the jury to conclude that Spratlin committed the charged offense.

On appeal from a criminal conviction, we view the evidence in a light most favorable to the verdict, and [Spratlin] no longer enjoys a presumption of innocence. We neither weigh the evidence nor judge the credibility of witnesses, but only determine whether the evidence was sufficient for a rational trier of fact to find the defendant guilty of the charged offense beyond a reasonable doubt.

Ferrell v. State, 283 Ga. App. 471, 472 (1) (641 SE2d 658) (2007) (footnotes omitted).

So viewed, the evidence shows that on November 26, 2012, the victim was working at a gas station. Spratlin, with whom the victim was familiar as a repeat customer, entered the gas station and asked the victim to retrieve some cigarillos from behind the counter. When the victim did so and turned back to the counter, Spratlin, who was not disguised or masked, was pointing a gun at the victim. Spratlin threatened to kill the victim and demanded that the victim give Spratlin the cash from the cash register. The victim complied. Spratlin left, and the victim called police. The police responded to the victim’s call, but did not collect any video surveillance from the gas station because the surveillance system was not working and did not collect any fingerprints or other physical evidence.

The victim initially described the offender as a 5'3" tall black male with a skinny build, short hair, and no facial hair, and stated that he would recognize him because he has been a customer at the gas station several times. The police later took the victim to a children’s group home, showed the victim several individuals (though Spratlin was not included among them), and asked the victim if any were the offender, which the victim denied. Later, the police showed the victim photos of six people, including Spratlin, and the victim identified Spratlin as the offender with one hundred percent certainty. Following the positive identification from the photo lineup, Spratlin was apprehended at the group home. The police did not search the group home where Spratlin was located for guns or other evidence. After Spratlin was detained and read his Miranda rights, he was interviewed by a police detective and admitted that “I drew down on [the victim] and took the money.” The victim also identified Spratlin in court.

(a) Spratlin first argues that the evidence is insufficient to sustain his armed robbery conviction because Spratlin’s confession alone cannot justify conviction, and the confession did not align with the victim’s detailed description of the event and offender. Spratlin’s argument fails because the victim’s identification of Spratlin as the offender corroborates the confession, and because inconsistencies in the physical description go to the credibility of the testimony, which falls within the purview of the jury to consider.

As an initial matter, Spratlin is correct that “[a] confession alone, uncorroborated by any other evidence, shall not justify a conviction.” OCGA § 24-8-823. But here, there is other evidence corroborating the confession. The victim identified Spratlin from a photo array as the individual who pointed a gun at his face and demanded the money from the cash register and testified as to the details of that event. The victim’s testimony was not inconsistent with Spratlin’s confession, only more detailed. Moreover, the victim was familiar with Spratlin because Spratlin had been a repeat customer at the gas station. Finally, the victim identified Spratlin as the offender in court. “The testimony of a single witness is generally sufficient to establish a fact.” OCGA § 24-14-8. See also Clowers v. State, 299 Ga. App. 576, 577 (1) (683 SE2d 46) (2009). That the victim’s initial physical description of the offender differed from Spratlin’s actual appearance goes toward the credibility of the victim’s testimony and does not render the victim’s later identification from the photo array inherently unreliable. See Price v. State, 194 Ga. App. 453, 454-55 (1) (390 SE2d 663) (1990). “Decisions regarding credibility are uniquely the province of the trier of fact.” Cleveland v. State, 285 Ga. 142, 147 (674 SE2d 289) (2009). From this evidence, the jury was authorized to convict Spratlin of armed robbery.

(b) Spratlin also argues that the evidence was insufficient to sustain his armed robbery conviction because there was no physical evidence connecting him to the armed robbery. This argument fails because physical evidence is not required to sustain an armed robbery conviction. “While it is true that the state failed to produce a weapon, fingerprints, or other physical evidence tying [Spratlin] to the crime, the jury was authorized to accept the [victimj’s identification testimony.” Clowers, 299 Ga. App. at 577 (1). Thus, the evidence was sufficient to support Spratlin’s conviction for armed robbery. See id.

Judgment affirmed.

Phipps, P. J., and Dillard, J., concur.

Decided April 20, 2016.

Long D. Vo, for appellant.

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

       Spratlin argues that, contrary to the victim’s description, he is approximately 5'8", 160 pounds, with “long, big, puffy hair and a goatee.”


source: Caselaw Access Project

author: Peterson, Judge.

license: Public Domain

text:
    A16A0262.
    HEATHERLY v. THE STATE.
    (785 SE2d 431)
   Peterson, Judge.

Robert Wayne Heatherly, Jr., appeals from the denial of his motion for a new trial following his conviction for theft by taking. He argues that the trial court erred by not reversing his conviction because there was no corroboration of the accomplice witness testimony. We disagree. We affirm Heatherly’s conviction because the resulting misdemeanor conviction does not require corroborating evidence.

“On appeal, the evidence must be viewed in the light most favorable to support the verdict, and the appellant no longer enjoys a presumption of innocence.” Culver v. State, 230 Ga. App. 224, 224 (496 SE2d 292) (1998) (citing Williams v. State, 228 Ga. App. 698, 699 (1) (492 SE2d 708) (1997)). So viewed, the evidence shows that Heatherly was a third shift supervisor at Dalton Paper Products. Sometime between May and June of 2012, the plant manager received an anonymous phone call informing him that a plant employee, Donald Malone (Heatherly’s co-defendant), was stealing from the plant. The plant manager was also separately informed that certain parts had gone missing from a secured area of the plant. The plant manager involved police, who interviewed Malone. Malone confessed to selling the missing parts as scrap for cash and said that Heatherly had been the one providing Malone with the parts to sell. Heatherly was charged with felony theft by taking, and Malone testified against Heatherly at his bench trial as part of a plea deal. All of the receipts for the sale of the scrap were in Malone’s name. Some of the receipts contained descriptions of the seller’s vehicle, which matched. There was no evidence of any split of proceeds from the sale of the parts for scrap, and there was no testimony linking Heatherly and Malone together outside of work.

Heatherly was found guilty of felony theft by taking, which, following a restitution hearing, was amended to misdemeanor theft by taking based on the value of the stolen items. Heatherly filed a motion for a new trial arguing that there was no corroborating evidence to support his conviction, which the trial court denied. This appeal followed.

Decided April 20, 2016

Michael R. McCarthy, for appellant.

Herbert M. Poston, Jr., District Attorney, Dixon A. Lackey HI, Assistant District Attorney, for appellee.

Heatherly argues as his only enumeration of error that his conviction must be reversed because there was not evidence to corroborate Malone’s accomplice testimony. We disagree.

We review the denial of a motion for a new trial for abuse of discretion. Mondy v. State, 229 Ga. App. 311, 312 (1) (494 SE2d 176) (1997). OCGA § 24-14-8 provides that in prosecutions for felonies “where the only witness is an accomplice, the testimony of a single witness shall not be sufficient,” although “corroborating circumstances may dispense with the necessity for the testimony of a second witness[.]” OCGA § 24-14-8. Generally, the State “must provide corroboration of an accomplice’s testimony regarding the identification and participation of the defendant.” Gilmore v. State, 315 Ga. App. 85, 87 (1) (726 SE2d 584) (2012) (footnote omitted).

Here, Heatherly was prosecuted for and initially convicted of a felony, and under our state’s law, corroborating evidence would be required to sustain that conviction. But this is not the posture in which this case greets us, because the trial court corrected Heatherly’s conviction to be a misdemeanor. And “in numerous decisions our courts have held that corroboration of an accomplice is not necessary to sustain a misdemeanor conviction.” Lee v. State, 199 Ga. App. 246, 246 (1) (404 SE2d 598) (1991) (citation and punctuation omitted); see also Youmans v. State, 51 Ga. App. 373, 374 (180 SE 495) (1935). The trial court did not abuse its discretion in denying the motion for a new trial here.

Judgment affirmed.

Phipps, P. J., and Dillard, J., concur.


text:
    A16A0299.
    SMITH v. THE STATE.
    (785 SE2d 418)
   Peterson, Judge.

Following a jury trial, Reginald Falandos Smith was convicted of armed robbery. Smith appeals from the denial of his motion for new trial and argues that trial counsel was ineffective for failing to call three witnesses who would have corroborated his defense and for failing to request a jury charge on the lesser included offense of robbery. Smith has not demonstrated that he received ineffective assistance of counsel because he did not introduce the testimony from these three uncalled witnesses, which was necessary to demonstrate prejudice, and he was not entitled to a jury charge on the lesser included offense of robbery. Therefore, we affirm his convictions.

Viewed in the light most favorable to the verdict, the evidence shows that one morning in February 2011, the victim, who owned a taxi service, received a call from Smith requesting a taxi ride. After the victim picked up Smith, Smith directed the victim to an apartment. When the victim came to a stop, Smith asked the victim whether he had change for a $50 bill. The victim said that he might and began looking. The victim turned around when he heard Smith moving in the back seat and saw Smith holding a gun. Smith ordered the victim not to move, demanded money, and struck the victim with the gun. Smith then pointed the gun at the victim’s back, threatened to kill him if he moved, reached into the victim’s pocket, and took about $40. Smith asked the victim whether he had any more money, and the victim told him that he had just started work and that was all the money he had. Smith then fled.

The victim called the police and gave the responding officers a physical description of Smith and showed the officers his caller ID log from his cell phone. The last entry showed a call from “Tracy Williams,” but the victim did not identify Williams as his assailant during a photo lineup. The police subsequently requested the cell phone records for the incoming phone number, which revealed that Smith was listed as the subscriber with a Lawrenceville address that Smith later conceded was his residence. The records also revealed that Smith had cancelled his cell phone account about 40 minutes after placing the initial call to the victim. Police officers subsequently prepared a second photo lineup containing Smith’s picture, and the victim positively identified Smith as his assailant. Smith was arrested soon thereafter.

At trial, Smith admitted that he called the victim for taxi service because he wanted a ride to meet his friend “Dra,” who was partying with some women, including someone named “Jill.” Smith did not have money to pay for the taxi fare and claimed that when the taxi arrived at Dra’s apartment complex, he ran to Dra’s apartment without paying the fare. Smith denied robbing the victim or carrying a gun during the taxi ride.

1. Smith argues that trial counsel was ineffective for failing to present the testimony of three individuals who were at Dra’s apartment on the morning of the robbery, because these witnesses would have corroborated Smith’s testimony that he told the witnesses that he had failed to pay the fare. We disagree.

“To prevail on an ineffectiveness claim, a defendant has the burden of establishing that his counsel’s performance was deficient and that the deficiency prejudiced his defense.” Manriquez v. State, 285 Ga. 880, 881 (2) (684 SE2d 650) (2009) (citations omitted). “The decision to call a defense witness is a matter of trial strategy and tactics within the province of the lawyer after consultation with the client.” Williams v. State, 292 Ga. 844, 854 (3) (h) (742 SE2d 445) (2013) (citations omitted).

When a defendant claims that trial counsel performed deficiently in failing to call a witness for trial, the defendant may not rely on hearsay and speculation, including prior unsworn statements, to prove the prejudice prong of his ineffectiveness claim. Rather, the defendant must introduce either testimony from the uncalled witness or a legally recognized substitute for his testimony, such as an affidavit.

Manriquez, 285 Ga. at 881 (2) (citations and punctuation omitted).

At the motion for new trial hearing, Smith testified that he told trial counsel about the three witnesses, trial counsel did not consult with him about his case, and trial counsel apologized for not meeting him before preparing for trial. Although Smith did not call trial counsel to testify at the hearing on his motion for new trial, Smith introduced into evidence the Supreme Court of Georgia’s since-vacated opinion disbarring trial counsel for, among other things, his pattern of abandoning clients.

Regardless of whether trial counsel’s failure to call the witnesses was deficient, Smith has failed to establish prejudice. Smith claims that these witnesses would have corroborated his trial testimony that he told the witnesses he bailed on the taxi fare. But at the motion for new trial hearing, Smith had trouble identifying the witnesses, as he stated that he remembered “Dra and two other females. I don’t remember their names.” Smith also failed to call these witnesses to testify at the hearing on his motion for new trial, nor did he present a legally acceptable substitute for their testimony. Because Smith was required to introduce such evidence to prove the prejudice prong of his ineffectiveness claim, his claim fails. See Manriquez, 285 Ga. at 881 (2); Lupoe v. State, 284 Ga. 576, 578-579 (3) (b) (669 SE2d 133) (2008); see also Wesley v. State, 286 Ga. 355, 358 (3) (h) (689 SE2d 280) (2010) (defendant was not prejudiced by trial counsel’s failure to introduce cumulative evidence corroborating the defendant’s claims).

Decided April 20, 2016.

The Sheppard Law Firm, William H. Sheppard, for appellant.

Daniel J. Porter, District Attorney, Christopher M. Quinn, Jennifer L. Gower, Assistant District Attorneys, for appellee.

2. Smith next argues that trial counsel was ineffective for failing to request a jury charge on the lesser included offense of robbery. We disagree.

“Decisions as to which jury charges will be requested . . . fall within the realm of trial tactics and strategy. They provide no grounds for reversal unless such tactical decisions are so patently unreasonable that no competent attorney would have chosen them.” Davis v. State, 296 Ga. 126, 131 (3) (765 SE2d 336) (2014) (citation and punctuation omitted). The trial court should charge the jury on a lesser included offense when some evidence, even if slight, is presented that shows that a defendant committed that offense. Crowley v. State, 315 Ga. App. 755, 758 (2) (728 SE2d 282) (2012). “However, when the State’s evidence establishes all of the elements of an offense, and there is no evidence raising the lesser included offense, the trial court does not err in refusing to give a charge on the lesser offense.” Id. (citations omitted); see also Clark v. State, 279 Ga. 243, 247 (7) (611 SE2d 38) (2005) (where the evidence in the record “shows completion only of the greater offenses, it is unnecessary for the trial court to charge on the lesser offenses”) (citation and punctuation omitted).

Here, the State presented evidence showing that Smith used a firearm to commit the robbery. Smith, however, presented no evidence showing that he robbed the victim without the use of a firearm. Indeed, Smith maintained that he did not rob the victim, but merely chose not to pay for the taxi service. Because the evidence does not reasonably raise the issue that Smith may be guilty only of the lesser crime of robbery, trial counsel’s failure to request a jury charge on robbery cannot support a claim of ineffective assistance. 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).

Judgment affirmed.

Phipps, P. J., and Dillard, J., concur.


author: MERCIER, Judge.

text:
    A16A0358.
    WOODHOUSE v. THE STATE.
    (785 SE2d 429)
   MERCIER, Judge.

Christopher Woodhouse appeals from an order denying his motion to seal the clerk of court’s records pursuant to OCGA § 35-3-37. In his sole enumeration of error, Woodhouse contends the trial court erred by failing to consider the merits of his motion to seal the clerk’s records under the version of OCGA § 35-3-37 in effect at the time his motion was heard. For the reasons that follow, we vacate the judgment and remand the case to the trial court.

In 2011, Woodhouse was arrested and charged with false imprisonment and criminal trespass. Woodhouse petitioned to be placed in the Cobb County District Attorney’s Domestic Violence Pretrial Diversion Program. Woodhouse entered the program, and his case was placed on the Dead Docket pending his successful completion of the program. After Woodhouse successfully completed the pretrial diversion program, his case was removed from the Dead Docket, and a nolle prosequi was entered.

In August 2013, Woodhouse submitted an application to have his arrest record restricted pursuant to OCGA § 35-3-37, and the request was approved by the Cobb County Sheriff’s Office in October 2013. In January 2015, Woodhouse filed a motion to have the clerk of court’s records of the case sealed pursuant to OCGA § 35-3-37 (m) (2). Under OCGA § 35-3-37 (m) (1)

[f]or criminal history record information maintained by the clerk of court, an individual who has a record restricted pursuant to this Code section may petition the court with original jurisdiction over the charges in the county where the clerk of court is located for an order to seal all criminal history record information maintained by the clerk of court for such individual’s charge.

OCGA § 35-3-37 (m) (2) provides:

The court shall order all criminal history record information in the custody of the clerk of court, including within any index, to be restricted and unavailable to the public if the court finds by a preponderance of the evidence that:
(A) The criminal history record information has been restricted pursuant to this Code section; and
(B) The harm otherwise resulting to the privacy of the individual clearly outweighs the public interest in the criminal history record information being publicly available.

A hearing was held in May 2015, at which the State argued that the sealing provision contained in OCGA § 35-3-37 (m) (2) was inapplicable to Woodhouse’s case because the case was indicted in 2012, and the current version of the statute went into effect on July 1,2013. The trial court issued an order denying Woodhouse’s motion, determining “that the underlying crime in this case occurred on December 10,2011. The statute is therefore not applicable.” Woodhouse appeals the order of the trial court.

‘When a question of law is at issue, as here, we owe no deference to the trial court’s ruling and apply the ‘plain legal error’ standard of review.” Suarez v. Halbert, 246 Ga. App. 822, 824 (1) (543 SE2d 733) (2000). Because the trial court’s finding that OCGA § 35-3-37 (m) (2) did not apply to a crime that occurred before July 1, 2013, constituted plain error, we reverse.

The Supreme Court of Georgia recently considered the question of whether the amendments to OCGA § 35-3-37 apply to pre-July 1, 2013 arrests. In Mosley v. Lowe, 298 Ga. 363 (782 SE2d 43) (2016), the Court held: “Because the statute itself makes clear that it does apply to information regarding arrests pre-dating the amendments, and because such application presents no constitutional problem, we hold that the amendments to the statute do apply here.” Id. at 44. The Court noted that the statute specifically addresses criminal history records that pre-date the effective date of the amendments to OCGA § 35-3-37. “[A]s to arrests occurring before July 1, 2013, an individual may, in writing, request the arresting law enforcement agency to restrict the criminal history record information of an arrest[.]” OCGA § 35-3-37 (n) (1). In light of this statutory provision, the Court held that “the clear and unambiguous terms of the amended statute provide for its applicability to arrests pre-dating the amendments’ July 1, 2013 effective date.” Mosley, supra.

OCGA § 35-3-37 (n) (1) does not carve out an exception for the provisions of OCGA § 35-3-37 (m) (2), but only makes an exception for paragraph (j) with regards to pre-July 1, 2013 arrests. See OCGA § 35-3-37 (n) (1). Thus, as the clear and unambiguous terms of the statute provide for its applicability to arrests before July 1, 2013, it is likewise applicable to parties seeking an order to seal criminal records of those arrests pursuant to OCGA § 35-3-37 (m) (2). Because the provisions of OCGA § 35-3-37 (m) (2) do apply to arrests that pre-date July 1, 2013, the trial court should have considered the merits of Woodhouse’s motion to seal the clerk’s records. Therefore, the order denying Woodhouse’s motion to seal the clerk of court’s records is vacated, and the case is remanded to the trial court for action consistent with this opinion.

Decided April 20, 2016.

Brenda J. Smeeton, Robert Clydesdale III, for appellant.

D. Victor Reynolds, District Attorney, John R. Edwards, Kimberly L. Schwartz, Assistant District Attorneys, for appellee.

Judgment vacated and case remanded.

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


text:
    A16A0393.
    LOONEY v. THE STATE.
    (785 SE2d 432)
   Peterson, Judge.

Kahlem Kenord Looney, convicted of one count of terroristic threats, appeals from the denial of his motion for a new trial and argues the evidence was insufficient to sustain his conviction. We affirm because the trial evidence authorized the jury to conclude that Looney committed the charged offense.

On appeal from a criminal conviction, we view the evidence in a light most favorable to the verdict, and [Looney] no longer enjoys a presumption of innocence. We neither weigh the evidence nor judge the credibility of witnesses, but only determine whether the evidence was sufficient for a rational trier of fact to find the defendant guilty of the charged offense beyond a reasonable doubt.

Ferrell v. State, 283 Ga. App. 471, 472 (1) (641 SE2d 658) (2007) (footnotes omitted).

So viewed, the evidence shows that on September 17, 2014, Looney went into the leasing office of the Stratford Ridge Apartments. Looney wanted to retrieve his personal belongings from the apartment where he had been living with his brother, but neither he nor his brother were on the lease and the apartment had been boarded up due to eviction. Looney believed that some of his belongings, including an Xbox gaming console, had been taken from the apartment by the maintenance crew. When Looney asked the leasing facilitator for the apartment complex about retrieving his property, the leasing facilitator informed Looney that he could not help, because Looney was not the lease holder. Looney then angrily yelled at the leasing facilitator and threatened to kill him and the apartment staff if Looney’s belongings were not returned within 24 hours. Looney also added that he and his family were “savages,” and that he knew the office hours kept by the staff. Several witnesses overheard the confrontation, and testified at trial that they heard Looney threaten to kill the leasing facilitator and apartment staff. The leasing facilitator called the police, who arrested Looney. Following a jury trial, Looney was convicted of one count of terroristic threats.

Decided April 20, 2016.

Roger L. Curry, for appellant.

Looney argues that the evidence was insufficient to sustain his conviction for making a terroristic threat because any threat that he made referenced only future conduct and was “at all times conditional” on his property not being returned within 24 hours. But the law does not require a terroristic threat to be immediate and unconditional.

A person is guilty of making a terroristic threat when he “threatens to commit any crime of violence... with the purpose of terrorizing another[.]” OCGA § 16-ll-37(a). “[A] defendant need not have the immediate ability to carry out the threat to violate OCGA § 16-11-37 (a).” Reeves v. State, 288 Ga. App. 544, 545 (654 SE2d 449) (2007). A threat can be conditional and nonimmediate and still qualify as a terroristic threat. See, e.g., Smith v. State, 273 Ga. App. 843, 844 (616 SE2d 183) (2005) (upholding conviction for terroristic threat where defendant told victim he would kill her if she did not do a school project for him).

Given that, the evidence is easily sufficient to support Looney’s conviction. The leasing facilitator testified that Looney threatened to kill him and the other leasing office workers. Other witnesses present in the leasing office testified that they heard the threat. Moreover, the circumstances, including Looney’s angry demeanor and the specific language of the threat, was sufficient to support the jury’s determination that Looney threatened to kill the leasing facilitator with the intent to terrorize him. See Martin v. State, 303 Ga. App. 117, 119 (1) (692 SE2d 741) (2010). Accordingly, we affirm Looney’s conviction.

Judgment affirmed.

Phipps, P. J., and Dillard, J., concur.

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

       Looney also argues on appeal that construing the statute as applicable to threats of both immediate and future violence in the future renders it ambiguous, and that his conviction must be reversed on that basis. But the very nature of threats is to promise future action. That some threats may promise action further in the future than others and still fall within the statute’s scope does not render the statute ambiguous.


text:
    A16A0446.
    SUTTON v. THE STATE.
    (785 SE2d 421)
   Peterson, Judge.

Steve Sutton, convicted of six counts of child molestation and one count of aggravated child molestation, appeals from the denial of his motion for a new trial. He argues that the trial court erred by (1) excluding one of the victim’s statements that she was molested by someone other than him, and (2) denying his motion to sever the molestation counts pertaining to one victim from those pertaining to the other. Because the victim’s statement was merely evidence of the victim’s momentary confusion, and because severance was unnecessary given that the molestation allegations of each victim would have been admissible evidence in the other victim’s case, we affirm.

Following a criminal conviction, we view the evidence in the light most favorable to the jury’s verdict, and no longer presume the defendant is innocent. Wallace v. State, 294 Ga. App. 159, 159 (1) (669 SE2d 400) (2008). So viewed, the evidence shows that Sutton was the grandfather of the two victims, A. J. and C. S. Sutton repeatedly touched C. S.’s genitals on numerous occasions when she was approximately ten or eleven years old. Sutton also made C. S. touch him, and on one occasion, removed her bathing suit bottom and touched her genitals with his tongue. Several years later, when A. J. was four years old, Sutton placed some sort of substance A. J. called “glue” on her genitals and touched her.

Prior to the trial, the State filed a motion in limine to exclude the past sexual history of A. J. Specifically, the State sought to exclude evidence of a prior sexual incident between A. J. and another young child under the Rape Shield Statute. Sutton argued that the evidence should be admitted to demonstrate the child’s knowledge of sexual acts independent of the actions for which Sutton was indicted. The trial court examined the parties’ arguments carefully and in detail before granting the State’s motion, with the caveat that the State could not open the door by claiming that A. J. had sexual knowledge that could have originated only from Sutton’s conduct.

On the day of trial, Sutton indicated that he intended to play A. J.’s recorded interview in which she initially identifies another child as having put the glue on her. In the recorded interview, A. J. first discussed an incident in which the other young child had touched her. When asked about the incident at issue in this case immediately thereafter, A. J. said that the same young child had placed glue on her genitals, but then immediately corrected herself to identify Sutton. The State argued that this portion of the interview should be excluded under the trial court’s previous ruling as prior sexual history. After much debate between the parties and careful consideration by the trial court as to whether the statement merely constituted a prior inconsistent statement, the trial court expanded its prior ruling to exclude the portion of A. J.’s interview in which she refers to the other young child.

1. Sutton argues that the trial court erred by excluding A. J.’s statements from the recording of the interview played for the jury. Specifically, Sutton contends that former OCGA § 24-2-3 did not require exclusion of A. J.’s statements as unrelated sexual history, because her statements would be used to impeach her. We disagree.

We review a trial court’s decision to admit or exclude evidence for abuse of discretion. Gautreaux v. State, 314 Ga. App. 103, 106 (2) (722 SE2d 915) (2012). Former OCGA § 24-2-3 provides that generally in prosecutions for aggravated child molestation, “evidence relating to the past sexual behavior of the complaining witness shall not be admissible, either as direct evidence or on cross-examination of the complaining witness or other witnesses[.]” The general rule is that evidence of prior unrelated molestation is barred, and “is not admissible simply to show the victim was confused.” Blackwell v. State, 229 Ga. App. 452, 454 (2) (494 SE2d 269) (1997). But such evidence may be admissible to show other possible causes for behavioral symptoms typically associated with child sexual abuse accommodation syndrome or to explain certain medical testimony introduced at trial. Tidwell v. State, 219 Ga. App. 233, 237-38 (5) (464 SE2d 834) (1995). “Such evidence may also he admissible to show the victim’s lack of credibility where the victim has made prior false allegations of child molestation.” Berry v. State, 235 Ga. App. 35, 37 (2) (508 SE2d 435) (1998).

Here, none of the exceptions to the general rule of inadmissibility applies. There was no expert testimony concerning child abuse accommodation syndrome, nor was any medical evidence admitted. Sutton was also unable to show that A. J.’s statements regarding the other child were false. Finally, close review of the testimony at issue reveals that A. J., who moments earlier had been discussing activity with the other young child, merely misspoke and initially said the wrong name, but then corrected herself to identify Sutton as the offender and was consistent in that testimony throughout the remainder of the interview, although she referred to Sutton as both “Poppa Johnson” and “Poppa Sutton.” As a result, we cannot say that the trial court abused its discretion in excluding A. J.’s testimony pertaining to the other young child.

2. Sutton next argues that the trial court erred by refusing to sever the allegations pertaining to each victim into separate trials because (1) the allegations pertaining to each victim were too remote in time and were too different to have been combined into a single trial, and (2) the incidents pertaining to C. S. would not have been admissible as similar transaction evidence in the trial pertaining to A. J. Sutton also argues that he was prejudiced by the failure to sever the charges pertaining to each victim because the combination of charges into a single trial made his conviction more likely. Again, we disagree.

We review the trial court’s decision to grant or deny a severance for abuse of discretion. Gilbert v. State, 163 Ga. App. 688, 690 (3) (295 SE2d 173) (1982). Severance is mandatory “[w]hen two or more crimes of the same general nature aré committed against different persons, at different times and places, and are charged in separate counts of an indictment... if the crimes are joined solely because they are of the same or similar character.” Machiavello v. State, 308 Ga. App. 772, 773 (2) (709 SE2d 28) (2011) (emphasis in original). But

[i]f the offenses are not joined solely because they are of the same or similar character, and evidence of one charged offense would be admissible as a similar transaction during trial on another charged offense, the trial court is vested with discretion in deciding whether to grant a motion to sever.

Id. Severance does not have to be granted when, in the trial court’s discretion, the complexity of the evidence and number of offenses charged do not impinge “upon a fair determination of the defendant’s guilt or innocence as to each offense charged.” Id. at 774 (2) (citation and punctuation omitted).

Here, although the charged offenses occurred on different dates and involved different victims, they showed Sutton’s “common motive, lustful disposition, and bent of mind to satisfy his sexual desires.” Stepho v. State, 312 Ga. App. 495, 500 (3) (718 SE2d 852) (2011). See also Wright v. State, 259 Ga. App. 74, 77-78 (3) (b) (576 SE2d 64) (2003) (permitting charge of sexual battery against adult daughter to be included along with charges of child molestation involving grandson, as alleged battery showed defendant’s “bent of mind and pattern of conduct against members of his family”). Notably, Sutton “gained access to his second victim . . . through his familial relationship” because both victims were his granddaughters. Stepho, 312 Ga. App. at 500 (3). Despite the passage of time and other minor differences between the two offenses, the trial court could find that the circumstances related to Sutton’s molestation of each victim would have been admissible as similar transaction evidence had there been separate trials for each. Id. (citing Collins v. State, 310 Ga. App. 613, 617 (2) (714 SE2d 249) (2011) (“The mere difference in the victims’ ages, sex, and specific acts of molestation did not render the similar transaction inadmissible.”)). “Where the evidence of one crime would be admissible in the trial of the other crime, it cannot be said that the trial court abused its discretion in denying appellant’s motion for severance.” Id. (citation omitted).

Finally, “this case was not so complex as to impair the jury’s ability to distinguish the evidence and apply the law intelligently as to each offense.” Id. (citation omitted). Indeed, the jury found Sutton not guilty of aggravated sexual battery with respect to A. J. Consequently, we conclude that the trial court did not abuse its discretion in denying Sutton’s motion to sever and motion for new trial on this basis.

Judgment affirmed.

Phipps, P. J., and Dillard, J., concur.

Decided April 20, 2016.

The Hube Law Firm, Matthew K. Hube, for appellant.

S. Hayward Altman, District Attorney, MaryK. McKinnon, Assistant District Attorney, for appellee.

       To the extent Sutton challenges the constitutionality of former OCGA § 24-2-3 as applied, that argument is not preserved for appeal. The trial court did not specifically address or rule on the question. See State v. Swartz, 277 Ga. App. 241, 241-42 (626 SE2d 210) (2006).

       Because the trial in this case occurred in 2009, prior to the January 1,2013 effective date of our new Evidence Code, OCGA § 24-2-3 (the predecessor to OCGA § 24-4-412) applies. See Ga. L. 2011, p. 99, § 101.

       Child sexual abuse accommodation syndrome reflects a variety of behavioral stages displayed by children who have been sexually assaulted. For a more detailed description of this condition, see, e.g., Allison v. State, 256 Ga. 851, 852 (2) (353 SE2d 805) (1987).

       Even if we were to pluck A. J.’s misstatement - which she immediately corrected - from its context in the discussion of the unrelated molestation that had taken place moments earlier, and consider it instead in isolation, any error in excluding the misstatement was harmless. See Mobley v. State, 265 Ga. 292, 294 (4) (455 SE2d 61) (1995) (“it is an old and sound rule that error to be reversible must he harmful”). A. J. was consistent in her interview that Sutton molested her, and her fleeting misstatement that she immediately corrected cannot be fairly equated with her having identified some other person as the offender.

       The dicta Sutton relies on in Wagner v. State, 253 Ga. App. 874 (560 SE2d 754) (2002) does not change our analysis here.

       These eases were decided under the prior Evidence Code in which hent of mind was a ground upon which similar transaction evidence could be admitted.


text:
    A16A0678.
    JOHNSON v. THE STATE.
    (785 SE2d 424)
   Peterson, Judge.

Tyrone Johnson, convicted of trafficking in cocaine and possession of cocaine with intent to distribute, appeals from the denial of his motion for new trial and argues that the trial court erred in denying his motion to suppress evidence seized pursuant to a search warrant. Johnson argues that the magistrate lacked probable cause to issue the search warrant because the supporting affidavit did not show that a confidential informant’s statements were independently corroborated. We conclude that the information contained in the search warrant affidavit provided the magistrate with probable cause to issue the search warrant and, therefore, affirm the denial of Johnson’s motion to suppress.

In reviewing the trial court’s grant or denial of a motion to suppress, we will not disturb its findings “if there is any evidence to support them; all relevant evidence of record, including evidence introduced at trial, as well as evidence introduced at the motion to suppress hearing, may be considered.” Pittman v. State, 286 Ga. App. 415, 416 (650 SE2d 302) (2007) (citation, footnote and emphasis omitted). The trial court’s application of the law is subject to de novo review. State v. Palmer, 285 Ga. 75, 78 (673 SE2d 237) (2009) (citation omitted).

The record shows that Agent Jones, a narcotics officer with the Bartow County Sheriff’s Office, applied for a warrant to search a residence belonging to Johnson’s brother, Dolphus. In support of his application, Agent Jones submitted an affidavit swearing that a confidential informant (Cl) had recently contacted him and stated that the Cl could purchase cocaine from a black male known as “Bigz” at the residence. Agent Jones stated that he was familiar with the name “Bigz” based on a prior investigation, and he presented a picture of Dolphus to the Cl, who confirmed that Dolphus was “Bigz.” Agent Jones also stated that he directed the Cl to make a controlled purchase of $200 of crack cocaine at Dolphus’s residence, and the Cl was kept under constant surveillance except for the three minutes he was inside the house. Agent Jones averred that, after the Cl left the residence, officers searched him and found an amount of cocaine consistent with the amount of money police had provided him. Agent Jones further stated that a member of the narcotics team was able to confirm that Dolphus was at the residence during the controlled buy, and the Cl reported that he bought the cocaine from Bigz. Based on Agent Jones’ affidavit, the magistrate issued a warrant to search Dolphus’ residence.

A few hours after the controlled drug buy, Agent Jones and other narcotics officers returned to the residence to execute the warrant, finding no one home at the time. During a search of the residence, the officers found two sets of digital scales containing visible residue that appeared to be cocaine,- mail addressed to Dolphus and Johnson, and over $1,100 in cash, some of which was money that had been used in the controlled drug buy. The narcotics officers saw a vehicle matching one that was seen previously at the residence drive by the house and park a short distance away. Agent Jones approached the vehicle, observed that Johnson and Dolphus were inside, and ordered the men out of the vehicle. During a search of the men, narcotics officers recovered two bags of cocaine, one from each, together weighing over 87 grams and a sample of which had a purity of 63.4 percent.

Johnson moved to suppress the evidence, arguing, among other things, that Agent Jones’ affidavit did not include any information concerning the Cl’s reliability. Following a hearing, the trial court denied Johnson’s motion to suppress because the Cl’s reliability was corroborated by the controlled drug buy, and this information provided the magistrate with probable cause to issue the search warrant.

On appeal, Johnson argues that the trial court erred in denying his motion to suppress because Agent Jones’ affidavit lacked any information by which the magistrate could evaluate the Cl’s credibility or reliability, and the Cl’s statements were not independently corroborated. Johnson’s claim is without merit.

A judicial officer may issue a search warrant only if sufficient facts are shown to establish probable cause that a crime is being or has been committed. OCGA § 17-5-21(a).

The magistrate’s task in determining if probable cause exists to issue a search warrant is simply to 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.

Decided April 20, 2016.

Christopher G. Paul, for appellant.

Rosemary M. Greene, District Attorney, Emma P. Wilhoite, Assistant District Attorney, for appellee.

Palmer, 285 Ga. at 77 (citations omitted). Like the trial court, we must give substantial deference to the magistrate’s decision to issue the warrant. Id. In reviewing the search warrant, we consider the totality of the circumstances to determine whether the magistrate had a substantial basis for concluding that probable cause existed to issue the search warrant. Id. at 78.

Here, Agent Jones stated in his affidavit that the Cl had contacted him, informed him he could buy cocaine from Bigz, and confirmed that Bigz was Dolphus based on a photograph presented by the agent. Agent Jones’ affidavit also described that the Cl was kept under constant surveillance during the controlled drug buy at Dolphus’ residence, except for the three minutes he was inside the house. Although Johnson is correct that Agent Jones’ affidavit contains no information concerning the Cl’s reliability and credibility, the controlled drug buy conducted under Agent Jones’ observation, by itself, was sufficient to establish probable cause. See Brown v. State, 244 Ga. App. 440, 441-42 (1) (535 SE2d 785) (2000).

Johnson’s focus on the fact that narcotics officers did not actually see or hear the Cl complete the controlled drug buy is misplaced. Probable cause to issue a search warrant does not require certainty that an offense was committed, but merely a fair probability that contraband or evidence of a crime will be found at a particular place. See State v. Stephens, 252 Ga. 181, 183 (311 SE2d 823) (1984). The controlled drug buy established more than fair probability that evidence of drug offenses would be found at Dolphus’ residence, and thus the magistrate was presented with probable cause to issue the search warrant. Accordingly, we affirm the trial court’s denial of Johnson’s motion to suppress.

Judgment affirmed.

Phipps, P. J., and Dillard, J., concur.


author: Ellington, Presiding Judge.

text:
    A16A0066.
    BLOOM v. CAMP.
    (785 SE2d 573)
   Ellington, Presiding Judge.

David Camp brought this action in the Superior Court of Cobb County against Stephen Bloom and the estate of David Wood. As to the estate of David Wood, Camp sought, inter alia, to recover $104,800, the balance due Camp under a promissory note executed by Wood. As to Bloom, Camp sought damages under theories of fraudulent transfer, civil conspiracy, and unjust enrichment, all arising from a warranty deed whereby Wood, as grantor, conveyed property to himself and to Bloom as joint tenants with right of survivorship, allegedly to shield the property from creditors, including Camp.

When the case was called for trial, the representative of Wood’s estate did not participate in the jury trial or present any defense. At the close of the evidence, the trial court granted Camp’s motion for a directed verdict against Wood’s estate for $104,800 due under the promissory note, plus ten percent of that amount in attorney fees as provided in that note and authorized by a statute regarding the collection of promissory notes. Bloom also moved for a directed verdict, but the trial court denied his motion and submitted Camp’s claims against him to the jury, including Camp’s demand for actual attorney fees if the jury found that Bloom acted in bad faith, was stubbornly litigious, or caused unnecessary trouble or expense. The jury returned a general verdict in Camp’s favor for $104,800, plus attorney fees of $27,750. In the final judgment on the directed verdict and the jury verdict, the court entered judgment in the amount of $104,800 against Wood’s estate and Bloom jointly, against the estate for attorney fees of $10,480, and against Bloom individually for attorney fees of $27,750.

Bloom appeals, contending that the evidence was insufficient to authorize a verdict against him under any of Camp’s theories of recovery. Bloom contends that Camp’s claim for actual attorney fees and expenses of litigation under OCGA § 13-6-11 was not supported by any evidence that he acted in bad faith, was stubbornly litigious, or caused unnecessary trouble or expense, and that the trial court erred in not having the jury apportion any such award between him and Wood’s estate. He also contends that the award of attorney fees under OCGA § 13-1-11 in connection with the collection of the promissory note and under OCGA § 13-6-11 as part of his damages constitutes an impermissible double recovery. For the reasons explained below, we affirm.

1. Bloom contends that the evidence was insufficient to sustain the jury’s verdict under Camp’s theory of fraudulent transfer and civil conspiracy. The “any evidence” standard of review applies to this argument, that is, we must affirm if there is any evidence to support the jury’s verdict, and in making this determination, we must construe the evidence in the light most favorable to Camp as the prevailing party. Aldworth Co., Inc. v. England, 281 Ga. 197, 201 (637 SE2d 198) (2006); Yi v. Li, 313 Ga. App. 273, 274 (721 SE2d 144) (2011).

In construing a verdict, we look to the pleadings, the issues made by the evidence, and the charge. This Court must view all of the evidence and every presumption arising therefrom most favorably toward upholding the jury’s verdict. It is well settled that a strong presumption exists in favor of the validity of jury verdicts. Verdicts shall have a reasonable intendment and shall receive a reasonable construction. They shall not be avoided unless from necessity. And, if possible, a construction will be given which will uphold them. There is also a presumption that the verdict of a jury is based on a fair consideration of all matters presented to it.

(Citations and punctuation omitted.) Davis v. Johnson, 280 Ga. App. 318, 321 (634 SE2d 108) (2006).

Construed in the light most favorable to Camp as the prevailing party, the record shows the following. In 2006, Camp, a home builder, embarked on a business venture with his longtime friend and sometime business partner, Crawford Wood, to develop a residential lot Crawford owned at 102 Hope Street, NW, Marietta. Crawford conveyed the lot to Camp and lent him most of the necessary money. In return, Camp gave him a promissory note for $300,000 and a deed to secure debt. Crawford died in April 2007, before Camp finished building the house.

Camp was not able to satisfy the secured promissory note then held by Crawford’s estate when it came due in April 2009. Over the next few months, Camp negotiated a resolution with Crawford’s adult children (David Wood, Sandra Wood, and Carole Breitenbach). They agreed to the following interrelated transactions: Sandra Wood, as executor of Crawford’s estate, conveyed 102 Hope Street to Camp, via quitclaim deed, which released the estate’s security interest in the property for Camp’s $300,000 debt to the estate; Camp then conveyed the property to David Wood on February 18,2010; and Wood executed a promissory note, also dated February 18, 2010, in favor of Camp in the amount of $130,000. The promissory note provided that Wood would make monthly payments of $700 for three years and a final balloon payment would be due in February 2013. Wood told Camp that he intended to pay off the note much sooner than that, either by borrowing against 102 Hope Street or by selling other property that he owned. At Wood’s request, Camp agreed that the promissory note would not be secured by 102 Hope Street, to facilitate Wood’s plan to obtain financing. Bloom was present during some of these discussions and during the execution of the documents.

On that same date, February 18, 2010, immediately after Camp conveyed 102 Hope Street to David Wood and Wood executed the promissory note, Wood executed a warranty deed conveying the property to himself and to Bloom, to whom he was married under California law, as joint tenants with right of survivorship. At the time, Wood was preparing to travel to India for treatment of a brain tumor; he died from his illness within a year, on February 1, 2011. As the surviving joint tenant, Bloom became the sole owner of 102 Hope Street. He was also the executor of Wood’s will. Bloom did not at that time initiate proceedings to probate the will, however, on the basis that at his death Wood held all of his significant assets as a joint tenant with Bloom, with right of survivorship; little was left to distribute as directed in Wood’s will. Bloom refused Camp’s demand in March 2013 to pay $104,800 as the balance due him on the February 2010 promissory note, and Camp filed suit in July 2013. In June 2014, Bloom sold 102 Hope Street for $385,000.

As noted above, Camp alleged that, when David Wood was gravely ill, he conveyed 102 Hope Street to himself and to Bloom as joint tenants with right of survivorship in order to shield the property from his creditors in the event of his death. Pursuant to the Uniform Fraudulent Transfers Act, OCGA § 18-2-70 et seq., a transfer of real (or personal) property is voidable as to a creditor if the debtor made the transfer with the intention of delaying or defrauding any creditor of the debtor or, under specified circumstances, if the debtor did not receive in exchange for the transferred property reasonably equivalent value. In determining whether transfer was made with the actual intent to hinder, delay, or defraud a debtor’s creditors, “consideration is given to an open-ended set of factors listed in OCGA § 18-2-74 [(b)], which are also commonly called the ‘badges of fraud.’ ” (Citation and punctuation omitted.) RES-GA Hightower, LLC v. Golshani, 334 Ga. App. 176, 178 (1) (a) (778 SE2d 805) (2015). The badges of fraud may include evidence that the transfer was to an insider; the debtor retained possession or control of the property transferred after the transfer; the transfer or obligation was concealed; the value of the consideration received by the debtor was not reasonably equivalent to the value of the asset transferred; and the transfer occurred shortly before or shortly after a substantial debt was incurred. OCGA § 18-2-74 (b) (1), (2), (3), (8), (10). “A creditor who can show a fraudulent conveyance has numerous remedies under the Act including but not limited to avoidance of the transfer and attachment of the asset transferred.” (Footnote omitted.) Daniel F. Hinkel, 2 Pindar’s Ga. Real Estate Law & Procedure, § 19:102 (7th ed., updated April 2015).

Viewed in the light most favorable to the jury’s verdict, we conclude that some evidence authorized the jury to find Bloom liable for conspiring in a fraudulent transfer, specifically the February 2010 deed conveying David Wood’s sole interest in 102 Hope Street to himself and Bloom as joint tenants with right of survivorship. It is undisputed that Wood received no financial consideration for the transfer. The effect of the transfer was that, if he died from his illness (or otherwise) before paying off the promissory note to Camp, as indeed happened, the transfer would leave Bloom as the survivor with sole ownership, and Wood’s primary asset in Georgia would be out of Camp’s reach as a creditor with a claim against his estate. If, on the other hand, he had not died before the balloon payment came due, and Camp had obtained a judgment against him for the debt, any levy on the judgment against the property would have garnered an interest only in Wood’s share in the joint tenancy with Bloom, equal to but not superior to Bloom’s interest. See OCGA §§ 9-13-10; 9-18-60; Glover v. Ware, 236 Ga. App. 40, 41-43 (1) (510 SE2d 895) (1999). In light of evidence which includes Wood’s request that Camp accept his word as his bond, rather than requiring security for the debt, and his promise to satisfy the debt quickly, the timing of the conveyance (immediately after Wood acquired title to the property and incurred the debt to Camp), his serious illness at the time of the transfer, and his conveyance to his spouse (at least under California law), we conclude that the jury could infer that the transfer at issue was made with the actual intent to hinder, delay, or defraud Camp, as Wood’s creditor. See Abbott Oil Co. v. Rogers, 302 Ga. App. 439, 442 (691 SE2d 561) (2010).

As to Bloom’s involvement in Wood’s alleged fraudulent transfer, it is not surprising that Camp has not identified any direct evidence that Bloom conspired with Wood to hinder, delay, or defraud Camp. But we cannot say that there is a complete absence of evidence from which the jury could have so inferred, given the closeness of their relationship and their past joint handling of their financial affairs. See Quill v. Newberry, 238 Ga. App. at 189 (1) (b) (“[I]t is peculiarly the province of the jury to pass on .. . circumstances showing fraud. Except in plain and indisputable cases, scienter in actions based on fraud is an issue of fact for jury determination”) (citation and punctuation omitted). Given the use of a general verdict form, which does not disclose the jury’s underlying factual findings, and the sufficiency of the evidence under Camp’s claim of fraudulent transfer under OCGA § 18-2-74 (a) (1), we need not consider whether the evidence was also sufficient under Camp’s alternative theory under OCGA § 18-2-74 (a) (2), which involves issues of the debtor’s solvency. See Borenstein v. Blumenfeld, 250 Ga. 606, 608 (1) (299 SE2d 727) (1983); Robin C. Larner, 5 Ga. Procedure, Verdict and Judgments, § 5:25 (updated December 2015).

2. Bloom contends that there is no evidence to support Camp’s alternative theory of recovery, his equitable claim of unjust enrichment. Because the evidence was sufficient under Camp’s claim of fraudulent transfer under OCGA § 18-2-74 (a) (1), see Division 1, supra, this issue is moot.

3. Bloom contends that Camp’s claim for actual attorney fees and expenses of litigation was not supported by any evidence that he acted in bad faith, was stubbornly litigious, or caused unnecessary trouble or expense.

With regard to litigation expenses under OCGA § 13-6-11, an award of fees and expenses must be affirmed if there is any evidence to support it. Every intentional tort invokes a species of bad faith and entitles a person so wronged to recover the expenses of litigation including attorney fees. Because the jury was authorized to find fraud, it was also authorized to find bad faith.

(Citations and punctuation omitted.) St. Paul Fire & Marine Ins. Co. v. Clark, 255 Ga. App. 14, 24 (5) (a) (566 SE2d 2) (2002). Again, because the use of a general verdict form does not disclose the jury’s underlying factual findings, and because the evidence was sufficient under Camp’s claim of fraudulent transfer under OCGA § 18-2-74 (a) (1), see Division 1, supra, the evidence was sufficient for the jury to find bad faith.

4. Bloom contends that the award of attorney fees under both OCGA § 13-1-11, in connection with the promissory note, andOCGA § 13-6-11, for bad faith, stubborn litigiousness, or causing unnecessary trouble and expense, constitutes an impermissible double recovery. He also contends that the trial court erred in not having the jury apportion any such award between him and Wood’s estate. Whether there is a double recovery turns on whether one avenue of recovery represents a full satisfaction for a particular injury. Brewer v. Insight Technology, Inc., 301 Ga. App. 694, 700-701 (4) (689 SE2d 330) (2009).

Decided April 21, 2016.

Chamberlain, Hrdlicka, White, Williams & Aughtry, James M. Kane, Jill R. Johnson, for appellant.

Bannister & Black, Charles C. Black, for appellee.

As noted above, the trial court granted Camp’s motion for a directed verdict against Wood’s estate on his claim that Wood breached the promissory note contract. In addition to the balance due under the contract, the court awarded the costs of collection of the note according to the statutory formula set out in OCGA § 13-1-11. As the trial moved forward, Camp abandoned his remaining claims against Wood’s estate, and the jury received Camp’s claims for fraudulent transfer, conspiracy, and unjust enrichment against Bloom only. Thus, the bases for the findings of liability are separate and distinct: Wood’s contractual liability under the promissory note and Bloom’s tort liability or equitable obligation. They were not designated to be joint tortfeasors. See Brown v. Moseley, 175 Ga. App. 282, 284 (2) (333 SE2d 162) (1985) (“[J]oint tortfeasors contribute to a single injury for which there is but one cause of action, and[,]... once the damage has been paid in full by one joint tortfeasor, the injured party has no right to seek an additional or double recovery from another.”) (citation and punctuation omitted). There would be no basis for apportioning the jury’s award for attorney fees under OCGA § 13-6-11, based on bad faith, stubborn litigiousness, or causing unnecessary trouble and expense, between Bloom and Wood’s estate, when there was no verdict holding Wood liable on the claims associated with Camp’s demand for attorney fees under OCGA § 13-6-11. Put another way, the judge’s award of attorney fees against Wood’s estate for the collection of the note according to the OCGA § 13-1-11 formula is a separate and distinct basis for the award of fees from the jury’s verdict for attorney fees against Bloom under OCGA § 13-6-11, based on bad faith, stubborn litigiousness, or causing unnecessary trouble and expense. Bloom’s argument that the judgment for attorney fees constituted an impermissible double recovery lacks merit. Foxchase, LLLP v. Cliatt, 254 Ga. App. 239, 241-242 (5) (562 SE2d 221) (2002); cf. Roofers Edge, Inc. v. Standard Bldg. Co., 295 Ga. App. 294, 296 (2) (671 SE2d 310) (2008) (recovery of attorney fees under both OCGA §§ 13-6-11 and 9-15-14, against a single defendant, would constitute an impermissible double recovery for a single injury).

Judgment affirmed.

Branch and Mercier, JJ, concur.

       In the written promissory note at issue, Wood agreed “to the extent not prohibited by applicable law[,]” to pay Camp for all of his costs and expenses in enforcing the note including his “reasonable attorneys’ fees.” See OCGA § 13-1-11 (Acontractual obligation to pay attorney fees in connection with the collection of a promissory note “shall be valid and enforceable and collectable as a part of such debt if the note is collected by or through an attorney after maturity!)]” If the note provides for “reasonable” attorney fees without specifying any specific fraction, “such provision shall be construed to mean 15 percent of the first $500.00 of principal and interest owing on such note... and 10 percent of the amount of principal and interest owing thereon in excess of $500.00].]”); John K Larkins, Jr., Ga. Contracts: Law and Litigation, § 12:31 (2d ed., updated September 2015); Lewis N. Jones, Ga. Legal Collections, § 3:20 (2d ed., updated June 2015).

       See OCGA § 13-6-11 (“]W]here the plaintiff has specially pleaded and has made prayer [for the expenses of litigation] 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” the expenses of litigation as a part of an award of damages.).

       Effective July 1, 2015, the Act has been renamed the “Uniform Voidable Transactions Act.” Ga. L. 2015, p. 996 (Act 167), § 4A-1.

       A transfer made or obligation incurred by a debtor is voidable as to a creditor, whether the creditor’s claim arose before or after the transfer was made or the obligation was incurred, if the debtor made the transfer or incurred the obligation:
      (1) With actual intent to hinder, delay, or defraud any creditor of the debtor; or
      (2) Without receiving a reasonably equivalent value in exchange for the transfer or obligation, and the debtor:
      (A) Was engaged or was about to engage in a business or a transaction for which the remaining assets of the debtor were unreasonably small in relation to the business or transaction; or
      (B) Intended to incur, or believed or reasonably should have believed that he or she would incur, debts beyond his or her ability to pay as they became due.
      OCGA § 18-2-74 (a) (2010). See also OCGA §§ 18-2-71 (10) (“ ‘Property’ means anything that may be the subject of ownership.”); 18-2-74 (b) (2010) (factors to be used to determine whether debtor actually intended to hinder, delay, or defraud any creditor); 18-2-75 (2010) (application of OCGA § 18-2-74 (a) (2), transfer voidable if made without receiving reasonably equivalent value); 18-2-76 (2010) (determining when a transfer is made); 18-2-78 (2010) (conditions for voidability of transfer).

       See OCGA §§ 18-2-77 (2010) (forms of relief a creditor may obtain when a transfer is avoidable in an action by a creditor, subject to specified limitations, include “[a]ny other relief the circumstances may require”); 18-2-78 (2010) (limitations on available relief).

       We cannot accept Bloom’s argument that, because the State of Georgia did not recognize same-sex marriage at the time, he was not an “insider” under the Act. See OCGA § 19-3-3.1 (2009) (“It is declared to be the public policy of this state to recognize the union only of man and woman. Marriages between persons of the same sex are prohibited in this state____No marriage between persons of the same sex shall be recognized as entitled to the benefits of marriage. Any marriage entered into by persons of the same sex pursuant to a marriage license issued by another state or foreign jurisdiction or otherwise shall be void in this state.”). But the term “insider” is not limited to legally married persons. See OCGA § 18-2-71. It is undisputed that Wood and Bloom each regarded the other as his spouse and took steps to care and provide for each other, including by holding all of their significant assets as joint tenants with right of survivorship. In addition, Wood and Bloom acted as partners in renting other property that they co-owned.

       As we have observed, “[sjince fraud is inherently subtle, slight circumstances of fraud may be sufficient to establish a proper case. Proof of fraud is seldom ever susceptible of direct proof, thus recourse to circumstantial evidence usually is required.” (Citation, punctuation and emphasis omitted.) Quill v. Newberry, 238 Ga. App. 184, 189 (1) (b) (518 SE2d 189) (1999). See OCGA § 23-2-57 (“Fraud may not be presumed but, being in itself subtle, slight circumstances may be sufficient to carry conviction of its existence.”).

       See former OCGA § 18-2-22 (The following acts by debtors, inter alia, deemed fraudulent and therefore null and void: any conveyance “made with intention to delay or defraud creditors, where such intention is known to the taking party” and any conveyance, “not for a valuable consideration, made by a debtor who is insolvent at the time of the conveyance”); OCGA § 19-3-10 (“A married person may make contracts with other persons; but, when a transaction between a husband and wife is attacked for fraud by the creditors of either, the onus shall be on the husband and wife to show that the transaction was fair. If a husband or a wife has a separate estate and purchases property from persons other than his or her spouse, the onus shall be upon a creditor levying on such property as the property of the other spouse to show fraud or to show that the husband or wife did not have the means with which to purchase the property.”); see also Bryant v. Browning, 259 Ga. App. 467, 469-470(2) (576 SE2d 925) (2003) (When a spouse makes a conveyance to the other spouse without receiving consideration, and when there exists a claim against the grantor, the creditor may establish that the grantee had knowledge of the grantor’s intent to delay or hinder the creditor by showing that the grantee had reasonable grounds to suspect that grantor made the conveyance with such intent.) (applying OCGA § 19-3-10 and former OCGA § 18-2-22); Bonner v. Smith, 247 Ga. App. 419, 419-421 (1) (543 SE2d 457) (2000) (When a creditor attacks a conveyance from a husband to a wife, slight circumstances may be sufficient to show that the conveyance was made with intention to delay or defraud creditors, where such intention is known to the taking spouse.) (applying OCGA § 19-3-10 and former OCGA § 18-2-22); Hadlock v. Anderson, 246 Ga. App. 291, 292-294 (1) (540 SE2d 282) (2000) (Generally, the question of a grantee spouse’s knowledge of fraudulent intent is for the jury, and such intent may be established by proof of circumstances sufficient to put the grantee on inquiry. Inadequacy of the price paid by the grantee, taken in connection with other circumstances of a suspicious nature, “raises a vehement presumption of fraud.”) (applying OCGA § 19-3-10 and former OCGA § 18-2-22); Johnson v. Sheridan, 179 Ga. App. 331, 333 (1) (346 SE2d 109) (1986) (In cases involving a conveyance between spouses not for valuable consideration, “questions as to the fairness of the transaction, the grantee’s notice or ground for reasonable suspicion of the grantor’s intention to delay or defraud creditors, and the solvency of the grantor at the time of the conveyance are usually for jury resolution.”) (citations omitted) (applying OCGA § 19-3-10 and former OCGA § 18-2-22).

       See Marvin Hewatt Enterprises, Inc. v. Butler Capital Corp., 328 Ga. App. 317, 322 (4) (761 SE2d 857) (2014) ("The theory of unjust enrichment is basically an equitable doctrine that the benefitted party equitably ought to either return or compensate for the conferred benefits when there was no legal contract to pay. The doctrine applies when, as a matter of fact, there is no legal contract” between the party conferring a financial benefit and the party receiving the benefit.) (citations and punctuation omitted); Reidling v. Holcomb, 225 Ga. App. 229, 232 (2) (483 SE2d 624) (1997) (“The concept of unjust enrichment in law is premised upon the principle that a party cannot induce, accept, or encourage another to furnish or render something of value to such party and avoid payment for the value received; otherwise the party has been unjustly enriched at the expense of another and, in fairness and good conscience, must reimburse the other to the extent of the value conferred”).


author: ANDREWS, Presiding Judge.

text:
    A16A0137.
    J&R SCHUGEL TRUCKING, INC. et al. v. LOGAN.
    (785 SE2d 581)
   ANDREWS, Presiding Judge.

Donna Logan, a North Carolina resident, was injured in August 2013 while working in Georgia for her employer, J&R Schugel Trucking, Inc., located in Minnesota. Logan received workers’ compensation benefits under Minnesota law until the benefits were suspended in September 2013 due to lack of evidence of disability. In October 2013, Logan filed a workers’ compensation claim in Georgia seeking recommencement of income benefits and medical care under Georgia law. J&R and its insurer, Great West Casualty Company, controverted the claim on the basis that there was no evidence Logan suffered from any continued disability, and that she had no need for ongoing medical treatment. In this opinion, we refer to the employer and insurer jointly as J&R. An administrative law judge (ALJ) in the Trial Division of the State Board of Workers’ Compensation ruled that, although Logan had no continuing disability from the injury, she was still entitled to ongoing medical benefits. Pursuant to J&R’s appeal, the Board’s Appellate Division affirmed the ALJ’s ruling that there was no disability, but substituted alternative findings and ruled that Logan was not entitled to ongoing medical benefits. On appeal from the Appellate Division, the Fulton County Superior Court entered an order setting aside the Appellate Division decision as “contrary to law” under OCGA § 34-9-105 (c) (5). J&R appeals from the Superior Court order, and for the following reasons we reverse.

Based on evidence presented at the June 2014 hearing on Logan’s claim, the ALJ issued an award finding that Logan failed to prove any continuing disability related to the August 2013 injury and was not entitled to any workers’ compensation income benefits under Georgia law. But despite finding no continuing disability, the ALJ ruled that Logan nevertheless remained entitled to ongoing medical benefits for the injury.

On appeal to the Appellate Division, J&R contended that the ALJ erred by finding that Logan was entitled to ongoing medical benefits as a result of her August 2013 injury. The Appellate Division found that the competent and credible evidence did not support the ALJ’s finding that Logan was entitled to ongoing medical benefits, made substituted factual findings that Logan was not entitled to medical benefits, and issued a decision reversing the ALJ on that issue. The Appellate Division accepted the ALJ’s finding that Logan was not entitled to income benefits.

Logan appealed the Appellate Division’s decision to the Superior Court. In the Superior Court appeal, Logan conceded that she “[did] not dispute the fact that the evidence in the record supports the [Appellate Division’s] decision.” Rather, Logan asserted that the issue was not whether the Appellate Division’s award was supported by the evidence, but “whether the [Appellate Division] acted without or in excess of its powers, or whether its award is contrary to law.” After a hearing, the Superior Court set aside the Appellate Division’s decision on the ground that it was “contrary to law” under OCGA § 34-9-105 (c) (5). In support of this conclusion, the Superior Court pointed out that the transcript of the June 18,2014hearingbeforethe ALJ showed that the ALJ ordered J&R to pay for another medical evaluation of Logan and to provide a copy of the evaluation report so that the ALJ could “make a decision about ongoing [medical] treatment.” According to the Superior Court, the transcript showed that the ALJ intended to hold the hearing record open so the medical report could be filed and considered; that the ALJ subsequently refused to include the report in the record; and that this prevented the filing of additional evidence necessary to complete the record. Based on this reasoning, the Superior Court ruled that the ALJ’s decision to exclude the report was contrary to law and left the record incomplete, and that this rendered the Appellate Division’s decision finding that Logan was not entitled to medical benefits also contrary to law under OCGA § 34-9-105 (c) (5).

We find no basis for the Superior Court’s order setting aside the Appellate Division’s decision as “contrary to law.” The record shows that, when the hearing before the ALJ reconvened on June 30, 2014, Logan’s counsel informed the ALJ that, as ordered on June 18, Logan had undergone another medical evaluation on June 29 or Juné 30. At the hearing, Logan’s counsel asked the ALJ to order J&R to provide Logan with ongoing medical benefits, but the ALJ declined to rule on the request at that time, stating that “everybody needs to have an opportunity to review the medical [report] so that you can make meaningful arguments as to why [Logan] should or should not be entitled to additional medical treatment.” The ALJ concluded the hearing stating that “the record for the hearing is closed,” but subsequently considered briefs filed by the parties after the hearing. Logan’s post-hearing brief referred to the report on her last medical evaluation and, without elaboration, stated that “if the report from that examination had been allowed into evidence, it would have shown that Claimant is in need of further medical treatment.” There is no evidence that Logan attempted to submit the medical report after the hearing, or that the ALJ refused to open the record to receive the report. In fact, in response to J&R’s appeal to this Court, Logan’s appellate brief asserts that it was not necessary for the medical report to be included in the record after the hearing; that she intends to present the report to the Board at a subsequent hearing she has requested; and that she has no objection to reversal of the Superior Court order.

Because there was no basis for the Superior Court to find that the Appellate Division’s decision was “contrary to law,” the Court erred by setting aside the decision. Under OCGA § 34-9-103 (a),

... the appellate division shall review the evidence and shall then make an award with findings of fact and conclusions of law.... The findings of fact made by the administrative law judge in the trial division shall be accepted by the appellate division where such findings are supported by a preponderance of competent and credible evidence contained within the records.

Based upon a review of the evidence, the Appellate Division found that the ALJ correctly ruled that Logan was not entitled to workers’ compensation income benefits, but found that the competent and credible evidence did not support the ALJ’s finding that Logan was entitled to ongoing medical benefits.

[I]f after assessing the evidence of record, the appellate division concludes that the award does not meet the [evidentiary standards of OCGA § 34-9-103 (a)], the appellate division may substitute its own alternative findings for those of the ALJ, and enter an award accordingly.

Bankhead Enterprises v. Beavers, 267 Ga. 506, 507 (480 SE2d 840) (1997).

As to the medical benefits issue, the Appellate Division found that the ALJ’s award did not meet the evidentiary standards of OCGA § 34-9-103 (a), substituted its own alternative findings, and ruled that Logan was not entitled to ongoing medical benefits. Those findings by the Appellate Division “cannot be disturbed as long as there is any evidence to support it because neither the superior court nor the appellate court has the power to find facts.” Hallisey v. Fort Howard Paper Co., 268 Ga. 57, 58-59 (484 SE2d 653) (1997) (citations omitted). Because it is undisputed that there was evidence supporting the findings of the Appellate Division, the Superior Court order setting aside the Appellate Division’s decision is reversed.

Judgment reversed.

Doyle, C. J., and Ray, J., concur.

Decided April 22, 2016.

Carlock, Copeland & Stair, Christopher A. Whitlock, T. Evan Beauchamp, for appellants.

Michael H. Friedman, Jonathan M. Rolnick, for appellee.


author: Phipps, Presiding Judge.

text:
    A16A0542.
    ALLEN v. THE STATE.
    (785 SE2d 588)
   Phipps, Presiding Judge.

A jury found Norman Gould Allen guilty of child molestation. He appeals his conviction, challenging the sufficiency of the evidence. For reasons that follow, we affirm.

In reviewing Allen’s sufficiency challenge, we construe the evidence in the light most favorable to the jury’s verdict, and Allen no longer enjoys a presumption of innocence. We neither weigh the evidence nor assess witness credibility, but merely determine whether the jury was authorized to find all essential elements of the crime charged beyond a reasonable doubt.

So viewed, the evidence shows that Allen’s son was romantically involved with the mother of M. R., the 12-year-old victim. M. R. often spent time with Allen, whom she viewed as a grandfather figure. On the night before Thanksgiving in 2011, M. R. stayed at Allen’s home to help prepare for the holiday feast. That evening, M. R. and Allen lay down on opposite sides of his bed to watch television. According to M. R., she dozed off and woke sometime later to find her shirt pulled up, her bra pulled down, and Allen “sucking on [her] breast.” She pushed Allen away and asked what he was doing. Allen responded that “the spirit told him that [she] wanted that to happen.” He also asked her not to tell anyone about the incident.

M. R. locked herself in another bedroom and called her mother. She did not report the abuse at that point, instead stating that she had something to tell her mother, but that she would talk to her about it the next day. The following evening, M. R. described the incident to her mother, who called the police. M. R. repeated her outcry during a police interview, which was recorded and later played for the jury.

Allen testified at trial, denying that he had touched M. R. inappropriately. He also offered other evidence challenging M. R.’s credibility. The jury, however, rejected Allen’s evidence and found him guilty of child molestation. Allen appeals this finding, asserting that the evidence he presented, as well as inconsistencies in M. R.’s testimony and her failure to immediately report the incident to her mother, raise “serious questions” about the verdict. In Allen’s view, M. R. — who provided the primary evidence against him — was “inconsistent, uncorroborated, and unreasonable.” He contends, therefore, that we must reverse his conviction.

Decided April 22, 2016.

Maryann F. Blend, for appellant.

Daniel J. Porter, District Attorney, Samantha Routh, Assistant District Attorney, for appellee.

We disagree. The testimony of a single witness is generally sufficient to establish a fact. And “[a]s long as there is [sufficient] evidence, even though contradicted, to support each fact necessary to make out the State’s case, the jury’s verdict will be upheld.” M. R. described Allen’s actions at trial and in a recorded interview that was played for the jury. This evidence authorized the jurors to find Allen guilty of child molestation. Although Allen offered a contrary version of events, the jury resolved the evidentiary conflicts against him, and we will not disturb its factual determination on appeal.

Judgment affirmed.

Dillard and Peterson, JJ., concur.

        McGhee v. State, 263 Ga. App. 762 (1) (589 SE2d 333) (2003).

       Id.

        Worley v. State, 319 Ga. App. 799, 800 (1) (738 SE2d 641) (2013).

       Id. (punctuation omitted).

       See OCGA § 16-6-4 (a) (1) (a person commits child molestation when he “[d]oes any immoral or indecent act to or in the presence of or with any child under the age of 16 years with the intent to arouse or satisfy the sexual desires of either the child or the person”). See also Worley, supra; McGhee, supra at 763 (1).

        McGhee, supra.


text:
    A16A0573.
    MARLOW v. THE STATE.
    (785 SE2d 583)
   Ellington, Presiding Judge.

A Hall County jury found Larry Marlow guilty of rape, OCGA § 16-6-1 (a) (1), and false imprisonment, OCGA § 16-5-41 (a). Marlow appeals from the denial of his motion for a new trial, contending that the trial court erred in charging the jury and that the prosecutor made an improper closing argument. Finding no reversible error, we affirm.

Viewed in the light most favorable to the jury’s verdict, the record shows the following. In July 2013, the victim, a recovering drug addict and homeless mother of three young children, accepted Marlow’s invitation to move into his home. The victim began working for Marlow, assisting him with an income tax preparation business that he ran from the home. For a while, the victim’s relationship with Marlow was amicable, and she began to develop romantic feelings for him.

On August 3, 2013, the victim’s mother and brother stopped by Marlow’s home to drop off some diapers for the victim’s youngest child. The victim was standing outside talking to her mother and brother, who were still in the car, when Marlow came outside. Marlow shouted and cursed at the mother because she had honked the horn to get the victim to come outside. Marlow pointed a gun at the car, and the mother immediately backed out of the driveway and drove away.

About a week later, while working into the early morning hours on several tax returns, the victim noticed that the numbers on the tax returns that Marlow had prepared had changed, which prompted her to ask him about the discrepancies. Enraged at being questioned, Marlow ordered the victim to leave his house. When the victim, who had her infant child in her lap, attempted to call her mother to come get her, Marlow snatched the phone from her hand and told her to walk. The victim tried to leave, but Marlow grabbed her and struck her in the head with his hand. Marlow pushed the victim into a chair and told her not to get up. He then berated the victim for about 45 minutes, telling her she was a bad mother. When he finished yelling at her, Marlow ordered the victim upstairs and into his bed. He told her not to think about calling the police because “he’d be out in two hours and he’d kill [her] and [her] family.” Marlow followed the victim into the room and he placed his handgun on the night stand. Marlow got in bed with the victim and her child, and then, despite the victim’s repeated protestations that she did not want to have sex with him, Marlow had forcible sexual intercourse with the victim. When he was finished, Marlow made the victim stay in bed with him until the next morning.

The following day, Marlow refused to let the victim leave; instead he made her clean his house and the pool. When Marlow finally let the victim leave, he reminded her that, if she called the police, “[he would] be out in two hours.” After confiding in her mother, the victim called the police. At trial, a sexual assault nurse testified that her examination of the victim revealed evidence of recent vaginal injury consistent with a forcible sexual assault. No DNA evidence, however, was recovered. The police executed a search warrant at Marlow’s residence, but they were unable to locate any guns.

The State also presented, pursuant to OCGA § 24-4-413, extrinsic evidence that Marlow had previously sexually assaulted another young woman who, like the victim, had lived with Marlow briefly and had helped him with his income tax business. The woman testified that, when she asked Marlow for financial help, he responded by offering her money in exchange for sex. When she declined the offer, Marlow dragged her upstairs to his bedroom and raped her. She testified that she did not fight back against Marlow because she was afraid of him. He had a “scary” temper, he hadbeen violent toward her in the past, and he kept weapons in the house, including a small handgun that he usually kept either in his pocket or a desk drawer.

1. Marlow contends that the trial court erred in charging the jury concerning the limited use of sexual assault extrinsic evidence admitted pursuant to OCGA § 24-4-413. Specifically, he contends the court erred in instructing the jury that such evidence could be used to “corroborate” the victim’s testimony. He argues that the charge is not only erroneous, but that it constitutes an impermissible comment on the evidence.

(a) First, we note that, contrary to Marlow’s assertion, the record does not support that this claim of error was preserved for appellate review with a contemporaneous objection; rather, it appears that counsel approved of the challenged portion of the limiting instruction. Where, as in this case, “no objection is made to a jury charge at trial, appellate review for plain error is required whenever an appealing party properly asserts an error injury instructions.” (Citation and punctuation omitted.) Van v. State, 294 Ga. 464, 466 (2) (754 SE2d 355) (2014). The “plain error” test authorizes a reversal of a conviction only “if the instruction was erroneous, the error was obvious, the instruction likely affected the outcome of the proceedings, and the error seriously affected the fairness, integrity or public reputation of judicial proceedings.” (Citation and punctuation omitted.) Id. See also OCGA § 17-8-58 (b) (The failure to object precludes “appellate review of such portion of the jury charge, unless such portion of the jury charge constitutes plain error which affects substantial rights of the parties.”).

(b) In this case, there was no plain error because the instruction given was not erroneous. OCGA § 24-4-413 (a) provides that, “[i]n a criminal proceeding in which the accused is accused of an offense of sexual assault, evidence of the accused’s commission of another offense of sexual assault shall be admissible and may be considered for its bearing on any matter to which it is relevant.” (emphasis supplied). Evidence is relevant if it logically tends to prove or to disprove a material fact at issue. Owens v. State, 248 Ga. 629, 630 (284 SE2d 408) (1981).

The credibility of a witness is always a material fact in issue at a criminal trial. See OCGA § 24-6-620 (“The credibility of a witness shall be a matter to be determined by the trier of fact, and if the case is being heard by a jury, the court shall give the jury proper instructions as to the credibility of a witness.”). In this case, Marlow’s defense was that the victim was not credible. He argued that she was an unreliable witness with a history of drug use, homelessness, and extreme dependence — a “moocher.” Counsel argued that the victim fabricated the allegations of rape so that she could avoid being indicted along with Marlow for tax fraud. He argued that the victim had no fear of Marlow or of his guns. He also argued that she lied about the rape so that Marlow would not be able to report her to the Department of Family and Children Services for being a bad mother, and so that the victim’s mother would feel sorry for her and would agree to support her.

The State’s extrinsic evidence that Marlow had committed a similar sexual assault had the tendency to bolster the credibility of the victim by demonstrating that her circumstances were not unique. Indeed, it had the tendency to disprove a claim of fabrication by showing that Marlow preyed on women in the victim’s desperate circumstances and intimidated them with guns and a violent temper. Thus, the evidence satisfied OCGA § 24-4-413’s relevance threshold. As the Court of Appeals for the Tenth Circuit observed, such evidence serves a legitimate purpose because it “has undeniable value in bolstering the credibility of the victim.” United States v. Enjady, 134 F3d 1427, 1433 (II) (A) (10th Cir. 1998). In Enjady, the court recognized that extrinsic evidence of similar sexual assaults may be offered for the purpose of corroborating the victim’s testimony when the defense argues that the victim consented. Id. (“[0]ne of Congress’ expressed rationales for Rule 413 [is] the need for corroborating evidence when the alleged rapist claims consent, and there are no witnesses other than the defendant and the alleged victim.”). Just as evidence corroborating a victim’s testimony concerning rape would have a tendency to disprove a defense of consent, it would similarly serve to disprove a defense that the victim had a motive to fabricate allegations of rape. See United States v. Brimm, 608 Fed. Appx. 795, 800-801 (I) (D) (11th Cir. Fla. 2015) (Because the defense strategy was to discredit the victims, the extrinsic evidence testimony about the defendant’s sexual beliefs and proclivities was an important component of the prosecutor’s case because it corroborated the testimony of the victims.). Additionally, it was well settled under Georgia’s prior “similar transaction” law that, in sexual abuse cases, similar transaction evidence may be used to corroborate the victim’s testimony Frazier v. State, 261 Ga. App. 508, 509 (2) (583 SE2d 188) (2003). For these reasons, the court’s limiting instruction was not erroneous.

(c) In the alternative, Marlow argues that the limiting instruction was plain error because it constituted an impermissible comment on the evidence by the court, in violation of former OCGA § 17-8-57. The record does not bear this out. “The trial court’s jury instruction did not assume certain things as fact and did not intimate to the jury what the trial court believed the evidence to be; therefore, the contested language does not constitute an impermissible judicial comment on the evidence.” (Citation omitted.) Murphy v. State, 270 Ga. 72, 75 (2) (e) (508 SE2d 399) (1998).

(d) Finally, though not specifically enumerated as error, Marlow also asserts that the portion of the court’s limiting instruction concerning “other acts of alleged possession of a gun by the accused” was improper because it was “confusing” and was not authorized under OCGA § 24-4-404 (b). Marlow did not object to this instruction below nor has he explained in his appellate brief how this portion of the limiting instruction constitutes reversible error. He has not demonstrated that merely possessing a handgun is evidence of a crime, wrong, or bad act that should have been excluded under OCGA § 24-4-404 (b). See Williams v. State, 277 Ga. 853, 857 (6) (a) (596 SE2d 597) (2004) (gun ownership alone does not impute bad character). In fact, the court specifically charged the jury that “you may not infer from such evidence that the accused is of a character that would commit [any of the crimes charged].” Moreover, given that the jury acquitted Marlow of aggravated assault by pointing a gun, Marlow has not shown that he was prejudiced as a result of this jury charge. Consequently, we find no error.

2. Marlow argues that the trial court erred by discouraging the jurors from taking notes and by informing them that they would have a written copy of the court’s jury charges to use “for whatever purpose they may see fit.” Marlow argues that doing so was an effort to “suppress the importance of the [verbal] jury charge in favor of concentrating on the relative weight of the State’s case-in-chief” and constitutes plain error.

The record shows that the court verbally instructed the jury The court also gave the jurors a written copy of the charges that it had previously read to them. The court never instructed the jury not to take notes during the trial. Rather, the court told the jury that it did not need to attempt to write down the court’s charges because the jury would be provided with a written copy. Marlow interposed no objection to the court’s statements concerning the jury’s use of the written charge, nor did he object when the court gave the jury a written copy of the charge to consult during its deliberations. Because allowing the jury to have a written copy of the jury charge is authorized under Georgia law, the trial court was within its discretion to allow it. Fletcher v. State, 277 Ga. 795, 797 (4) (596 SE2d 132) (2004); Anderson v. State, 262 Ga. 26, 27-28 (3) (a) (413 SE2d 732) (1992). Marlow has not shown any error in this respect, much less any error that survives the failure to interpose a timely objection.

3. Marlow contends that the prosecutor made improper closing arguments concerning the State’s burden of proof. He asserts that the prosecutor “advised [the jurors] that if they believe that there is simply ‘not enough evidence’ to convict in this case, that this is ‘not reasonable doubt.’ ” We have reviewed the State’s closing argument and have found no statement to this effect. “The burden is on the party alleging error to show it affirmatively by the record.” (Punctuation and footnote omitted.) Durrence v. State, 307 Ga. App. 817, 821 (2) (706 SE2d 180) (2011). Marlow has not carried that burden. Moreover, Marlow has not demonstrated that he made a timely objection to any such improper argument, thereby preserving it for appellate review. Rather, he cites to a motion for a mistrial that he made after closing argument concerning statements that defense counsel thought he heard the prosecutor say, statements that are not supported by the record. Under the circumstances, the motion for a mistrial was untimely and failed to preserve the alleged error for appellate review. See Butler v. State, 273 Ga. 380, 383-384 (8) (541 SE2d 653) (2001) (holding that the defendant’s objection was untimely when he waited until the end of the prosecutor’s closing argument to raise it); Mullins v. Thompson, 274 Ga. 366, 367 (2) (553 SE2d 154) (2001) (“[A] motion [for mistrial] must be made at the time the improper argument is uttered.”) (emphasis in original).

Judgment affirmed.

Branch and Mercier, JJ., concur.

Decided April 22, 2016.

Larry L. Duttweiler, Matthew G. Leipold, Travis A. Williams, for appellant.

Lee Darragh, District Attorney, Jennifer C. Bagwell, Assistant District Attorney, for appellee.

       The State also indicted Marlow for two counts of aggravated assault by pointing a handgun, but the jury acquitted him of those offenses.

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

       Before the extrinsic evidence witness testified about the prior sexual assault, the trial court charged the jury that her testimony was being offered as to Count 1 (rape) only, and for limited purposes, including the “corroboration of the testimony of the alleged victim.” The record shows that, during the preceding charge conference, the trial court discussed with counsel the appropriate language for the limiting instruction. The purpose of the conference was to collectively craft and “critique” an instruction that would clarify for the jury how it might properly use the witness’s testimony that Marlow had sexually assaulted her, and that she had also seen guns in Marlow’s possession. The court invited defense counsel’s input on the limiting instruction, and counsel responded that, with respect to the use of extrinsic evidence of sexual assault, he was “coming up blank,” and that he could find no example of an instruction limiting the scope of that evidence. The trial judge told the lawyers that he wanted to discuss further whether corroboration of the victim’s testimony was a proper purpose for extrinsic evidence under either OCGA §§ 24-4-413 or 24-4-404 (b), saying: “You all need to tell me.” He gave the prosecutor and defense counsel draft charge s and rece sse d the proceedings so that counsel could review them, voice objections, and suggest changes. Thereafter, when the court asked defense counsel whether it was acceptable to add language to the limiting instruction allowing extrinsic evidence for the purpose of “corroboration of the alleged victim, ” defense counsel said the charge was “fine” and that “we can live with it[.]” Thus, the record shows that, not only did counsel fail to specifically object to the language he now challenges on appeal, he approved of it.

       See Ga. L. 2011, p. 99, § 1 (stating the legislative intent to adopt the Federal Rules of Evidence as interpreted by the United States Supreme Court and Circuit Courts of Appeals, as of January 1, 2013, with any conflicts among the circuit Courts of Appeals to be resolved by following the Eleventh Circuit Court).

       Former OCGA § 17-8-57 provided:
      It is error for any judge in any criminal case, during its progress or in his charge to the jury, to express or intimate his opinion as to what has or has not been proved or as to the guilt of the accused. Should any judge violate this Code section, the violation shall be held by the Supreme Court or Court of Appeals to be error and the decision in the case reversed, and a new trial granted in the court below with such directions as the Supreme Court or Court of Appeals may lawfully give.

       See footnote 3, supra.


author: PHIPPS, Presiding Judge.

text:
    A14A0297.
    THE STATE v. ALLEN et al.
    (785 SE2d 655)
    Decided April 27, 2016.

      James L. Wright III, District Attorney, Jordan K. Van Matre, Assistant District Attorney, for appellant.

      Christina M. Kempter, William C. Puckett, Jr.; Veal & Lamar, Holly W. Veal, for appellees.
   PHIPPS, Presiding Judge.

In State v. Allen, this court affirmed the trial court’s grant of the motions to suppress evidence filed by Dorian Allen and Patrick Scott. The Supreme Court of Georgia reversed that decision in State v. Alien. In accordance therewith, we vacate our earlier opinion, adopt the Supreme Court’s opinion as our own, and reverse the judgment of the trial court.

Judgment reversed.

Andrews, P. J., Barnes, P. J., Ellington, P. J., McFadden, Ray and McMillian, JJ., concur.

       328 Ga. App. 411 (762 SE2d 111) (2014).

       298 Ga. 1 (779 SE2d 248) (2015).