author: Miller, Judge.

text:
    A12A0318.
    CROSS v. IVESTER.
    (728 SE2d 299)
   Miller, Judge.

Nathaniel James Cross was found to be in wilful contempt for his failure to pay $22,810.15 in back child support and was sentenced to incarceration on the work release program pending his payment of all past due and current child support, as well as attorney fees. This Court granted Cross’s request for discretionary review of the trial court’s contempt order. On appeal, Cross argues that (1) the trial court erred in finding that Cross was in wilful contempt for failure to pay child support; (2) the trial court erred in modifying Cross’s visitation schedule at the contempt hearing; (3) the trial court exceeded its authority in temporarily revoking Cross’s work release assignment; and (4) the trial court erred in not releasing Cross from incarceration when it became aware of his appeal to this Court. For the reasons that follow, we affirm.

“[A] trial court has broad discretion to determine if a party is in contempt of its order, and the exercise of that discretion will not be reversed on appeal unless grossly abused.” (Citation and punctuation omitted.) Hunter v. Hunter, 289 Ga. 9, 11 (4) (709 SE2d 263) (2011).

Cross has two minor children with Kendra Ivester. In 2006, Cross and Ivester agreed to a consent order awarding them joint legal custody of their two minor children and awarding Ivester primary physical custody. Cross was given visitation rights and ordered to pay child support in the amount of $600 per month. At the time the consent order was entered, Cross was working as an insurance salesman and making a gross monthly income of $2,400. Cross was subsequently terminated in February 2007. Thereafter, Cross began doing various manual labor jobs until he was injured and could no longer do heavy lifting or construction; Cross claims that he then sought employment in the insurance field, but was overqualified for most of those positions. Although Cross was eventually offered a commission-based insurance sales position, Cross explained that he “thought about it and prayed about it, and when it come down to it, [he] said, you know, if I’m going to work commission for someone and split commissions, why don’t I just work for myself and just make all the commission.” Consequently, Cross declined the sales position opportunity and instead started his own insurance business. By July 8, 2008, Cross’s child support arrearage totaled $4,295. As a result, and because Cross was in the process of starting up his own business, the parties agreed to an amended consent order effective July 15, 2008. The amended consent order modified Cross’s child support obligations as follows:

(1) Cross’s child support obligation was reduced to $100 per month from August 1, 2008, through April 30, 2009;

(2) Cross’s child support obligation was increased to $500 per month effective May 1, 2009, through July 31, 2009;

(3) Cross’s child support obligation was increased to $650 per month effective August 1, 2009;

(4) Cross was to pay as he could toward the arrearage of $4,295 from August 1, 2008, through April 30, 2009;

(5) Cross would pay at least 25% of his arrearage from May 1, 2009, through April 30, 2010; and

(6) Cross would pay at least 25% of his arrearage in each 12-month period thereafter until satisfied in full.

Following this amended consent order, however, Cross made only one payment of $300 in 2008 and two payments of $25 in 2011. Accordingly, on February 18,2011, Ivester filed a motion to hold Cross in contempt for failing to pay child support in accordance with the trial court’s amended consent order.

A hearing on the contempt action was conducted on June 15, 2011. At the start of the hearing, Ivester also made an oral motion to modify Cross’s visitation schedule. On June 28, 2011, the trial court entered an order finding Cross to be in wilful contempt of the provisions set forth in the amended consent order and that as of the date of the contempt hearing, Cross’s arrearage totaled $22,810.15. The trial court ordered that Cross be incarcerated at the county jail starting Saturday, July 2, 2011, and remain incarcerated therein on work release Monday through Friday, 7:00 a.m. to 6:00 p.m., until he purged himself of such contempt by payment to Ivester of all past due and current due child support, as well as $1,000 in Ivester’s attorney fees. The trial court’s order further provided, however, that the incarceration provisions would be suspended upon Cross’s payment to Ivester of $5,000 before July 1, 2011, which would be applied toward the arrearage, and so long as all future child support payments in the amount of $650 per month, plus an additional $250 per month to be applied to the arrearage until paid in full, were kept current beginning July 1, 2011. Cross was also required to pay the $1,000 in attorney fees by October 1, 2011, for the suspension of incarceration to remain in effect. The trial court’s order further modified Cross’s visitation schedule with the minor children.

On August 19, 2011, the trial court found Cross in violation of his work release status and revoked Cross’s work release provision for a period of ten days beginning August 21, 2011. On August 22, 2011, following this Court’s grant of Cross’s application for discretionary appeal, the trial court ordered Cross’s immediate release from both incarceration and enforcement of the trial court’s order pending appeal.

1. In his first enumeration, Cross argues that the trial court erred in finding him in wilful contempt for failure to pay child support because he allegedly demonstrated that his financial situation rendered him unable to pay. We disagree.

“A person who has failed to pay child support under a court order when he has the ability to pay may be subject to incarceration for either civil or criminal contempt.” (Citation omitted.) Gallaher v. Breaux, 286 Ga. App. 375, 377 (650 SE2d 313) (2007). As Cross “was sentenced for an indefinite period until the performance of a specific act (i.e., payment of back support), the contempt in this case was civil.” (Citation and punctuation omitted.) Id.

And if there is any evidence to support the trial court’s finding of a wilful refusal to comply with a court order, this [C]ourt will affirm the order of contempt. Thus, the question of whether a contempt has occurred is for the trial court, and its determination will be overturned only if there has been a gross abuse of discretion.

(Citations and punctuation omitted.) Id.

Where the person lacks the ability to pay the child support, however, the trial court must release the party from incarceration for civil contempt. Id. As the Supreme Court of Georgia has held,

[a] trial court . . . may not continue incarceration for civil contempt when the respondent lacks the ability to purge himself. Imprisonment under civil sanctions is always conditional and a party found in contempt may apply for release at any time upon a showing of inability to pay. As we have long held, the moment it appears that there is inability, it would clearly be the duty of the judge to discharge the party. Because the purpose of civil contempt is to provide a remedy and to obtain compliance with the trial court’s orders, the justification for imprisonment is lost when that compliance is impossible.

(Punctuation, footnotes and emphasis omitted.) Hughes v. Dept. of Human Resources, 269 Ga. 587, 587-588 (2) (502 SE2d 233) (1998). Here, Cross contends that the trial court’s finding of wilful contempt was an abuse of discretion because the trial court did not identify (i) any ability of Cross to have paid the child support amounts previously ordered and found to be in arrears; (ii) where the money to pay these child support amounts would come from; or (iii) where Cross could borrow the funds. Notwithstanding his contentions however, the burden was on Cross, and not the trial court, to affirmatively show his inability to pay. See Weiner v. Weiner, 219 Ga. 44 (131 SE2d 561) (1963). Indeed,

[inability to pay is a defense only where the contemnor demonstrates that he has exhausted all resources and assets available and is still unable to secure the funds necessary to enable compliance with the court’s order. He must show clearly that he has in good faith exhausted all the resources at his command and has made a diligent and bona fide effort to comply with the order of the court, and that he cannot borrow sufficient funds to comply with the obligation.

(Citations and punctuation omitted.) Darroch v. Willis, 286 Ga. 566, 569 (2) (690 SE2d 410) (2010); see also Mahaffey v. Mahaffey, 238 Ga. 64,65 (2) (230 SE2d 872) (1976) (“The burden... is on the one refusing to pay to show that he has in good faith exhausted all of the resources at his command and has made a diligent and bona fide effort to comply with the decree awarding alimony or child support.”) (citation and punctuation omitted). Here, Cross did not meet this burden.

As an initial matter, Cross did not clearly show that his earnings were insufficient so as to render him unable to pay anything more than $350 in child support payments since July 2008. Although Cross testified generally that he has paid what he can afford in child support after paying his expenses, Cross’s only evidence of his earnings consisted of the following: a one-month statement from his business checking account in 2011 showing an available balance of $89.40; tax records for the year 2010 showing an adjusted gross income of $672; and documentation from creditors showing various unpaid bills and expenses in 2011. None of this evidence, however, clearly revealed the amount of Cross’s earnings from the time of the July 2008 amended consent order through the present. Cf. Vickers v. Vickers, 220 Ga. 258, 259-260 (138 SE2d 308) (1964) (affirming trial court’s judgment of contempt where father relied primarily upon a copy of his federal income tax return for one year and his testimony was otherwise “wholly insufficient to show conclusively or affirmatively that he was unable to comply with the former judgment of the court”); Scruggs v. Scruggs, 184 Ga. 853, 854 (193 SE 865) (1937) (affirming trial court’s finding of contempt and incarceration where contemnor merely swore that his income was insufficient to enable him to pay child support obligations without revealing the amount of those earnings).

Nor did Cross clearly show that he has been incapable of finding productive employment since July 2008. As of July 2008, Cross was self-employed, and his business was producing no net income. In fact, it was the startup of his new business that was the impetus for temporarily decreasing Cross’s child support obligations in the amended consent order. Cross claims that he is still in the process of “building up” his insurance business, and as of the date of the 2011 contempt hearing, Cross testified that his “book of business [was] breaking even.” Since starting his apparently unprofitable business however, there is no evidence that Cross has sought other and more profitable employment. See Scruggs, supra, 184 Ga. at 854-855 (affirming trial court’s finding of contempt and incarceration; despite contemnor’s claim that the income from work at his mother’s café was insufficient to pay his child support obligations, it did not appear that contemnor had made any effort to obtain other and more profitable employment). This is despite the fact that Cross has an associate’s degree in accounting, a bachelor’s degree in business, a stock broker license, and an insurance license, and claimed that he was “very well qualified for a lot of positions, mostly insurance and broker.”

Finally, Cross did not clearly show that he had in good faith exhausted all of the resources and assets at his command since July 2008. See Darroch, supra, 286 Ga. at 569 (2). Cross admitted that he owned three properties. Cross rented out two of the properties in order to cover their respective mortgage payments. Although Cross claimed that he made no profit from the rent payments, he failed to reveal the amounts of rent he actually received or the mortgage payments the rent was supposed to cover. Cross did not show how much equity he had in either property; he testified only that he owed approximately $85,000 on each and that one of the properties was in foreclosure. Cross claimed that he had been trying to sell these properties, but had been unsuccessful. Beyond his testimony, however, the only evidence of his efforts to sell consists of a 2011 e-mail from a real estate broker asking if Cross was still interested in selling one of his homes. The third property Cross owned is the office building from which Cross runs his insurance business. Again, Cross failed to show how much equity he had in the property; he testified only that he owed about $40,000 on it and that it “has no value” because “the land is disintegrating and falling apart.” Cross also testified that he rented out an apartment in the office building to help pay the mortgage. Cross explained that he had not tried to sell this third property because he would not be able to conduct any business without his office. Apart from his three properties, Cross also admitted that he owned a diamond ring and a vehicle, both of which he claimed he had been trying to sell. Cross did not show the value of either item; he testified only that his “car’s engine is about to blow up, so there’s not too many people chomping at the bit to buy it,” and that the engagement ring “is basically not worth anything of value, because you can get them for nothing now.”

While the foregoing evidence certainly disclosed Cross’s current financial struggles, we cannot say that Cross showed conclusively or affirmatively that he had the inability to comply with the amended consent order or to purge himself of the contempt at the time of the hearing. See Vickers, supra, 220 Ga. at 260. Significantly, we note that “[t]he contempt question, including any factual issues as to the former husband’s ability to pay, is for the trial court to determine and that court’s adjudication will not be reversed on appeal unless there has been an abuse of discretion.” (Citations and punctuation omitted.) Mahaffey, supra, 238 Ga. at 65 (2). Had Cross been making partial payments from time to time, that might have indicated to the trial court his good faith in attempting to comply with the amended consent order. See Scruggs, supra, 184 Ga. at 855. Since July 2008, however, Cross has paid only a total of $350 toward the $22,810.15 he owes in back child support. Given the showing, or lack thereof, made by Cross at the contempt hearing, we cannot conclude that the trial court abused its discretion in finding that Cross was in wilful contempt for failing to comply with the child support obligations set forth in the amended consent order.

2. Cross argues that the trial court erred in entertaining Ivester’s motion for modification of the visitation schedule because (i) he should have been allowed more of an opportunity to prepare for the issue of visitation; and (ii) venue was improper. We discern no error.

Under OCGA § 19-9-3 (b), the trial court is expressly authorized to modify visitation rights, on the motion of any party or on the motion of the judge, during a contempt proceeding. Gildar v. Gildar, 309 Ga. App. 730, 731 (710 SE2d 913) (2011). And “[i]f reasonable evidence exists in the record to support the trial court’s decision to change visitation rights, then the decision of that court will stand. The trial court’s decision will not be overturned absent abuse of discretion.” (Punctuation and footnote omitted.) Id. at 731-732. Here, the trial court modified Cross’s visitation schedule upon Ivester’s oral motion for modification of visitation at the contempt hearing.

(i) Notwithstanding its authority to modify Cross’s visitation schedule, Cross argues that the trial court nevertheless abused its discretion in proceeding with the visitation issue because it did not afford Cross “the time necessary to respond to such an important issue.” Specifically, Cross claims that “[t]he trial judge could have acknowledged [Ivester’s] motion and set the matter over for a further hearing on that issue at a later date, thereby affording [Cross] an opportunity to prepare for the issue of visitation.” Significantly, however, such is not required by OCGA § 19-9-3 (b), and Cross cites no authority providing otherwise. Moreover, Cross was afforded more than one opportunity to respond to Ivester’s motion for modification — not only was he permitted to both cross-examine Ivester and provide his own direct testimony at the contempt hearing, but he was also allotted an additional ten days in which to submit a written brief in further support of his arguments on the visitation issue.

(ii) Cross also argues that the Superior Court of Stephens County (the county in which both child support orders were entered) was not the proper venue for Ivester’s motion for modification of visitation because Cross was a resident of Franklin County, Georgia, at the time of the contempt hearing. Cross nevertheless waived any challenge to venue by failing to ever object to venue, or otherwise raise the issue, in the trial court below. See Daust v. Daust, 204 Ga. App. 29, 31 (418 SE2d 409) (1992) (“The defenses of lack of personal jurisdiction and improper venue clearly may be waived, even in child custody cases.”) (citations omitted); see, e.g., Ganny v. Ganny, 238 Ga. App. 123, 125 (2) (518 SE2d 148) (1999) (concluding that wife, as defendant in counterclaim for custody, waived venue challenge where her only objection to venue occurred during closing argument); Houston v. Brown, 212 Ga. App. 834, 834-835 (443 SE2d 3) (1994) (holding that husband waived lack of venue defense to wife’s counterclaim in an action for modification of child visitation where husband did not move to dismiss counterclaim until after trial was complete and a temporary order was issued).

Accordingly, neither of Cross’s challenges provide a basis for reversal of the trial court’s modification to the visitation schedule.

3. Cross argues that the trial court exceeded its authority in temporarily revoking Cross’s work release status because the contempt order did not provide “direction as to the limitations on his movement during the specified periods of work release.” Cross’s argument is meritless.

OCGA § 15-1-4 (c) authorizes a trial court to sentence those gainfully-employed persons found in contempt of an order to pay court-ordered child support to a term of confinement in a diversion center and participation in a diversion program if such a program has been established by a county pursuant to OCGA § 42-8-130. OCGA § 42-8-130 provides, in pertinent part, as follows:

... While in such diversion program, the respondent shall be authorized to travel to and from his or her place of employment and to continue his or her occupation. The official in charge of the diversion program or his or her designee shall prescribe the routes, manner of travel, and periods of travel to be used by the respondent in attending to his or her occupation. . . . When the respondent is not traveling to or from his or her place of employment or engaging in his or her occupation, such person shall be confined in the diversion center during the term of the sentence. With the approval of the sheriff or his or her designee, the respondent may participate in educational or counseling programs offered at the diversion center. ... If the respondent fails to comply with any of the requirements imposed upon him or her in accordance with this Code section, nothing shall prevent the sentencing judge from revoking said assignment to a diversion program and providing for alternative methods of incarceration.

(Punctuation omitted; emphasis supplied.)

Here, the trial court properly directed Cross to a work release program. Cf. Gallaher, supra, 286 Ga. App. at 378. The trial court found that Cross violated the terms of his work release, however, when he brought paperwork to the office of a superior court judge in Clarksville, Georgia, during the hours that Cross was supposed to be at work. As a result, the trial court revoked Cross’s work release assignment for a period of ten days, during which time Cross was to be incarcerated without leaving the diversion center to engage in his occupation. The trial court did not exceed its authority in doing so. Pursuant to the clear language of OCGA § 42-8-130, Cross was not authorized to be anywhere else besides the detention center, his place of employment, or traveling to and from his place of employment. In light of Cross’s failure to comply with these requirements, OCGA § 42-8-130 authorized the trial court to revoke Cross’s work release status.

4. In his final enumeration of error, Cross argues that the trial court erred in failing to release him from incarceration when it became aware of his pending appeal in this Court. Again, Cross’s argument is meritless.

Decided May 3, 2012

Sean A. Black, for appellant.

Simmons & Hunt, Henry L. Simmons, Healy & Svoren, Timothy P. Healy, for appellee.

In contempt cases, a grant of supersedeas is governed by OCGA§ 5-6-13 (a), which provides:

A judge of any trial court or tribunal having the power to adjudge and punish for contempt shall grant to any person convicted of or adjudged to be in contempt of court a supersedeas upon application and compliance with the provisions of law as to appeal and certiorari, where the person also submits, within the time prescribed by law, written notice that he intends to seek review of the conviction or adjudication of contempt. It shall not be in the discretion of any trial court judge to grant or refuse a supersedeas in cases of contempt.

This Code section requires a court to grant supersedeas only if a person applies for supersedeas and submits a written notice of intent to appeal.

(Footnote omitted.) Blake v. Spears, 254 Ga. App. 21, 25 (5) (561 SE2d 173) (2002). Here, Cross filed his application for discretionary appeal on July 27, 2011. However, there is no indication that Cross submitted either an application for supersedeas or a written notice of intent to appeal as required by OCGA § 5-6-13 (a). “Thus, the record contains no evidence that [Cross] complied with OCGA § 5-6-13 at this juncture, and the trial court [would not have erred] in refusing to grant supersedeas under that section.” (Punctuation and footnote omitted.) Id. That said, we note that one week after this Court granted Cross’s application for a discretionary appeal, and on the same day that Cross filed his timely notice of appeal, the trial court ordered Cross’s immediate release from incarceration and enforcement of the contempt order. Therefore, Cross has not shown any reversible error.

Judgment affirmed.

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

       Embedded in this enumeration of error is the argument by Cross that the contempt order violated his constitutional due process rights. “But a party cannot expand its enumerations of error through argument or citation in its brief. Hence, [Cross] has waived and abandoned this assertion of error for purposes of appeal.” (Citations and punctuation omitted.) Westmoreland v. JW, LLC, 313 Ga. App. 486, 491 (4), n. 1 (722 SE2d 102) (2012).

       Despite Cross’s claim that his injuries prevented him from some jobs and that he was found to he overqualified for other jobs, the evidence indicates that these other job opportunities were sought before Cross decided to start his own business.


source: Caselaw Access Project

author: Boggs, Judge.

license: Public Domain

text:
    A12A0501.
    PEPPERS v. THE STATE.
    (728 SE2d 286)
   Boggs, Judge.

A jury found Ora Peppers guilty on two counts of possession of a firearm by a convicted felon, but acquitted him on charges of aggravated cruelty to animals and discharge of a gun near a highway. Following the denial of his motion for new trial, Peppers appeals, asserting only that the evidence is insufficient to sustain his convictions. We find the evidence sufficient on one count of possession of a firearm by a convicted felon, but insufficient on the second count. We therefore affirm in part and reverse in part, and remand this case for resentencing.

On appeal from a criminal conviction, we view the evidence in the light most favorable to the verdict and the defendant no longer enjoys a presumption of innocence. Short v. State, 234 Ga. App. 633, 634 (1) (507 SE2d5 14) (1998). An appellate court does not weigh the evidence or determine witness credibility but only determines whether, under the standard of Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560) (1979), the evidence was sufficient for a rational trier of fact to find beyond a reasonable doubt that the defendant was guilty of the charged offense. Id.

So viewed, the evidence showed that police officers responded to a call that someone shot a dog in front of a child. When officers investigated the matter, they made contact with Peppers, who was standing on his front porch. An officer asked Peppers if he “had any weapons in the house,” to which Peppers responded “yes,” and allowed officers to enter his home. Once inside the home, Peppers picked up a .22-caliber rifle “on his left-hand side in the corner of the hallway kind of living room area . . . two to three feet within the residence as [officers] first made entry into the house.” Peppers handed the rifle to one of the officers.

Officers then asked Peppers “if there were any other weapons in the house.” Peppers first replied that “there wasn’t,” but shortly thereafter told officers that there was a shotgun in the house. One of the officers testified that Peppers led them through the house into a back bedroom on the left side of the home where he showed officers “where the shotgun was, at which time [the officer] didn’t let him handle that weapon. [The officer] took possession of it.” An officer testified that Peppers did not indicate “whose bedroom it was[,]” that there was an older woman in the house, and that he did not “recall ever discussing whose weapons they were.”

Peppers testified that he “didn’t have a gun but [his roommate] had one.” He explained that to cooperate with police, he retrieved his roommate’s guns. Peppers stated further that when officers asked about weapons, he asked his roommate if he could show them to police and the roommate responded that it was “all right” to do so. He explained that the weapons were on his roommate’s side of the home, and that although he could access her side of the home, he did not do so. Peppers explained further that he shared the living room with his roommate “and that’s all.”

Peppers’ roommate testified that the rifle and shotgun belonged to her and that she kept them in her bedroom “between [her] bookcase and [her] bathroom.” She explained that Peppers “never touched [her] guns.” The roommate stated further that when she heard Peppers tell the officers that he did not have any weapons, she retrieved two weapons she owned from her bedroom and put them by the front door, and that Peppers asked her if he could hand the guns to the officers. She explained that she and Peppers had separate bedrooms but that they “share the — all the kitchen and stuff and the bathroom . . . [w]e split our rent and we split our bills.”

A witness testified that on the day of the incident, she “heard a gun go off,” and when she turned, she saw Peppers holding a gun that looked like the .22-caliber rifle that officers retrieved from Peppers’ home.

Peppers was charged with two counts of possession of a firearm by a convicted felon based upon his prior felony convictions and his possession of a rifle and a shotgun. A jury found him guilty on both counts.

Peppers argues that he did not have the power and intention to exercise dominion and control over his roommate’s firearms that were kept in her bedroom. OCGA § 16-11-131 (b) provides that “[a]ny person .. . who has been convicted of a felony by a court of this state or any other state . . . receives, possesses, or transports any firearm commits a felony.” Possession can be actual or constructive. Layne v. State, 313 Ga. App. 608, 612 (2) (722 SE2d 351) (2012). It is undisputed that Peppers had been previously convicted of the felonies of burglary and arson in the first degree. And a witness testified that immediately after hearing a gunshot, she saw Peppers holding a gun similar to the .22-caliber rifle Peppers handed to officers just inside the front door to his home. The evidence was therefore sufficient to support Peppers’ conviction for possession of a rifle by a convicted felon. See Deering v. State, 244 Ga. App. 30, 32 (2) (535 SE2d 4) (2000) (person in direct physical control of thing at a given time is in actual possession of it).

But we must reverse Peppers’ conviction for possession of a firearm by a convicted felon based upon his alleged possession of the shotgun. While Peppers knew the location of the shotgun, there was no evidence presented that he had actual possession of it outside of possibly handing it to officers at their request, nor is there evidence that Peppers was in constructive possession of the shotgun.

Decided May 3, 2012.

Shari Gunnin, John M. Petty, Jr., for appellant.

A person who, though not in actual possession, knowingly has both the power and the intention at a given time to exercise dominion or control over a thing is then in constructive possession of it. Constructive possession is sufficient to prove possession of a firearm by a convicted felon.

(Citations and punctuation omitted.) Deering, supra, 244 Ga. App. at 32 (3). The evidence here showed two possible scenarios: (1) that Peppers asked his roommate for permission to take officers to her room to retrieve the shotgun, and led officers to the roommate’s bedroom where they retrieved it; or (2) Peppers handed the officers the shotgun that his roommate had placed by the door after hearing officers ask if there were guns in the home. Neither of these circumstances is sufficient to show that Peppers actually possessed or exercised sufficient dominion and control over the shotgun to establish constructive possession. See Peterson v. State, 252 Ga. App. 469, 471-472 (2) (556 SE2d 514) (2001) (evidence insufficient where firearms were found in shoe boxes in bedroom closet, and although photographs and paperwork bearing defendant’s name were found, there was no evidence that defendant leased or resided in apartment or had personal items or clothing there); compare Layne, supra (evidence that two firearms and ammunition for a third were found in defendant’s padlocked bedroom sufficient to show constructive possession); Deering, supra, 244 Ga. App. at 33 (2) (evidence of constructive possession where defendant was sole occupant of vehicle and gun was cocked, loaded, and between front seats of car within his reach); Crawford v. State, 233 Ga. App. 323, 324 (1) (b) (504 SE2d 19) (1998) (“A jury is authorized to find constructive possession of a firearm by one occupant of a shared bedroom when the firearm is found in a dresser drawer containing clothing appropriate to that occupant’s sex. [Cit.]”).

Judgment affirmed in part, reversed in part, sentence vacated and case remanded for resentencing.

Doyle, P. J., and Andrews, J., concur.

Layla H. Zon, District Attorney, Erie J. Newton III, Assistant District Attorney, for appellee.


text:
    A12A0606.
    COOPER v. THE STATE.
    (728 SE2d 289)
   Boggs, Judge.

Adam Cooper appeals from his convictions for possession of a Schedule I controlled substance (N-Benzylpiperazine or “BZP” ) and possession of marijuana with intent to distribute. He contends insufficient evidence supports his convictions. We disagree and affirm.

Viewed in the light most favorable to the verdict, the record shows that three police officers in uniform were patrolling an apartment complex on bicycles “for illegal drug sales.” When the officers approached Building 15, they saw Cooper standing in front of it with two men facing him. One of the men reached into his pocket to pull out what appeared to be paper money. When the officers approached, the two men walked away, and Cooper remained in front of the apartment building. After denying that he had anything “illegal on him,” Cooper consented to a pat-down search. As the officer began the search, Cooper told the officer he “had weed and E” in his right front pocket and “a joint in his left front pocket.” When the officer searched Cooper’s pockets, he found a small plastic bag containing marijuana, ten individually wrapped smaller plastic bags containing marijuana, “a wrapping with seven pills in it,” empty individual baggies, $72.89 in cash, a marijuana cigarette, and a cell phone. After the officer read Cooper his Miranda rights, Cooper told the officer he obtained the drugs from “[s]ome guy in DeKalb County” and admitted that “he smoke [d] marijuana all day to help him maintain his anger issues and he uses ecstasy to help balance out the marijuana or marijuana to balance out the ecstasy.” He also explained that “he was homeless and . . . didn’t have a job or anything . . . [and would] do whatever it takes to make money.”

A forensic chemist with the GBI testified that she tested one of the pills and determined that it was N-Benzylpiperazine, commonly known as BZP, a “euphoric stimulant” that “stimulates like methamphetamine would and then it also has some euphoric tendencies like ecstasy would.” A Gwinnett County crime scene specialist testified that the substance in two of the small baggies tested positive for marijuana. Each of the ten small baggies weighed between .42 and .49 grams and the larger plastic bag of marijuana weighed 2.22 grams for a total weight of 6.85 grams, excluding the cigarette.

Cooper testified that he planned to personally use all of the drugs found by the police on his person. He explained that he purchased the marijuana and pills from a dealer named Daytona in Building 15 of the apartment complex. Cooper believed that the pills he had purchased were ecstasy. He acknowledged that he used Daytona’s scale to separate the marijuana into separate bags while he was in Daytona’s apartment, claiming that he did so for “portion control.” During cross-examination, he admitted that it would have been easy for him to take some of the pills or marijuana from the larger bag and place it in the empty plastic bags that were found in his pocket. He denied that the two men with him when the police approached were trying to purchase drugs from him.

1. Cooper contends, based upon his testimony that he believed the pills were ecstasy, that insufficient evidence supports his possession of BZP conviction because he did not knowingly possess BZP. The record shows that while the State charged Cooper with possession “with the intent to distribute N-Benzylpiperazine, a Schedule I controlled substance,” the jury found him guilty of the lesser included offense of possession.

Cooper asserts, correctly, that the State must prove that he knowingly possessed the chemical N-Benzylpiperazine. Duvall v. State, 289 Ga. 540, 542 (712 SE2d 850) (2011). “Possession of a controlled substance is not a strict liability offense. . . .[T]he criminal intent required by OCGA §[ ] 16-13-30 (a) . . . is intent to possess a drug with knowledge of the chemical identity of that drug.” Id.

He incorrectly claims, however, that his testimony that he believed he possessed a different Schedule I controlled substance, ecstasy, renders the State’s evidence against him insufficient as a matter of law. “Appellant’s knowledge of the chemical identity of the substance in his possession is purely a question of fact” that should ordinarily be determined by a jury. Duvall, 289 Ga. at 542.

[B]oth knowledge and possession may be proved, like any other fact, by circumstantial evidence. And it has long been the law that knowledge may be proved by facts and circumstances from which a jury could reasonably infer that a defendant knowingly possessed contraband. Thus, OCGA § 16-2-6 provides that a jury may find criminal intention upon consideration of the words, conduct, demeanor, motive, and all other circumstances connected with the act for which the accused is prosecuted.

(Citation, punctuation and footnote omitted.) Serna v. State, 308 Ga. App. 518, 522 (3) (707 SE2d 904) (2011). The jury was not required to accept as true Cooper’s assertion that he believed the pills were a different Schedule I controlled substance. “It is the jury’s prerogative to choose what evidence to believe and what to reject.” (Citation and punctuation omitted.) Sullivan v. State, 277 Ga. App. 738, 741 (627 SE2d 437) (2006). Because the issue of Cooper’s knowledge that he possessed BZP was for the jury, we affirm his conviction. Cf. Serna, supra, 308 Ga. App. at 521-522 (3) (rejecting defendant’s sufficiency argument based in part upon alleged lack of knowledge of precise chemical compound in bottle of “Amsterdam Poppers”).

2. Cooper argues that insufficient evidence supports his conviction for possession of marijuana with the intent to distribute because the evidence demands the conclusion that he possessed it only for personal use. We disagree.

“[N]o bright line rule exists regarding the amount or type of evidence sufficient to support a conviction for possession with intent to distribute.” (Citation, punctuation and footnote omitted.) Jones v. State, 304 Ga. App. 109, 110-111 (1) (a) (695 SE2d 665) (2010). “[I]n the absence of expert testimony concerning the amount of contraband associated with distribution, intent to sell may be proven through additional evidence including scales, drug paraphernalia, large amounts of cash, and division of drugs into individual packages.” (Citation and punctuation omitted.) Gremillion v. State, 233 Ga. App. 393, 396-397 (3) (504 SE2d 265) (1998). Evidence that Cooper used a dealer’s scale to distribute marijuana into individual packages of similar weight, his possession of a larger bag of marijuana along with empty individual plastic bags, his possession of a total amount of 6.85 grams of loose marijuana, his admission that he would do whatever it takes to make money, and the officer’s observation of what might have been an interrupted sales transaction combined together adequately support his intent to distribute conviction. See Williams v. State, 303 Ga. App. 222, 224-225 (2) (692 SE2d 820) (2010); Rutledge v. State, 224 Ga. App. 666, 668 (1) (482 SE2d 403) (1997).

Decided May 3, 2012.

Scott A. Drake, for appellant.

Daniel J. Porter, District Attorney, Richard C. Armond, Assistant District Attorney, for appellee.

Judgment affirmed.

Doyle, P. J., and Andrews, J., concur.

       OCGA§ 16-13-25(9).

       MDMA or ecstasy “is a Schedule I controlled substance denominated ‘3, 4-Methylenedioxymethamphetamine.’ OCGA§ 16-13-25 (3) (Z).” Gibson v. State, 308 Ga. App. 63, n. 1 (706 SE2d 585) (2011).

       Our opinion in Mohamed v. State, 314 Ga. App. 181, 184 (723 SE2d 694) (2012), does not require a different result. In Mohamed, the defendant testified that he believed “the chemicals” would dissipate from a khat plant during the time it took the plant to be shipped from Africa to the United States. In this case, however, Cooper admitted that he possessed an illegal drug, and it was for the jury to determine whether he knowingly possessed the chemical compound specified in the indictment.


text:
    A12A0750.
    REGISTER v. THE STATE.
    (728 SE2d 292)
   Boggs, Judge.

Following the trial court’s denial of Brandy Register’s motion to suppress, we granted her application for interlocutory review. Register argues that there was no reasonable suspicion to authorize a stop of the vehicle in which she was a passenger and that the evidence in her possession seized during the stop was tainted and must therefore be suppressed. We agree and reverse.

“[0]n review of a trial court’s ruling on a motion to suppress, the trial court’s findings on disputed facts will be upheld unless clearly erroneous, and its application of the law to undisputed facts is subject to de novo review.” (Citations and punctuation omitted.) Wilder v. State, 290 Ga. 13, 15 (2) (717 SE2d 457) (2011).

The evidence is undisputed here. The police chief for the City of Dublin, Georgia, received a phone call from an anonymous caller who stated that they had observed what they believed was a drug transaction “at the Friendly Gus located on 441 North.” The caller stated that he observed a white male exchange “some type of pill” for money. The caller advised that the white male was traveling in a white Chevrolet van and provided the tag number of the vehicle, and also stated that a white female was a passenger in the van. The caller told the police chief that he would observe the van until the police chief could arrive at the location.

Prior to the police chief’s arrival, the caller informed him that the “van had pulled out traveling south on 441.” As the police chief approached, he observed the van and verified that the tag number on the van was the same tag number given to him by the caller. He then notified the 911 call center that he was following the van and asked for verification of the tag number. He also asked for a “marked unit” to assist him.

The van made several turns leading the police chief to believe that the driver “appeared to be evading [him],” although he acknowledged that the driver did not commit any traffic violations. He stopped the van, and approached the driver whom he knew as Travis Register. The chief testified that he was familiar with Travis because of his “extensive history of narcotic transactions and dealing with narcotics.” He also recognized the passenger as Brandy Register and was familiar with her for this same reason.

The police chief asked Travis if he could search the van, and Travis consented. The second officer who arrived to assist the police chief asked Brandy to step out of the van and come toward his vehicle. This officer testified that he was also familiar with both Travis and Brandy. He stated that after having some conversation with Brandy at this vehicle, she cooperated and

we had been told about what had happened at the store about the citizen, what he had said. I basically talked to Brandy and told her the — you know, what the allegations were. She was very cooperative with me. She retrieved a gold case out of her bra on the left side... which contained Xanax and Oxycodone.

The trial court concluded that the details reported by the concerned citizen

including the detailed description of the vehicle, the tag number, the description of the occupants, the likely continuing criminal activity that drugs are in the possession of the occupants of the vehicle, and the continuing observations of the concerned citizen and communication with police,

gave police “articulable suspicion to stop the vehicle [and] . . . articulable suspicion to investigate possession of narcotics.”

On appeal, Brandy argues that the trial court erred in finding that the police chief had a reasonable articulable suspicion to authorize a stop of the vehicle in which she was a passenger. The stop of the vehicle was a second-tier encounter requiring officers to have reasonable suspicion of criminal activity. See generally Hines v. State, 308 Ga. App. 299, 301 (1) (707 SE2d 534) (2011). And

[a] ¡though a tip provided by an informant of unknown reliability will not ordinarily create a reasonable suspicion of criminal activity, if the tip is detailed enough to provide some basis for predicting the future behavior of the suspect, reliability may be established if the details are corroborated by the observations of the police.

(Citations, punctuation and footnote omitted.) State v. Dukes, 279 Ga. App. 247, 250 (630 SE2d 847) (2006).

[T]he information corroborated must include a range of details relating not just to easily obtained facts and conditions existing at the time of the tip, but to future actions of third parties ordinarily not easily predicted. In short, the information corroborated will generally need to be a prediction of future behavior, ... or something similar — that is, inside information not available to the general public.

(Citations and punctuation omitted.) VonLinsowe v. State, 213 Ga. App. 619, 621 (1) (445 SE2d 371) (1994). Moreover, we have held that even where police do not confirm future actions, an anonymous caller’s tip may otherwise exhibit sufficient indicia of reliability to justify a stop. Britton v. State, 220 Ga. App. 120, 121-122 (469 SE2d 272) (1996).

The tip here lacked moderate indicia of reliability as it provided no prediction of future behavior or other inside information that could be corroborated by police. It was therefore not sufficiently reliable to justify a stop of the vehicle in which Brandy was traveling. See id. (officer lacked reasonable suspicion to detain defendant where tip did not predict future behavior and provided no information not available to general public); see also Smith v. State, 288 Ga. App. 87, 88-89 (653 SE2d 510) (2007) (although officers had received anonymous tips that defendant was engaged in drug activity, those tips had not been corroborated and no evidence showed reliability of tips); compare Alabama v. White, 496 U. S. 325, 331-332 (110 SC 2412, 110 LE2d 301) (1990) (under totality of circumstances, details predicted future behavior and thus tip exhibited sufficient indicia of reliability to justify stop when verified by police); Daniels v. State, 278 Ga. App. 263, 265-266 (1) (628 SE2d 684) (2006) (relying on White, supra) (in addition to facts easily obtained at time of tip, caller predicted future actions of third parties such as precise time and route of travel of occupants of correctly described vehicle); Britton, supra, 220 Ga. App. at 121-122 (anonymous caller demonstrated some ability to predict future behavior and indicated his knowledge was based on personal observations; prior reports of drug activity corroborated information provided by caller which would not have been known by general public). The taint of the illegal stop in this case requires the suppression of the contents of the gold case possessed by Brandy as there were no intervening circumstances or events to purge the taint of the illegal stop. See Smith, supra, 288 Ga. App. at 89 (although defendant consented to search, it was direct product of preceding illegality). We must therefore reverse.

Decided May 3, 2012.

Catherine S. Bernard, for appellant.

L. Craig Fraser, District Attorney, Bradford N. Childers, Assistant District Attorney, for appellee.

Judgment reversed.

Doyle, P. J., and Andrews, J., concur.

       The State labels the caller here as a “concerned citizen.” It is true that “when hearsay information is supplied by an identified interested citizen, the citizen’s credibility is not as suspect and the analysis is not as stringent as when information is given by an anonymous tipster; a law-abiding concerned citizen has a built-in credibility and is deemed to be reliable.” (Citation omitted; emphasis supplied.) Yearwood v. State, 239 Ga. App. 682, 683 (521 SE2d 689) (1999); see also Hudson v. State, 253 Ga. App. 210, 211 (558 SE2d 420) (2001) (law-abiding citizen who provided tip was identified and testified at trial). But in this case, the caller was not identified and is therefore considered an anonymous tipster. Compare Hudson, supra; Riding v. State, 269 Ga. App. 289, 291 (603 SE2d 776) (2004) (tip was from concerned citizen where individual reported to police in person).


author: Ellington, Chief Judge.

text:
    A12A0998.
    HICKS v. THE STATE.
    (728 SE2d 294)
   Ellington, Chief Judge.

A DeKalb County jury found Darryl Hicks guilty beyond a reasonable doubt of engaging in a pattern of racketeering activity in violation of the Georgia RICO (Racketeer Influenced and Corrupt Organizations) Act and nine counts of violating the Georgia Securities Act of 1973. Following the denial of his motion for a new trial, Hicks appeals, contending that the evidence was insufficient, that the trial court erred in denying his plea in bar and his motion for a mistrial, and that he received ineffective assistance of counsel. For the reasons explained below, we affirm.

1. Hicks contends that “[t]he evidence was insufficient to show that an investment contract existed as defined and required by the [Securities Act] and that such contract was sold by [him].”

The indictment charged that, in 2000 and 2001, Hicks violated the Securities Act as to three groups of victims and that, as to each group, he violated the same three provisions of the Securities Act. First, the indictment charged that Hicks “unlawfully and willfully offer[ed] for sale and did sell a security, to wit: an investment contract, . . . which security was not subject to an effective registration statement pursuant to OCGA § 10-5-5 (a) (l)-(3) [(2000)].” Second, the indictment charged that Hicks “unlawfully and. willfully offer[ed] for sale and did sell a security, to wit: an investment contract,... when [he] was not registered as a salesman of securities pursuant to OCGA § 10-5-3 (a) [(2000)] .” Third, the indictment alleged that Hicks, in connection with an offer to sell and sale of a security engaged “in an act, practice, and course of business that would operate and did operate as a fraud and deceit upon [the victims].” Finally, in ten paragraphs, the indictment charged Hicks with engaging in a pattern of racketeering based on his transactions with the victims.

At trial, the State adduced evidence that showed that Hicks, acting as the president of DNH Enterprises, Inc., met with the victims in 2000, representing himself to be a licensed trader, which he was not. Hicks presented the victims with a booklet of information entitled “Private Banking & Secured Financial Programs” and invited them to participate as investors. Hicks, verbally and in the booklets, described two programs, a bank debenture trading program and a foreign currency trading program. According to Hicks, through his management, the victims’ investment would generate huge returns. For example, one program required the investor to hold $500,000 on deposit for ten weeks and would return to the investor $800,000 gross every week, with a net return (after paying the “Program Manager” or the “Bank Trader” and Hicks’ company) after ten weeks of $2.8 million. Hicks encouraged the victims to pool their funds, so that they could satisfy the large minimum amounts supposedly required for participation. The agreement between Hicks and the victims entitled Hicks to 50 percent of the profits as a commission for his help and expertise.

Initially, the victims, at Hicks’ direction, opened accounts at SunState FX. After a few months of low returns, however, the victims, again at Hicks’ direction, withdrew their funds from SunState FX and transferred the money to him, ostensibly for him to hold for a few months until the next debenture program opened up. About the time the victims were supposed to start receiving returns on their investment, Hicks stopped communicating with them and left the country. The victims did not receive the promised return of their initial investment or any profits.

In challenging the sufficiency of the evidence, Hicks contends that the booklets that he prepared and distributed to the victims “are the only documents that refer to an investment and they do not meet the requirements for a security under Georgia law[,]” and, therefore, “[t]he evidence was insufficient to show that a contract or security existed that [met] the requirements of OCGA § 10-5-2 [(a)] (26) and (31) [(2000)].” In addition, he contends that there was no evidence that he kept any of the victims’ money for his personal use and, therefore, that there was no evidence that he sold any securities. These arguments lack merit.

In addition to stocks and bonds, the Securities Act defined “security” to include a great variety of investment vehicles and arrangements, including any “investment contract[.]” OCGA § 10-5-2 (a) (26) (2000). The term investment contract, however, is not comprehensively defined in the Securities Act. In applying the Securities Act, the Supreme Court of Georgia adopted the definition that pertains to federal securities laws, originally articulated in Securities & Exchange Comm. v. W. J. Howey Co., 328 U. S. 293 (66 SC 1100, 90 LE 1244) (1946). See Dunwoody Country Club &c. v. Fortson, 243 Ga. 236, 238-239 (253 SE2d 700) (1979); Ga. Market Centers v. Fortson, 225 Ga. 854, 858 (171 SE2d 620) (1969). The Howey test “for whether a particular scheme is an investment contract ... look[s] to whether the scheme involves [(1)] an investment of money [(2)] in a common enterprise [(3)] with [an expectation of] profits to come solely from the efforts of others.” (Citation and punctuation omitted.) Securities & Exchange Comm. v. Edwards, 540 U. S. 389, 393 (II) (124 SC 892, 157 LE2d 813) (2004).

The [United States] Supreme Court has long espoused a broad construction of what constitutes an investment contract, aspiring to afford the investing public a full measure of protection. The investment contract taxonomy thus embodies a flexible rather than a static principle, one that is capable of adaptation to meet the countless and variable schemes devised by those who seek the use of the money of others on the promise of profits.

(Citations and punctuation omitted.) Securities & Exchange Comm. v. SG Ltd., 265 F3d 42, 47 (II) (A) (1st Cir. 2001). See also United Housing Foundation v. Forman, 421 U. S. 837, 852 (II) (B) (95 SC 2051, 44 LE2d 621) (1975) (“The touchstone [of a security] is the presence of an investment in a common venture premised on a reasonable expectation of profits to be derived from the entrepreneurial or managerial efforts of others.”). In addition, an investment scheme may constitute an investment contract, even when the purported instrument does not in fact exist, as is often the case with investment fraud. See Local 875 &c. v. Pollack, 992 FSupp. 545, 564 (II) (C) (E.D. N.Y. 1998) (The fact that the prime bank note that the defendants purported to sell to investors “existed nowhere but in the minds of the defendants [did] not remove th[e] case from the purview of [the federal Securities Exchange Act of 1934, 15 USC § 78j (b), and Rule 10b-5 promulgated thereunder, 17 CFR § 240.10b-5]. Afraudin connection with the purchase or sale of a fraudulent security is no less actionable for its fictitious quality”) (footnote omitted).

Here, the evidence authorized the jury to find that all three prongs of the Howey test were satisfied. First, the victims parted with their money in anticipation of investment gains. Second, there was a common enterprise, because the victims’ funds were pooled to reach the minimum amounts for participation set by Hicks. Third, the expectation of profits rested solely on the efforts of others (the “Program Manager” or “Bank Trader”). See Securities & Exchange Comm. v. SG Ltd., 265 F3d at 48-55 (III). In addition, the evidence authorized the jury to find that Hicks acted as a dealer or salesperson who would receive a percentage of the returns as a commission. Consequently, Hicks’ sufficiency challenge fails.

2. Hicks contends that the State failed to obtain a valid indictment within the statute of limitation and, therefore, that the trial court erred in denying his plea in bar.

The record shows that none of the victims were aware of Hicks’ fraud before April 19, 2001. A grand jury returned an indictment on April 14, 2005, within the applicable statute of limitation, which charged Hicks with one RICO count and nine counts of violating the Securities Act. On November 30, 2007, the trial court granted the State’s request to enter a nolle prosequi order. On December 17,2007, the grand jury returned a second indictment, charging Hicks with the same ten counts.

Under Georgia law, if the State obtains an indictment within the time allowed, and a nolle prosequi is later entered as to the first indictment, the State may re-indict the defendant within six months after the entry of nolle prosequi, regardless of the intervening expiration of the initial limitation period. Carlisle v. State, 277 Ga. 99, 100-101 (586 SE2d 240) (2003); Sallie v. State, 276 Ga. 506, 513-514 (12) (578 SE2d 444) (2003). Because the State re-indicted Hicks within six months of the entry of the nolle prosequi, the trial court did not err in denying his plea in bar. Alexander v. State, 192 Ga. App. 211, 212 (384 SE2d 436) (1989).

3. Hicks contends that his trial counsel rendered ineffective assistance by consenting to the State’s nolle prosequi rather than insisting that the trial court rule on his special demurrer.

In order to prevail on a claim of ineffective assistance of counsel, a criminal defendant must show that counsel’s performance was deficient and that the deficient performance so prejudiced the client that there is a reasonable likelihood that, but for counsel’s errors, the outcome of the trial would have been different. Strickland v. Washington, 466 U. S. 668 (104 SC 2052, 80 LE2d 674) (1984)[.] The criminal defendant must overcome the strong presumption that trial counsel’s conduct falls within the broad range of reasonable professional conduct.

(Citations and punctuation omitted.) Robinson v. State, 277 Ga. 75, 75-76 (586 SE2d 313) (2003). See also Miller v. State, 285 Ga. 285, 286 (676 SE2d 173) (2009) (In analyzing the prejudice element, “[t]he question is whether there is a reasonable probability that, absent [counsel’s] errors, the factfinder would have had a reasonable doubt respecting guilt.”) (citation and punctuation omitted). Failure to satisfy either prong of the Strickland v. Washington standard is fatal to an ineffective assistance claim. Goodwin v. Cruz-Padillo, 265 Ga. 614, 615 (458 SE2d 623) (1995); Ponder v. State, 201 Ga. App. 388, 389 (1) (411 SE2d 119) (1991). As the appellate court, “[w]e accept the trial court’s factual findings and credibility determinations unless clearly erroneous, but we independently apply the legal principles to the facts.” (Citation and punctuation omitted.) Robinson v. State, 277 Ga. at 76.

Hicks contends that, “[if] the trial court [had] quashed the [first] indictment instead of executing a nolle prosequi, [OCGA] § 17-3-3 would not have been triggered[,] and the [s]tatute of [l]imitation[ ] on all counts would have expired.” This is incorrect. By its plain terms, the savings provision of OCGA § 17-3-3 applies when a timely indictment is quashed, as well as when a nolle prosequi is entered. Because the State could have tried Hicks on the second indictment even if the trial court had quashed the first indictment, see Division 2, supra, Hicks failed to carry his burden under Strickland v. Washington. Hall v. State, 292 Ga. App. 544, 552-553 (6) (a) (664 SE2d 882) (2008); see also Davis v. State, 267 Ga. App. 245, 246 (2) (599 SE2d 237) (2004) (“Failure to pursue a futile motion does not constitute ineffective assistance.”) (citation and punctuation omitted).

4. Hicks contends that the trial court erred by failing to grant his motion for a mistrial, which was based on allegedly improper character evidence. “[W]hether to grant a mistrial is a matter within the discretion of the trial court, and that discretion will not be interfered with on appeal unless it is apparent that a mistrial is essential to the preservation of the right to a fair trial.” (Citation and punctuation omitted.) Jones v. State, 277 Ga. 36, 40 (6) (586 SE2d 224) (2003).

The record shows that, at the beginning of jury selection, the prosecutor read the indictment to the venire; the RICO count listed 13 predicate acts. The trial court then instructed the potential jurors not to consider the charges as evidence. When the State rested its case, it had been unable to bring forward a prosecution witness as to three of the listed predicate acts, and Hicks moved for a directed verdict and for a mistrial based on the introduction of improper character evidence. The trial court granted the motion for a directed verdict in part, ordering that, for its deliberations, the jury would receive a copy of the indictment with the three paragraphs in question redacted. The court denied the motion for a mistrial. Hicks contends that, because it is only necessary to prove two predicate offenses to establish a RICO violation, the State improperly placed his character in evidence by including three predicate acts it could not prove, in addition to the ten predicate acts it did prove, which suggested to the jury that he was “guilty because of the large number of allegations.” As a result, Hicks contends, he was entitled to a mistrial.

Hicks failed to identify any authority, however, for the premise that a criminal defendant is entitled to a mistrial solely on the basis that, at the beginning of jury selection, the venire heard allegations as to which a directed verdict was later granted. Because the allegations of the indictment did not constitute evidence, as the jury was repeatedly and thoroughly instructed, Hicks’ character was not improperly placed in issue. See Robinson v. State, 312 Ga. App. 736, 746-747 (4) (b) (719 SE2d 601) (2011) (Where the trial court instructed the jury that it was not to consider the indictment as evidence in the case, the court’s reading of a portion of the indictment containing “unproven and unsubstantiated allegations” did not constitute an improper introduction of character evidence.). There was no abuse of discretion.

5. Hicks contends that he received ineffective assistance of counsel in that, after the trial court denied his motion for a mistrial, his trial counsel failed to request a curative instruction directing the jurors to consider only the predicate offenses currently before them. As we noted in Division 4, supra, the trial court repeatedly and thoroughly instructed the jury not to consider the allegations of the indictment as evidence. Consequently, Hicks failed to show any prejudice from counsel’s failure to request such an instruction. Dockery v. State, 287 Ga. 275, 278-279 (5) (d) (695 SE2d 599) (2010); Greenwood v. State, 309 Ga. App. 893, 895-896 (1) (c) (714 SE2d 602) (2011).

Decided May 3, 2012

Brown & Gill, Angela B. Dillon, for appellant.

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

Judgment affirmed.

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

       OCGA§§ 16-14-1 et seq.; 16-14-4 (a).

       OCGA§ 10-5-1 et seq. (2000). Note: Effective July 1, 2009, the Georgia Securities Act of 1973 was repealed in its entirety and replaced with the Georgia Uniform Securities Act of2008. See Ga. L. 2008, p. 381, §§ 1, 10.

       OCGA §§ 10-5-5 (a) (2000) (“It shall be unlawful for any person to offer for sale or to sell any securities to any person in this state unless: (1) [t]hey are subject to an effective registration statement under [the Securities Act]; (2) [t]he security or transaction is exempt under [OCGA §] 10-5-8 or [OCGA §] 10-5-9, respectively; or (3) [t]he security is a federal covered security.”); 10-5-12 (a) (1) (2000) (“It shall be unlawful for any person: . . . [t]o offer to sell or to sell any security in violation of. . . [OCGA§] 10-5-5[.]”).

       OCGA §§ 10-5-3 (a) (2000) (“No dealer, limited dealer, salesperson, or limited salesperson, as defined by this chapter, shall offer for sale or sell any securities within or from this state, [subject to specified exceptions], unless he or she is a registered dealer, limited dealer, salesperson, or limited salesperson pursuant to this Code section[.]”); 10-5-12 (a) (1) (2000) (“It shall be unlawful for any person . . . [t]o offer to sell or to sell any security in violation of. . . [OCGA §] 10-5-3[.]”).

       OCGA § 10-5-12 (a) (2) (C) (2000) (“It shall be unlawful for any person[,] [i]n connection with an offer to sell, sale, offer to purchase, or purchase of any security, directly or indireetly[,]... [t]o engage in an act, practice, or course of business that operates or would operate as a fraud or deceit upon a person[.]”).

       OCGA § 16-14-4 (a) (“It is unlawful for any person, through a pattern of racketeering activity or proceeds derived therefrom, to acquire or maintain, directly or indirectly, any interest in or control of any enterprise, real property, or personal property of any nature, including money”). See Division 4, infra.

       Under the Securities Act,
      [t]he term “investment contract” shall include but is not limited to an investment which holds out the possibility of return on risk capital even though the investor’s efforts are necessary to receive such return if:
      (A) Such return is dependent upon essential managerial or sales efforts of the issuer or its affiliates; and
      (B) One of the inducements to invest is the promise of promotional or sales efforts of the issuer or its affiliates in the investor’s behalf; and
      (C) The investor shall thereby acquire the right to earn a commission or other compensation from sales of rights to sell goods, services, or other investment contracts of the issuer or its affiliates.
      OCGA § 10-5-2 (a) (26) (2000) (Emphasis supplied.)

       See OCGA § 17-3-1 (c) (Unless otherwise specified, “[p]rosecution for felonies... must be commenced within four years after the commission of the crime[.]”); State v. Bair, 303 Ga. App. 183, 185 (692 SE2d 806) (2010) (“The four-year limitation period does not include any period in which the crimes were unknown hy the State, [although] the knowledge of someone injured hy the crime may be imputed to the State for purposes of determining if the exception to the statute applies.”).

       See OCGA § 17-3-3 (“If an indictment is found within the time [allowed hy law], and is quashed or a nolle prosequi entered, the limitation shall be extended six months from the time the first indictment is quashed or the nolle prosequi entered.”).

       See Bethune v. State, 198 Ga. App. 490, 491 (1) (402 SE2d 276) (1991) (“The State is not required... to prove all the predicate offenses alleged in the indictment, hut is required to prove only two beyond a reasonable doubt.”) (citation omitted).


text:
    A12A1028.
    SCOTT v. THE STATE.
    (727 SE2d 518)
   Ellington, Chief Judge.

Dudley Scott III appeals from an order of the Superior Court of Laurens County that denied his motion to withdraw his February 2008 guilty plea to armed robbery. In his motion, Scott contended that the sentence entered following his guilty plea did not conform to the terms of the plea agreement because the court failed to give him credit for the time he served in jail while his case was awaiting trial. It is undisputed that, at the time Scott was charged with the Laurens County armed robbery, he was already in jail in Baldwin County on charges from unrelated crimes, and he was still incarcerated for the Baldwin County crimes when he entered his guilty plea to the Laurens County charge.

1. In its order denying Scott’s motion to withdraw his guilty plea, the trial court ruled that Scott had knowingly and voluntarily entered his plea. The trial court also ruled that, before Scott entered his guilty plea, he had been specifically informed that he would not receive credit toward his sentence for the period of time that he had served in the Baldwin County jail, even though the instant charge was pending during part of that time. On appeal, Scott does not challenge these rulings; thus, he has implicitly conceded that he knowingly and voluntarily entered his guilty plea after being informed that he would not receive credit for the time he had already served for the Baldwin County crimes. See generally Mantooth v. State, 303 Ga. App. 330, 334 (1) (a) (693 SE2d 587) (2010) (by failing to assert on appeal that his waiver of his right to a jury trial was invalid, the defendant implicitly conceded that he made such waiver voluntarily, knowingly, and intelligently). Consequently, to the extent that the trial court denied Scott’s motion on these bases, the order is affirmed.

2. Scott contends, however, that the trial court erred in refusing to credit the time he was confined in Baldwin County while the instant case was pending to the sentence he received on his guilty plea, pursuant to OCGA§ 17-10-11 (a). This argument lacks merit.

OCGA § 17-10-11 (a) states, in relevant part, as follows:

Each person convicted of a crime in this state shall be given full credit for each day spent in confinement awaiting trial and for each day spent in confinement, in connection with and resulting from a court order entered in the criminal proceedings for which sentence was imposed, in any institution^] . . .

(Emphasis supplied.) The Supreme Court of Georgia has previously ruled that, based upon its plain language, the provisions of the statute apply “only to persons who would not be confined but for the charges which give rise to the sentence for which credit is sought.” (Citations and punctuation omitted.) Wilson v. State, 273 Ga. 97 (538 SE2d 429) (2000).

Consequently, because Scott would have been confined in Baldwin County on the unrelated charges during the time period at issue regardless whether he had been charged with the Lauren County crimes, OCGA § 17-10-11 (a) does not apply to that period, and Scott was not entitled to the statutory credit to his sentence. Accordingly, to the extent that the trial court denied Scott’s motion on that basis, there was no error.

Judgment affirmed.

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

Decided April 19, 2012

Reconsideration denied MAy 4, 2012.

Dudley R. Scott, pro se.

L. Craig Fraser, District Attorney, for appellee.

       We note that we are addressing this issue only because it was raised and ruled upon as part of a motion to withdraw a guilty plea, the denial of which is directly appealable. See Ford v. State, 312 Ga. App. 80, 81 (1), n. 1 (717 SE2d 676) (2011). We also note that Scott has previously attempted to raise this issue in several independent motions in the trial court and that he has failed to perfect an appeal from the denial of any of those motions. Consequently, we find it necessary to specifically inform Scott that, should he seek to further challenge the calculation of the amount of credit for time served, if any, such challenges must not be brought by motion in the trial court, but, instead, must be asserted in a mandamus or injunction action against the Commissioner of the Department of Corrections or in a petition for habeas corpus, as explained in the State’s brief, pages 4-5, and in this Court’s opinion in Maldonado v. State, 260 Ga. App. 580, 580-581 (580 SE2d 330) (2003).


author: Adams, Judge. BARNES, Presiding Judge,

text:
    A12A0183.
    MASSEY et al. v. WIEBE et al.
    (728 SE2d 306)
   Adams, Judge.

This is a dental malpractice case in which the plaintiff, John F. Massey, brought suit against defendant Dr. John Wiebe and his dental practice, Southeastern Oral and Maxillofacial Surgery, RC. (hereinafter collectively referred to as defendants) contending that his wife, Elizabeth Massey, developed aspiration pneumonia and died after Dr. Wiebe negligently allowed Mrs. Massey to aspirate a three-tooth bridge during an extraction of her teeth for dentures. The jury returned a verdict in favor of the defendants, and the trial court entered judgment accordingly. Massey then filed the present appeal, alleging the trial court erred by giving certain instructions to the jury.

1. Massey’s first enumeration of error challenges a charge given by the court in response to a question from the jury, arguing that it was not responsive to the question and that it overemphasized the plaintiff’s burden of proof.

The transcript shows that about one hour after they began deliberating, the jurors asked if there was a definition of the standard of care or if they could “see” a definition of the standard of care. Massey’s counsel suggested the trial court respond by telling the jury that ‘What the standard is in this case came from the evidence, that evidence included the testimonies of the defendant, his experts and defendant’s admissions.” But the trial judge gave the following charge, which was a re-charge of Charge Number Eight, instead:

Okay, folks, I understand you had a question. What I’m going to do, the best I can do to answer that question is I’m going to read you the charge, concerning standard of care, back to you:
In order to recover a verdict against the defendants in this case, the plaintiff has the burden of proving two separate and distinct items by a preponderance of the evidence. First, the plaintiff must prove that the defendants failed to use that degree of care and diligence ordinarily employed by doctors, generally under similar conditions, in like surrounding circumstances.
Second, the plaintiff must prove, by a preponderance of the evidence, that any such alleged failure on the part of the defendants was actually a proximate cause of the injuries alleged. There can be no recovery against the defendants, unless it’s shown to a reasonable degree of medical certainty that the injury could have been avoided.
If the plaintiff fails to satisfy his burden of proof, on either of these two issues, then you must return a verdict in favor of the defendants. And if you find the evidence is evenly balanced upon either of those two issues, it would be your duty to return a verdict in favor of the defendants.
That was the whole charge, so the plaintiff must prove the defendants failed to use that degree of care and diligence ordinarily employed by doctors, generally, under similar conditions and in like surrounding circumstances.
You heard the evidence in this case. You have to apply the evidence that you heard to the law that I gave you, and the Court can’t go back over the evidence with you. You have to do that from what you remember. . . .

First, contrary to Massey’s contention, the charge was, at least in part, responsive to the jury’s question since the trial court twice made reference to the applicable standard of care. E.g., Byrd v. Medical Center of Central Ga., 258 Ga. App. 286, 289-290 (574 SE2d 326) (2002). Further, although Massey now argues that another charge — Charge Number Six — was more apt, it does not appear that Massey requested that the trial court give Charge Number Six in response to the jury’s question. And we do not think the trial court erred by declining to give Massey’s proposed charge, inasmuch as Massey now admits on appeal that his proposed charge did not specifically provide a definition of the standard of care, which was what the jury requested.

As to Massey’s further contention on appeal that the re-charge overemphasized his burden of proof, we note that Massey’s objection in the trial court was that the re-charge “unduly places an emphasis when [it] is taken out of context,” making it appear that he had to prove his case with certainty, thereby imposing a burden on him that was substantially higher than the law demands. But that was not so, as the trial judge stated twice during the re-charge that the plaintiff had to prove his claim by a preponderance of the evidence. Further, although Massey now argues that this alleged error was “compounded” because the jury had already been charged on the presumption of due care by the defendant, it does not appear that he raised this objection below.

In light of the foregoing, and considering that the charge given was a correct statement of the law, we find Massey’s challenge to the charge to be unavailing here. Further, we have not been provided a transcript to enable us to review the evidence presented at trial, and thus we will not presume, as Massey urges us to do, that the jury’s verdict in favor of the defendants “was virtually demanded by the trial court’s erroneous answer to the question.”

2. Citing Homey v. Lawrence, 189 Ga. App. 376, 377 (2) (375 SE2d 629) (1988), Massey also argues that the trial court erred by charging the jury that expert testimony was required to overcome the presumption of due care because the defendants’ own admissions in this case were sufficient to establish the standard of care, obviating the need for expert testimony. The record shows, however, that the parties disagreed on the effect of the admissions in light of the evidence presented at trial, something we cannot assess since we have not been provided with a trial transcript. Further, the court in Homey acknowledged the “general rule . . . that medical testimony must be introduced to inform the jurors what is a proper method of treating the particular case.” And that case did not concern the court’s charge to the jury, but rather whether the trial court erred by submitting the case to the jury because there was no expert testimony establishing the doctor’s negligence, a contention we rejected because the doctor made an in judicio admission about the required standard of care which, along with other evidence presented at trial, adequately established the proper method to be used in the medical procedure of concern in that case. Id. at 377 (2).

Moreover, consistent with the reasoning in Homey, the trial judge in this case specifically informed the jury that it was not necessary for the plaintiff to present expert testimony that the defendants were guilty of malpractice, and the court did so immediately after the plaintiff complained about the charge. The court also charged about the effect of the admissions, and specifically instructed the jury that

[i]f the defendants admit that it would have been a violation of the standard of care for the defendants to take... or to fail to take a particular action, and you find that the defendants took or failed to take such action, then you shall find that the defendants breached the standard of care.

Decided May 4, 2012.

Michael J. Warshauer, Dari H. Champion, Jr., for appellants.

Coles Barton, Matthew S. Coles, Stephanie K. Wood, for appellees.

Additionally, the court further explained that “[similarly, if the defendants admit that it would have been a violation of the standard of care if a particular event happened, and you find that the event did, in fact, happen, then you shall find the defendants breached the standard of care.” Thus, at least a portion of the charge was favorable to Massey’s contention that expert testimony was not needed in this case because of the defendants’ own admissions. Based on the foregoing, and considering the charge as a whole, we find that this enumeration also provides no basis for reversal.

Judgment affirmed.

McFadden, J., concurs. Barnes, P. J., concurs fully and specially.

BARNES, Presiding Judge,

concurring fully and specially.

Although I concur fully in the majority’s analysis and judgment, I also concur specially to emphasize that the appellants did not request the Clerk of the State Court of Chatham County to transmit a complete transcript of the jury trial. Without the complete transcript, a reversal of the judgment is impossible because there is no way to determine whether the jury charges were appropriately tailored to the evidence or to assess the issue of harm.


author: McFadden, Judge.

text:
    A12A0211.
    PRAINITO v. SMITH.
    (728 SE2d 309)
   McFadden, Judge.

After the death of Zina Cachia, a dispute arose among her heirs regarding whether assets in a securities account and a certificate of deposit (“the accounts”) were part of her estate. Cachia’s grandson, Dean Prainito, had obtained sole possession of the assets in the accounts as a joint tenant with survivorship rights in the securities account and as the payable on death beneficiary of the certificate of deposit. On behalf of the estate, its Administrator CTA, Michael F. Smith, brought an action in superior court against Prainito, and a jury found that Prainito had exerted undue influence over Cachia and had engaged in actual fraud in connection with the accounts. The jury awarded the estate damages in the form of the amount of money that Cachia had put into the accounts and “all legal fees.” The trial court entered a judgment on the verdict that included an attorney fee award of $40,000.

Prainito appeals from the trial court’s entry of judgment on the jury verdict and its denial of his motion for new trial. He argues that he was entitled to a directed verdict on the undue influence and actual fraud claims, that the evidence did not support a jury charge on either' claim or on punitive damages, and that the attorney fee award was improper. As detailed below, we find that there was evidence to support the jury’s verdict on undue influence- and actual fraud, that it thus was proper for the court to charge the jury on those claims, and that Prainito’s claim of error regarding the punitive damages charge lacks merit. We find, however, that the evidence did not support the attorney fees award. Accordingly, we affirm the judgment except as to the award of attorney fees, which we reverse.

1. Prainito contends that the trial court erred in denying his motion for directed verdict on the claims of undue influence and fraud, arguing that the trial evidence on these claims was insufficient, but he fails to cite any supporting authority for this enumeration of error in his brief. See Court of Appeals Rule 25 (a) (3). Moreover, the record contains evidence supporting the jury’s verdict. See Parris Properties v. Nichols, 305 Ga. App. 734, 735 (1) (700 SE2d 848) (2010) (standard of review on appeal from denial of a motion for directed verdict is whether there is any evidence to support the jury’s verdict).

Construed in the light most favorable to the estate, see Parris Properties, supra, the evidence showed that in May 1996, Cachia executed a will in which she left “all the money in [her] banks and [her] investments ... to [her] five grandchildren” and directed Prainito and another grandchild to “see to it that all money will be divided equally” to five named grandchildren. Cachia had a sixth grandchild from whom she was estranged, and who was not mentioned in the will. In a separate proceeding from this appeal, the probate court determined that the will was valid.

Also in 1996, Cachia moved from Florida to the Atlanta area, close to Prainito and another of her grandchildren. She stopped driving and depended upon Prainito to take her to the store, the bank, and on other errands. After her move, and especially following her 90th birthday, Cachia began to show signs of loneliness and depression, and frequently she talked with her grandchildren about wanting to die. She also repeatedly expressed to them the wish that her money be divided among them equally.

In 2004, Cachia opened and deposited funds into a securities account on which Prainito was listed with Cachia as a joint tenant with rights of survivorship. Prainito drove Cachia to the bank to open this account and signed documents in connection therewith. The bank later became Wachovia, and on March 21, 2005, Cachia wrote a statement “to Wachovia Bank” that “the money on all [her] accounts will go to [her] 5 grandchildren,” naming the same grandchildren listed in her will.

On July 1, 2005, Cachia purchased a certificate of deposit at SunTrust Bank, on which Prainito was listed as the beneficiary upon her death. One month later, on August 1, Cachia passed away at the age of 92. After her death, Prainito bragged to other family members that he had helped Cachia research certificates of deposit and make investments. When family members discussed Cachia’s will, however, Prainito did not reveal his interests in the accounts and when questioned about them he acted irritated, became evasive, and later denied that the accounts existed.

(a) The trial court properly denied Prainito’s motion for directed verdict on the undue influence claim. Generally, questions of undue influence are for the factfinder, Mathis v. Hammond, 268 Ga. 158, 160 (3) (486 SE2d 356) (1997), and undue influence may be shown by a broad range of circumstantial evidence. Schaffer v. Fox, 303 Ga. App. 584, 585 (1) (693 SE2d 852) (2010); Horton v. Hendrix, 291 Ga. App. 416, 420.(2) (a) (662 SE2d 227) (2008). “Where evidence is presented of a confidential relationship, the grantor being of weaker mentality and the grantee occupying the dominant position, an issue of fact is raised as to undue influence.” (Citations omitted.) Fletcher v. Fletcher, 242 Ga. 158, 160 (2) (249 SE2d 530) (1978). Here, evidence of the elderly Cachia’s depression, loneliness, and increasing dependency upon Prainito on matters including investing and certificates of deposit allowed for a finding that the two had a confidential relationship, which is defined by OCGA § 23-2-58 to include a relationship “where one party is so situated as to exercise a controlling influence over the will, conduct, and interest of another.” See White v. Regions Bank, 275 Ga. 38, 39-40 (1) (561 SE2d 806) (2002); Mathis, 268 Ga. at 160 (3). We find no error in the trial court’s denial of the motion for directed verdict on the undue influence claim. Mathis, supra.

(b) Likewise, the trial court properly denied Prainito’s motion for directed verdict on the actual fraud claim. “Actual fraud consists of any kind of artifice by which another is deceived.” OCGA § 23-2-51 (b). The estate argued to the jury that Prainito committed actual fraud by misrepresenting to Cachia his intent to divide the money in the accounts between the five grandchildren upon her death. See OCGA§ 23-2-52 (misrepresentation of a material fact, made wilfully to deceive and acted on by opposite party, constitutes fraud). Prainito contends that there is no evidence he made any such representation. But while “[f]raud may not be presumed . . . , being in itself subtle, slight circumstances may be sufficient to carry conviction of its existence.” OCGA § 23-2-57; see Durrence v. Durrence, 224 Ga. 620, 623 (2) (163 SE2d 740) (1968). “Therefore, circumstances, almost inconclusive if separately considered, may by their number and joint operation be sufficient to constitute proof.” (Citation omitted.) Lumpkin v. Deventer North America, 295 Ga. App. 312, 315 (1) (672 SE2d 405) (2008).

Such circumstances existed here. There was evidence in this case that Cachia intended for the money she had placed in the accounts to be divided among the five grandchildren identified in her will, notwithstanding that Prainito had been named joint tenant or beneficiary of the accounts. There also was evidence that Prainito had advised Cachia with regard to the accounts. And there was evidence that, upon Cachia’s death, Prainito was evasive in response to the other grandchildren’s questions about the accounts and attempted to deny their existence. This evidence allowed for the jury to find that Prainito misrepresented to Cachia that he would divide the money in the accounts among the grandchildren in accordance with her wishes. See King v. Brown, 280 Ga. 747, 748-749 (2) (b) (632 SE2d 638) (2006) (circumstantial evidence permitted inference that defendant had made alleged misrepresentation to decedent, despite defendant’s denial of statement). This evidence also allowed for findings that Prainito did not intend to fulfill this promise and that the promise induced Cachia to name him as the joint tenant and the beneficiary of the respective accounts. See Lumpkin, 295 Ga. App. at 315-316 (1). We find no error in the trial court’s denial of the motion for directed verdict on the actual fraud claim.

2. Prainito contends that the trial court erred in charging the jury on actual fraud and undue influence. He argues that no evidence was presented at trial to support either cause of action. Again, Prainito cites no supporting authority for this enumeration of error. See Court of Appeals Rule 25 (a) (3). Furthermore, as detailed above in Division 1, there was evidence of both actual fraud and undue influence. Accordingly, the court did not err in charging the jury on these causes of action. See Smithson v. Parker, 242 Ga. App. 133, 136 (2) (528 SE2d 886) (2000) (charge must be given if any evidence in case supports the giving of it).

3. Although Prainito enumerates as error the trial court’s charge to the jury on punitive damages, he makes no argument and cites no authority in support of this claim. See Court of Appeals Rule 25 (c) (2) (any enumeration of error which is not supported in the brief by citation of authority or argument may be deemed abandoned). Moreover, the record shows that he did not object to this charge at trial and that, notwithstanding the charge, the jury did not award any punitive damages. We find no ground for reversal.

4. Although the jury was not charged on attorney fees, it awarded the estate “ALL Legal Fees.” Over Prainito’s objection, the trial court entered a judgment on this verdict in which it awarded, among other things, $40,000 in attorney fees. Prainito argues that the attorney fees award was illegal and that the trial court instead should have remitted the verdict to the jury with further instructions, stricken the illegal portions of the verdict, or granted him a new trial. The estate argues in response that the court did not err in entering judgment on the verdict because the estate sought attorney fees in its complaint, the jury’s verdict reflected its desire to award attorney fees, the evidence supported an award of $40,000 in attorney fees under OCGA § 13-6-11, and the trial court was authorized to conform the jury’s verdict to the evidence.

The evidence, however, did not support the $40,000 attorney fees award under OCGA § 13-6-11. That Code section provides:

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

We pretermit whether the jury was authorized to award fees under OCGA § 13-6-11 in this case despite the lack of a charge on them. See Ring v. Williams, 192 Ga. App. 329, 331 (3) (384 SE2d 914) (1989). We hold that the trial court erred in entering a judgment on the award because no evidence was presented of the actual costs of the estate’s attorneys in prosecuting this action or the reasonableness of those costs. See Sims v. GT Architecture Contractors Corp., 292 Ga. App. 94, 96 (1) (663 SE2d 797) (2008) (award of attorney fees under OCGA § 13-6-11 “cannot stand where the plaintiff fails to prove the actual costs of his attorneys and the reasonableness of those costs”) (citation omitted). The record does not support the trial court’s finding that “[t]he evidence before the jury regarding attorney [ ] fees was that $40,000 had been incurred by the Estate in attempting to recover the sums in the [accounts].” The estate administrator (whose law firm also represented the estate in the litigation) testified that he was “not certain” of the total amount of fees his firm had billed to the estate. He agreed that the total amount of fees was over $40,000, but he emphasized that these fees were “not all relative to this case. Don’t leave that impression. There were other things that were done in this estate.” In addition, the estate presented no evidence of the reasonableness of the attorney fees incurred by the estate. Because the estate failed to prove the actual costs of the work performed by its attorneys in connection with this case (as opposed to the general administration of the estate) or the reasonableness of those costs, the award of attorney fees must be reversed. Hughes v. Great Southern Midway, 265 Ga. 94, 95 (1) (454 SE2d 130) (1995).

Decided May 4, 2012.

William R. Carlisle, for appellant.

Andrew, Merritt, Reilly & Smith, Michael T. Smith, Raymon D. Burns, for appellee.

Judgment affirmed in part and reversed in part.

Barnes, P. J., and Adams, J., concur.


author: McFADDEN, Judge.

text:
    A12A0297.
    WILLIAMS v. THE STATE.
    (728 SE2d 315)
   McFADDEN, Judge.

After a jury trial, Kevin Williams was convicted of involuntary manslaughter, with reckless conduct as the underlying unlawful act, and making a false statement to a law enforcement officer. He appeals, challenging the sufficiency of the evidence supporting the involuntary manslaughter conviction. Because there is sufficient evidence from which a rational trier of fact could have found him guilty beyond a reasonable doubt of the crime charged, we affirm.

On appeal from a criminal conviction, we view the evidence in the light most favorable to the jury’s verdict, and the defendant is no longer presumed innocent. Noble v. State, 282 Ga. App. 311 (638 SE2d 444) (2006). We do not weigh the evidence or assess the credibility of witnesses, which are tasks that fall within the exclusive province of the jury as factfinder. Id. at 311-312. As long as some competent evidence exists, even though contradicted, to support each element of the state’s case beyond a reasonable doubt, we will uphold the jury’s verdict. Dorsey v. State, 297 Ga. App. 268 (676 SE2d 890) (2009).

So viewed, the evidence shows that on January 28, 2007, Williams used a box-cutter during a confrontation with John Boston at a mall in Savannah. Boston reported the incident to a police officer providing security at the mall. Williams was arrested after the officer found a box-cutter in his pocket.

Approximately four months later, on June 8, 2007, Williams was sitting behind the counter in a diner when Boston’s 14-year-old sister, India, and her friend, Taquilla McCloud, entered the restaurant. Williams’ older brother, Nick, was working in the diner at the time and had placed a loaded 9-millimeter pistol on the counter. Taquilla and Nick began talking about the January incident at the mall, and during the conversation, Taquilla called Williams a “bitch” for having used a box-cutter. Williams then made statements apparently referring to John Boston by the same derogatory term, and India responded by saying, “My brother ain’t no bitch and ain’t nobody going to talk about my brother.”

A short time later, Taquilla went to use the restroom and Nick followed her, leaving Williams and India alone in the counter area of the restaurant. As they continued to argue, Williams carelessly picked up the gun, which was pointed at India’s head, and pulled the trigger. A bullet discharged, passed through a sign on the counter, struck India in the face, lodged in her head and caused her death.

“A person commits the offense of involuntary manslaughter in the commission of an unlawful act when he causes the death of another human being without any intention to do so by the commission of an unlawful act other than a felony.” OCGA § 16-5-3 (a). In this case, the jury was charged on the misdemeanor of reckless conduct as an underlying unlawful act.

Reckless conduct occurs when a person causes bodily harm to or endangers the bodily safety of another person by consciously disregarding a substantial and unjustifiable risk that his act or omission will cause harm or endanger the safety of the other person and the disregard constitutes a gross deviation from the standard of care which a reasonable person would exercise in the situation.

(Citations and punctuation omitted.) Snell v. State, 306 Ga. App. 651, 653 (1) (703 SE2d 93) (2010).

Citing a portion of a taped statement that he gave to police and other evidence, Williams claims that the shooting was an accident. However, “[bjased upon the evidence presented at trial, the jury was entitled to resolve the conflicts in the testimony, reject [Williams’] defense of accident, and find that [he] unintentionally killed the victim while handling [a] loaded gun in such a way as to constitute the misdemeanor offense of reckless conduct.” (Citations omitted.) Snell, supra at 653 (1). Accordingly, viewed in a light most favorable to the jury’s verdict, the evidence was sufficient to authorize a rational trier of fact to find Williams guilty of involuntary manslaughter beyond a reasonable doubt. See Noble, supra at 313; Smith v. State, 234 Ga. App. 314, 315 (1) (506 SE2d 659) (1998).

Decided May 4, 2012.

Jennifer R. Burns, for appellant.

Larry Chisolm, District Attorney, Emily C. Thomas, Assistant District Attorney, for appellee.

Judgment affirmed.

Barnes, P. J., and Adams, J., concur.