author: MlKELL, Presiding Judge.

text:
    A11A1642.
    BYNUM v. THE STATE.
    (726 SE2d 428)
   MlKELL, Presiding Judge.

Clyde B. Bynum, Jr., was convicted of child molestation in 2002 for acts committed against his 15-year-old daughter. In the instant case, his third appeal before this court, he appeals from the trial court’s order finding, contrary to his contentions, that his trial counsel was effective. In the second of Bynum’s appeals, Bynum v. State (Bynum II), which is relevant to the instant case, we upheld, inter alia, the sufficiency of the evidence supporting Bynum’s conviction, but remanded the case to the trial court for an evidentiary hearing on whether Bynum’s trial counsel was ineffective; we also found that, pending a decision on that issue, we could not address Bynum’s contentions related to a delay in the appellate process. We fully adopt the facts and procedural history in Bynum II and do not recount them here. Bynum appeals from the trial court’s denial of his claim that counsel was ineffective, alleging that: (1) the trial court erred in finding his trial counsel effective; (2) the trial court erred in applying an incorrect legal standard to determine counsel’s effectiveness; and (3) a seven-year delay in the appellate process violated his constitutional due process rights. Finding no error, we affirm.

On appellate review of a trial court’s determination as to effectiveness of counsel, Bynum, under a two-part test, first must show

that counsel’s performance was deficient and [second,] that, but for that deficient performance, there is a reasonable probability that the outcome of his trial would have been different. In evaluating the first prong of this test, a strong presumption exists that counsel’s conduct falls within the broad range of professional conduct. Failure to satisfy either component of this test is fatal to an ineffectiveness claim. Moreover, the court need not address both components if the defendant has made an insufficient showing on one of them. On appellate review of the trial court’s ruling, we accept the trial court’s factual findings and credibility determinations unless clearly erroneous, but we independently apply the legal principles to the facts.

1. Bynum elected not to testify in his own defense at trial. On appeal, he argues that trial counsel was ineffective in failing to file a written request to charge and in not orally requesting a charge or instruction to the jury on his decision not to testify. He also asserts ineffectiveness because counsel did not object to or reserve the right to object to the trial court’s charges, which, a careful review of the record shows, apparently did not include a charge on Bynum’s election not to testify.

(a) Bynum argues that he was prejudiced because, if counsel had requested a jury charge on his decision not to testify, the trial court’s failure to give such a charge would have been error requiring a new trial, given that the suggested pattern jury instructions require the charge be given if requested. As it is impossible to know in retrospect what the court would have done had the charge been requested, this argument fails. An ineffectiveness claim is judged by whether counsel rendered reasonably effective assistance, not by hindsight.

At the ineffectiveness hearing, Bynum’s trial counsel testified that he remembered no problems with the jury charges or instructions, but he did not recall his actions regarding any charging requests. “The decision whether to request a particular jury charge falls within the realm of trial tactics and strategy.” In a case involving trial counsel who did not request a particular jury charge, we held:

There is a strong presumption that trial counsel’s performance falls within the wide range of reasonable professional assistance and that any challenged action might be considered sound trial strategy. In the absence of testimony to the contrary, counsel’s actions are presumed strategic.

Finally, our review of the record indicates that the evidence of Bynum’s guilt was so clear-cut and overwhelming that the alleged instances of ineffectiveness of counsel could not have prejudiced his defense.

(b) As to trial counsel’s neither reserving an objection nor objecting when the trial court did not charge the jury related to Bynum’s decision not to testify, we note that the charge at issue, from Suggested Pattern Jury Instructions § 1.32.10, supra, by its own terms, is “[n]ot required unless requested.”

When a defendant raises an ineffectiveness claim based on counsel’s failure to except to certain jury charges or to preserve the right to do so on appeal, the defendant must show that the charges in question were erroneous and that, if proper charges had been given, there is a reasonable probability that the result of the trial would have been different.

As the trial court did not err in not giving a charge that is not required, “[t]he failure to pursue a futile objection does not amount to ineffective assistance.”

2. Because we have concluded that Bynum failed to prove that his trial counsel’s performance was either deficient or prejudicial, “we need not address [his] separate contention that the trial court applied the wrong legal standard for determining whether trial counsel’s alleged deficiency was prejudicial.”

3. Bynum alleges that a nearly seven-year delay between his conviction on September 16, 2002, and the docketing of his initial direct appeal (.Bynum II) on April 23, 2009, violates his constitutional due process rights.

Our Supreme Court has expressed the view that while “there is no Sixth Amendment right to a speedy appeal... [o]n the other hand, due process concepts necessarily become implicated when substantial delays are experienced during the criminal appellate process.” When the appellant already has been convicted and inordinate appellate delay potentially presents such issues, those issues are to be reviewed under a modified version of the analysis used for evaluation of speedy trial interests, as presented in Barker v. Wingo. “Absent an abuse of discretion, the decision of the trial court must be affirmed. Significantly, there is no ruling of the trial court to review for abuse of discretion, as [Bynum] failed to raise this issue below. As a result, he may not raise this issue for the first time on appeal.”

Decided March 7, 2012

Reconsideration denied April 3, 2012

Krevolin & Horst, David A. Sima, Adam M. Hames, for appellant.

Joseph K. Mulholland, District Attorney, for appellee.

Judgment affirmed.

Dillard and Boggs, JJ., concur.

       Bynum’s notice of appeal indicates that he is appealing from the denial of a motion for a new trial; and the trial court’s order determining counsel’s effectiveness, which was drafted by the district attorney’s office representing appellee, contains a one-sentence denial of a motion for new trial. However, these references appear to be the result of scriveners’ errors or the erroneous inclusion of inapt language in a form order. No oral or written motion for a new trial, nor any other evidence that such existed or that any hearing was held, appears in the record before us.

       300 Ga. App. 163 (684 SE2d 330) (2009). See also Bynum v. State, 289 Ga. App. 636 (658 SE2d 196) (2008) (Bynum I).

       Id. at 168-169 (7), (8).

       Id. at 163-164 (1).

       (Punctuation and footnotes omitted.) Strickland v. State, 311 Ga. App. 400, 402 (2) (715 SE2d 798) (2011).

       Suggested Pattern Jury Instructions, Vol. II: Criminal Cases (4th ed.), § 1.32.10 Defendant’s Failure to Testify (‘(Not required unless requested.) ... If the defendant elects not to testify, no inference hurtful, harmful, or adverse to the defendant shall he drawn by the jury, nor shall such fact be held against the defendant in any way”) (emphasis in original).

        Burnette v. State, 291 Ga. App. 504, 509 (1) (e) (iii) (662 SE2d 272) (2008).

        Duvall v. State, 273 Ga. App. 143, 147 (3) (h) (614 SE2d 234) (2005).

       (Punctuation and footnote omitted.) Id. at 147 (3) (g). See also Strickland v. Washington, 466 U. S. 668, 689-690 (III) (A) (104 SC 2052, 80 LE2d 674) (1984) (defendant must show counsel’s failure to take an action fell below objective standard of reasonableness under circumstances confronting counsel at that time). Accord Sweet v. State, 278 Ga. 320,326(8) (602 SE2d 603) (2004) (in the absence of evidence to the contrary, counsel’s actions are presumed strategic).

        Brown v. State, 192 Ga. App. 867 (1), (2) (386 SE2d 673) (1989) (trial counsel not ineffective in failing to request jury instruction on defendant’s failure to testify where record showed overwhelming evidence of defendant’s guilt); Mitchell v. State, 282 Ga. 416, 421 (6) (e) (651 SE2d 49) (2007) (trial counsel not ineffective in failing to request jury instruction on defendant’s failure to testify where evidence of guilt was overwhelming and record showed no improper reference by state requiring curative instruction).

       (Punctuation omitted.)

       (Footnote omitted.) Burnette, supra at 509-510 (1) (f) (iii).

       (Citation and punctuation omitted.) Bellamy v. State, 312 Ga. App. 899, 903-904 (3) (c) (720 SE2d 323) (2011).

       (Citation omitted.) Coats v. State, 303 Ga. App. 818, 825 (3), n. 4 (695 SE2d 285) (2010).

       Bynum also alleges a nearly nine-year delay between his conviction and the ineffective assistance of counsel claims addressed in the instant appeal. As noted above, those ineffectiveness claims were raised and addressed by this court in Bynum II, and this court remanded them to the trial court for a hearing.

       (Citations and punctuation omitted.) Walker v. State, 247 Ga. 484, 485 (277 SE2d 242) (1981).

        Chatman v. Mancil, 280 Ga. 253, 256-257 (2) (a) (626 SE2d 102) (2006).

       407 U. S. 514 (92 SC 2182, 33 LE2d 101) (1972).

       (Citation, punctuation and footnote omitted.) Butler v. State, 277 Ga. App. 57, 64 (5) (625 SE2d 458) (2005). See also Mullins v. State, 270 Ga. 450, 451 (3) (511 SE2d 165) (1999) (failure to raise constitutional right to speedy trial at trial court level waives right to do so on appeal); Rogers v. State, 290 Ga. 401, 409 (5) (721 SE2d 864) (2012) (in context of appellate counsel’s alleged ineffectiveness, failure to raise delay in arrest and indictment under Fifth and Fourteenth Amendment due process rights at trial court level forfeits right to raise issue on appeal).


source: Caselaw Access Project

author: Ellington, Chief Judge.

license: Public Domain

text:
    A12A0423.
    PALMER v. THE STATE.
    (727 SE2d 189)
   Ellington, Chief Judge.

After a jury found Michael Palmer not guilty in the United States District Court for the Southern District of Georgia of the federal offenses of armed bank robbery and brandishing a firearm during the commission of a violent crime, the State of Georgia secured an indictment charging Palmer with fifteen violations of Georgia law arising out of the same July 20, 2009 bank robbery. Palmer filed a motion in autrefois acquit, arguing that eight of the state counts, those charging him with armed robbery, aggravated assault, and firearms offenses, are barred under OCGA § 16-1-8 (c), which prohibits prosecution when the accused was formerly prosecuted in federal court for the same conduct. After a hearing, the trial court denied Palmer’s motion, and he appeals, contending that the state armed robbery and aggravated assault charges are for the same conduct as the federal armed bank robbery charge and that the state firearms charges are for the same conduct as the federal firearms charge. For the reasons explained below, we affirm.

The United States is constitutionally prohibited from putting any person in jeopardy of life or liberty twice for the same offense; likewise, the State of Georgia is bound by the rule against double jeopardy. These provisions protect a person not only from multiple punishments by a single sovereign for the same offense but also from successive prosecutions by a single sovereign for the same offense. It is well settled, however, that when a person in a single act breaks the law of two sovereigns, such as the United States and the State of Georgia, the person has committed two distinct offenses and may be prosecuted and punished by each sovereign for the violation of its law. Under this doctrine of dual sovereignty, successive prosecutions by two separate sovereigns for the same offense do not violate double jeopardy.

Like many states, Georgia law provides a statutory limitation on the dual sovereignty doctrine. OCGA § 16-1-8 (c) provides:

A prosecution is barred if the accused was formerly prosecuted in a district court of the United States for a crime which is within the concurrent jurisdiction of this state if such former prosecution resulted in either a conviction or an acquittal and the subsequent prosecution is for the same conduct, unless each prosecution requires proof of a fact not required in the other prosecution or unless the crime was not consummated when the former trial began.

In applying OCGA § 16-1-8 (c), the “threshold” question is whether the prior federal prosecution was for a crime that was within the concurrent jurisdiction of the State of Georgia. Sullivan v. State, 279 Ga. 893, 894 (1) (622 SE2d 823) (2005). Where concurrent jurisdiction is absent, “OCGA§ 16-1-8 (c) is inapplicable regardless of any overlap in the accused’s conduct that is the subject matter of the two prosecutions.” (Citations and footnote omitted.) Id.

In Sullivan v. State, the Supreme Court of Georgia explained that the term “concurrent jurisdiction” as used in OCGA§ 16-1-8 (c)

unambiguously looks to whether there is an existing Georgia penal provision comparable to the [f] ederal crime over which a state court has jurisdiction. Where an accused can be prosecuted in either [s] tate court or [f] ederal district court indifferently for the same crime, then that crime is within the concurrent jurisdiction of this State. Conversely, no concurrent jurisdiction exists where no Georgia counterpart exists to the [federal crime so that the accused could be prosecuted for that crime only in a [f] ederal district court.

Id. at 895 (1). In Sullivan v. State, the defendant, who had been acquitted in federal court of the offense of using interstate commerce facilities in the commission of murder-for-hire, argued that OCGA § 16-1-8 (c) barred a subsequent state prosecution for murder, aggravated assault, and other charges arising out of the death of the same victim. Id. at 893-894. The Supreme Court held that the offense that was the subject of the federal prosecution was not a crime within Georgia’s concurrent jurisdiction, and, therefore, that OCGA§ 16-1-8 (c) did not apply to bar the state prosecution. Id. at 897-900 (2). The Supreme Court reasoned that, although it is unlawful in Georgia to commit murder, to be a party to murder by hiring or procuring another to commit the crime, to solicit murder, etc., “no such crime exists in Georgia” as “unlawfully us[ing] or causing] another to use a telephone or other communication device to arrange the commission of [a] murder.” Id. at 898 (2). And, because “nothing in the Criminal Code of Georgia makes it a crime to use or cause another to use a telephone or other communication facility with the intent to commit or cause the commission of any act constituting murderf,]” the threshold question of concurrent jurisdiction was answered in the negative. Id. at 898, 900 (2). That is, concurrent jurisdiction was lacking because no state offense was statutorily defined to include every essential element of the federal offense.

In this case, Palmer contends that Counts 1 and 2 of the state indictment, charging armed robbery in violation of OCGA § 16-8-41 (a), and Counts 3 and 4 of the state indictment, charging aggravated assault with a deadly weapon in violation of OCGA § 16-5-21 (a) (2), are barred by his acquittal on Count 1 in the federal prosecution, charging armed bank robbery in violation of 18 USC § 2113 (a) and (d). In addition, he contends that Counts 5 and 6 of the state indictment, charging possession of a firearm during the commission of a crime against the person of another, in violation of OCGA § 16-11-106 (b) (1), and Counts 8 and 9 of the state indictment, charging possession of a firearm by a convicted felon in violation of OCGA § 16-11-131 (b), are barred by his acquittal on Count 2 in the federal prosecution, charging the offense of brandishing a firearm during the commission of a crime of violence, in violation of 18 USC § 924 (c) (1) (A) (ii). To make the determination of whether the federal prosecution was for crimes which were within Georgia’s concurrent jurisdiction, we examine the statutes that define the arguably equivalent offenses. Sullivan v. State, 279 Ga. at 897 (2).

18 USC § 2113 provides, in pertinent part, that “[w]hoever, by force and violence, or by intimidation, takes . . . from the person or presence of another,... any property or money or any other thing of value belonging to, or in the care, custody, control, management, or possession of, any bank” and, “in committing ... [such] offense [,] ... assaults any person, or puts in jeopardy the life of any person by the use of a dangerous weapon..., shall be fined under [the United States Criminal Code] or imprisoned not more than twenty-five years, or both.” Applying the Supreme Court’s reasoning in Sullivan v. State, we conclude that, although it is unlawful in Georgia to commit armed robbery, no such crime exists in Georgia as taking from the person or the immediate presence of another by use of an offensive weapon any property belonging to, or in the care, custody, control, management, or possession of, any bank. Similarly, although it is unlawful in Georgia to commit aggravated assault with a deadly weapon, no such crime exists in Georgia as to commit an aggravated assault with a deadly weapon and, in doing so, to take any property belonging to, or in the care, custody, control, management, or possession of, any bank. Because armed bank robbery in violation of 18 USC § 2113 (a) and (d) includes at least one element that is not included in Georgia’s offenses of armed robbery and aggravated assault, armed bank robbery was not a crime within Georgia’s concurrent jurisdiction.

Turning to the firearms charges, we conclude that brandishing a firearm during the commission of a crime of violence, in violation of 18 USC § 924 (c) (1) (A) (ii), includes as an element that the accused made the presence of the firearm known to another person in order to intimidate that person, which is not an essential element of either OCGA§ 16-11-106 (b) (1) or OCGA§ 16-11-131 (b). Thus, brandishing a firearm during the commission of a crime of violence was not a crime within Georgia’s concurrent jurisdiction.

Because concurrent jurisdiction was lacking, we do not reach the issues of whether the state’s prosecution is for the same conduct as the federal prosecution and whether each prosecution requires proof of a fact not required in the other prosecution. There was no error. Sullivan v. State, 279 Ga. at 900 (2).

Decided April 5, 2012.

Earle J. Duncan III, for appellant.

Tom Durden, District Attorney, Gregory M. McConnell, Assistant District Attorney, for appellee.

Judgment affirmed.

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

       U. S. Const., Amend. V; Ga. Const. of 1983, Art. I, Sec. I, Par. XVIII; Benton v. Maryland, 395 U. S. 784, 794 (III) (89 SC 2056, 23 LE2d 707) (1969) (The Fifth Amendment guarantee against double jeopardy is enforceable against the states through the Fourteenth Amendment.).

        Sattazahn v. Pennsylvania, 537 U. S. 101, 106 (II) (A) (123 SC 732, 154 LE2d 588) (2003); Perkinson v. State, 273 Ga. 491, 494 (1) (542 SE2d 92) (2001).

        Heath v. Alabama, 474 U. S. 82, 88 (II) (106 SC 433, 88 LE2d 387) (1985) (“The dual sovereignty doctrine is founded on the common-law conception of crime as an offense against the sovereignty of the government. When a defendant in a single act violates the peace and dignity of two sovereigns by breaking the laws of each, he has committed two distinct offences [sic].... Consequently, when the same act transgresses the laws of two sovereigns, it cannot be truly averred that the offender has been twice punished for the same offence; but only that by one act he has committed two offences, for each of which he is justly punishable.”) (citations and punctuation omitted); United States v. Lanza, 260 U. S. 377, 382 (43 SC 141, 67 LE 314) (1922) (“[A]n act denounced as a crime by both national and state sovereignties is an offense against the peace and dignity of both and may be punished by each.”); Sullivan v. State, 279 Ga. 893, 900 (2) (622 SE2d 823) (2005) (Georgia still adheres to the doctrine of dual sovereignty.); Satterfield v. State, 256 Ga. 593, 595 (2) (351 SE2d 625) (1987) (“Even if the [federal] crime[ and the state crime] had been identical],] [the accused] would not have been subjected to double jeopardy by the federal trial and the [subsequent] state trial because of the dual sovereignty doctrine.”) (citations omitted).

        Heath v. Alabama, 474 U. S. at 88 (II).

       See Michael Dawson, “Popular Sovereignty, Double Jeopardy, and the Dual Sovereignty Doctrine,” 102 Yale L. J. 281, 294, nn. 95-96 (1992) (listing thirteen states that limit state prosecution of offenses arising out of the same conduct previously subject to federal prosecution and seven states that limit reprosecution for the same offense); Kenneth Murchison, “The Dual Sovereignty Exception to Double Jeopardy,” 14 N. Y. U. Rev. L. & Soc. Change 383, 414, nn. 200-203 (1986) (noting that 25 states had banned successive prosecutions in various aspects); Carolyn MacWilliam, “Conviction or Acquittal in Federal Court as Bar to Prosecution in State Court for State Offense Based on Same Facts — Modern View,” 97 ALR5th 201 (2002).

       See 18 USC § 1958 (formerly 18 USC § 1952A).

       See Sullivan v. State, 279 Ga. at 904-905 (4) (Sears, C. J., dissenting) (Under the majority opinion in Sullivan v. State, “if this State has a crime that mirrors the federal crime, the accused always will have been prosecuted in federal district court for a crime within this State’s concurrent jurisdiction, and the accused’s prosecution for the state crime always will be barred. If this State does not have a crime that mirrors the federal crime, the accused always may be prosecuted in Georgia.”).

       OCGA § 16-8-41 (a) provides, in pertinent part, that “[a] person commits the offense of armed robbery when, with intent to commit theft, he or she takes property of another from the person or the immediate presence of another by use of an offensive weapon[.]”

       OCGA § 16-5-21 (a) (2) provides, in pertinent part, that “[a] person commits the offense of aggravated assault when he or she assaults . . . [w]ith a deadly weapon[.]” See also OCGA § 16-5-20 (a) (2) (“A person commits the offense of simple assault when he or she ... [cjommits an act which places another in reasonable apprehension of immediately receiving a violent injury.”).

       In Dorsey v. State, 237 Ga. 876 (230 SE2d 307) (1976), the Supreme Court ruled that the predecessor to OCGA § 16-1-8 (c), Code Ann. § 26-507 (c), barred the defendant’s state prosecution on charges of murder, armed robbery, and other offenses after he pled guilty in federal court to charges of unlawfully killing a person while attempting to avoid apprehension, armed robbery, and other offenses in connection with the same bank robbery. Dorsey v. State does not compel a different result in this case, however, because, in that case, the Supreme Court only addressed the issue of whether the trial court erred in ruling that the statute impermissibly surrendered the exclusive jurisdiction of the superior courts as defined in the Constitution of Georgia. Dorsey v. State, 237 Ga. at 877-878. The Court did not consider the issue of what constitutes concurrent jurisdiction that it later addressed in Sullivan v. State.

       18 USC § 924 (c) (1) (A) (ii) provides, in pertinent part, that
      any person who, during and in relation to any crime of violence ... for which the person may be prosecuted in a court of the United States, uses or carries a firearm, or who, in furtherance of any such crime, possesses a firearm, shall, in addition to the punishment provided for such crime of violence[,J ... if the firearm is brandished, be sentenced to a term of imprisonment of not less than 7 years[.J
      See 18 USC § 924 (c) (4) (“[TJhe term ‘brandish’ means, with respect to a firearm, to display all or part of the firearm, or otherwise make the presence of the firearm known to another person, in order to intimidate that person[.J”). OCGA§ 16-11-106 (b) (1) provides, in pertinent part, that “[a]ny person who shall have on or within arm’s reach of his or her person a firearm or a knife having a blade of three or more inches in length during the commission of... [a]ny crime against or involving the person of another[,J... and which crime is a felony, commits a felony [.]” OCGA § 16-11-131 (b) provides, in pertinent part, that “[a]ny person ... who has been convicted of a felony by a court of this state . . . and who . . . possesses . . . any firearm commits a felony[.J”

       When the threshold question of concurrent jurisdiction posed by OCGA § 16-1-8 (c) is answered in the negative, it is “irrelevant how [the] [fjederal and [sjtate prosecutions of [the accused] would fare under the analysis set forth in the rest of the statute.” Sullivan v. State, 279 Ga. at 900 (2).
      It is only where concurrent jurisdiction exists [under OCGA § 16-1-8 (c)] that the courts must then turn to the next step in the statutory analysis, namely, whether the [fjederal prosecution resulted in a conviction or an acquittal and, if it did so, whether the [s] tate’s prosecution was for the same conduct. As plainly expressed by the language in OCGA § 16-1-8 (c), the accused’s conduct comes into issue if, and only if, the former [fjederal prosecution was for a crime within this [s]tate’s concurrent jurisdiction. Should the court determine that the [s]tate’s prosecution was for the same conduct, subsection (c) would bar the prosecution unless “each prosecution requirefd] proof of a fact not required in the other prosecution” or unless the crime “was not consummated when the former trial began.”
      (Citation omitted.) Id. at 894 (1), n. 2.


text:
    A12A0532.
    WILLOUGHBY v. THE STATE.
    (727 SE2d 194)
   Ellington, Chief Judge.

Todd Willoughby stands accused in the Superior Court of Gwinnett County of homicide by vehicle, OCGA § 40-6-393. Willoughby filed a motion to suppress his medical records that were seized pursuant to a search warrant, arguing that the information in the supporting affidavit failed to show probable cause that a crime had been committed. After a hearing, the trial court denied the motion, and we granted Willoughby’s ensuing application for an interlocutory appeal. For the reasons explained below, we reverse.

The record shows the following. On March 19, 2009, a Fulton County magistrate issued a warrant for “[a]ll medical records concerning patient Todd Michael Willoughby who appeared at Grady Memorial Hospital on or about January 1, 2009.” The magistrate determined that there was probable cause to believe Willoughby had committed vehicular homicide, driving under the influence (DUI), and failure to maintain lane, based on the following written statement of the investigating officer:

Affiant was dispatched to automobile collision on Harmony Grove Road at its intersection with Nimblewill Way, Gwinnett County, on January 1, 2009. The collision occurred at 20:57 PM. It was determined that Todd Michael Willoughby could possibly be the driver of the vehicle and would be at fault via Failure to Drive Within a Single Lane. Russell Hays, who was possibly the front seat passenger in Todd Michael Willoughby’s vehicle, was killed as a result of the collision. Todd Michael Willoughby admitted to the consumption of an alcoholic beverage at the scene of the collision. Todd Michael Willoughby was transported to Grady Memorial Hospital after the collision where he received medical treatment and medical test[s] were performed including toxicology tests. Said test results were documented into Todd Michael Willoughby’s medical records. Said medical records may contain evidence of Driving Under the Influence of Alcohol.

The officer who applied for the warrant did not supplement the written application with oral testimony.

In his motion to suppress, Willoughby argued that the warrant application set out few facts and that those facts did not show probable cause to believe he had committed the specified offenses. The trial court found that, although the officer “could and should have supplied more details from his investigation,” the “bare-boned” affidavit was sufficient to support the magistrate’s probable cause determination. On appeal, Willoughby contends that the affidavit contained purely conclusory statements and failed to specify any underlying facts showing that he was under the influence of alcohol at the time of the accident, that his manner of driving caused the accident, or even that he was driving the car at the time. As a result, he contends, the affidavit was insufficient to allow the magistrate to determine whether the investigating officer had a legally sufficient factual basis to justify searching Willoughby’s medical records for evidence of DUI.

A search warrant will only issue upon facts sufficient to show probable cause that a crime is being committed or has been committed. OCGA§ 17-5-21 (a).

The magistrate’s task in determining if probable cause exists to issue a search warrant is simply to make a practical, common-sense decision whether, given all the circumstances set forth in the affidavit before him, including the veracity and basis of knowledge of persons supplying hearsay information, there is a fair probability that contraband or evidence of a crime will be found in a particular place.

(Citations and punctuation omitted.) State v. Palmer, 285 Ga. 75, 77 (673 SE2d 237) (2009). Mere speculation, conjecture, opinion, or rumor is not enough to support a finding of probable cause; rather, “the facts must be such as to lead a man of prudence and caution to believe that the [specified] offense has been committed.” (Citation and punctuation omitted.) Wood v. State, 126 Ga. App. 423, 424 (1) (190 SE2d 828) (1972). Although affidavits for search warrants

must be tested and interpreted by magistrates and courts in a common[-]sense and realistic fashion[,] . . . [t]his is not to say that probable cause can be made out by affidavits which are purely conclusory, stating only the affiant’s or an informer’s belief that probable cause exists without detailing any of the underlying circumstances upon which that belief is based. Recital of some of the underlying circumstances in the affidavit is essential if the magistrate is to perform his detached function and not serve merely as a rubber stamp for the police.

(Citations and punctuation omitted.) United States v. Ventresca, 380 U. S. 102, 108-109 (I) (85 SC 741, 13 LE2d 684) (1965). When a defendant files a motion to suppress evidence seized pursuant to a warrant,

[t]he trial court may then examine the issue as a first level of review, guided by the Fourth Amendment’s strong preference for searches conducted pursuant to a warrant, and the principle that substantial deference must be accorded a magistrate’s decision to issue a search warrant based on a finding of probable cause. A deferential standard of review is appropriate to further the Fourth Amendment’s strong preference for searches conducted pursuant to a warrant. Although in a particular case it may not be easy to determine when an affidavit demonstrates the existence of probable cause, the resolution of doubtful or marginal cases in this area should be largely determined by the preference to be accorded to warrants.

(Citation and punctuation omitted.) State v. Palmer, 285 Ga. at 77-78.

In this case, the warrant application suggests that Willoughby might have been driving the vehicle, that he might have caused the accident by failing to maintain his lane, and that the amount of alcohol he had consumed might have been enough to put him over the legal limit or to make him a less safe driver. The affidavit, however, failed to provide any underlying details that would allow the magistrate to evaluate whether these conclusions were based on specific facts (derived, for example, from physical evidence or eyewitness testimony) rising to the level of probable cause or whether they were instead based on mere speculation or presumptions.

As the trial court noted, its inquiry at the hearing on Willoughby’s motion to suppress was limited to the contents of the affidavit. This is because (Citation omitted.) Whiteley v. Warden, 401 U. S. 560, 565, n. 8 (91 SC 1031, 28 LE2d 306) (1971). Because the affidavit in this case was insufficient on its face to support a finding of probable cause, the trial court erred in denying Willoughby’s motion to suppress. Wood v. State, 126 Ga. App. at 423-424 (1).

an otherwise insufficient affidavit cannot be rehabilitated by testimony concerning information possessed by the affiant when he sought the warrant but not disclosed to the issuing magistrate. A contrary rule would, of course, render the warrant requirements of the Fourth Amendment meaningless.

Decided April 5, 2012.

Ross & Pines, Noah H. Pines, for appellant.

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

Judgment reversed.

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

       See King v. State, 276 Ga. 126, 129 (2) (577 SE2d 764) (2003) (A search, warrant may be used to obtain a person’s medical records where there is probable cause to believe the person had been driving under the influence of alcohol and had caused an accident for which he received the medical treatment.); Brogdon v. State, 299 Ga. App. 547,550-552 (1) (a) (683 SE2d 99) (2009) (accord).

       See OCGA § 17-5-30 (a) (2) (“A defendant aggrieved by an unlawful search and seizure may move the court... to suppress as evidence anything so obtained on the grounds that. . . [t]he search and seizure with a warrant was illegal because . . . there was not probable cause for the issuance of the warrant[.]”).

       See also Davis v. State, 266 Ga. 212, 213 (465 SE2d 438) (1996) (Once a defendant files a motion to suppress, “the burden of proving the lawfulness of [a search] warrant is on the state and that burden never shifts. The only burden upon the challenger of a search warrant is that of producing evidence to support his challenge, which burden is shifted to him only after the state has met its initial burden of producing evidence showing the validity of the warrant.”) (citations omitted).

       Willoughby maintains that the person who died in the accident was actually the driver, and he told the investigating officer so at the scene.

       See Wayne R. LaFave, 2 Search and Seizure, A Treatise of the Fourth Amendment, § 4.3 (a) (4th ed., 2011 update).

       We note that this opinion concerns only the records that the officer obtained by executing the March 19, 2009 search warrant. We pass no opinion regarding whether, assuming Willoughby’s original medical records remain in the possession of Grady Memorial Hospital, the officer may be able to submit a second warrant application seeking the seizure of the same records.


text:
    A12A0589.
    FULTON COUNTY BOARD OF ASSESSORS v. CALLIOPE PROPERTIES, LLC.
    (727 SE2d 198)
   Ellington, Chief Judge.

In this ad valorem tax appeal, the Superior Court of Fulton County determined that the fair market value of the subject residential parcel was $30,000. Because this was less than 85 percent of the valuation set by the Fulton County Board of Assessors (the “Board of Assessors”), the trial court awarded the owner, Calliope Properties, LLC (“Calliope”), attorney fees under OCGA§ 48-5-311. The Board of Assessors appeals, contending that Calliope was not the proper party to appeal the assessment and, therefore, that the trial court erred in awarding attorney fees. In addition, the Board of Assessors contends that OCGA § 48-5-311 does not authorize fees when a trial court accepts a stipulation of the parties as to the fair market value of the parcel, as occurred in this case, and that Calliope failed to prove the reasonableness of its claimed fees. For the reasons explained below, we affirm.

The following facts are undisputed. On January 1, 2009, U. S. Bank owned the subject parcel, 4282 Wallace Avenue, Atlanta. Calliope bought the property for $25,490 on January 23, 2009. Calliope filed a real estate property tax return on the property, declaring the value of the property to be $25,490. Thereafter, the Board of Assessors mailed a notice of assessment for the 2009 tax year to U. S. Bank, declaring the market value of the parcel to be $98,900. Calliope filed a timely notice of appeal from the assessment to the Board of Assessors and identified itself as the owner of the property. Calliope also paid the ad valorem tax when due.

After the Board of Assessors’s first level of review (the “field review”), the Board reduced the assessment to $82,600. Calliope then filed a timely notice of appeal to the Board of Equalization. After a hearing, where Calliope’s agent appeared and presented evidence, the Board of Equalization affirmed the $82,600 valuation. Calliope then filed a timely notice of appeal to the Superior Court of Fulton County. The Board of Assessors’s chief appraiser certified the appeal to the superior court, identifying Calliope as the “taxpayer”; the General Civil Case Filing Information Form identified Calliope as the “plaintiff.”

Calliope filed a Motion to Correct Misnomer, based on its mistaken assumption that, in preparing the Case Filing Information Form, the Board of Assessors failed to identify Calliope as the taxpayer but instead “misidentified the party appellant by referencing the name of a prior owner of the Property, [that is, U. S. Bank], which is now erroneously identified as the appellant [in] this case.” The Board of Assessors did not recognize Calliope’s mistaken assumption and responded to Calliope’s motion by saying that it was required to certify a tax appeal in the name of the party which owned the property on January 1 of the tax year, which is known as “the lien date.” Although the Board of Assessors objected to “the characterization of its actions as deliberate misidentification, or error,” the Board of Assessors affirmatively stated that it had no objection to the “addition” of the name of Calliope to the style of the case. The trial court erroneously noted that “ ‘Greentree Servicing, Inc.’is the named-petitioner in this matter,” found that a substitution of parties would be the proper vehicle to correct the confusion in the record, and denied Calliope’s Motion to Correct Misnomer. On February 21, 2011, Calliope filed documents purporting to “confirm” that the transfer to Calliope of title to the subject property included the right to appeal the 2009 valuation and resulting tax obligation.

In a proposed pretrial order, the Board of Assessors stipulated that the fair market value of the parcel for the 2009 tax year was $30,000, and Calliope accepted that value. Based on this stipulation, the trial court found that the fair market value was $30,000. Because this value was less than 85 percent of the valuation set by the Board of Assessors, the trial court awarded Calliope its attorney fees under OCGA § 48-5-311 (g) (4) (B) (ii). The court awarded fees in the amount of $6,437.18, based on the testimony of attorney Robert Proctor, and a timesheet that recorded times for specific tasks performed by Proctor and by attorney Chris Porterfield and indicated an hourly rate of $375 for Proctor and $250 for Porterfield.

1. The Board of Assessors contends that, because the trial court never entered an order of substitution, Calliope was not a party to the case that was entitled to pursue the action below and that the trial court accordingly erred in awarding attorney fees to such a non-party. This argument lacks merit. The Board ignores the fact that, when it certified the tax appeal to the superior court, it designated Calliope as the taxpayer and party plaintiff. Calliope’s contrary assumption, and its unnecessary Motion to Correct Misnomer, did not change the facts that, according to the Board’s own certification, Calliope was a party from the inception of the proceedings. The trial court’s order denying Calliope’s motion was a nullity and has no bearing on whether Calliope is entitled to attorney fees under OCGA§ 48-5-311 (g) (4) (B) (ii).

2. The Board of Assessors contends that the party who owns a parcel on January 1 of a particular tax year is the proper party to prosecute an appeal of a property assessment. The Board contends that Calliope had no right to prosecute this action in its own name until February 21, 2011, when it filed documents constituting an express assignment of U. S. Bank’s appeal rights. Consequently, the Board contends, the trial court erred in awarding Calliope fees for legal services that occurred before February 21, 2011.

Under Georgia law, ad valorem taxes upon real property are assessed upon the owner of record of the property as of January 1 of the subject tax year. OCGA§§ 48-5-9; 48-5-10; Jamestown Assocs. v. Fulton County Bd. of Tax Assessors, 228 Ga. App. 360, 361 (492 SE2d 1) (1997). After selling property, the January 1 owner remains liable for ad valorem taxes for the year as a personal debt, and the tax commissioner also retains a lien upon the property which is enforceable against the subsequent purchaser of the property. Mulligan v. Security Bank of Bibb County, 280 Ga. App. 248, 249-250 (633 SE2d 629) (2006). Pretermitting whether the Board of Assessors was authorized to reject Calliope’s appeal from the notice of assessment on the basis that it acquired the property after the January 1 lien date, the record shows that the Board, in fact, accepted Calliope’s appeal from the 2009 valuation and administered the process through the Board of Assessors’s field review, a review by the Board of Equalization, and the certification of the appeal to the superior court. Accordingly, the Board of Assessors waived any objection to Calliope’s acting in the role of the taxpayer during the appeal and may not on this basis avoid liability for its attorney fees under OCGA § 48-5-311 (g) (4) (B) (ii). Calliope Properties, LLC v. Fulton County Bd. of Assessors, 313 Ga. App. 795 (723 SE2d 34) (2012); Fulton County Bd. of Assessors v. Calliope Properties, 312 Ga. App. 875, 879-880 (2) (720 SE2d 312) (2011).

3. The Board of Assessors contends that the word “determination” in OCGA § 48-5-311 (g) (4) (B) (ii) “contemplates a judicial action” and therefore that, when a trial court accepts a stipulation of the parties as to the fair market value of the parcel, there is no final determination of value on appeal. Because the fee provision applies only after a final determination of value on appeal, the Board contends, the trial court erred in awarding fees under that provision. This argument is specious. A stipulation is simply a voluntary agreement by a party that it will not contest certain facts. Thompson v. Wise, 182 Ga. App. 335 (356 SE2d 40) (1987). Even though the stipulation relieved Calliope of the need to offer evidence of the parcel’s value, the court’s Final Order represents a final determination of value on appeal, and fees were authorized under the statute. Fulton County Bd. of Assessors v. Calliope Properties, 312 Ga. App. at 880-881 (4).

Decided April 5, 2012.

Matthew C. Welch, Pat D. Dixon, Jr., for appellant.

Busch, Slipakoff & Schuh, Christopher M. Porterfield, for appellee.

4. The Board of Assessors contends that Calliope failed to prove the existence of an attorney-client relationship with attorneys Proctor and Porterfield, the terms of any fee agreement, the necessity of the tasks performed by Proctor and Porterfield, as recorded on the timesheet, and the value of the services provided. We review the trial court’s determination regarding the amount of the reasonable attorney fees Calliope incurred in the action for an abuse of discretion. Fulton County Bd. of Assessors v. Calliope Properties, 312 Ga. App. at 880 (3).

After reviewing the evidence and the arguments of the parties, we find that the evidence showed the existence of an attorney-client relationship. Furthermore,

the amount of the fee award granted by the trial court was within the range of the evidence adduced at the hearing, and the award is not manifestly unreasonable on its face. . . . Even if this Court or another trial judge might have come to a different calculation as to the reasonable and necessary attorney fees, we cannot say that the trial court abused its discretion in awarding [$6,437.18] to Calliope under the evidence presented.

Fulton County Bd. of Assessors v. Calliope Properties, 312 Ga. App. at 880 (3). See also Fulton County Bd. of Assessors v. Greenfield Investment Group, 314 Ga. App. 523, 526 (2) (724 SE2d 828) (2012) (accord).

Judgment affirmed.

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

       See OCGA§ 48-5-15 (a) (“All improved and unimproved real property in this state which is subject to taxation shall be returned by the person owning the real property or by his or her agent or attorney to the tax receiver or tax commissioner of the county where the real property is located.”).

       Calliope had filed similar Motions to Correct Misnomer in tax appeals concerning other parcels, where the Board of Assessors had identified a prior owner as the taxpayer when certifying the appeals to the superior court. See, e.g., Fulton County Bd. of Assessors v. Calliope Properties, 312 Ga. App. 875, 876 (720 SE2d 312) (2011).

       “If the final determination of value on appeal is... 85 percent or less of the valuation set by the county board of tax assessors as to [non-commercial] property, the taxpayer, in addition to the interest provided for by this paragraph, shall recover costs of litigation and reasonable attorney’s fees incurred in the action.” OCGA § 48-5-311 (g) (4) (B) (ii).

       In 2009, Georgia’s Revenue and Taxation Code authorized any “taxpayer” to appeal from an assessment. OCGA § 48-5-311 (e) (1) (A) (2009). As amended effective January 1, 2011, the Code now authorizes such appeals hy “[a]ny taxpayer or property owner as of the last date for filing an appeal[.]” OCGA § 48-5-311 (e) (1) (A) (2012). We do not reach the issue of whether the amendment has retroactive application, however, because any objection has been waived.


author: MCFADDEN, Judge.

text:
    A11A2309.
    GILES v. HEYWARD.
    (726 SE2d 434)
   MCFADDEN, Judge.

Edward Heyward filed a defamation action against Daniel Giles, alleging slander per se. The case was tried before a jury, which returned a verdict in favor of Heyward, awarding him $125,000 in damages. The trial court entered judgment in that amount, and Giles appeals.

Giles argues that the doctrine of the separation of church and state precluded the trial court from exercising jurisdiction over this matter; but as the defamation claim is founded on accusations of conduct that would constitute crimes under the laws of Georgia, there was no impermissible inquiry into ecclesiastical matters. Giles enumerates as error the denial of his motion for directed verdict, but the evidence was sufficient to support the judgment. Giles complains that the trial court erroneously excluded evidence of an incident that occurred during a lunch recess, but he fails to show that the trial court made or was asked to make a ruling, and he fails to show that evidence as to the incident would have been relevant. Contrary to Giles’s argument, we find that the trial court fully and accurately charged on the law of privileged communications. Finally, we find the evidence sufficient to support the damages award. We therefore affirm.

Where the jury returns a verdict which the trial court enters as a judgment, the judgment must be affirmed on appeal if there is any evidence to support the verdict, because the jurors are the exclusive judges of the weight and credibility of the evidence. We must construe the evidence with every inference and presumption in favor of upholding the verdict.

(Citation omitted.) Sagon v. Peachtree Cardiovascular & Thoracic Surgeons, 297 Ga. App. 379 (677 SE2d 351) (2009).

So construed, the evidence shows that on March 18, 2008, a quarterly church meeting concerning church bills and upkeep was held at the Mt. Carmel Baptist Church in Savannah. Heyward, a deacon in the church, chaired the meeting, which was attended by approximately 25 to 50 people, including Heyward’s wife. At the end of the meeting, Giles, who was not on the agenda, stood up and demanded to read a written declaration that he had prepared. In front of all those present, he read aloud from the document, accusing Heyward of having committed adultery on various occasions and of having attempted to steal money from the church. Heyward and others testified that the accusations were false, that he had never committed adultery or stolen money from the church. And Giles acknowledged that he did not have any facts to support the accusations.

1. Giles contends that the trial court did not have jurisdiction to hear the case because it involves church governance, faith and procedure. “It is true that civil courts have no power or authority to interfere in the internal affairs of a religious organization concerning doctrines, faith, or belief.” (Citations and punctuation omitted.) First United Church v. Udofia, 223 Ga. App. 849, 850 (1) (479 SE2d 146) (1996). Constitutional safeguards of the separation of church and state prohibit the civil judicial system from taking jurisdiction of such ecclesiastical issues. Horne v. Andrews, 264 Ga. App. 145, 146 (1) (589 SE2d 719) (2003); First United Church, supra. However, this does not mean “that our courts are prohibited from addressing all disputes that arise in an ecclesiastical context.” Horne, supra. Where a dispute does not involve inquiry into church doctrine, faith or other ecclesiastical matters, the civil courts are not prohibited from adjudicating the dispute. First United Church, supra at 850-852 (1).

The instant case involves a defamation claim based on accusations of adultery and attempted theft, which are crimes under the laws of Georgia. See OCGA §§ 16-4-1, 16-6-19, 16-8-1 et seq. “To falsely accuse one of committing a crime constitutes the tort of slander. Such conduct is not protected by the doctrine of separation of church and state [merely] by utterance [of the accusations] during the course of a church [meeting].” (Citation omitted.) First United Church, supra at 851 (1). Because this case does not require an impermissible inquiry into ecclesiastical matters, and instead involves resolution of a slander claim, the trial court properly exercised its jurisdiction over the dispute.

2. Giles claims that the trial court erred in denying his motion for a directed verdict. A directed verdict is authorized only if there is no conflict in the evidence as to any material issue and the evidence introduced, with all reasonable deductions therefrom, demands a particular verdict. OCGA § 9-11-50 (a). In reviewing the denial of a motion for directed verdict, we apply the “any evidence” rule, construing the evidence in favor of the party opposing the motion and affirming if there is any evidence to support the trial court’s ruling. Columbia County v. Doolittle, 270 Ga. 490, 492 (1) (512 SE2d 236) (1999); Teklewold v. Taylor, 271 Ga. App. 664, 665 (610 SE2d 617) (2005). Here, as recounted above, the evidence, construed in favor of Heyward as the party opposing the motion for directed verdict, shows that Giles made false statements to others accusing Heyward of adultery and attempted theft. Contrary to Giles’s argument, the evidence does not demand a verdict that these statements wrongfully imputing criminal behavior to Heyward were somehow privileged under OCGA § 51-5-7 (3) (statements made with good faith intent to protect speaker’s interest); rather, because there is some evidence to support the trial court’s denial of a directed verdict, we must affirm that ruling. See Turnage v. Kasper, 307 Ga. App. 172, 185 (1) (d) (i) (704 SE2d 842) (2010) (denial of directed verdict affirmed where there was evidence that appellant wrongfully imputed a crime to another).

3. Giles complains that the trial court erroneously excluded testimony that Heyward tampered with a sequestered witness during a lunch recess. However, Giles has not shown that the trial court actually ruled that such testimony was inadmissible. He has cited to a portion of the transcript where, outside the jury’s presence, Hey-ward was questioned about his encounter with the witness. But those pages do not reveal that the trial court was asked to, or did in fact, rule as to the admissibility of such testimony. It is well settled that the appellate courts will not cull the record in search of error on behalf of one of the parties. See Diffley v. Marshall’s at East Lake, 227 Ga. App. 343, 345 (489 SE2d 123) (1997). Thus, Giles has failed to show that there is any trial court ruling excluding evidence that was made, challenged and preserved for appellate review.

Even if he had made such a showing, he has also failed to show that the evidence in question was relevant. It appears that the witness to whom Heyward spoke during the recess did not even testify at trial; and according to Heyward’s unrefuted testimony, on his way out of the courtroom he merely “joked with [the witness], as usual,” about going back to court. Giles has made no showing that this brief encounter had any bearing on the question of whether he slandered Heyward, and “evidence that does not bear directly or indirectly on the questions being tried should be excluded as irrelevant.” (Citations and punctuation omitted.) Smith v. Saulsbury, 286 Ga. App. 322, 325 (2) (649 SE2d 344) (2007).

4. Giles argues that the trial court erred in failing to give his requested jury charge as to privileged statements. However, the record reveals that the trial court did in fact fully and accurately charge the jury on the law of privileged communications. Thus, even if we assume that the requested charge was correct and pertinent,

it is not necessarily error to fail to charge it. We must look to the charge as a whole to determine whether the court substantially covered the principles embodied therein or whether it was sufficiently or substantially covered by the general charge. Further, a party cannot successfully complain about the refusal to give a requested charge unless they satisfy their burden of showing that the refusal was both erroneous and harmful.

(Citations and punctuation omitted.) Bennett v. Moore, 312 Ga. App. 445, 460 (4) (b) (718 SE2d 311) (2011). Because the trial court’s charge to the jury substantially and correctly covered the principles of privilege, and Giles cannot show that the refusal to give his requested charge was both erroneous and harmful, we affirm.

Decided March 8, 2012

Reconsideration denied April 6, 2012.

Gwendolyn Fortson Waring, for appellant.

Savage, Turner, Pinson & Karsman, Brent J. Savage, Brent Jamieson Savage, Jr., for appellee.

5. Giles challenges the sufficiency of the evidence supporting the award of damages. The challenge is without merit.

[Wjhere, as here, the words uttered constituted slander per se by imputing the commission of a crime to another, the law infers an injury to the reputation without proof of special damages. Such an injury falls within the category of general damages, “those which the law presumes to flow from any tortious act; they may be recovered without proof of any amount.” OCGA § 51-12-2 (a). Therefore, in this case, the measure or criterion of the general damages which the law infers as flowing from a slanderous statement which is actionable per se is the enlightened consciences of an impartial jury.

(Citations and punctuation omitted.) Riddle v. Golden Isles Broadcasting, 292 Ga. App. 888, 891 (1) (666 SE2d 75) (2008).

The court fully charged the jury on this law. We have reviewed the trial transcript, and given the evidence of damage to Heyward’s reputation in the church community, “we cannot say that the jury’s award of [$125,000] in general damages for slander per se was clearly so excessive as to be inconsistent with the preponderance of the evidence presented.” Riddle, supra at 891 (1). Accordingly, the trial court did not err in failing to set aside the verdict.

Judgment affirmed.

Dillard, P. J., and Boggs, J., concur.


text:
    A12A0009.
    REDINBURG v. THE STATE.
    (727 SE2d 201)
   Ellington, Chief Judge.

A Chatham County jury found Justin Redinburg guilty beyond a reasonable doubt of aggravated assault with a deadly weapon, OCGA § 16-5-21 (a) (2); and possession of a firearm during the commission of a crime against another person, OCGA § 16-11-106 (b) (1). He appeals from the denial of his motion for new trial, contending that the evidence was insufficient to support his convictions, that the court erred in excluding a recording of a phone conversation between two potential witnesses, and that the trial court improperly excluded certain evidence. As explained below, we conclude that the trial court erred in denying Redinburg’s motion for a new trial and reverse his convictions.

1. As an initial matter, we will address Redinburg’s general assertion that there was insufficient evidence to support his convictions.

When a criminal defendant challenges the sufficiency of the evidence supporting his or her conviction, “the relevant question is whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt.” (Citation omitted; emphasis in original.) Jackson v. Virginia, 443 U. S. 307, 319 (III) (B) (99 SC 2781, 61 LE2d 560) (1979). It is the function of the jury, not this Court, to resolve conflicts in the testimony, weigh the evidence, and draw reasonable inferences from the evidence. Id. Viewed in this light, the record reveals the following facts.

In the early morning hours of June 27, 2009, officers with the Savannah-Chatham Metropolitan Police Department responded to a 911 call from someone who reported that a man had been shot near the Southside Assembly of God. The officers found a trail of blood leading from the church’s parking lot to the body of Marcus Allen, who was lying face down on the church’s lawn. An autopsy revealed that Allen had died from gunshot wounds to his chest and arm. A .38 caliber bullet was found lodged inside Allen’s chest. Officers also found multiple shell casings and bullet fragments scattered throughout the area between the church and the lawn. A duffel bag and wallet belonging to Allen and some coins were found on the church’s steps.

Investigators did not identify a suspect in the shooting until several months later, when a man named Robert Cureton made a statement to the police in which he claimed that he and a friend, Cortez Alls, had seen the defendant, Redinburg, shoot the victim. At Redinburg’s trial, Alls testified that he had known Redinburg for several years and that, on the night in question, he was sitting on the porch of his home, which was next door to the church, with Redinburg and Cureton. According to Alls, at some point, Redinburg stood up, said that he was going to rob somebody, and walked toward the church while carrying a .357 Smith & Wesson revolver. Redinburg sat down next to the victim on the church steps and started talking to him. Moments later, the victim stood up and started running away, but Redinburg chased after him and shot him. Alls admitted that, even though he had seen the shooting and had even checked the victim’s body to see if he was alive, he did not call the police. Instead, an hour to an hour and a half passed before some passersby saw the victim’s body and called 911.

In addition, Alls testified that, at the time of the shooting, his friend, Cureton, and Redinburg were dating the same woman, Raven Williams, who was pregnant and who had told each of the men that he was the baby’s father. According to Alls, this had caused a feud between the men, and Cureton had threatened to kill Redinburg on the night at issue, before the victim’s shooting.

The State called Williams as a witness at trial, and she admitted that she had become pregnant about a month before the June 2009 shooting; that she had told both Redinburg and Cureton, individually, that he was the baby’s father; and that she was still “romantically involved” with Redinburg at the time of the shooting. According to Williams, less than a month after the shooting, Redinburg told her that he had “shot the man at the church, and [he] shot six shots at the time and only one bullet hit him.” Williams also admitted that she had talked to both Redinburg and Cureton throughout the year after the shooting and that they had each insisted that the other man had been the shooter. After Cureton mentioned Williams’ name during his statement to police implicating Redinburg in Allen’s death, an investigator interviewed Williams, and she agreed to assist in the investigation by talking with Redinburg while surreptitiously recording their conversation. Redinburg, however, failed to make any specific admissions about the shooting during the conversation.

The last witness called by the State was Saidah Smalls, a friend of Williams, who testified that she had met Redinburg through Williams and that, the second time she saw Redinburg, she asked him about the shooting. According to Smalls, Redinburg repeatedly denied that he was involved in the shooting, but then, after she persisted in questioning him about the incident, he finally admitted shooting the victim, explaining only that the victim “shouldn’t have been there.” Smalls testified, however, that Redinburg made that statement to her sometime in April or May of 2009, which was before the shooting. She repeated that testimony on redirect, but, when further questioned by the State about the timing of Redinburg’s statement, she backtracked and testified that she was not sure about when Redinburg had made the statement, but that she thought it was after the shooting.

After the State rested its case-in-chief, Redinburg’s mother provided an alibi for her son, who was 17 years old and lived with his family in June 2009, testifying that he was at home at the time of the shooting. Although the jury ultimately acquitted Redinburg on charges of murder , and felony murder, it found him guilty of aggravated assault with a deadly weapon and possession of a firearm during the commission of a felony crime against another.

Viewing the evidence in the light most favorable to the jury’s verdict, as we must, we conclude that it is sufficient to support a finding that Redinburg was guilty beyond a reasonable doubt of the crimes for which he was convicted.

2. Redinburg contends that the trial court erred in excluding from evidence a recording of a phone conversation between Alls and Cureton that took place at the behest and under the direction of police investigators a few months after the shooting. Redinburg argues that the complete recording was admissible to impeach Alls’ trial testimony by showing that he promised to lie to the police about Cureton’s involvement in Allen’s death, as well as to show the jury that Alls’ testimony and demeanor on the witness stand was simply an act that was inconsistent with Alls’ natural, out-of-court manner of communicating. For the following reasons, we agree with Redinburg’s arguments and conclude that the trial court committed harmful error when it prevented Redinburg from playing the unredacted recording of the phone call to the jury.

The events leading to the phone call are as follows. About three months after the shooting, police investigators still had not identified a suspect in Allen’s death. In a seemingly unrelated incident, however, police officers arrested Cureton for possession of a stolen truck. Alls had also been riding in the truck before it was stopped by the police, but he escaped on foot. Following his arrest, Cureton agreed to assist the police by making a telephone call to Alls that was recorded without Alls’ knowledge. During the phone call, the two men talked about the shooting that led to Allen’s death and discussed a handgun that one of them had thrown out the window while the police were chasing the truck. They acknowledged that their fingerprints were going to be on the gun and that the ammunition for the gun was the same type that had been used to shoot Allen. Alls also promised to provide an alibi for Cureton for the night of the murder.

The State provided a recording of the phone call to Redinburg’s counsel before trial and, at trial, told the court that it did not have any objections to the recording, noting that it had subpoenaed both Alls and Cureton to appear as witnesses. Redinburg’s counsel then talked at length about the phone call during his opening statement to the jury, emphasizing that it would show that Alls and Cureton were lying about Redinburg’s involvement in the crime. As the trial progressed, however, Cureton never appeared to testify, and attempts to locate and apprehend him pursuant to a witness contempt citation and arrest warrant failed. When it was clear that Cureton would not be present to testify, Redinburg’s counsel expressed his intent to play the recording of the phone call. The State objected, however, on the basis that, because Cureton had failed to testify, his portion of the conversation was inadmissible hearsay. The trial court agreed that Cureton’s statements constituted inadmissible hearsay and ruled that the recording would only be admitted if Cureton’s statements were redacted.

Subsequently, in its order denying Redinburg’s motion for new trial, the trial court again ruled that Cureton’s statements had been inadmissible hearsay. In so ruling, the trial court relied on the Supreme Court of Georgia’s opinion in Jackson v. State, 256 Ga. 536 (350 SE2d 428) (1986). The holding of Jackson is inapplicable to the instant case, however, because Jackson is clearly distinguishable from this case on both the facts and the legal issues addressed.

Instead, the admissibility of Cureton’s statements in the recorded phone call in this case is governed by OCGA § 24-3-2, which states that, “[w]hen, in a legal investigation, information, conversations, letters and replies, and similar evidence are facts to explain conduct and ascertain motives, they shall be admitted in evidence not as hearsay but as original evidence.” (Emphasis supplied.) That statute has repeatedly been cited as authority for admitting recordings of phone calls between witnesses, co-conspirators, informers, and/or other third parties that were made after the crimes at issue and at the direction of law enforcement officers, even when one of the parties to the conversation did not testify at trial, as in this case. For example, in Bundrage v. State, 265 Ga. 813 (462 SE2d 719) (1995), the Supreme Court of Georgia considered the admissibility of a recording of a phone call from a co-conspirator who was cooperating with the police to an unsuspecting co-conspirator who was still attempting to conceal the crimes at issue. Id. at 813-814 (2). The issue was whether the statements of the first co-conspirator were admissible as original evidence under OCGA § 24-3-2, because they were offered for the limited purpose of putting the second co-conspirator’s responses, which implicated the defendant in the crimes, in context and making them intelligible to the jury. Id. at 814 (2). The Court acknowledged that “[s]ometimes an utterance is merely a part of the surrounding circumstances of an occurrence. Such statements are not offered to prove the fact asserted in the statement. Proof of such statements is original evidence; it is not an exception to hearsay.” (Citation and punctuation omitted.) Id. Thus, the Court ruled that, because the statements made by the first co-conspirator were necessary to explain why the second co-conspirator responded in the way that he did, it followed that those statements were admissible as original evidence, pursuant to OCGA § 24-3-2, as part of “reciprocal and integrated utterances” between the men. (Citation omitted.) Id.

Given that, in this case, Cureton was essentially acting as an informant (or at least an agent of police investigators) at the time he had the phone conversation with Alls, we conclude that Cureton’s recorded statements were admissible as original evidence, pursuant to OCGA § 24-3-2 and the authority cited above. Therefore, the trial court erred when it excluded the statements on the basis that they constituted inadmissible hearsay.

Moreover, we conclude that the erroneous exclusion of the unredacted recording of the phone call was not harmless in this case. Redinburg’s defense was that Cureton had been the person who had shot Allen; that Cureton and Alls had conspired to lie to the police by telling them that they had witnessed Redinburg commit the crime; that Cureton and Alls had disposed of the murder weapon three months later, while they were riding in a stolen truck that was being chased by the police; and that, while Cureton was in jail for possession of the stolen truck, he had called Alls, who had agreed to provide a false alibi for Cureton for the night Allen was shot. Further, the evidence of Redinburg’s guilt, while legally sufficient to support his convictions, was neither overwhelming nor so compelling that it rendered harmless the erroneous exclusion of the recording. There was no physical evidence tying Redinburg to the crime or the murder weapon; Alls was the only eyewitness to the crime who testified at trial, and he testified that he did not remember anything about his phone conversation with Cureton; Cureton was in a sexual relationship with a pregnant woman who was also involved with Redinburg and, thus, arguably had a significant motive to lie about Redinburg’s participation in the shooting; Cureton failed to appear at trial to testify, in spite of a subpoena, and law enforcement officers were unable to find him, despite an aggressive search for him while the trial was in progress; Williams, the woman who testified that she heard Redinburg make a confession to the shooting, had misled him about her pregnancy and, thus, may have had a motive to lie about the confession; and the witness to an alleged second confession by Redinburg twice testified that it had occurred at least a month before the shooting had actually taken place. Finally, despite Alls’ testimony that he saw Redinburg shoot Allen (who was an innocent bystander) after trying to rob him and while Allen was running away, the jury still acquitted Redinburg of murder and felony murder.

Consequently, we conclude that there is a reasonable possibility that the outcome of the trial would have been different if the recorded phone conversation had been played in its entirety for the jury. See Burris v. State, 204 Ga. App. 806, 809-810 (2) (420 SE2d 582) (1992) (finding that the trial court’s exclusion of certain evidence was reversible error, explaining that, even if the excluded evidence was insufficient to convict someone else of the crime, if the evidence was enough to raise a reasonable doubt of the defendant’s guilt in the mind of a juror, it was adequate to change the outcome of the case). Therefore, Redinburg’s convictions cannot stand, and he is entitled to a new trial on the charges of aggravated assault and possession of a firearm.

3. Redinburg also contends that the trial court erred in ruling that certain evidence was irrelevant and inadmissible, specifically evidence that Alls and Cureton had been involved in a separate crime that had occurred on the day before Allen’s death, that they had possessed certain weapons, and that they were gang members. Because there is a possibility that these issues may arise again upon retrial, we will address them herein.

(a) The record shows that, at a pretrial hearing on the admissibility of evidence of the prior crime, both Alls and Cureton took the witness stand and refused to testify about the crime, asserting their Fifth Amendment right against self-incrimination. In addition, according to the State, there was not enough evidence to charge either Alls or Cureton with the prior crime, and neither man had been offered a deal as to that crime in exchange for their cooperation in prosecuting the instant case.

[Although] a defendant is entitled to introduce relevant and admissible evidence implicating another person in the commission of the crime or crimes for which the defendant is being tried[, the] proffered evidence must raise a reasonable inference of the defendant’s innocence [,] and it must directly connect the other person with the corpus delicti or show that the other person has recently committed a crime of the same or similar nature. The proffered evidence cannot raise the mere speculation that some other person committed the crime, and it must do more than raise a conjectural inference that another person committed the [crime].

(Citations and punctuation omitted.) Dawson v. State, 283 Ga. 315, 316-317 (2) (658 SE2d 755) (2008). We find that, absent any competent evidence showing that Alls or Cureton had actually committed the prior crime, Redinburg has failed to meet his burden of showing that evidence of the prior crime was admissible. Id.; see Carr v. State, 279 Ga. 271, 272-273 (2) (612 SE2d 292) (2005) (The defendant attempted to show that another person had committed the crime for which he was charged by presenting evidence of a separate crime that the person had allegedly committed. The Supreme Court found that the trial court did not abuse its discretion in excluding the evidence because the defendant had failed to present competent evidence to show that the other person had actually committed the separate crime or that the separate crime was the same as or similar to the crime for which the defendant was on trial.).

(b) As for the exclusion of evidence showing Alls’ or Cureton’s alleged gun ownership or gang membership, the only evidence proffered by Redinburg to support those allegations was undated photos and videos that Redinburg’s counsel had downloaded from “YouTube” and Cureton’s “My Space” page in July 2010, more than a year after Allen’s death, that allegedly showed Cureton holding a semiautomatic weapon and flashing gang signs. Although, as shown above, Cureton was present during the pretrial hearing on the admissibility of the evidence, Redinburg failed to question him about the photos or videos or otherwise establish any legally sufficient foundation for their admission. See OCGA § 24-4-48 (b) (subject to any valid objection, a photo is admissible when the trial court determines, based upon competent evidence, that the photo reliably shows the fact or facts for which it is offered); Sweet v. State, 276 Ga. 545, 546-547 (2) (580 SE2d 231) (2003) (The trial court did not abuse its discretion in finding that the defendant had failed to lay a proper foundation for the admission of a photo of another person holding an assault rifle, since the defendant had failed to establish the photo’s origins or source and also had failed to connect the photo to the threatening letters that he claimed the person had sent to him.). More importantly, Redinburg has failed to show by the record that the trial court ever prevented him from cross-examining Alls about his gang membership at trial. Accordingly, we conclude that there is no merit to this claim of error.

Decided April 6, 2012.

David M. Burns, Jr., for appellant.

Larry Chisolm, District Attorney, David M. Sneed, Assistant District Attorney, for appellee.

Judgment reversed.

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

       The appellate record contains a transcript of the entire phone conversation.

       In Jackson, the defendant was charged with murdering his former wife, and the State presented a “prior difficulties” witness, who testified that, at some point before the murder, she overheard a phone call between the defendant and his former wife during which the defendant was cursing and yelling about custody of the couple’s children. Id. at 536 (2). The issue presented on appeal was whether the witness’ testimony was admissible. Id. at 536-537 (2). The Court held that, because the witness’ only knowledge of the identity of the caller was based on the decedent’s statement that it was her former husband, and because that statement was inadmissible hearsay, there was no competent evidence to identify the caller as the defendant. Id. at 537 (2). Therefore, it was error for the trial court to admit the witness’ testimony regarding what she overheard during the call as evidence of the couple’s prior difficulties. Id.
      We note that Jackson has not been cited as authority in any case addressing the issue presented here, i.e., the admissibility of a phone conversation between two alleged eyewitnesses to a crime, when the phone call took place after the crime and was recorded by the police, particularly when, as here, the conversation may have shown that the eyewitnesses had motives to lie about the defendant’s involvement, that they were colluding or conspiring to mislead police investigators, and/or that the trial testimony of one or both parties to the call may have been impeached by their statements during the call.

       See Daniels v. State, 238 Ga. App. 511, 521 (3) (e) (519 SE2d 269) (1999) (concluding that the statements of a police informant during a phone call recorded by the police were admissible and not subject to a hearsay objection); see also Perez v. State, 254 Ga. App. 872, 875 (3) (564 SE2d 208) (2002) (concluding that the statements of a police informant during a phone call to a co-conspirator, which was recorded by the police, were admissible under OCGA § 24-3-5, the co-conspirator exception to the hearsay rule, because, at the time, the conspiracy between the parties to the call was on-going).

       Because Redinburg was acquitted of murder and felony murder, double jeopardy bars retrial on those charges. See Williams v. State, 288 Ga. 7, 8 (2) (700 SE2d 564) (2010) (a verdict of acquittal is a bar to a subsequent prosecution for the same offense).


text:
    A12A0075.
    WILLIAMSON v. THE STATE.
    (727 SE2d 211)
   Ellington, Chief Judge.

A Walker County jury found Jamie Williamson guilty beyond a reasonable doubt of two counts of rape, OCGA § 16-6-1 (a) (1); two counts of statutory rape, OCGA § 16-6-3 (a); one count of aggravated sexual battery, OCGA § 16-6-22.2 (b); three counts of aggravated sodomy, OCGA § 16-6-2 (a) (2); eight counts of child molestation, OCGA § 16-6-4 (a) (1); and two counts of aggravated child molestation, OCGA § 16-6-4 (c). He appeals from the denial of his motion for new trial, contending that the trial court erred in denying his motion for a mistrial and that the evidence was insufficient to support his convictions. Finding no error, we affirm.

1. Williamson contends that the evidence was insufficient to support his convictions, arguing that the victims’ testimony was not corroborated by other evidence, that their testimony was inconsistent with their previous statements and with the testimony of other witnesses, and that the State failed to present any physical evidence to prove that he committed the crimes.

When a criminal defendant challenges the sufficiency of the evidence supporting his or her conviction, “the relevant question is whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt.” (Citation omitted; emphasis in original.) Jackson v. Virginia, 443 U. S. 307, 319 (III) (B) (99 SC 2781, 61 LE2d 560) (1979). It is the function of the jury, not this Court, to resolve conflicts in the testimony, weigh the evidence, and draw reasonable inferences from the evidence. Id. “As long as there is some competent evidence, even though contradicted, to support each fact necessary to make out the State’s case, the jury’s verdict will be upheld.” (Citation and punctuation omitted.) Miller v. State, 273 Ga. 831, 832 (546 SE2d 524) (2001). Viewed in this light, the record reveals the following facts.

This case involves acts committed by Williamson against two girls, L. P. and B. E. For about a year in 2004 and 2005, when L. P. was eight to nine years old, she lived with her mother, her brothers, and a few other people, including Williamson and his wife, in a home in Walker County. According to L. P, during that period, Williamson repeatedly took off her clothes and touched her genital and anal areas with his hands and his penis. Williamson also forced L. P. to put her mouth on his penis. Williamson warned L. P. not to tell anyone about what he did, telling her that, if she did, he would go away for a long time. All of the acts took place in the home L. P’s family shared with Williamson and the others. L. P eventually told her best friend about the abuse, with the hope that the friend would tell someone who could help; the friend testified at trial about L. P’s outcry and the change in L. P’s demeanor when she talked about the abuse. The friend then told her mother, who told L. P’s grandmother, and, ultimately, the police and the Department of Human Services, Division of Family and Children Services (“the Department”) were notified. A forensic interview with L. P was conducted, and a recording of the interview was played for the jury at trial. In addition, a sexual assault medical exam was performed on L. P, but the examiner found no evidence of any physical injuries. Williamson was arrested and charged with numerous sexual offenses, but he was released on bond in July 2005.

Two years later, in late 2007 and early 2008, the second victim, B. E., who was 12 to 13 years old at the time, and her younger sister went to Williamson’s home a few times to visit his wife, who was their great aunt. According to B. E., while she was visiting the home during that period, Williamson kissed her on the neck and twice had sexual intercourse with her and sodomized her. On one occasion, Williamson warned B. E. that, if she told anyone about what he did, she would never see her aunt or cousins again. Even so, B. E. told her sister, one of her other great aunts, and others about the abuse in early 2008. At trial, B. E.’s sister testified that, during one of their visits to Williamson’s home, she had seen B. E. and Williamson go into his bedroom together; she and their great aunt also testified about B. E.’s statements to them about the assaults. According to B. E.’s great aunt, after she learned of the abuse, she took B. E. to the hospital for a sexual assault medical exam, and the police were contacted. According to the sexual assault nurse who conducted the exam, there were two tears in B. E.’s hymen that were the result of blunt force trauma, meaning that something other than a finger had penetrated her vagina through her hymenal tissue. A forensic interview of B. E. was conducted, and a recording of the interview was played for the jury at trial.

(a) Although Williamson claims that the victims’ testimony in this case was uncorroborated and, thus, insufficient to support his convictions, he also concedes that, with one relevant exception addressed below, the testimony of a single witness is sufficient to prove the elements of the crime charged. OCGA § 24-4-8; see Hammontree v. State, 283 Ga. App. 736, 737 (1) (642 SE2d 412) (2007) (The victim’s testimony alone sufficed to establish the elements of child molestation.). As shown above, the evidence not only included the victims’ testimony, which was both direct evidence of their own molestation and similar transaction evidence of the other’s abuse, but also included the testimony of outcry witnesses and recordings of the forensic interviews of both girls.

As for the lack of physical evidence of the offenses, the investigating police officers explained that they did not conduct any forensic testing of the inside of Williamson’s home or seize any of his sheets, bedding, towels, etc. for testing for semen, blood or other substances because of the amount of time that had passed since the assaults had occurred, because of the number of people living in the residence at the time of those acts, and because some of the furniture had previously been in another person’s residence. In addition, the investigators did not seize any condoms or lubricants from the home as there was no evidence of those being used during the assaults.

Accordingly, after considering the evidence presented by the State, we find that it was sufficient under the standard of Jackson v. Virginia to support Williamson’s convictions. Hammontree v. State, 283 Ga. App. at 737 (1).

(b) One of the exceptions to the single witness rule cited above is for the offense of statutory rape, which requires evidence to corroborate the victim’s testimony in order to sustain a conviction. See OCGA § 16-6-3 (a) (providing that no one shall be convicted for statutory rape based upon the unsupported testimony of the victim). Even so,

[t]he quantum of corroboration needed in a [statutory] rape case is not that which is in itself sufficient to convict the accused, but only that amount of independent evidence which tends to prove that the incident occurred as alleged. Slight circumstances may be sufficient corroboration, and ultimately the question of corroboration is one for the jury.

(Citation and punctuation omitted.) Davis v. State, 204 Ga. App. 657 (1) (420 SE2d 349) (1992).

In this case, Williamson was convicted of statutory rape based upon his having had sexual intercourse with B. E. As shown above, in addition to B. E.’s testimony about the acts, her sister testified about B. E.’s statements to her and about her observation of B. E. and Williamson going into his bedroom together during the relevant time period. B. E.’s great aunt testified that, when B. E. told her about the sexual abuse, the girl specifically said that Williamson was having sex with her. The recording of B. E.’s forensic interview was played for the jury. Finally, the nurse who examined B. E. testified that B. E. had experienced blunt force trauma to her hymen that could only have resulted from vaginal penetration.

We conclude that this evidence was sufficient corroboration of B. E.’s testimony for a jury to find Williamson guilty beyond a reasonable doubt of the statutory rape of B. E. See Hill v. State, 295 Ga. App. 360, 361-362 (1) (671 SE2d 853) (2008) (“A child-victim’s prior consistent statements, as recounted by third parties to whom such statements were made, can constitute sufficient substantive evidence of corroboration [to support a conviction] in a statutory rape case.”) (citations and punctuation omitted).

(c) To the extent Williamson contends that the victims’ testimony was inconsistent with or even contradicted by other evidence presented, it is axiomatic that it is the function of the jury, not this Court, to judge the credibility of the witnesses and to resolve conflicts in the evidence, when necessary. OCGA § 24-9-80; see Jackson v. Virginia, 443 U. S. at 319 (III) (B); Rankin v. State, 278 Ga. 704, 705 (606 SE2d 269) (2004). The transcript in this case shows that Williamson’s counsel thoroughly cross-examined the State’s witnesses, presented the testimony of two witnesses on Williamson’s behalf, and emphasized the purported problems with the victims’ testimony during closing arguments. As noted above, under these circumstances, it was solely for the jury to decide whether inconsistencies in the evidence existed and, if so, to resolve them.

2. Williamson contends that the trial court erred in denying his motion for a mistrial, arguing that the State “willfully, intentionally, maliciously and unfairly impugned [his] right to remain silent.”

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

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

In this case, the following trial testimony is at issue. According to the police officer who was investigating L. P.’s molestation allegations in 2005, after she witnessed L. P.’s forensic interview, she became concerned for the safety of the other children who lived in Williamson’s home. She met with her supervisor and they jointly decided to conduct a warrantless arrest of Williamson at his home. The investigator testified that, when she and a Department caseworker arrived at Williamson’s home, she asked him “to step outside so I could talk with him and explain what was going on. Well, he was very belligerent and refused to talk with me or go outside to discuss anything.” Outside the presence of the jury, defense counsel moved for a mistrial, objecting on the basis that the investigator’s testimony was a “testimonial comment [ ] on my client’s invocation of his right to remain silent.” After conducting a hearing, the trial court denied the motion and then instructed the jury as follows:

There was ... a statement or testimony made with reference to the fact that this defendant [,] when [the investigator] appeared to arrest him[,] refused to talk to [the investigator]. ... I charge you that[,] under the Fifth Amendment to the Constitution of the United States [,] a defendant in a criminal case is under no duty to present any evidence tending to prove innocence and is not required to take the stand and testify in the case. If the defendant elects not to testify, no inference hurtful, harmful or adverse to the defendant shall be drawn by the jury [,] nor shall such fact be held against the defendant in any way.... I would emphasize to you that the defendant is under no duty not only to present evidence tending to prove his innocence, he is under no duty to talk to the police, to this officer or to any other officer with reference to these matters. ... Is there any member of this jury who feels that they cannot abide by the [c] ourt’s instructions with reference to those particular issues?

When none of the jurors responded affirmatively, defense counsel renewed his motion for mistrial, which the court again denied.

Pretermitting whether the investigator’s comment, made during her narrative about what had happened during her initial investigation of the case and prior to her arrest of Williamson, could be construed as a comment on his invocation of his constitutional right to remain silent, we find no abuse of discretion in the trial court’s denial of Williamson’s motion for a mistrial in this case. Williamson’s defense at trial was that the alleged molestations had never happened; that Williamson did not live in the home at the time of B. E.’s alleged assaults; that the victims knew each other and had collaborated and conspired against him; that the victims and some of the witnesses were motivated to fabricate the allegations by certain factors that were completely unrelated to him; and that the investigators had simply relied on the victims’ allegations instead of properly investigating the case. Thus, the investigator’s comment did not point at any specific defense offered by Williamson. Nor is there any indication in the record that the comment was intended to improperly influence the determination of Williamson’s guilt or innocence, or that it actually did so. And, finally, the trial court promptly gave a thorough curative instruction to the jury.

Decided April 6, 2012.

Steven A. Miller, for appellant.

Herbert E. Franklin, Jr., District Attorney, Alan C. Norton, Assistant District Attorney, for appellee.

Under these circumstances, we conclude that it was not an abuse of the trial court’s discretion to deny Williamson’s motion for a mistrial. Whitaker v. State, 283 Ga. at 524 (3).

Judgment affirmed.

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

       The trial court conducted a joint trial on two indictments, each of which charged Williamson with committing numerous crimes against a single victim. Some of the convictions merged with others prior to sentencing.

       See also Weldon v. State, 270 Ga. App. 262, 264 (2) (606 SE2d 329) (2004) (The evidence was sufficient to support the defendant’s statutory rape conviction, because the victim’s testimony was corroborated by evidence of the victim’s outcry statements to her mother and the police and by the results of a sexual assault medical exam.); Falak v. State, 261 Ga. App. 404, 405 (1) (583 SE2d 146) (2003) (The evidence was sufficient to support the defendant’s statutory rape conviction, because the victim’s testimony was corroborated by evidence of the victim’s outcry statements to a mental health counselor and by the results of a sexual assault medical exam.).