author: BARNES, Presiding Judge. Ray, Judge,

text:
    A15A0841.
    GOULDING v. THE STATE.
    (780 SE2d 1)
   BARNES, Presiding Judge.

A jury convicted Jonathan Goulding of two counts each of cruelty to children, aggravated assault, and aggravated battery after Goulding’s three-month-old baby was diagnosed with injuries consistent with “shaken baby syndrome.” Goulding raises five arguments on appeal, contending that: (1) the trial court improperly denied his motion to excuse a juror for cause; (2) the trial court erred in allowing the State to play a “Day in the Life” video of the injured child; (3) a jury instruction constituted an illegal comment on the evidence; (4) Goulding’s right to be present during a critical stage of his trial was violated when a seated juror was dismissed; and (5) the trial court erred by denying Goulding’s request to charge on accident. For the reasons that follow, we affirm the verdict.

1. We view the evidence on appeal in the light most favorable to the verdict. Smith v. State, 283 Ga. 237 (1) (657 SE2d 523) (2008). So viewed, the evidence shows that the victim was born three weeks early on January 1, 2008, and remained in the hospital for nineteen days due to some breathing and feeding difficulties. The mother returned to work on February 4, 2008, and Goulding cared for the baby until she came home, when he handed the baby to her and returned to playing an online video game called World of Warcraft. Once when the mother came home for lunch, she found the baby propped up on the living room couch with a bottle while Goulding played World of Warcraft in the bedroom with earphones on. Goulding explained that the baby had been crying and he needed a break.

In mid-February, Goulding reported to the mother that the baby had appeared to have a seizure while he was eating, and they took the baby to the emergency room. The examining doctor diagnosed the problem as reflux and increased the amount of medication being administered to the child before he was fed. On several occasions Goulding called the baby’s mother (his wife) or his mother-in-law because the baby would not stop crying. His mother-in-law, who was a paramedic, testified that Goulding called her at work in March 2008 because the baby would not stop crying, and said he had been trying to burp the baby and heard a pop. The mother-in-law went to the apartment and found the baby screaming as if he were in pain, but upon examination she found no external signs of injury. He cried more with every movement, but an hour or two after the baby’s mother came home and administered Tylenol, the baby stopped crying. Goulding told his mother-in-law that the baby cried all the time when the baby’s mother was at work, but stopped as soon as she came home. Goulding said that sometimes he got frustrated enough to shake the baby, and his mother-in-law cautioned him and offered to come get the baby any time Goulding became too stressed to deal with him.

Later in March 2008, the baby had some unexplained bruises on his forearm, his calf, on the inside of both arms, and on his chest, which Goulding and the mother called to the pediatrician’s attention, fearing some kind of bleeding disorder. The pediatrician ordered blood work, which was normal, but was also concerned about the size of the baby’s head, which was growing bigger than expected. Measurements a week later on April 3, 2008, revealed that the baby’s head had continued to grow, so the pediatrician referred him to the emergency room for evaluation, and the pediatric emergency room doctor ordered a CAT scan. The scan revealed an unusually large amount of fluid build-up along with a small amount of blood between the baby’s brain and skull, but the baby was alert, awake, not fussy, and had a normal neurological exam with no sign of external injuries. After consulting with a pediatric neurosurgeon, the baby was not admitted to the hospital on April 3, 2008, but was seen by a pediatric neurosurgeon the following day. The baby was “happy and playful” with no outward signs of injury, and the neurosurgeon diagnosed the baby as having a benign hydrocephalus, or increased spinal fluid in the head, which might have caused a vein to tear slightly but had caused no trauma to the brain. The doctor saw no signs of brain injury, but planned to obtain an MRI the following week to determine whether the blood on the baby’s brain was caused by repetitive bleeding, and discharged the baby.

Five days later, on April 9, 2008, Goulding came to the emergency room because the baby was not breathing, was unresponsive, and had turned blue. Goulding told the triage nurse that the baby had “clenched up” after being given his medicine and quit breathing, and after the baby did not respond to chest compressions, Goulding put him in the car and brought him to the hospital.

The baby was stabilized and transferred to a nearby Tennessee hospital where a bed was available in the pediatric intensive care unit. A physician who was qualified as an expert in pediatric critical care and abusive head trauma testified that the baby was initially placed on a ventilator and given IV fluids to stabilize his breathing and circulation. The baby was unconscious and unresponsive, and his pupils did not react to light. The soft spot on his head where his skull had not yet fused was tight, indicating internal pressure. Lab work indicated the baby was anemic from blood loss, and a chest x-ray revealed that the baby had prior rib fractures that had begun to heal. Another CAT scan of the baby’s head revealed that the increased volume of fluid was pressing on his brain and causing the sutures where his skull plates came together to pull apart. The fluid was different colors due to both old blood and new blood from an acute injury, and the brain matter itself was swollen from either traumatic injury, lack of oxygen, or both. A neurosurgeon lowered the pressure on the baby’s brain by removing fluid with a syringe through the soft spot, and an examination of the fluid confirmed the presence of old and new blood.

An eye exam on April 10, 2008 revealed “literally hundreds” of hemorrhages extending to the edges of the retinas in both eyes. An MRI on April 11, 2008, confirmed old hemorrhages of different ages as well as very recent hemorrhages, and revealed bleeding deep within the brain itself, from parts of the brain that had been torn or sheared. After ruling out a clotting disorder or other possible causes, and considering the retinal hemorrhages, the healing rib fractures, the acute and old bleeds around the brain, and the bleeding within the brain, the pediatric critical care doctor diagnosed the baby with “abusive head trauma.” The doctor further opined that the baby suffered the final, most significant head trauma immediately before the baby stopped breathing on April 9, 2008, rather than experiencing a head trauma days earlier that grew worse over time. Finally, in his opinion, the baby’s injuries had been caused by chronic and acute abusive injury, consistent with someone having grasped the baby by the chest and shaken him. The doctor thought the baby had a very poor prognosis and would never care for himself or even sit up, walk, or talk.

Although Goulding has not enumerated this issue as error, we find that the evidence was sufficient to enable a rational jury to find him guilty beyond a reasonable doubt of all the offenses for which he was convicted. Jackson v. Virginia, 443 U. S. 307 (99 SCt 2781, 61 LE2d 560) (1979); Smith, 283 Ga. at 237-238 (1). See also former OCGA § 24-4-6 (conviction based on circumstantial evidence authorized where the evidence “exclude [s] every other reasonable hypothesis save that of the guilt of the accused”).

2. Goulding contends that the trial court erred in denying his motion to excuse a juror for cause. Jurors are presumed to be impartial, and the burden of proving partiality lies with the party seeking to have the juror disqualified. Edenfield v. State, 293 Ga. 370, 384 (7) (a) (744 SE2d 738) (2013). “Whether a prospective juror should be excused for cause is committed to the discretion of the trial court, and... the discretion of the trial court in this respect is broad.” Sears v. State, 292 Ga. 64, 66 (2) (734 SE2d 345) (2012).

Here, the trial court asked the following general question of the panel, “Have you any prejudice or bias resting on your mind either for or against the accused Jonathan Michael Goulding?” Juror 9 raised her hand and explained, “I’m afraid if it’s a baby I would have a problem with it. Because I have a new grandson and I’m afraid that could affect me.” The State followed up, and the following exchange took place:

[STATE]: [Juror 9], the Judge asked you if you had any • — • if you could sit on this case and be impartial.
[JUROR 9]: I cannot[,] no.
[STATE]: Okay,. . . the State will present evidence and you will hear the instructions from the Judge. Is it your thought that you cannot listen to the evidence as —
[JUROR 9]: (Interposing) Not really. No.
[STATE]: And that’s based on your personal life experience. [JUROR 9]: (Nods head affirmatively.)

Defense counsel then questioned the juror as follows:

[DEFENSE COUNSEL]: Again the question before the Court at this particular moment is whether or not... you have any bias one way or another against Mr. Goulding sitting here right this moment?
[JUROR 9]: Not against him, no.
[DEFENSE COUNSEL]: You think you could listen to the evidence that’s presented in this case and decide the case solely upon the evidence you hear in this case, in this courtroom and the law as the Judge presents it to you?
[JUROR 9]: I don’t want to say that I could because, like I say, it’s a baby.

Goulding then moved to strike Juror 9 for cause, arguing that she had indicated that she could not state she was impartial. The State disagreed, arguing that the juror only said it would be difficult for her, and stated affirmatively that she had no bias against Goulding. The trial court declined to excuse the juror for cause.

The parties began individual voir dire, which was not taken down. The parties then struck the jury, with Goulding using a total of 8 strikes, the second against Juror 9. The State exercised 11 of its strikes, and after the jurors were excused for the evening, the trial court asked if anything about voir dire needed to be placed on the record. Goulding responded that he had moved to strike Juror 9 for cause, because she said during individual voir dire that she was not sure if she could be fair, and the trial court agreed that it had denied that motion.

In the hearing on Goulding’s motion for new trial, his trial counsel testified that he reviewed his notes from the individual voir dire and had written about Juror 9, “Not sure if I can be fair.” According to the hearing transcript, trial counsel’s notes were admitted as an exhibit, but neither party has cited to them, they are not included with the hearing transcript, and their location in the record is not otherwise obvious. Regardless, trial counsel testified that he did not recall anything else about Juror 9’s individual voir dire that would further illuminate the issue, even after refreshing his recollection with his personal notes.

Goulding argues on appeal that Juror 9 consistently and unequivocally swore she could not be a fair and impartial juror, but that the record was distorted and the trial court erroneously concluded that the juror stated only that she would find it difficult to serve on the jury. The juror was not questioned extensively on the record by the court or the parties. However, while the transcript establishes that the juror said she could not be fair because a baby was involved, it also establishes that she stated affirmatively that she had no bias or prejudice against Goulding.

[F]or a juror in a criminal case to be excused for cause on the statutory ground that her ability to be fair and impartial is substantially impaired, it must be shown that she holds an opinion of the guilt or innocence of the defendant that is so fixed and definite that the juror will not be able to set it aside and decide the case on the evidence or the court’s charge on the evidence.

(Citation omitted.) Poole v. State, 291 Ga. 848, 852 (3) (734 SE2d 1) (2012). “A prospective juror’s doubt as to his or her own impartiality does not demand as a matter of law that he or she be excused for cause. Nor is excusal required when a potential juror expresses reservations about his or her ability to put aside personal experiences.” Holmes v. State, 269 Ga. 124, 126 (2) (498 SE2d 732) (1998) (citations omitted).

Here, Juror 9 expressly stated that she held no bias against Goulding, and the trial court did not abuse its discretion in declining to excuse her for cause. See Daniel v. State, 296 Ga. App. 513, 520-522 (6) (675 SE2d 472) (2009) (juror’s doubt as to her impartiality did not demand as a matter of law that she be excused for cause).

3. Goulding contends that the trial court erred in allowing the State to play a “Day in the Life” video of the baby at age 19 months that established how profoundly damaged he was. Goulding argues' that he never contested the severity and permanency of the baby’s brain damage, only the allegation that he was responsible for inflicting the injuries that caused the damage, his defense being that the injuries were caused by accident, natural causes, or other people who had access to the baby. Further, he argues, the baby’s mother was a crucial witness against him, and the video portrayed her in a wholly sympathetic light while she cared for the baby’s needs while he wore shirts expressing his love for his mother.

The video undoubtedly contains, as Goulding describes them, “gut-wrenching images,” but

[a]ny evidence is relevant which logically tends to prove or to disprove a material fact which is at issue in the case, and every act or circumstance serving to elucidate or to throw light upon a material issue or issues is relevant. The trial court has great discretion to determine relevancy and materiality of evidence, and admission is favored in doubtful cases. The admission of relevant evidence that is challenged on the basis that its probative value is outweighed by its prejudicial impact is within the sound discretion of the trial court.

(Citations and punctuation omitted.) Brooks v. State, 281 Ga. 514, 517 (3) (640 SE2d 280) (2007).

The State filed a motion in limine seeking permission to introduce videos of the baby taken before and after he sustained a severe head injury. Goulding was indicted for cruelty to children for maliciously causing the victim cruel and excessive pain in one count by inflicting a traumatic brain injury on him and in a second count by fracturing his ribs. Goulding was further indicted for aggravated battery for maliciously causing the victim bodily harm in one count by rendering his brain useless and depriving the victim of the use of his brain, and in a second count by rendering his ribs useless by fracturing them. The State argued in its motion in limine that videos taken in February and March 2008 established that the baby had been functioning normally and acting appropriately for his age, while the day-in-the-life video taken in August 2009 demonstrated that the baby’s brain was rendered useless by Goulding’s actions, and illustrated the nature and extent of the brain injury.

In a lengthy hearing, the trial court reviewed the entire video and heard argument. While the unredacted video played, Goulding made his objections to the length of the video, to portions during which the camera lingered on, for example, the baby’s feeding tube, without apparent purpose, to the extended length of time spent performing tasks while the mother explained the processes, and to the relevance of showing the mother exercising the baby’s ankles. Goulding also noted that, while there was no dispute that an injury had occurred, he could not determine at the time of the hearing whether the specific deficits shown in the video were medically related to the alleged injury that occurred in April 2008. Finally, Goulding noted at the motions hearing that while the State initially charged him with having committed these crimes on April 9, 2008, it had reindicted him for having committed these crimes between January 1,2008, and April 9, 2008, which made the case “far, far more complicated.” He was concerned that the jury would decide the case based not on what happened in 2008, but on the child’s current condition.

The State agreed to redact any captions, certain portions of the video, and the audio. The court held that, if otherwise properly authenticated, the video was admissible to the extent it sought to prove the extent and nature of the baby’s injuries, which was probative and relevant to whether the child was caused cruel and excessive physical pain and whether a member of his body was rendered useless. Based on the State’s offer of proof as to other testimony, the trial court found that the video was probative and that its relevance and probative value outweighed any prejudicial effect.

Goulding did not raise any objections at the hearing on the State’s motion in limine or at trial regarding the clothing the baby wore in the post-injury video, nor did he argue that the video unfairly portrayed the mother in the best possible light or that his absence from the video unfairly implied that he had been excluded from the baby’s life because he was guilty of the charged crimes. Further, while Goulding argues on appeal that the video was cumulative of testimony about the extent of the baby’s injuries, his argument at the hearing was that the State was required to establish through medical testimony that the injuries depicted in the video had been caused by the injuries he was accused of inflicting. These new arguments, raised for the first time on appeal, are therefore waived.

Further, while Goulding asserts that the video was unnecessarily prejudicial because he had never contested that the baby was severely injured, having pled not guilty to the charges, the State was required to prove each element of each offense beyond a reasonable doubt. Jones v. State, 272 Ga. 900, 903 (3) (537 SE2d 80) (2000) (plea of not guilty to indictment was challenge to all accusations contained therein, including venue, which State must prove beyond reasonable doubt). Further, the State has the authority “to choose the evidence needed to prove its case.” Ross v. State, 279 Ga. 365, 367 (2) (614 SE2d 31) (2005).

More exactly, a criminal defendant may not stipulate or admit his way out of the full evidentiary force of the case as the State chooses to present it. It is for this reason that the law in this State properly prevents a defendant from admitting certain crucial facts related to the crime, such as the cause of the victim’s death, in order to prevent the admission of evidence tending to prove that fact. A defendant cannot undermine the credibility of the State’s story by selectively admitting certain incriminating evidence to prevent the jury from receiving that evidence.

(Punctuation and footnotes omitted.) Id.

In a case that is physical precedent only, this court affirmed a trial court’s exclusion of a day-in-the-life video during the liability portion of a medical malpractice trial “on the ground that the evidence on the DVD related to damages, not liability, and that it was unduly prejudicial in that it played upon the jury’s sympathies.” Kesterson v. Jarrett, 307 Ga. App. 244, 252 (3) (704 SE2d 878) (2010), overruled on other grounds, Kesterson v. Jarrett, 291 Ga. 380 (728 SE2d 557) (2012) (Court of Appeals erred in affirming trial court’s grant of defendant’s motion to exclude the injured child herself from the courtroom during the liability phase of the trial). Kesterson is not controlling here. First, this court found no abuse of discretion in the trial court’s decision to exclude the video, not a decision to include it. Further, the issues that had to be determined during the liability phase of the civil trial in Kesterson were more limited than those that had to be determined during the guilt-innocence phase of this criminal trial. Here, the State had to prove all of the elements of the charged crimes, which included proving cruel and excessive pain and bodily harm to support the cruelty to children and aggravated battery charges, as outlined previously.

The trial court committed no abuse of discretion in admitting the video into evidence.

4. Goulding contends that the trial court erred in giving the following jury instruction: “Members of the jury, if you find from the evidence presented to you that the Defendant made an attempt to influence a witness, you may, in your discretion, consider it as evidence of consciousness of guilt.” Goulding excepted to the charge “pursuant to pretrial charge conference.”

Goulding’s objection during the charge conference was that the evidence presented was not “sufficient to raise this particular issue and to charge the jury on this issue,” and also that the charge “ends up almost becoming a burden-shift[ing] kind of thing” that was inappropriate “both factually and in terms of language.”

Goulding concedes on appeal the existence and admissibility of evidence showing that he had attempted to convince the baby’s mother to claim that her father had abused the baby and to lie about whether alcohol had been present in their home. Nevertheless, Goulding argues that case law has established that any jury charge on consciousness of guilt is error. Goulding did not object to the charge on this ground at trial, and thus, absent plain error, has waived his right to argue it on appeal. OCGA § 17-8-58 (b) (failure to object “shall preclude appellate review . . . unless such portion of the jury charge constitutes plain error which affects substantial rights of the parties”).

Giving this charge did not constitute plain error. Addressing a similar argument in the context of an ineffective assistance of counsel claim, our Supreme Court recently stated:

Appellant does not point to any case holding that this charge is incorrect, and it appears that neither this Court nor the Court of Appeals has held that such a charge is error. In fact, the Court of Appeals has approved of the charge. See Williams v. State, 171 Ga. App. 934 (3) (321 SE2d 429) (1984).

Daughtry v. State, 296 Ga. 849, 860 (2) (h) (770 SE2d 862) (2015). Accordingly, Goulding has failed to prove any error rising to the level of plain error.

Goulding also argues that the charge was not balanced because it failed to state that an attempt to influence a witness could also be evidence of innocence as well as guilt. Goulding did not object to the charge on this ground at trial, and absent plain error, has waived his right to argue it on appeal. We find no plain error in this regard.

Finally, Goulding argues that the charge as given constituted an improper comment on the evidence in violation of former OCGA § 17-8-57. That Code section provided:

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

Although Goulding did not object to the charge on this ground, the failure to object to such a violation “does not waive the issue on appeal; on appeal, the issue is simply whether there was such a violation.” Reese v. State, 289 Ga. 446, 451 (5), n. 4 (711 SE2d 717) (2011).

Examining the plain wording of the charge, it is evident that it did not constitute an opinion by the trial court as to whether a fact at issue had or had not been proven. The court in giving the charge instructed the jury that if it found from the evidence that Goulding made an attempt to influence a witness, the jury was permitted, in its discretion, to consider that conclusion as evidence of consciousness of guilt. By giving the charge, the trial court did not intimate an opinion about whether the evidence actually established an attempt to influence a witness, nor did the court direct the jury to consider evidence of intimidation as an indication of guilt. The charge simply instructed the jury that it had the option to consider such a finding as evidence of guilt. See Collier v. State, 288 Ga. 756, 759 (4) (707 SE2d 102) (2011) (charge that witness “may be” impeached, not that he “is” impeached, by proof of drug convictions was not an impermissible comment on the evidence).

5. Goulding argues that the trial court violated his right to be present during a critical stage of his trial when a member of the jury was excused and an alternate took her place. A criminal defendant’s “right to be present, and see and hear, all the proceedings which are had against him on the trial before the Court” is embodied in our state Constitution. (Citation and punctuation omitted.) Hanifa v. State, 269 Ga. 797, 807 (6) (505 SE2d 731) (1998); 1983 Georgia Constitution, Art. I, Sec. I, Par. XII. “A colloquy between the trial judge and the jury is a part of the proceedings to which the defendant and counsel are entitled to be present.” Pennie v. State, 271 Ga. 419, 421 (2) (520 SE2d 448) (1999). “[Communication should be restricted, in the absence of the accused and his counsel, to matters relating to the comfort and convenience of the jury.” (Citation and punctuation omitted.) Stewart v. State, 165 Ga. App. 428, 430 (2) (300 SE2d 331) (1983) (trial court’s message to jurors through bailiff that they should “keep on trying” after they reported being deadlocked was not so material as to require presence of defendant and counsel).

In this case, at the end of the fourth day of trial, after the jurors were excused for the evening, the trial court said in open court with Goulding present, “[I]n regard to the juror issue that I talked to you about in chambers, she’s going to call my office in the morning and so we’ll need to resume in here, I guess about 8:40 — at 8:45 in the morning----So we can address anything that might need to be taken up in that regard.” The trial court then addressed an outstanding motion in limine and discussed scheduling issues with the parties before adjourning for the day.

The next morning, again in open court with Goulding present, the trial court noted that, as it had discussed in chambers the previous day, a juror had been instructed by her doctor to come to his office if the pregnancy test she was to take that morning was positive. The juror had called the judge’s office at 8:15, seeking direction and was told to go to her doctor’s office. The trial court reported that the court’s assistant called the juror back, and determined that the juror was at her doctor’s office and did not know specifically when she would be done. The trial court stated that, based on conversations with both counsel the previous day, it understood that neither party objected to excusing the juror and substituting an alternate, particularly in light of Goulding’s concerns that his expert witness would only be able to testify that morning. Goulding’s counsel replied that, given the status of the juror and the case, he had no objection to excusing the juror because there were plenty of alternates. The State had no objection either, and the trial court and counsel discussed how best to notify the remaining jurors about the excusal.

When the jurors returned to the courtroom, the trial court notified them that the juror in question “had a medical situation this morning that her doctor advised that she needed to attend to,” and she had been excused from service by consent of all the parties. At that point, although the State had not rested, Goulding’s expert witness was called to testify in order to accommodate the witness’s schedule, and the trial resumed.

Goulding now argues that he was not present during the trial court’s colloquy with the juror, he did not waive his right to be present, and he was not consulted regarding the decision about whether to excuse the juror from further service or to delay the trial until the juror finished her doctor’s appointment and returned to court. We disagree. First, the trial court’s discussion with the juror at the end of the third day was apparently limited to her reporting to the judge the direction she had received from her doctor if a pregnancy test she was going to take the next morning turned out to be positive. This conversation plainly involved the juror’s “comfort and convenience,” and was not a critical stage of trial.

Further, the juror was not dismissed in Goulding’s absence at the end of the third day of trial; otherwise, as the State points out, the juror would not have been directed to call the judge’s office on the morning of the fourth day of trial to report in. The actual decision to excuse the juror took place in open court with Goulding present on the morning of the fourth day of trial. While he now argues that he was not consulted regarding the decision to dismiss the juror rather than wait an indeterminate length of time for her to return, thus possibly limiting the testimony of Goulding’s expert witness, he was present during the critical phase when the decision to excuse the juror was made. Whether he agreed with the decision or not is not the issue; the issue is whether he was present when he had the constitutional right to be present, and in this case, he was.

6. Finally, Goulding contends that the trial court erred by denying his request to charge the jury on accident. Under OCGA § 16-2-2, “[a] person shall not be found guilty of any crime committed by misfortune or accident where it satisfactorily appears there was no criminal scheme or undertaking, intention, or criminal negligence.” “To authorize a jury instruction on a subject, there need only be produced at trial slight evidence supporting the theory of the charge. Whether the evidence presented is sufficient to authorize the giving of a charge is a question of law.” (Citation and punctuation omitted.) Jones v. State, 287 Ga. 770, 771-772 (2) (700 SE2d 350) (2010).

To establish an evidentiary foundation for an instruction on the affirmative defense of accident, the defendant admits the doing of the act charged but seeks to justify, excuse, or mitigate it. Accordingly, if a defendant does not admit to committing any act which constitutes the offense charged, he is not entitled to a charge on the defense of accident.

(Citation and punctuation omitted.) Durden v. State, 327 Ga. App. 173, 179 (6) (755 SE2d 909) (2014).

Goulding asserts that he was entitled to the accident charge because the jury heard evidence that he might have accidentally caused injuries to the baby by tossing him in the air, strapping him into his car seat too tightly, and shaking or poking him after he turned blue. But his defense at trial was not that he accidentally hurt the baby. In his closing argument, he denied he hurt the baby and argued that other people had access to the baby during the time frame in which he was injured. “Consequently, he was not entitled to a charge on the law of accident and the trial court did not err when it declined to give such a charge.” Wilson v. State, 279 Ga. 104, 105 (2) (610 SE2d 66) (2005).

Judgment affirmed.

McMillian, J., concurs. Ray, J., concurs fully and specially in Divisions 1 and 3-6 and in judgment only in Division 2.

Ray, Judge,

concurring specially.

I write separately to address two points. First, I join in judgment only to Division 2 of the majority opinion because I do not agree with all that is said therein, although I do agree with the result. From the record which is before us, I believe that Juror 9 did express doubts that she could be fair and impartial to the Defendant because of the nature of the charges and the fact that she had a new grandchild. It is true that the juror indicated that she had no personal bias against the Defendant, but it is equally true that the juror was afraid that the charges themselves along with her personal experiences could cause her to be unfair.

At the same time, however, the record before us is “cold.” We do not have the ability to see the juror, listen to her tone in answering the questions, and observe her nonverbal cues and demeanor. The trial court did have that opportunity. More importantly, because only a part of the individual voir dire of the juror was transcribed, we are also deprived of the ability to review the text of other questions to and answers given by Juror 9, which also may have impacted the decision of the trial court in leaving her in the juror pool. As such, I am reluctant to interfere with the discretion of the trial court in denying the motion to excuse.

Secondly, even if we were to hold that it was error for the trial court to have refused to excuse Juror 9, in my view such error was not actually harmful to the Defendant as he excused such juror with a peremptory strike and had an excess of five peremptory strikes that he did not use. Under precedent from our Supreme Court, Harris v. State, 255 Ga. 464 (339 SE2d 712) (1986), however, the Defendant would have been entitled to a new trial. Respectfully, if given the opportunity, I urge our high court to revisit its holding in Harris.

Prior to Harris, “[t]he burden was upon the defendant to show that he was in some way injured by the [court’s refusal to strike a juror for cause].” (Citation omitted.) Evans v. State, 222 Ga. 392, 402 (14) (150 SE2d 240) (1966) (overruled by Harris, supra at 465 (2)). A defendant’s failure to strike the offending venire juror combined with the failure to utilize all of his peremptory strikes “[rendered] harmless a trial court’s error in refusing to strike an unqualified juror.” Harris, supra at 465 (2). Rather than presuming harm, we required the defendant to satisfy a burden of showing some form of harm.

In Harris, our Supreme Court found that “a true determination of the harm caused by a trial court’s refusal to strike an unqualified juror would require omniscience.” (Citation omitted.) Harris, supra at 465 (2). Therefore, it held, “[t]he defendant’s use of... peremptory strikes... no longer play[s] a role in our evaluation of the harm caused by the refusal to strike an unqualified juror.” Id.

In a special concurrence in Blankenship v. State, 247 Ga. 590 (277 SE2d 505) (1981), former Justice Gregory laid out the argument for doing away with requiring a party to show the harm that it experienced as a result of the trial court’s denial of a motion to strike for cause. In his concurrence, he set forth a hypothetical where the State was harmed due to the trial court’s failure to strike a juror for cause.

[Sjuppose the court permits a juror to be impaneled who, on voir dire, has given answers disqualifying him. . . . Assume that juror is number 36 and that another juror who is even more objectionable to the state is impaneled as number 39. Suppose as juror number 36 is placed upon the state in the selection process, a total of [ten] jurors have been selected, and the state has [one] challenge remaining while the defendant has [four]. What does the state do? If the state peremptorily challenges number 36 it will have no way to eliminate number 39. So, the state does not challenge number 36. Neither does the defendant. Then suppose neither party challenges juror number 37. The panel of [twelve] is complete. The state has remaining one unused challenge. It just does not follow that it is harmless error to wrongfully excuse a juror as being disqualified . . . simply because the state does not use all its peremptory challenges and therefore could have been expected to use a challenge to eliminate the juror even if impaneled. There are too many variables which may give rise to the non-use of a peremptory challenge.

(Punctuation omitted.) Id. at 597 (Gregory, J., concurring specially).

On a basic level, I agree that this argument makes sense. There are many variables at play in a party’s use of peremptory strikes during the jury selection process. However, this does not mean that a trial court’s error should be per se reversible. A party should still have to at least attempt to show some harm. In Justice Gregory’s hypothetical, the State could easily proffer on appeal that it was saving its challenge for Juror 39. In fact, the State could have put this fact on the record at the end of jury selection, perfecting the record for purposes of appeal. This would explain why it had a remaining strike, and if in fact Juror 36 should have been struck for cause, it might establish harm.

A defendant is not harmed by being “forced” to exhaust a peremptory strike on an objectionable juror if he otherwise would not have used that strike. Here, the Defendant was likely not harmed through his use of a strike to remove Juror 9. Had the trial court struck Juror 9 for cause, the Defendant would have finished jury selection with six strikes remaining rather than five. I do not see how the Defendant suffered any form of harm by the trial court’s failure to strike Juror 9 for cause when he was still capable of striking all of the jurors he desired. The Defendant should not be given a new trial on the basis of an error that did not harm him.

Applying an automatic presumption of harm is by far the minority position among our sister states. Thirty-nine states, as well as the District of Columbia, require a party to show some form of harm or prejudice to prevail on an appeal of a trial court’s failure to excuse a venire juror for cause. Their individual rules range from a per se rule that there is no harm if the party fails to utilize all available peremptory strikes, to a rule which not only requires a party to exhaust all strikes, but also to request additional strikes and state who they would use them on, to a rule which merely requires a party to show on the record some form of harm. The one thing all these states have in common is that they have abandoned a per se rule of prejudice in the event of a trial court erroneously failing to strike a juror for cause.

Since Harris was decided, the United States.Supreme Court has issued two opinions which are relevant to this discussion. In Ross v. Oklahoma, 487 U. S. 81 (108 SCt 2273, 101 LE2d 80) (1988), the Supreme Court

rejected] the notion that the loss of a peremptory challenge constitutes a violation of the constitutional right to an impartial jury. ... So long as the jury that sits is impartial, the fact that the defendant had to use a peremptory challenge to achieve that result does not mean the Sixth Amendment was violated.

(Citations and punctuation omitted.) Id. at 88. In fact, according to the Supreme Court, peremptory challenges are “a means to achieve the end of an impartial jury.” Id. As long as the defendant ultimately had an impartial jury, any potential error is truly harmless error.

Although this is an interpretation of the federal Constitution, and is merely a floor for Georgia criminal procedure and our interpretation of the Georgia Constitution, I believe that it should influence how we view the issue in Georgia. Members of our courts have come to the same conclusion applying Georgia law with the backdrop of federal law. Former Justice Carley (joined by former Justice Sears) stated in his dissent in Fortson v. State, 277 Ga. 164, 168-172 (587 SE2d 39) (2003), that

[t]he mere exhaustion or waste of peremptory strikes should not dictate that a given action regarding a disqualified juror is either invariably harmless or necessarily harmful. Instead, the focus under current Georgia law should be on whether any unqualified juror was seated as the ultimate result of errors with respect to jurors challenged for cause.

(Citation omitted.) Id. at 170.

Analyzing a slightly different issue, our Supreme Court unanimously has come to the same conclusion. In Barner v. State, 263 Ga. 365, 367 (4) (434 SE2d 484) (1993), our Supreme Court considered whether a statute which modified the number of strikes given to parties in criminal cases should be given retroactive effect. The Court held that

[t]he exercise of peremptory strikes has long been recognized as a procedure created to assist litigants in obtaining a fair and impartial jury and not an independent substantive right. The substantive right involved is the right to an impartial jury and peremptory strikes are merely one possible procedure that can be used to obtain such a jury.

(Citations omitted.) Id.

In United States v. Martinez-Salazar, 528 U. S. 304 (120 SCt 774, 145 LE2d 792) (2000), the United States Supreme Court was confronted with the same issue again; does the fact that a defendant exercised a peremptory strike to cure an erroneous denial of a motion to strike a venire juror require the reversal of a conviction? The Court held:

[The defendant] had the option of letting [the juror] sit on the petit jury and, upon conviction, pursuing a Sixth Amendment challenge on appeal. Instead, [the defendant] elected to use a challenge to remove [the juror] because he did not want [him] to sit on his jury. This was [the defendant’s] choice. The District Court did not demand . . . that [the defendant] use a peremptory challenge curatively. In choosing to remove [the juror] rather than taking his chances on appeal, [the defendant] did not lose a peremptory chailenge. Rather, he used the challenge in line with a principal reason for peremptories: to help secure the constitutional guarantee of trial by an impartial jury.

Decided November 10, 2015

The Steel Law Firm, Brian Steel, for appellant.

Shannon G. Wallace, District Attorney, Rachelle L. Carnesale, Cliff Head, Assistant District Attorneys, for appellee.

(Citations, punctuation and footnote omitted.) Id. at 315-316. The peremptory strikes themselves are not the substantive right guaranteed to the accused. The substantive right is the right to a trial by a fair and impartial jury. The strikes are merely a means to an end, a way to ensure litigants obtain a fair and impartial jury.

Allowing a defendant an automatic reversal in the event a biased juror is not struck for cause in essence gives the defendant a “free second bite at the apple.” Yes, it does give the prosecution a reason not to fight to keep a juror who is questionably biased in the jury pool, but that incentive is already there. A defendant who is convicted by a jury with even one biased juror has a constitutional claim for reversal. See Parker v. Gladden, 385 U. S. 363, 366 (87 SCt 468, 17 LE2d 420) (1966) (defendants are “entitled to be tried by 12, not 9 or even 10, impartial unprejudiced jurors”). The inclusion of even a single biased juror will require a reversal on appeal. Defendants are faced with a choice: strike the venire juror believed to be biased using a peremptory strike, or save the strike for someone believed to be even more objectionable and leave the potentially biased juror on the panel, saving a basis for appeal in the event of conviction.

In the event the defendant fails to strike the venire juror and retains strikes, there is likely no harmful error. He had the ability to remove that alleged influence. In the event the defendant strikes the potentially biased venire juror and fails to utilize all of his allotted strikes, there likely is no harmful error. His strikes served the purpose they were intended to serve. In both instances, there should be no reversal if the defendant suffered no harm. However, if the defendant utilizes all of his strikes, including one on a venire juror who should have been struck for cause, and ultimately is unsatisfied with the petit jury, then some harm is possibly present. It is this situation in which we should focus our scrutiny, not in other situations where no possible harm could exist.

       Former OCGA § 24-4-6 was reenacted in the revised Evidence Code as OCGA § 24-14-6.

       If an appeal is decided by a Division, a judgment in which all three judges fully concur is a binding precedent; provided, however, an opinion is physical precedent only with respect to any Division of the opinion for which there is a concurrence in the judgment only or a special concurrence without a statement of agreement with all that is said.
      Court of Appeals Rule 33 (a).

       OCGA§ 17-8-57 was amended effective July 1, 2015. The revised Code section still provides that a trial court’s intimation of the accused’s guilt requires a new trial, hut now also provides that, without a contemporaneous objection, a trial court’s intimation of whether a fact was or was not proven will result in a new trial only when the violation “constitutes plain error which affects substantive rights of the parties.”

       For those who argue that such a process would he too speculative and unwieldy, I point to the procedure used in challenging the strikes of the opposing party under Batson v. Kentucky, 476 U. S. 79 (106 SCt 1712, 90 LE2d 69) (1986). In a Batson challenge, the party striking a juror for an alleged impermissible purpose is required to justify that strike after the fact and the Court is called upon to decide if the nondiscriminatory reason given for the strike is genuine or merely a pretext. Certainly, then, the Court could likewise determine the sincerity of counsel’s claim that it would have struck other jurors had it not been forced to use a peremptory strike on a juror who should have been struck for cause.

       Here, I assume for the sake of argument that the trial court should have struck Juror 9.

       See Hammock v. State, 52 P3d 746, 750 (Alaska App. 2002) (Defendant used peremptory challenge to strike juror A.B., who the trial court erroneously failed to strike for cause, then exhausted his challenges. Court held that even identifying that he would have struck juror S.A. had the court struck A.B. for cause was not sufficient to establish prejudice, as he did not “demonstrate some reason to believe that one or more of the jurors who decided his case were, in fact, not fair.” (Citation and punctuation omitted.)); State v. Sutherland, 231 W. Va. 410, 418-420 (2013) (overturning prior precedent to require defendant to show prejudice and stating that Georgia is in the clear minority of states that do not require a showing of prejudice); State v. Kuhs, 224 P3d 192, 198 (Ariz. 2010) (no error if defendant peremptorily strikes juror and does not raise a claim that the jury that decided his case was not fair and impartial); State v. Wilkins, 693 NW2d 348, 351 (Iowa 2005) (same); State v. Daniel, 606 NW2d 532, 535 (S.D. 2000) (same); State v. Manning, 19 P3d 84, 97 (Kan. 2001) (overruled on other grounds by State v. King, 204 P3d 585 (Kan. 2009)) (same); State v. Ramos, 808 P2d 1313, 1315 (Idaho 1991) (same); Miles v. State, 85 SW3d 907, 911 (Ark. 2002) (“the loss of a peremptory challenge cannot be reviewed on appeal... the appeal focuses specifically on those who were seated on the jury ... a challenge must show that the appellant was forced to accept a juror who should have been excused for cause.” (Citations and punctuation omitted.)); State v. DiFrisco, 645 A2d 734, 753 (N.J. 1994) (same); Harmon v. State, 248 P3d 918, 932 (Okla. Crim. App. 2011) (same); State v. Mannix, 326 P3d 1236, 1242 (Ore. App. 2014) (same); State v. Schmeiderer, 319 SW3d 607, 633 (Tenn. 2010) (same); State V. Maestas, 299 P3d 892, 911 (Utah 2012) (same); State v. Fire, 34 P3d 1218, 1224 (Wash. 2001) (same); Preciado V. State, 318 P3d 176, 179 (Nev. 2014) (defendant cannot be prejudiced by juror who did not sit on jury); State v. Lindell, 629 NW2d 223, 251 (Wis. 2001) (same); Lecato v. State, 763 A2d 91 (Del. 2000) (defendant may not challenge denial of motion to strike if defendant retained any unused peremptory challenges); Ware v. State, 759 A2d 764, 771 (Md. App. 2000) (same); State v. Isiah, 781 P2d 293, 302 (N.M. 1989) (same); State v. Jaster, 690 NW2d 213, 217 (N.D. 2004) (same); State v. Green, 392 SE2d 157, 159 (S.C. 1990) (same); People v. Whalen, 294 P3d 915, 951 (11), (12) (Cal. 2013) (defendant cannot challenge trial court’s alleged erroneous denial of motion to strike when he fails to utilize all peremptory challenges and does not express dissatisfaction with the seated jury); Weisheit v. State, 26 NE3d 3, 13 (Ind. 2015) (same); People v. Holliday, 376 NW2d 154, 162 (Mich. App. 1985) (same); State v. Percy, 595 A2d 248, 253 (Vt. 1990) (same); State v. Barnville, 445 A2d 298, 301 (R.I. 1982); State v. Omar, 43 A3d 766, 768 (Conn. App. 2012) (defendant must not only utilize all peremptory challenges, but also must seek additional challenges from the court and have that request denied before being able to appeal trial court’s denial of motion to strike for cause); State v. Iuli, 65 P3d 143, 152 (Haw. 2003) (same); People v. Bowens, 943 NE2d 1249, 1257 (Ill. App. 2011) (same); State v. Clemmons, 639 SE2d 110, 112 (N.C. App. 2007) (same); Hernandez v. State, 390 SW3d 310, 316 (Tex. Crim. App. 2012) (same); Jones v. United States, 27 A3d 1130, 1150 (D.C. App. 2011) (court does not even evaluate whether trial court erred in refusing to strike juror for cause if defendant strikes that juror); State v. Jamison, 365 SW3d 623, 627 (Mo. App. 2012) (same); Albarran v. State, 96 S3d 131, 162 (C) (Ala. Crim. App. 2011) (“failure to remove a juror for cause is harmless when that juror is removed by the use of a peremptory strike” (Citation omitted.)); Commonwealth v. Chambers, 685 A2d 96, 107 (Pa. 1996) (“harmless error when a juror who should have been excluded for cause is actually excluded by a peremptory challenge, if the defense does not exhaust its peremptory challenges” (Citations omitted.)); Street v. State, 592 S2d 369, 370 (Fla. Dist. Ct. App. 1992) (defendant “must identify a specific juror whom he otherwise would have struck peremptorily. This juror must be an individual who actually sat on the jury and whom the defendant either challenged for cause or attempted to challenge peremptorily or otherwise objected to after his peremptory challenges had been exhausted.”); Commonwealth v. Seabrooks, 743 NE2d 831, 837 (Mass. 2001) (same); State v. Prtine, 784 NW2d 303, 311 (Minn. 2010) (same); Johnson v. State, 68 S3d 1239, 1247 (Miss. 2011) (same); State v. Daly, 775 NW2d 47, 70 (Neb. 2009) (“even the erroneous overruling of a challenge for cause will not warrant reversal unless it is shown on appeal that an objectionable juror was forced upon the challenging party and sat upon the jury after the party exhausted his or her peremptory challenges”); State v. Hale, 892 NE2d 864, 888 (Ohio 2008) (same).


source: Caselaw Access Project

author: Ray, Judge.

license: Public Domain

text:
    A15A0903.
    JACKSON v. THE STATE.
    (779 SE2d 427)
   Ray, Judge.

After a jury trial, Marvin Jackson, Jr., was convicted of one count each of aggravated stalking, family violence battery, and kidnapping, as well as two counts of influencing a witness. Jackson appeals from his convictions and from the denial of his motion for a new trial, arguing that the evidence was insufficient to sustain several of his convictions and that the trial court erred in allowing the State to submit for consideration certain evidence in aggravation of punishment. Finding no error, we affirm.

Viewed in the light most favorable to the jury’s verdict, the evidence shows that Nikeesha Jackson (hereinafter, the “victim”) was in a romantic relationship with Jackson. In December 2012, the victim and her young son, J. C., moved into a home in Clayton County near J. C.’s paternal grandmother.

In April 2013, Jackson was released from a federal facility in Kentucky where he had been serving a sentence for drug-related charges. The victim drove to Kentucky to pick him up and dropped him off at a halfway house in Atlanta. While Jackson was at the halfway house, the victim provided Jackson with transportation and a place to stay during weekend leave.

By May 2013, Jackson began exhibiting violent behavior toward the victim. On one occasion, the victim called the police after Jackson beat her up, but she testified that she lied to the responding officers to protect Jackson from being arrested. The victim testified that, after that night, she avoided calling the police because she was fighting to regain custody of her other children and did not want to document any violence in her household. On September 21,2013, the day after Jackson was released from the halfway house, he came to live with the victim.

On September 22,2013, Jackson and the victim attended a party in Henry County. The victim brought along her friends, Shermett Britten and Shakonica Crockett. Following an argument at the party, Jackson struck the victim. When Britten confronted Jackson, Jackson shoved her. Fearing that a fight was about to break out, the victim got in her car and drove away. Jackson then got into his car and followed the victim. Britten called 911, and she and Crockett headed toward the victim’s house. When the victim arrived at her house, Jackson was already there. Britten and Crockett arrived just after the victim.

Davieon Norfus, the victim’s 12-year-old neighbor, was walking up the street with some friends when he heard the victim screaming at Jackson to get out of her house. Through the window, Norfus saw J ackson hit the victim. Norfus and his friend went up to the open front door of the house, and the friend told Jackson, “you’re not supposed to hit a woman.” Jackson told the boys to leave, but the victim asked them to stay and help her. The police then arrived and arrested Jackson. The victim and Britten then went to the store to purchase new locks for the house and replaced them that night.

On September 24, 2013, Jackson bonded out of jail and returned to the victim’s house despite the terms of his pretrial bond that prohibited him from contacting her. When Jackson arrived at the house, the victim let him inside. The couple began arguing, and Jackson began to attack the victim by punching her, biting her, and pulling on her hair. The victim ran to J. C.’s room, woke him up, and yelled at him to go run to his grandmother’s house for help. J. C., who was six years old at the time of trial, testified that he managed to run downstairs and outside the house when Jackson stopped him, picked him up, and brought him back inside the house. J. C. saw Jackson hit his mother in the face and testified that his mother’s mouth was bleeding.

The next morning, the victim did not send J. C. to school because she was afraid he would tell a teacher what had happened the previous night. Britten called the victim to check on her, and the victim informed her that Jackson was back in the house. Britten then sent the victim a text message asking whether she should call the police, and the victim responded “yes.” Britten called 911 and asked for an officer to check on the victim. When the responding officers arrived and knocked on the front door, Jackson ordered the victim and J. C. to take the stairs on the back side of the house to the garage and to hide in the car. The three sat inside the car for about an hour. After receiving no response, the officer left.

The next day, the victim sent J. C. to school and drove Jackson to report to his parole officer. Jackson showed up at the victim’s house later to collect clothes the victim had purchased for him, and he called the police when he learned that she had returned them to the store. The victim then took out a warrant against Jackson, and he was arrested.

Jackson placed a collect call to his sister from jail, who then put the call through to the victim. In that phone call, Jackson demanded that the victim drop the charges and stated that she could just “plead the Fifth” if the authorities pressured her.

1. Jackson first argues that the evidence was insufficient to support his convictions for aggravated stalking, kidnapping, and two counts of influencing a witness.

“On appeal from a criminal conviction, we view the evidence in the light most favorable to the verdict, and the [defendant] is no longer entitled to the presumption of innocence.” (Citation omitted.) Newsome v. State, 324 Ga. App. 665, 665 (751 SE2d 474) (2013). In determining the sufficiency of the evidence, we neither weigh the evidence nor assess the credibility of the witnesses, but determine only whether the evidence authorized the jury to find the appellant guilty of the crime charged beyond a reasonable doubt. Byrd v. State, 325 Ga. App. 24, 24 (752 SE2d 84) (2013).

(a) Aggravated Stalking. The indictment charged Jackson with aggravated stalking for his act of contacting the victim “at her home in violation of a condition of pretrial release and without her consent for the purpose of harassing and intimidating her.” Jackson does not challenge a finding that he arrived at the victim’s house with the intent of threatening or harassing the victim, but rather, he contends that the evidence does not support a finding that he contacted the victim without her consent.

Under OCGA § 16-5-91 (a),

[a] person commits the offense of aggravated stalking when such person, in violation of a . . . condition of pretrial release... in effect prohibiting the behavior described in this subsection, follows, places under surveillance, or contacts another person at or about a place or places without the consent of the other person for the purpose of harassing and intimidating the other person.

(Emphasis supplied.) “Thus, it is an element of the offense that the contact be without the victim’s consent.” Bragg v. State, 285 Ga. App. 408, 410 (1) (646 SE2d 508) (2007).

Here, Jackson had been arrested for hitting the victim and failing to leave her home when asked. After he bonded out of jail, Jackson went to her house in violation of the terms of his conditions of pretrial release. The victim allowed him to come inside, and she provided no testimony that she ever asked him to leave the house. However, there was also no evidence that the victim invited Jackson to her home or consented to his presence prior to his arrival at her door. The jury could infer that the victim did not consent to Jackson coming back to her house by the fact that she had him arrested the evening prior and immediately changed the locks once he was out of the house. The jury could also infer by his conduct both before and after he returned to the house that Jackson came to the victim’s house for the purpose of threatening or harassing her. See Crapps v. State, 329 Ga. App. 820, 823 (1) (766 SE2d 178) (2014) (“To prove that an act was done for the purpose of harassing and intimidating the victim,... the State must show that the act was part of a pattern of harassing and intimidating behavior”) (citation and punctuation omitted).

Although the State at trial argued that the consent element of aggravated stalking was met when the victim impliedly revoked her consent after the abuse began, we find that the crime of aggravated stalking was completed when Jackson arrived at the door of the victim’s house, in violation of the conditions of his pretrial release, without her having invited him to do so. Compare Bragg, supra (insufficient evidence to support aggravated stalking conviction when victim initiated contact with defendant to suggest that they meet, brought a friend along with her to the meeting, and never withdrew consent). See also Littleton v. State, 225 Ga. App. 900, 902-903 (4) (485 SE2d 230) (1997) (sufficient evidence supported aggravated stalking conviction even though victim had previously allowed the defendant into her home after entry of protective order).

(b) Kidnapping. Jackson next argues that the evidence was insufficient to support his conviction for kidnapping the child because the State failed to carry its burden of proving that Jackson forcibly “impose[d] his will over [J. C.] to move or hold him in the garage.” We disagree.

The indictment charged Jackson with kidnapping for his act of “abduct[ing] [J. C.] without lawful authority . . . and [holding] him against his will when the accused forced him into the garage for the purpose of (1) concealing or isolating him, (2) to lessen the risk of detection, and (3) to avoid apprehension [.]”

OCGA § 16-5-40 (a) provides: “A person commits the offense of kidnapping when such person abducts or steals away another person without lawful authority or warrant and holds such other person against his or her will.” And “[f]or the offense of kidnapping to occur, slight movement shall be sufficient[.]” OCGA § 16-5-40 (b) (1).

Here, the victim testified that the morning after Jackson had beaten her, she asked Britten, via text message, to call 911 for her. The victim stated that she and J. C. were not free to leave the house once Jackson arrived because “it was understood” that Jackson required them to stay in the house. She further testified that she, J. C., and Jackson were upstairs in the house when they heard the police arrive, and that Jackson “told [them] to go” downstairs to the garage and to sit in the parked car. The victim stated that she complied because she was “very afraid” during this time and that she felt like she had to “do whatever he say[s]. Don’t ask no questions.” She stated that Jackson informed her that she would “be done with” if he got “locked up” over the incident. J. C. confirmed his mother’s testimony, explaining that once the police arrived, Jackson told him and his mother to sit in the car in the garage.

Although Jackson did not physically force J. C. down the stairs and into the garage, such physical force is not a necessary element of kidnapping. See, e.g., Fredrick v. State, 181 Ga. App. 600, 602 (1) (353 SE2d 41) (1987) (“whether the abduction or taking of the person was forcible or by enticement is immaterial, so long as the victim is unlawfully held ‘against his will’ ”). Here, there was evidence supporting a finding that neither J. C. nor the victim went to the garage of their own free will, but rather were forced to do so by use of Jackson’s intimidation, threats and prior physical violence against the victim. Further, “testimony by the victim of a kidnapping concerning whether consent was given or withheld is not essential since other evidence can be utilized to establish the victim was abducted and held against [his] will.” (Citation and punctuation omitted.) Parson v. State, 245 Ga. App. 902, 904 (539 SE2d 234) (2000). Some evidence was presented that Jackson made J. C. move down the stairs into the garage against his will. J. C. had witnessed Jackson hit his mother so hard the day before that she bled from her mouth, his mother testified that she was afraid of Jackson, J. C. had been ordered by Jackson to go to the garage, and Jackson had threatened J. C.’s mother if he was arrested. Accordingly, we conclude that a rational trier of fact was authorized under the standard of Jackson, supra, to conclude beyond a reasonable doubt that Jackson kidnapped J. C. against his will.

(c) Influencing a witness. Although Jackson purports to challenge the sufficiency of the evidence supporting his convictions for influencing a witness, he limits his argument on appeal to the sufficiency of the indictment. Specifically, he argues that the indictment was defective because it failed to place him on notice of the way in which he intimidated the victim and failed to allege facts that would constitute the crime. However, Jackson did not file a general or a special demurrer challenging these counts of his indictment before the trial court. See Coleman v. State, 318 Ga. App. 478, 479 (1) (735 SE2d 788) (2012).

Although a defendant has “a right to be tried upon an indictment which is perfect in form and substance [,] . . . this right can, under certain circumstances, be waived if a defendant fails to timely challenge the indictment.” (Citations omitted.) McKay v. State, 234 Ga. App. 556, 558 (2) (507 SE2d 484) (1998). To challenge the sufficiency of an indictment, an accused can file a special or a general demurrer. “A general demurrer challenges the very validity of the indictment and may be raised anytime; the special objects merely to its form or seeks more information and must be raised before pleading to the indictment.” (Citations and punctuation omitted.) Id. A defendant waives a special demurrer if he does not raise it before pleading to the merits of the indictment. Id. at 559 (2). However, “[b]ecause a general demurrer attacks the legality of an indictment, it may be raised any time during the trial and may even be raised after the verdict by a motion in arrest of judgmentf.]” (Footnote omitted.) Coleman, supra.

The record is clear in this case that Jackson filed neither a special nor a general demurrer. This Court has previously held that “a motion for new trial is not the proper method to attack the sufficiency of an indictment and does not provide a basis for this Court to review the indictment.” (Citations omitted.) McKay, supra at 559-560 (2). Because Jackson did not raise an objection to the indictment in any manner before or during trial and did not move to arrest the judgment after his conviction, it can be reviewed on appeal only through a habeas corpus proceeding. Id. See also Zabain v. State, 315 Ga. App. 749, 753-754 (3) (728 SE2d 273) (2012). Accordingly, his claim is not properly before us.

2. Jackson next argues that the trial court erred when it allowed the State to present evidence in aggravation of punishment at the sentencing hearing without providing proper notice under OCGA § 17-16-4 (a) (5). We find no error.

Following Jackson’s conviction, the trial court conducted a sentencing hearing. In aggravation of punishment, the State offered a certified copy of Jackson’s prior federal drug conviction and sought the maximum sentence under the recidivist statute, OCGA § 17-10-7. Jackson’s counsel objected to the introduction of this evidence, arguing that he had not been timely notified of the State’s intent to seek recidivist punishment. The State informed the trial court that a timely notice had been served on Jackson’s counsel and filed in the record before the trial began, but Jackson’s counsel denied having received it. After hearing from both parties, the trial court found that Jackson had been provided with prior notice of the intent to introduce evidence in aggravation of punishment prior to trial. The trial court then admitted the certified copy of Jackson’s prior conviction, but did not sentence him as a recidivist under OCGA § 17-10-7 (a).

Decided November 10, 2015.

Leon Hicks, for appellant.

Tracy Graham-Lawson, District Attorney, Elizabeth A. Baker, Assistant District Attorney, for appellee.

OCGA § 17-16-4 (a) (5) provides: “The prosecuting attorney shall, no later than ten days prior to trial, or at such time as the court orders but in no event later than the beginning of the trial, provide the defendant with notice of any evidence in aggravation of punishment that the state intends to introduce at sentencing.” Jackson contends that “[t]here is nothing in the record which would indicate that the State noticed the defendant of its intention to use prior convictions to enhance the punishment before the written notice at trial.” However, this assertion is unfounded. The record contains a filed-stamped document indicating that the State filed into the record a copy of Jackson’s prior convictions, its intent to use them in aggravation of sentencing, and that it mailed the same to Jackson’s counsel more than ten days before trial. Further, the State informed the trial court that it hand-delivered the document to Jackson’s counsel as well. We find no error in the trial court’s decision to admit the certified copy of Jackson’s prior convictions. See Thomas v. State, 324 Ga. App. 898, 900 (752 SE2d 67) (2013) (trial court did not abuse its discretion in finding that the State provided defense counsel with adequate notice of its intent to introduce prior convictions in aggravation of punishment when “substantial evidence” was presented from which the trial court could conclude that defense counsel received notice of such intent).

Judgment affirmed.

Barnes, P. J., and McMillian, J., concur.

       Jackson was indicted for three counts of family violence battery, two counts of aggravated stalking, two counts of false imprisonment, two counts of kidnapping and two counts of influencing a witness. The trial court granted Jackson’s motion for a directed verdict as to one count of aggravated stalking. The jury acquitted Jackson of two counts of family violence battery, two counts of false imprisonment, and one count of kidnapping.

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

       The victim was not married to Jackson. Her maiden name was also Jackson.

       The victim testified that she was not aware that Jackson had even heen released from jail until he showed up at her home.


author: McFadden, Judge.

text:
    A15A0958.
    SMITH et al. v. MITCHELL COUNTY.
    (779 SE2d 410)
   McFadden, Judge.

This appeal arises from a superior court’s final decree adopting the findings of a special master in a boundary line dispute. The appellants challenge the lack of an evidentiary hearing by the special master; however, they waived such a hearing. The appellants also challenge the sufficiency of the evidence supporting the trial court’s final decree; however, the record reveals not only that the “any evidence” standard of review has been met, but that the evidence presented creates no genuine issue of material fact. The appellants further argue that the matter should have been submitted to a jury; but because there was no genuine issue of material fact, submission to a jury was not required. Accordingly, we affirm.

The record shows that Mitchell County, Georgia filed a petition to quiet title against all the world as to a tract of land containing approximately 16.7 acres. The petition alleged a boundary line dispute between Mitchell County and defendants Shirley and Linda Smith, owners of an adjacent tract of land to the north of the Mitchell County property. The Smiths answered the petition, disputing Mitchell County’s claim of prescriptive title as to the boundary line location. The dispute arose from two surveys showing different locations for the common boundary between the parties’ respective properties, with Mitchell County relying on a 1991 survey prepared for its predecessor in title and the Smiths using a 2012 survey prepared for them prior to their purchase of the land north of Mitchell County’s property. The trial court submitted the matter to a special master pursuant to OCGA § 23-3-63.

On April 25, 2014, the special master notified the parties that he had reviewed their pleadings and attachments thereto; requested that they provide him with complete title abstracts for the adjoining parcels, including all surveys, by May 23, 2014; and instructed them that if the matter required an evidentiary hearing, to provide him with dates in the month of June 2014 for a hearing. On April 28,2014, Mitchell County responded to the special master’s notice by providing a complete title abstract for its property. On May 5, 2014, the Smiths sent their response to the special master, providing him with the complete title abstract for their property. Neither party requested an evidentiary hearing or provided dates for such a hearing in June as directed by the special master. But, thereafter, on July 8, 2014, the Smiths filed a demand for a jury trial.

Notwithstanding the jury trial demand, the special master filed his report with the trial court on July 22, 2014, stating that he had reviewed the pleadings and all evidence submitted by the parties, and had conducted an independent review of the public records on file with the clerk of court. Noting that neither party had requested an evidentiary hearing as instructed in his April 25 notice, the special master determined that the boundary line dispute could be resolved by “the public record, containing deeds and plats of surveys, combined with the complete title abstracts of each adjoining property[.]” Based on his review of the evidence, the special master concluded that Mitchell County had acquired title by prescription to the disputed area and recommended that the trial court issue a decree that fee simple title to the property belongs to Mitchell County.

The trial court found that the Smiths’ jury trial demand was untimely and that there was no question of fact for a jury to decide, and therefore the trial court adopted the special master’s report and entered its final decree. The court decreed that fee simple title to the subject property belongs to Mitchell County, that any cloud upon that title from the 2012 survey cited by the Smiths be removed, and that the 1991 survey relied upon by Mitchell County be given full force and effect regarding the location of the property’s northern boundary. The Smiths appeal.

1. Lack of an evidentiary hearing before the special master.

In their first enumeration, the Smiths claim that the trial court erred in adopting the special master’s report because the special master issued the report without holding a hearing. The claim is without merit. Our Supreme Court has summarized the controlling statutory scheme.

The Quiet Title Act of 1966 (OCGA § 23-3-60 et seq.) creates an efficient, speedy and effective means of adjudicating disputed title claims, and sets out specific rules of practice and procedure with respect to an in rem quiet title action against all the world that take precedence over the Civil Practice Act when there is a conflict. The Quiet Title Act requires a trial court to appoint a special master (OCGA § 23-3-63), and requires the special master to make a report of the special master’s findings to the trial court. OCGA § 23-3-66. While the quiet title statutory scheme provides that the special master, once appointed, shall have complete jurisdiction within the scope of the pleadings to ascertain and determine the validity, nature, or extent of petitioner’s title and all other interests in the land or to remove any particular cloud or clouds upon the title to the land and to make a report of his findings to the judge of the court, (OCGA § 23-3-66), the trial court is not divested of its overall jurisdiction ofthecaseanditssoleauthorityunderOCGA § 23-3-67 to issue the final decree.

Nelson v. Georgia Sheriffs Youth Homes, 286 Ga. 192, 192-193 (686 SE2d 663) (2009) (citations and punctuation omitted).

In the instant case, before making his report to the court, the special master sent notice to the parties setting a deadline for them to request an evidentiary hearing if such a hearing was necessary. However, the Smiths did not request such a hearing, let the deadline for a hearing pass without objection, and instead simply submitted their evidence to the special master. As noted above, the special master had “complete jurisdiction” to determine the extent of Mitchell County’s title and all other interests in the land. Nelson, 286 Ga. at 192-193. Such jurisdiction included the authority to set a deadline for the parties to request a hearing. See Boyd v. JohnGalt Holdings, 294 Ga. 640, 643-644 (3) (755 SE2d 675) (2014) (upholding authority of special master to enter a scheduling order including deadlines for motions). As the Smiths did not request a hearing by the deadline or object to the lack of a hearing prior to the entry of the special master’s order, they waived any objection to the lack of a hearing. See id. at 644 (3). Indeed, it is well established that a party will not be heard to complain of a procedure induced by his own conduct. In the Interest of A. A., 334 Ga. App. 37, 39 (2) (778 SE2d 28) (2015); Affatato v. Considine, 305 Ga. App. 755, 758 (1) (700 SE2d 717) (2010).

Moreover, the Smiths have not identified any further evidence that they would have presented had an evidentiary hearing been held before the special master. The record plainly shows that the special master considered all the evidence submitted by the parties, determined that the matter could be resolved without a hearing, and fully complied with the statutory mandate that “in making his decision, ‘the master shall examine the petition, plat, and all documents filed therewith and may require other evidence to be filed, including, but not limited to, an abstract of title.’ ” Cernonok v. Kane, 280 Ga. 272, 274 (4) (627 SE2d 14) (2006) (quoting OCGA § 23-3-64). Under these circumstances, not only did the Smiths waive the opportunity to have an oral hearing before the special master, but they also were not prejudiced since they were given notice and an opportunity to respond to the petition. See generally Mitchell v. 3280 Peachtree 1, LLC, 285 Ga. 576 (1) (678 SE2d 880) (2009) (no reversible error in failing to hold oral hearing on motion to dismiss appeal where opposing party was given notice and opportunity to respond to the motion); Bell v. Waffle House, 331 Ga. App. 443, 446 (771 SE2d 132) (2015) (finding that appellant who received notice and opportunity to respond to request for attorney fees waived the right to a hearing by failing to request such a hearing in his written response and by raising only an issue that did not require a hearing); Jacobsen v. Muller, 181 Ga. App. 382, 383 (2) (352 SE2d 604) (1986) (appellant given opportunity to request oral hearing on motion for summary judgment but failed to avail herself of that opportunity). “To hold otherwise would not be in the interest of judicial economy and would be contrary to the underlying policy behind the statute — that of providing an efficient, speedy and effective means to settle these disputes.” Griffeth v. Griffin, 245 Ga. App. 619, 620 (538 SE2d 521) (2000) (involving an untimely jury trial demand in quiet title case).

2. Sufficiency of the evidence.

The Smiths’ second enumeration of error challenges the sufficiency of the evidence supporting the special master’s report and the trial court’s adoption of it. “In an action to quiet title brought under OCGA § 23-3-60 et seq., the findings of the [sjpecial [m] aster [which are] adopted by the trial court will be upheld unless clearly erroneous. Therefore, if there is any evidence supporting the judgment of the trial court, it will not be disturbed.” Cernonok, supra at 273 (1) (citations and punctuation omitted). The judgment of the trial court in this case is not clearly erroneous.

The evidence shows that in 2001, Mitchell County acquired 16.7 acres of land via a warranty deed from Talmadge Edwards, who had acquired the property in 1962. The deed more particularly described the tract of land according to the metes and bounds contained in the plat of survey prepared by registered surveyor Larry Grogan in 1991. That survey identified iron pins that were found to establish the northern boundary of the property. In connection with his 2001 sale of the property to Mitchell County, Edwards executed an affidavit of possession that was recorded in the county deed book. In his affidavit, Edwards swore that he had continuously occupied the property described in the 1991 Grogan survey for 39 years; that no other person had occupied or claimed any part of the property adversely to him during that time; that his possession of the property had been open, notorious, continuous, exclusive and uninterrupted, as evidenced by the erection of houses and other buildings, the clearing and maintaining of the land, and the paying of taxes on the property.

In a March 2012 affidavit, Bennett Adams, who was the county administrator when Mitchell County acquired the property, averred that he was familiar with the history of possession of the property and that its northern boundary extends to the line indicated by the county deed. Adams further swore that Mitchell County has continuously used and occupied the property for more than ten years and that its possession has been open, notorious, continuous, exclusive and uninterrupted. As evidence of such possession, Adams stated that he had overseen the construction of a county park on the property, and since the initial construction in 2003, the county has maintained the park for public use.

In June 2012, appellants Shirley and Linda Smith acquired land just north of the Mitchell County property via a warranty deed. The deed described the property as shown in a plat of survey prepared by registered surveyor Larry Burnsed in January 2012. That survey noted the northern boundary line of the Mitchell County property as set forth in the Mitchell County deed and the Edwards affidavit of possession, and indicated that the iron pins establishing that line had been found. Nevertheless, the 2012 Burnsed survey map set that boundary line further south so that the Smiths’ property encompassed all of a lot identified as Lot 139.

The Smiths rely on the boundary line shown on the Burnsed survey map. But as indicated in the special master’s report, that purported new boundary line location was contradicted by the description of the property on the survey itself, which indicated that the parcel encompassed only “part of lot[ ] 139.” Likewise, the warranty deed conveying the property to the Smiths also described the parcel of land as only including “part of Lot[ ] 139.” In fact, that description is actually consistent with the northern boundary line of the Mitchell County property established by the 1991 Grogan survey, which shows that only part of Lot 139 — not all of it — is included in the Smiths’ property.

We need not address whether a factfinder would have been authorized to credit the purported boundary line shown on the Burnsed survey map. Based on the evidence, the special master correctly concluded that Mitchell County had obtained title by prescription to the disputed property. “Title by prescription is the right to property which a possessor acquires by reason of the continuance of his possession for a period of time fixed by law.” OCGA § 44-5-160. To give rise to prescriptive title, possession (1) must be in the right of the possessor and not another; (2) must not have originated in fraud; (3) must be public, continuous, exclusive, uninterrupted and peaceable; and (4) must be accompaniedby a claim ofright. OCGA § 44-5-161 (a). Possession of real property under written evidence of title in conformance with these requirements for a period of seven years shall confer good title by prescription to the property. OCGA § 44-5-164.

The evidence shows as a matter of law that Mitchell County has possessed the property in question under written evidence of title for more than seven years. That evidence of title includes the northern boundary of the property established by the warranty deed, the 1991 survey, the Edwards affidavit of possession, and the Bennett affidavit. Moreover, the evidence shows that Mitchell County’s possession during that period has been public, continuous and exclusive, and has otherwise fully conformed with the requirements of OCGA § 44-5-161. Moreover, the Smiths have not filed affidavits or pointed to any other evidence creating a genuine question of fact as to Mitchell County’s prescriptive title. Because the evidence establishes as a matter of law that Mitchell County held prescriptive title to the property, the special master’s finding is correct and the trial court’s final decree adopting the special master’s report is, per force, not clearly erroneous. Accordingly, we will not disturb the final decree.

3. Jury trial demand.

Although not set forth as a separate enumeration of error, in the argument section of their brief, the Smiths appear to make the additional claim that the trial court erred in failing to grant their demand for a jury trial. As provided by OCGA § 23-3-66, “any party to [a quiet title] proceeding may demand a trial by a jury of any question of fact[.]” Such a demand is timely if it is made before the caséis heard by the special master. Addison v. Reece, 263 Ga. 631, 632 (1) (436 SE2d 663) (1993). In this case, as discussed above, there was no oral hearing before the special master because the parties waived it. The Smiths then filed their jury trial demand after the parties had submitted all their evidence to the special master and the deadline for an oral hearing had passed, but before the special master filed his final report. Mitchell County argues that the jury trial demand was untimely under these circumstances. However, we need not determine that issue because even assuming for purposes of this appeal that the demand was timely, “the question for decision is whether the evidence raised a genuine issue of material fact. If there were no genuine issues of material fact to be resolved, it was not error for the special master to apply the law to the facts of the case.” Paul v. Keene, 272 Ga. 357, 358 (529 SE2d 135) (2000) (citations and punctuation omitted). See also Sacks v. Martin, 284 Ga. 712, 715 (2) (670 SE2d 417) (2008) (where no question of fact exists, “the failure to provide a jury trial, even if timely requested, was not error”).

Here, as discussed above in Division 2, Mitchell County provided ample evidence supporting the special master’s conclusion that Mitchell County had prescriptive title to the property in question; and the Smiths presented no affidavits or any other evidence creating a genuine issue of material fact as to Mitchell County’s prescriptive title to the property.

Where, as here, the evidence [does not create a genuine issue of material fact], the question of which party has superior title is not to be submitted to a jury. It follows that, notwithstanding [a] timely demand for a jury trial, there was no error in failing to submit plaintiff’s claim of superior prescriptive title to a jury.

Decided November 10, 2015.

Collier & Gamble, Edward R. Collier, for appellants.

Hall Booth Smith, Patrick N. Millsaps, Russell A. Britt, for appellee.

Davis v. Merritt, 265 Ga. 160 (1) (454 SE2d 515) (1995) (citation and punctuation omitted).

Judgment affirmed.

Ellington, P. J., and Dillard, J., concur.

       The Smiths appealed to the Supreme Court of Georgia, which transferred the case to this court on the basis that we have jurisdiction over appeals in actions concerning the location of disputed boundary lines.