author: DOYLE, Presiding Judge.

text:
    A12A1491.
    KAR v. THE STATE.
    (733 SE2d 387)
   DOYLE, Presiding Judge.

After a jury trial, Adityamoy Kar was convicted of possession of methamphetamine, driving under the influence (“DUI”) of methamphetamine and amphetamine, DUI of methamphetamine and amphetamine such that it was less safe (“DUI less safe”) to do so, and speeding. Kar appeals, arguing that (1) the trial court erred by admitting evidence of the Romberg field sobriety test in violation of Harper v. State; and (2) the evidence was insufficient to support his convictions of (a) DUI less safe, and (b) possessing methamphetamine. For the reasons that follow, we affirm.

On appeal, this Court determines whether the evidence is sufficient under the standard of Jackson v. Virginia, [] and does not weigh the evidence or determine witness credibility. Any conflicts or inconsistencies in the evidence are for the jury to resolve. As long as there is some competent evidence, even though contradicted, to support each fact necessary to make out the State’s case, we must uphold the jury’s verdict.

Viewed in favor of the verdict, the evidence shows that Officer James Harper of the Henry County Police Department was stationed along Interstate 75 on September 17, 2008, watching traffic and operating a stationary laser. A vehicle approached Harper, who clocked the vehicle traveling at 94 miles per hour in a 70 miles-per-hour zone. Harper pursued the vehicle in order to effect a traffic stop, but the driver, later determined to be Kar, continued at a high rate of speed along the interstate and changed lanes erratically. As he closed in on the vehicle, Harper activated his lights, and Kar signaled his right blinker, but made a left-hand lane change. Kar then moved to the middle lane of the highway, passed a vehicle, and moved back in front of the vehicle as Harper followed. Kar then exited the highway and stopped on the right side of the exit ramp. Kar complained of feeling ill after having stopped at a fast-food establishment, and Harper obtained an ambulance to treat him prior to further investigation. Harper described Kar’s behavior as fidgety and quick.

After receiving clearance from paramedics, Harper arrested Kar for speeding, reckless driving, and fleeing or attempting to elude a police officer. Harper handcuffed Kar and, while conducting a search incident to arrest, discovered a small bag containing a white crystal-like substance (later determined to be methamphetamine) in Kar’s pants pocket. The discovery of the substance prompted Harper to conduct a number of field sobriety tests, and based on the officer’s observations of Kar’s dexterity, behavior, and ability to follow directions, Harper determined that Kar was intoxicated to the extent that he was less safe to drive.

After a jury trial, Kar was convicted of reckless driving, DUI, DUI less safe, and speeding. He thereafter filed a motion for new trial, which the court denied, and Kar now appeals.

1. Kar argues that the trial court erred by admitting evidence of the Romberg field sobriety test without laying proper foundation pursuant to Harper v. State. We discern no reversible error.

Pretermitting whether it was erroneous to admit evidence of the Romberg test without subjecting it to Harper v. State, the error was harmless in light of the overwhelming evidence of Ear’s guilt. Harper detected Ear traveling at an excessive rate of speed (94 miles per hour in a 70 miles-per-hour zone); Ear continued along the highway, while Harper followed at speeds up to 120 miles per hour to catch him, erratically changed lanes and incorrectly signaled; and Ear continued to drive evasively after Harper had activated his lights. While Harper was talking with Ear beside the roadway, he noticed Ear’s unusual behavior, including asking for medical attention and exhibiting fidgety movements, and thereafter, he discovered what appeared and was later confirmed to be methamphetamine on Ear’s person. Harper performed several field sobriety tests on Ear in addition to the Romberg test. After being taken into custody, Ear tested positive for the presence of methamphetamine and amphetamine in his blood. Accordingly, this case does not require us to reach the issue of whether the Romberg test is subject to the admissibility standards of Harper because the overwhelming evidence renders harmless any error in the admission of the challenged evidence.

2. Ear contends that insufficient evidence was presented to support his conviction for DUI less safe. We disagree.

Ear argues that Harper’s failure to deduce that he was intoxicated to the point of operating the vehicle in a less safe manner until after the discovery of methamphetamine on Ear’s person should result in the reversal of his conviction on the ground. Ear’s argument is of no moment. As this Court previously has explained,

[mjere presence of [an intoxicant] is not the issue. In a less safe case, the [S]tate must prove that the defendant had impaired driving ability as a result of [ingesting an intoxicant]. It is not necessary for an officer to give his opinion or state specifically that a defendant was a less safe driver[ ] because the trier of fact may form its own opinion based on the indicia pointing to [impaired driving ability].

Decided October 18, 2012

Reconsideration denied November 7, 2012

Albert K. Wan, Stephen R. Scarborough, for appellant.

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

In this case, sufficient evidence, including (1) Ear’s excessive speed and erratic driving, (2) Ear’s possession of methamphetamine, and (3) Ear’s blood results showing the presence of methamphetamine and amphetamine, supports the jury’s finding that Ear’s ability to safely operate his vehicle was impaired by his ingestion of methamphetamine and amphetamine.

3. Ear also contends that insufficient evidence supports his conviction for possession of methamphetamine. We disagree.

The State presented direct evidence that Ear possessed methamphetamine in the watch pocket of his pants at the time he was arrested by Harper. Ear argues, however, that the State failed to present sufficient evidence to exclude his reasonable hypothesis that the pants in which the methamphetamine was discovered belonged to another individual, and therefore, he did not knowingly possess the methamphetamine. Nevertheless, “it is not necessary that the . . . evidence exclude every other hypothesis except that of guilt, but only reasonable inferences and hypotheses. It was for the jury to decide whether all reasonable hypotheses have been excluded.” Ear presented his hypothesis to the jury, and the jury rejected it.

Judgment affirmed.

Andrews and Boggs, JJ., concur.

       OCGA § 16-13-30 (a). Acharge of fleeing or attempting to elude a police officer was nolle prossed by the State.

       OCGA § 40-6-391 (a) (6).

       OCGA § 40-6-391 (a) (2).

       OCGA § 40-6-181 (b) (2).

       443 U. S. 307 (99 SC 2781, 61 LE2d 560) (1979).

       (Punctuation omitted.) Jaffray v. State, 306 Ga. App. 469, 470 (1) (702 SE2d 742) (2010).

       See id. at 469, citing Jackson, 443 U. S. at 307.

       249 Ga. 519, 524-526 (1) (292 SE2d 389) (1982) (requiring that a trial court first determine whether a scientific test — a procedure that falls outside the ken of an ordinary juror’s understanding — has reached a level of verifiable certainty and acceptance by the scientific community for the purposes used in the case). Compare with State v. Pastorini, 222 Ga. App. 316, 318-319 (2) (474 SE2d 122) (1996) (explaining that “sobriety tests such as the ‘walk and turn’ and the ‘one leg stand,’ both of which demonstrate a suspect’s dexterity and ability to follow directions, do not constitute scientific procedures” such that they are subject to the Harper analysis).

       See Manley v. State, 206 Ga. App. 281, 282 (424 SE2d 818) (1992), citing Foster v. State, 204 Ga. App. 632 (420 SE2d 78) (1992); Ross v. State, 192 Ga. App. 850 (1) (386 SE2d 721) (1989).

       (Punctuation and footnote omitted.) State v. Sanders, 274 Ga. App. 393, 396-397 (617 SE2d 633) (2005).

       See Jaffray, 306 Ga. App. at 471, n. 12 (citing cases establishing that impairment including speeding constitutes evidence that a driver is impaired in order to support a conviction of DUI less safe).

       (Punctuation omitted.) Pecina v. State, 274 Ga. 416, 419 (2) (554 SE2d 167) (2001).


source: Caselaw Access Project

author: McFadden, Judge.

license: Public Domain

text:
    A12A0863.
    HARRIS v. PETERSON et al.
    (734 SE2d 93)
   McFadden, Judge.

In this appeal from an order granting summary judgment, the appellant challenges the trial court’s finding that a valid transfer of property had been made pursuant to a power of attorney. Because there is evidence that the actions of the attorney-in-fact were in contravention of her principal’s actions and intent and were attempts to benefit her own position, genuine issues of material fact exist as to the validity of that transfer. We therefore reverse.

To prevail at summary judgment under OCGA § 9-11-56, the moving party must demonstrate that there is no genuine issue of material fact and that the undisputed facts, viewed in the light most favorable to the nonmoving party, warrant judgment as a matter of law. A defendant may do this by showing the court that the documents, affidavits, depositions and other evidence in the record reveal that there is no evidence sufficient to create a jury issue on at least one essential element of plaintiff’s case. When ruling on a motion for summary judgment, the opposing party should be given the benefit of all reasonable doubt, and the court should construe the evidence and all inferences and conclusions therefrom most favorably toward the party opposing the motion. Further, any doubts on the existence of a genuine issue of material fact are resolved against the movant for summary judgment. When this Court reviews the grant or denial of a motion for summary judgment, it conducts a de novo review of the law and the evidence.

(Citation omitted.) Knight v. Roberts, 316 Ga. App. 599, 600-601 (730 SE2d 78) (2012).

Construed in favor of the nonmoving party, the record shows that Dennison Williams and Darius Peterson are brothers, and after their mother’s death in January 2005, Peterson was appointed administrator of her estate. In February 2005, Peterson filed an administrator’s deed that passed fee simple title in certain tracts of real property to himself and Williams. In March 2005, Williams executed a financial power of attorney, appointing his sister-in-law, Anita Peterson, as his agent. Among other things, the power of attorney authorized Anita Peterson to sell real property.

Two years later, in March 2007, Williams entered into contracts to sell his interest in a tract of the inherited real property, as well as junk vehicles and scrap iron located on that property, to Eugene Harris. Several days later, after learning of those contracts, Anita Peterson presented to Williams a quitclaim deed transferring his interest in all the inherited property to her husband, Darius Peterson. Williams stated that he did not wish to transfer his property and refused to sign the quitclaim deed. A week later, on April 9, 2007, Anita Peterson filed in the superior court the power of attorney that had been executed in 2005. That same day, she also filed the same quitclaim deed that Williams had refused to sign, which instead bore her signature pursuant to the power of attorney and which transferred his property interests to her husband. In June 2007, Williams filed a quitclaim deed transferring his interest in the property to Harris.

In April 2009, Darius Peterson filed a complaint against Harris, claiming trespass and other damage to the property. Harris filed a third-party complaint against Anita Peterson and Williams, claiming, among other things, that Anita Peterson committed fraud in using the power of attorney to convey the property to her husband. Plaintiff Darius Peterson and third-party defendant Anita Peterson filed separate motions for summary judgment. The trial court denied Darius Peterson’s motion, but granted summary judgment to Anita Peterson on the basis that she had acted under the authority of the power of attorney in executing the quitclaim deed. Harris appeals from the grant of summary judgment to Anita Peterson.

[A]s a general rule, a power of attorney merely authorizes another agent to do what the grantor principal could do with respect to the recited subject matter. The grantor retains the right to act in his own name with respect to that subject matter, notwithstanding his execution of the power of attorney.

(Punctuation omitted.) Thornton v. Carpenter, 222 Ga. App. 809, 812 (2) (b) (476 SE2d 92) (1996). See also OCGA § 10-6-141 (explaining that financial power of attorney does not give away all powers and that principal may still choose to handle his own affairs). Thus, in this case, even though Williams had executed the power of attorney giving his agent the power to make real estate transactions on his behalf, he was still authorized to act in his own name and make such real estate deals himself. Having entered into a contract to sell his interest in certain real property to Harris and then having filed a quitclaim deed transferring said property to Harris, there is at the very least a genuine issue of material fact as to whether Anita Peterson’s actions in direct contravention of her principal’s actions and intent were authorized. “The agent shall act within the authority granted to [her], reasonably interpreted; if [she] shall exceed or violate [her] instructions, [she] does it at [her] own risk, the principal having the privilege of affirming or dissenting, as his interest may dictate.” OCGA § 10-6-21.

Furthermore, Georgia law “prohibits agents such as those acting under a power of attorney from benefiting from their position to the principal’s detriment. [Cits.]” Bradshaw v. McNeill, 228 Ga. App. 653, 654 (1) (492 SE2d 568) (1997). Indeed, “an agent may not profit from the agency to the detriment of the principal. [Cit.]” Johnson v. First Nat. Bank of Rome, 253 Ga. 233, 234 (1) (a) (319 SE2d 440) (1984). Given that Anita Peterson transferred all of Williams’ property rights to her husband without any apparent benefit flowing to Williams, even though the trial court was correct in finding that she had the legal right under the power of attorney to make such a transfer, “whether [she] was in fact acting on [Williams’] behalf and whether she exceeded the scope of her authority by [transferring the property] present jury questions.” Bradshaw, supra at 654-655 (1).

Decided November 7, 2012.

Marla P. Chambless, for appellant.

John G. C. Durham, Julee B. Lewis, for appellees.

We note that this case is distinguishable from LeCraw v. LeCraw, 261 Ga. 98 (401 SE2d 697) (1991), which is relied upon by appellee Peterson. In that case, it was undisputed that the grantor of the power of attorney did not object to the actions of her agent. Id. at 99. But in the instant case, there is a question of fact as to Williams’ objection to the actions of Anita Peterson. Accordingly, because there exist genuine issues of material fact, we reverse the grant of summary judgment to Anita Peterson.

Judgment reversed.

Barnes, R J., and Adams, J., concur.


text:
    A12A0994.
    ROONEY v. THE STATE.
    (734 SE2d 104)
   DOYLE, Presiding Judge.

In his latest appeal from a 1995 negotiated plea of guilty to rape, aggravated sodomy, aggravated sexual battery, and three counts of battery, John Rooney contends that the trial court erred by denying his motion to modify his sentences pursuant to OCGA § 17-10-1 (f). For the reasons set forth below, we dismiss the appeal.

Pursuant to OCGA § 17-10-1 (f), a court may correct or reduce a sentence during the year after its imposition, or within 120 days after remittitur following a direct appeal, [] whichever is later. Once this statutory period expires, a trial court may only modify a void sentence. A sentence is void if the court imposes punishment that the law does not allow. To support a motion for sentence modification filed outside the statutory time period, therefore, a defendant must affirmatively demonstrate that the sentence imposes punishment not allowed by law. Moreover, a direct appeal does not lie from the denial of such motion unless it raises a colorable claim that the sentence is, in fact, void.

To the extent Rooney’s motion to modify seeks resentencing based on the merger of certain counts in the indictment as well as a change from consecutive to concurrent sentences, the trial court was without jurisdiction to grant such relief and properly denied the motion. Rooney’s motion to modify his sentence was filed on November 22,2011, over 16 years after his guilty plea and sentencing on July 10,1995. And the affirmance of his conviction occurred no later than 2001 when this Court affirmed the denial of his motion for an out-of-time appeal in an unpublished opinion. Thus, the 120 days for Rooney to file a motion to modify his sentence ran in 2002.

The fact that Rooney filed an appeal in 2011 from which the trial court received a remittitur on September 2, 2011, does not extend the time for filing a motion to modify his sentence because the 2011 appeal did not involve the affirmance of the judgment of his conviction as required by OCGA § 17-10-1 (f). To hold otherwise would result in the indefinite extension of time within which a trial court may modify a sentence, something not contemplated by the statute. Thus, the trial court properly denied Rooney’s motion to modify.

Decided November 7, 2012.

John Rooney, pro se.

Daniel J. Porter, District Attorney, Stephen A. Fern, Assistant District Attorney, for appellee.

Rooney also argues that his conviction is void. While difficult to discern given the sparse record before us, most, if not all, of the errors enumerated by Rooney have been raised and ruled on in previous appeals. “[I]ssues previously decided by a court of competent jurisdiction are conclusive and constitute a procedural bar to relitigation.”

Further, it is Rooney’s burden to affirmatively demonstrate that the sentence imposes punishment not allowed by law. The record on appeal contains nothing more than Rooney’s pro se motions, a few letters, and the trial court’s December 5, 2011 order denying his motion to modify. Rooney argues that his conviction is void because the warrant was based on perjury, the grand jury panel was improperly constituted, his indictment was not returned in open court, and he was not advised of his right not to incriminate himself. There is no evidence or transcript in the record from which we could possibly discern the validity of these arguments. Thus, “[gjiven the record before us, [Rooney] has failed to set forth a colorable claim that his sentence is void. Accordingly, the trial court’s denial of [Rooney’s] motion is not subject to a direct appeal, and we must dismiss.”

Appeal dismissed.

Andrews and Boggs, JJ., concur.

       OCGA § 17-10-1 (f) specifically states:
      Within one year of the date upon which the sentence is imposed, or within 120 days after receipt hy the sentencing court of the remittitur upon affirmance of the judgment after direct appeal, whichever is later, the court imposing the sentence has the jurisdiction, power, and authority to correct or reduce the sentence and to suspend or probate all or any part of the sentence imposed.
      (Emphasis supplied.)

       (Citations and punctuation omitted.) Frazier v. State, 302 Ga. App. 346, 348 (691 SE2d 247) (2010).

       See Rooney v. State, 248 Ga. App. XXVII (2001) (Case No. A00A2387 (unpublished)). Including the 2001 case, this Court has affirmed or dismissed at least seven other appeals by Rooney regarding this conviction and sentence: Case Nos. A00A2387 (affirmed); A02A1640 (dismissed); A02A1641 (affirmed); A06A0616 (dismissed); A06A1032 (dismissed); A07A1192 (dismissed); and A11A1316 (affirmed in Rooney v. State, 311 Ga. App. 376 (715 SE2d 780) (2011)).

       Furthermore, the Supreme Court of Georgia previously considered Rooney’s arguments regarding his right to concurrent, rather than consecutive, sentences in a previous appeal of the denial of his motion to vacate his conviction and sentences. See Rooney v. State, 287 Ga. 1, 3-4 (3) (690 SE2d 804) (2010).

       See Reynolds v. State, 272 Ga. App. 91, 94 (1) (611 SE2d 750) (2005) (motion to set aside sentence that was not filed in the term in which the sentence was entered, within a year of the date upon which sentence was imposed, nor “within 120 days of the trial court’s receipt of a direct-appeal remittitur” was untimely).

       See id.

       (Punctuation omitted.) Spiller v. State, 282 Ga. 351, 353 (2) (647 SE2d 64) (2007), citing OCGA § 9-12-40 (“A judgment of a court of competent jurisdiction shall be conclusive between the same parties and their privies as to all matters put in issue or which under the rules of law might have been put in issue in the cause wherein the judgment was rendered until the judgment is reversed or set aside.”).

        Frasier, 302 Ga. App. at 349.


author: Branch, Judge.

text:
    A12A1042.
    LOVE v. THE STATE.
    (734 SE2d 95)
   Branch, Judge.

Jonathan Michael Love was tried by a Gwinnett County jury and convicted on two counts each of armed robbery and aggravated assault. He now appeals from the denial of his motion for a new trial, asserting that the evidence was insufficient to prove that he was the man who committed the crimes at issue. We disagree and affirm.

When we consider whether the evidence is sufficient to sustain a conviction, we ask “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, punctuation and footnote omitted.) Cooper v. State, 299 Ga. App. 199, 200 (682 SE2d 154) (2009). Moreover, in determining whether the evidence suffices to sustain the defendant’s conviction, “we consider the inferences that can be logically derived from the evidence presented at trial.” (Citation, punctuation and footnote omitted.) Martinez v. State, 306 Ga. App. 512, 519 (1) (702 SE2d 747) (2010). And “[a]s an appellate court, we do not weigh the evidence, judge the credibility of witnesses, or resolve conflicts in trial testimony.” (Citation, punctuation and footnote omitted.) Id. at 514. Thus, “if the record contains some competent evidence to prove each element of the crime of which the defendant was convicted, even though that evidence may be contradicted, we must uphold the conviction.” (Citations omitted.) Ferguson v. State, 307 Ga. App. 232, 233 (1) (704 SE2d 470) (2010).

So viewed, the evidence shows that a husband and wife were accosted by two gunmen as they were attempting to enter a local Goodwill store. One of the men held a gun to the husband’s head and then wrestled away the box of change the husband was carrying. The second man held a gun to the wife’s head and fought with her over her pocketbook, which the robber eventually grabbed from her shoulder. Both men then fled on foot, out of the shopping center parking lot and across the street. The husband and wife both described the robbers as African-American males wearing jeans. According to the husband, one man was wearing a collared shirt with red and white stripes and the other was wearing a white t-shirt. The wife confirmed that one of the robbers was wearing a white t-shirt, with perhaps another shirt being worn open over it.

When police showed the husband a photographic lineup of suspects, he positively identified Marquice Jackson as the man who robbed him of his change box. After Jackson was arrested for both this robbery and several other crimes, he identified Love as the second participant in the robberies outside of the Goodwill store. Police then asked Jackson to describe the clothing Love was wearing at the time of the crimes, and he told them that Love had been wearing a red and white striped shirt.

Jackson testified at trial as a witness for the State, where he admitted to robbing the husband and identified Love as the man who robbed the wife. Jackson also stated that, at the time of the robbery, he was wearing a “white t-shirt and . . . jeans,” while Love had on “[something red ... I know it was red.” Jackson explained that after he and Love fled the parking lot of the Goodwill shopping center, they went across the street and got into the car of a friend who drove them away from the scene.

The State also presented the testimony of the driver who confirmed that, on the day in question, he drove Love, Jackson, and another friend to a local convenience store, near the Goodwill shopping center. The driver then went into the convenience store to make a purchase and when he returned to the car, both Love and Jackson were gone. At the instruction of the third friend, who remained in the car, the driver drove to a gas station across the street from the Goodwill shopping center. After they arrived at the gas station, Love and Jackson walked up to the car carrying a box of change; they got into the car, and all four men drove away. Later that day, the driver took Love and Jackson to a grocery store, where they exchanged the coins in the money box for paper money. The investigating officer also testified that, when interviewed about the events on the day of the Goodwill robbery, the driver stated that he had taken Love and Jackson to the grocery store to exchange the coins in the money box for cash.

On appeal, Love asserts that this evidence is insufficient to support the jury’s conclusion that he was the second robber. In support of this claim, Love relies on the fact that “[u]nder Georgia law the testimony of a single accomplice, standing alone, is insufficient to convict an accused.” (Citation, punctuation and footnote omitted.) Martinez, 306 Ga.App. at 519 (1). Andhe argues that because the only evidence connecting him to the crimes was the testimony of his alleged accomplice, the evidence was insufficient to convict him.

Love’s argument, however, ignores the law holding that a felony conviction based upon the testimony of an accomplice will be upheld where the State also presents “independent corroborating evidence, either testimony from another witness or corroborating circumstances, which connects the accused to the crime.” (Footnote omitted.) Reynolds v. State, 267 Ga. App. 148, 151 (3) (598 SE2d 868) (2004). This corroborating evidence need not be sufficient to sustain the defendant’s conviction independently; it is sufficient if it connects the accused with the commission of the crime and tends to show his guilt. Terrell v. State, 268 Ga. App. 173, 175 (2) (601 SE2d 500) (2004). “The amount of corroborative extraneous evidence necessary to connect the accused with the commission of the offense lies peculiarly within the province of the factfinder.” (Citation, punctuation and footnote omitted.) Daniels v. State, 306 Ga. App. 577, 581 (1) (703 SE2d 41) (2010).

Decided November 7, 2012.

Sharon L. Hopkins, for appellant.

Here, the evidence corroborating Jackson’s testimony identifying Love as a participant in the robbery and assault included the husband’s statement to police that one of the robbers was wearing a red and white striped shirt. This description supported Jackson’s statement to the investigating officer that at the time of the robbery Love was wearing a red and white shirt. Additionally, the driver testified that on the day of the robbery, he drove Love and Jackson to an area near the Goodwill store; that he left his car and upon his return Love and Jackson were gone, but that he was instructed to meet them at a gas station across the street from the Goodwill store; that when he did so Love and Jackson returned to the car in the possession of a box full of change; and that he later drove both men to a grocery store to exchange the coins in the box for paper money. This testimony sufficiently corroborated Jackson’s identification of Love as a participant in the crimes at issue. Daniels, supra at 581 (1) (“[e] vidence of the defendant’s conduct before and after the crime was committed may give rise to an inference that he participated in the crime”) (citation, punctuation and footnote omitted); Brady v. State, 169 Ga. App. 316, 317 (1) (312 SE2d 632) (1983) (a defendant’s “unexplained recent possession of goods taken in the armed robbery . . . has some corroborative value”). Moreover, the driver’s testimony constitutes sufficient corroboration even if the driver is viewed as a second accomplice. It is well established that “[t]he testimony of one accomplice can corroborate that of another.” (Punctuation and footnote omitted.) Grimes v. State, 291 Ga.App. 585, 589 (1) (662 SE2d 346) (2008).

In this case, the jury had some evidence corroborating Jackson’s testimony and connecting Love to the crime. We cannot say, therefore, “that the verdict is contrary to the evidence.” (Punctuation and footnote omitted.) Kemp v. State, 271 Ga. App. 654, 656-657 (1) (610 SE2d 623) (2005).

Judgment affirmed.

Miller, P. J., and Ray, J., concur.

Daniel J. Porter, District Attorney, Frances B. Anderson, Assistant District Attorney, for appellee.

       OCGA § 16-8-41 (a).

       OCGA § 16-5-21 (a). The jury also acquitted Love of two additional counts of armed robbery and four additional counts of aggravated assault. The charges on which Love was acquitted arose out of two incidents of armed robbery that are not at issue in this appeal.


author: Andrews, Judge.

text:
    A12A1172.
    WHITFIELD v. BROWN.
    (734 SE2d 98)
   Andrews, Judge.

Patsy Whitfield appeals from the trial court’s order granting summary judgment to Justeen Brown on Whitfield’s claim for damages after she slipped and fell in a restroom at a Clayton County library. For reasons that follow, we affirm.

Viewed in the light most favorable to Whitfield as nonmovant, the record shows that Brown, a library assistant, was working the morning that Whitfield fell in the restroom. Whitfield testified that she went into a stall in the ladies’ bathroom and slipped on feces that were on the floor of the stall. Whitfield went to Brown, who was behind the reference desk, and told her about the accident. Brown stated that after she was told about Whitfield’s fall, she went directly to an inmate and told him to clean the bathroom.

The inmate stated that Brown asked him to clean the ladies restroom because someone had fallen due to “fecal matter” on the floor. The inmate testified that he went to the restroom, found feces on the floor and cleaned it.

Whitfield sued Brown, another library employee, and five John Does, claiming negligence and gross negligence in the performance of their ministerial duties. Brown moved for summary judgment, contending that she had no duty to inspect or supervise cleaning of the restrooms, that her response in addressing a hazard was discretionary, and that there was no evidence that she had any knowledge of the hazard until Whitfield told her of it. The trial court, after a hearing, granted the motion for summary judgment without explanation.

The doctrine of official immunity, also known as qualified immunity, offers public officers and employees limited protection from suit in their personal capacity. Qualified immunity protects individual public agents from personal liability for discretionary actions taken within the scope of their official authority, and done without wilfulness, malice, or corruption. Under Georgia law, a public officer or employee may be personally liable only for ministerial acts negligently performed or acts performed with malice or an intent to injure. The rationale for this immunity is to preserve the public employee’s independence of action without fear of lawsuits and to prevent a review of his or her judgment in hindsight. Thus, damage suits are maintainable in this state against government officers and agents for failure to perform ministerial duties, but such officers and employees are immune from negligence claims when the acts complained of involve a discretionary function of an office. The difference between ministerial and discretionary acts has been explained as follows: A ministerial act is commonly one that is simple, absolute, and definite, arising under conditions admitted or proved to exist, and requiring merely the execution of a specific duty. A discretionary act calls for the exercise of personal deliberation and judgment, which in turn entails examining the facts, reaching reasoned conclusions, and acting on them in a way not specifically directed. Procedures or instructions adequate to cause an act to become merely ministerial must be so clear, definite and certain as merely to require the execution of a relatively simple, specific duty.

Effingham County v. Rhodes, 307 Ga. App. 504, 506-507 (705 SE2d 856) (2010).

Further, under Georgia law, qualified immunity is an entitlement not to stand trial rather than a mere defense to liability. The issue of a government employee’s qualified immunity must therefore be resolved as the threshold issue in a suit against the employee in his personal capacity. Cameron v. Lang, 274 Ga. 122, 124 (549 SE2d 341) (2001).

In this case, under Brown’s list of duties as a library assistant was the duty to maintain the cleanliness and general order of the library. Carol Stewart, the director of library services for the Clayton County Library System, testified by affidavit that this meant that Brown’s duties were to keep the library and work space “tidy and organized.” Brown had no duty with regard to maintaining the public restrooms. Further, there was no policy, practice or procedure in place at the library that created any duty on the part of the staff to handle cleaning or custodial jobs in the bathrooms that required immediate attention. There were inmates assigned to the library to address any custodial issues that arose during the day, and cleaning or custodial jobs that were required outside the scheduled cleaning routine were handled at the discretion of the library staff.

The law is that an action is ministerial only if the county creates policy requiring certain actions under certain situations. Standard v. Hobbs, 263 Ga. App. 873, 876 (589 SE2d 634) (2003). Brown stated that if there is a problem that you can clean up, you do so. “If there is a task bigger than what I think I can do then ... I would ask an inmate, or I would tell a supervisor could she ask the inmate.” Here, the evidence is undisputed that Brown chose to direct an inmate to clean the bathroom.

According to Whitfield, Brown said to her that “it should have already been cleaned up,” when Whitfield told her about the hazard in the bathroom. Whitfield also points to the inmate’s statement that he was told to clean the bathroom at 11:00. She states that this was before her fall. Assuming this to be true, there is no evidence that Brown had any duty or responsibility to monitor the bathrooms or to check to see if the inmates were doing their jobs properly. Maintenance of the facilities was the job of the inmates, not a library assistant. Any follow-up that Brown may have chosen to do would therefore have been discretionary.

Summary judgment is proper when the evidence, construed in the nonmovant’s favor, shows that no issue of material fact remains ' and the movant is entitled to judgment as a matter of law. A defendant may prevail on summary judgment “by showing the court that the documents, affidavits, depositions and other evidence in the record reveal that there is no evidence sufficient to create a jury issue on at least one essential element of plaintiff’s case.” Lau’s Corp. v. Haskins, 261 Ga. 491 (405 SE2d 474) (1991).

Because there was no fixed policy in place for dealing with emergency cleaning situations, Brown did not have a “ministerial duty’ to clean the bathroom. Further, even if Brown’s duty to eliminate the hazard were ministerial, which it was not, she appears to have carried out that duty. The undisputed evidence was that it was inmates who performed these services and there is no dispute that Brown notified an inmate of the problem. Whether and how often to check on the inmate’s carrying out of the directives given him would certainly be discretionary as there is no provision at all that a library assistant has any duty or responsibility to monitor the cleanliness of the bathrooms. See Hemak v. Houston County School Dist., 220 Ga. App. 110, 113 (469 SE2d 679) (1996) (school principal’s duty to follow up and ensure that grate was properly repaired was discretionary).

Judgment affirmed.

Doyle, P. J., and Boggs, J., concur.

Decided November 7, 2012.

Orlando P. Ojeda, Jr., for appellant.

Freeman, Mathis & Gary, JackR. Hancock, ColeenD. Hosack, for appellee.

       We note that Whitfield’s appellate brief contains a short statement of facts. The rest of the brief contains extensive argument and references to evidence in the record with little or no citation to specific pages in the record.

       Justeen Brown is the only remaining defendant in this appeal.


text:
    A12A1415, A12A1416.
    AIMWELL, INC. et al. v. McLENDON ENTERPRISES, INC. et al.; and vice versa.
    (734 SE2d 84)
   DOYLE, Presiding Judge.

In this workers’ compensation case, the administrative law judge (“ALJ”) awarded benefits to Orlando Gaffney, an injured employee of Aimwell, Inc., against both Aimwell andAimwell’s customer, McLendon Enterprises, Inc. (‘McLendon”), in equal parts, finding that Gaffney was a joint employee of both entities at the time of his injury. The Appellate Division of the State Board of Workers’ Compensation upheld the factual findings of the ALJ award, but set aside the equal liability apportionment, concluding that Aimwell was required to pay for 100 percent of the claim pursuant to OCGA § 34-9-224. The superior court affirmed the Board’s decision, and Aimwell filed an application for discretionary appeal, which this Court granted. Aim-well and its insurer appeal in Case No. A12A1415, arguing that the superior court applied the incorrect standard of review and misapplied the borrowed servant doctrine and OCGA § 34-9-224. McLendon and its insurer cross-appeal in Case No. A12A1416, arguing that Gaffney was not McLendon’s borrowed servant at the time of his injury. For the reasons that follow, we affirm.

The record shows that Aimwell was a truck and driver leasing company, which provided hauling services to road contractors, including dump trucks and licensed drivers. Aimwell’s main customer was McLendon, a road grading and utility contractor, which had some of its own trucks and drivers; Aimwell’s and McLendon’s offices were located in the same building and owned by a brother and sister. McLendon required Aimwell to provide proof of liability and workers’ compensation insurance for Aimwell’s employees before using them.

Gaffney was employed by Aimwell as a truck foreman, which position required him to assign equipment and drivers to jobs, handle hiring and discipline of employees, and supervise the drivers; he also operated dump trucks and other equipment as necessary, approximately three or four times per month. When Gaffney did operate equipment, he continued to act as supervisor for Aimwell and was available to other Aimwell drivers through radios. Aimwell paid Gaffney at a set hourly rate, regardless of whether he operated equipment; Gaffney was never paid by McLendon.

On January 16, 2009, after Gaffney assigned all available Aim-well drivers to various jobs, a McLendon supervisor asked Gaffney whether he would be willing to drive a McLendon truck, and Gaffney agreed. While doing so, Gaffney was critically injured in a single-vehicle accident. Following the accident, a McLendon supervisor completed Gaffney’s time sheet for the day, assigning one hour to Aimwell for performing his supervisory duties and ten-and-a-half hours of driving time for McLendon. Aimwell billed McLendon for ten-and-a-half hours of Gaffney’s time, and McLendon reimbursed Aimwell for that amount. Aimwell then paid Gaffney for a total of eleven-and-a-half hours of work for that day.

Aimwell’s workers’ compensation insurer, Graphic Arts Mutual Insurance Company (“Graphic Arts”), accepted Gaffney’s claim and paid all benefits owed to Gaffney pursuant to the Act. Aimwell and Graphic Arts then sought a judicial determination regarding whether McLendon was liable for the claim and, if so, in what proportion. Following a hearing, the ALJ entered an award finding that Gaffney was a borrowed servant of McLendon because at the time: (1) McLendon “exercised nearly complete control over the occasion of [Gaffney]’s work”; (2) Gaffney was working for McLendon and performing no work for Aimwell; (3) Aimwell exercised no control over Gaffney’s work; and (4) McLendon had the right to fire Gaffney. The ALJ also concluded that because there was “[a] near complete blend of the functions of the two companies,” and because Gaffney was still required to act as truck supervisor for Aimwell, Gaffney was jointly employed by Aimwell and McLendon at the time of the accident. Therefore, the ALJ determined that Aimwell and McLendon were equally liable for Gaffney’s claim.

The Appellate Division agreed with the ALJ’s factual findings, concluding that “at the time of his accident[, Gaffney] was a joint employee[,] and both employer/insurers are subject to the provisions of OCGA § 34-9-224.” Finding that because “the burden of income and medical benefits rests entirely with [Aimwell,]” the Appellate Division concluded that Aimwell’s burden of compensation was 100 percent. Both Aimwell and McLendon appealed to the superior court, which affirmed the Appellate Division’s finding of joint employment and 100 percent allocation of liability to Aimwell under OCGA § 34-9-224. This appeal followed.

Case No. A12A1415

1. Aimwell and Graphic Arts argue that the superior court erred by affirming the Appellate Division’s finding that Aimwell was required to bear 100 percent of Gaffney’s compensation claim pursuant to OCGA § 34-9-224. We disagree.

Notably, Aimwell and Graphic Arts do not dispute that Gaffney was in the joint service of Aimwell and McLendon at the time of his injury. Instead, they challenge the 100 percent liability apportionment to Aimwell based on the finding that Aimwell had sole “wage liability” to Gaffney.

OCGA § 34-9-224 provides:

Whenever any employee whose injury or death is compensable under this chapter shall at the time of the injury be in the joint service of two or more employers subject to this chapter, such employers shall contribute to the payment of such compensation in proportion to their wage liability to such employee; provided, however, that nothing in this Code section shall prevent any reasonable arrangement between such employers for a different distribution as between themselves of the ultimate burden of compensation.

The parties disagree as to the meaning of this statute. McLendon argues that its plain terms require the conclusion that Aimwell had 100 percent wage liability, while Aimwell contends that the superior court’s finding conflicts with the plain language of the statute and is contrary to legislative intent.

Our analysis of this issue begins “with the ‘golden rule’ of statutory construction, which requires us to follow the literal language of the statute unless it produces contradiction, absurdity[,] or such an inconvenience as to insure that the legislature meant something else.” Further, we are required to

look diligently for the intention of the General Assembly. When the language of a statute is plain and unambiguous and not leading to an absurd result, it evidences the legislative intent[,] which is not to be contravened. We also must endeavor to give each part of the statute meaning and avoid constructions that make some language mere surplusage or meaningless. Furthermore, a statute must be construed in relation to other statutes of which it is a part, and all statutes relating to the same subject-matter, briefly called statutes in pari materia, are construed together, and harmonized wherever possible, so as to ascertain the legislative intendment and give effect thereto.

The language of OCGA § 34-9-224 is plain, unambiguous, and clearly indicates the legislative intent. The statute states that in the case of joint employment, each employer is required to contribute to the compensation to an injured employee under the Act in proportion to its responsibility for paying the employee’s wages. The phrase “wage liability’ is not defined in the Act, but the term “wage” in OCGA § 34-9-260 has been interpreted to mean “any payment by the employer to the employee for services rendered in the course of employment that constitutes a net economic gain to the employee.”

Here, although McLendon paid Aimwell for Gaffney’s services, Aimwell alone paid Gaffney’s wages. Aimwell paid him by the hour at a set hourly rate, regardless of whether he served solely as the truck supervisor or also operated equipment for a customer. There is no evidence that McLendon had any obligation to pay Gaffney or that Aimwell would fail to pay Gaffney if McLendon did not pay Aimwell for his time. And although Aimwell and McLendon could have made a reasonable arrangement for a different burden of compensation distribution as provided for in OCGA § 34-9-224, they did not do so. Finally, McLendon specifically required that Aimwell provide workers’ compensation insurance for its employees, including Gaffney. Under these circumstances, we conclude that Aimwell had sole wage liability to Gaffney.

Relying on Bennett v. Browning, Aimwell argues that the actual payment of wages in the context of the borrowed servant doctrine is not material. In Bennett, the Board concluded that the employee was a borrowed servant and not a joint employee of his special and general employers at the time of the accident, and the superior court amended the award to reflect that the employee was in fact a joint employee at the relevant time. This Court reversed the superior court, concluding that “the evidence did not demand a finding that the employee was, at the time of his injury, in the joint employment of [his special and general employer] within the purview of OCGA § 34-9-224.” The Court noted that “[t]he payment of the employee’s wages by [the special employer to the general employer] does not require a contrary finding.” This statement merely indicates that the issue of which employer paid the employee does not determine whether the employee was jointly employed at the time of the injury.

Aimwell’s misplaced reliance on Bennett is based upon conflation of the borrowed servant and joint employment doctrines. The borrowed servant doctrine provides that if an employee is injured while in the employ of his special (or “borrowing”) employer, he is precluded from bringing a tort action against the special employer and must proceed under the Workers’ Compensation Act. “Ordinarily, when one lends his servant to another for a particular employment, the servant will be dealt with as a servant of the person to whom he is lent, although he remains the general servant of the person who lent him.”

An employee, [however,] working as a borrowed servant, may recover for injuries sustained in connection with his work from either his general or special employer, or in some instances, both. Such recovery, however, is limited to those benefits available under workers’ compensation law.”

If a borrowed servant is not found to be a joint employee at the time of the injury, the special employer is fully responsible for compensating the injured employee, regardless of whether the special employer pays the employee directly. On the other hand, if a borrowed servant is found to be jointly employed by his general and special employers, then each employer is required to contribute to the employee’s compensation under the Act in proportion to its wage liability pursuant to OCGA § 34-9-224.

2. Aimwell argues that the Appellate Division relied upon an erroneous legal theory when it concluded that Aimwell had sole wage liability to Gaffney for purposes of apportioning liability pursuant to OCGA § 34-9-224 based upon its finding that wage liability was synonymous with the actual payment of wages to the injured employee. Thus, Aimwell argues, because the Appellate Division relied upon an erroneous legal theory, the superior court erred by applying the any-evidence standard of review.

Pursuant to OCGA § 34-9-103 (a), the Appellate Division of the Board reviewing the decision of an ALJ shall accept the AL J’s factual findings “where such findings are supported by a preponderance of competent and credible evidence contained within the records.” The Appellate Division’s review is limited to the record received before the ALJ, but

the Appellate Division must weigh the evidence and assess the credibility of witnesses and, if it determines that the award of the ALJ is supported by a preponderance of admissible evidence, the AL J’s award will be accepted. But, if after assessing the evidence of record, the Appellate Division concludes that the award does not meet the statutes’ evidentiary standards, the Appellate Division may substitute its own alternative findings for those of the ALJ, and enter an award accordingly. Although the Appellate Division’s review is not strictly de novo, the Appellate Division is a trier of fact, authorized to assess witness credibility, weigh conflicting evidence, and draw factual conclusions different from those reached by the ALJ who initially heard the dispute.

Decided November 7, 2012

Brannen, Searcy & Smith, Beverly G. O’Hearn, for appellants.

Russell C. Wallace, for appellees.

“Erroneous applications of law to undisputed facts, as well as decisions based on erroneous theories of law, however, are subject to the de novo standard of review in the superior court.” Regardless of the standard of review stated in the superior court’s order, “however, a ruling right for any reason will be affirmed.”

As discussed in Division 1, the rulings of the Appellate Division and the superior court were substantively correct. Thus, this enumeration presents no basis for reversal.

Case No. A12A1416

3. McLendon and its insurer, FCCI Insurance Company, argue that the trial court erred by affirming the Appellate Division’s conclusion that Gaffney was McLendon’s borrowed servant at the time of his accident. Pretermitting the merit of this argument, our review of this enumeration will not affect the outcome of this case because the superior court concluded that Aim well had sole compensation liability to Gaffney. Thus, this enumeration is moot, and we need not address it.

Judgments affirmed.

Andrews and Boggs, JJ., concur.

       According to an Aimwell supervisor, Gaffney’s first priority was Aimwell business.

       The order of the Appellate Division noted that because Aimwell was receiving the benefit of Gaffney’s services as truck supervisor as well as the income stream from McLendon based on Gaffney’s driving, the fact that the 100 percent allocation of liability to Aimwell resulted in a windfall to McLendon did not require a different allocation, which would be less reasonable than the apportionment dictated by OCGA § 34-9-224.

       (Emphasis supplied.)

       (Punctuation omitted.) Spectera, Inc. v. Wilson, 317 Ga. App. 64, 67 (1) (730 SE2d 699) (2012).

       (Punctuation omitted.) Id.

       (Punctuation omitted; emphasis supplied.) Caremore, Inc. &c. v. Hollis, 283 Ga.App. 681, 685 (3) (642 SE2d 375) (2007).

       See OCGA § 34-9-224.

       196 Ga. App. 158 (395 SE2d 333) (1990).

       See id. at 158.

       (Emphasis in original.) Id. at 159.

       Id.

       In order for an employee to he a borrowed employee, the evidence must show that (1) the special master had complete control and direction of the servant for the occasion; (2) the general master had no such control; and (3) the special master had the exclusive right to discharge the servant. All of these elements must exist and the element of the right to control relates specifically to the occasion when the injury occurred.

        Coca-Cola Co. v. Nicks, 215 Ga. App. 381, 382 (450 SE2d 838) (1994).

       See United States Fidelity &c. Co. v. Forrester, 230 Ga. 182, 185 (196 SE2d 133) (1973).

       (Emphasis omitted.) Bennett, 196 Ga. App. at 158-159.

       (Emphasis supplied.) Coca-Cola Co., 215 Ga. App. at 382. See also United States Fidelity &c. Co., 230 Ga. at 185.

       See Bennett, 196 Ga. App. at 159.

       (Citation and punctuation omitted; emphasis in original.) Bonus Stores, Inc. v. Hensley, 309 Ga. App. 129, 131-132 (1) (710 SE2d 201) (2011).

       (Punctuation omitted.) Stokes v. Coweta County Bd. of Ed., 313 Ga. App. 505, 506 (722 SE2d 118) (2012).

       (Punctuation omitted.) Crossmark, Inc. v. Strickland, 310 Ga. App. 303, 305 (1) (713 SE2d 430) (2011).

       See id.


author: MCFADDEN, Judge.

text:
    A12A1475.
    BOOTH v. BREWSTER.
    (734 SE2d 106)
   MCFADDEN, Judge.

Bobbi Jo Booth brought an action against Tina Brewster for injuries Booth sustained in a car accident. A jury found in favor of Brewster, and the trial court denied Booth’s motion for new trial. On appeal, Booth argues that the trial court erred in charging the jury on the doctrine of last clear chance. Although we agree that the evidence did not warrant the charge, the error was not harmful. Accordingly, we affirm.

The evidence shows that the collision occurred on July 29, 2009, when Brewster pulled out of a parking lot into the path of Booth’s vehicle. Brewster testified at trial that, although she looked in both directions before pulling out of the parking lot, she did not see Booth’s vehicle before the collision occurred. Booth testified that she saw Brewster pull into her path but was unable to avoid the collision.

Over Booth’s objection, the trial court gave the following jury charge:

People are under an obligation to use ordinary care to avoid injuring others after finding them in a dangerous place regardless of how they got there and are liable for the failure to do so. This rule is known as the last clear chance doctrine. The last clear chance doctrine only applies when it is proved by a preponderance of the evidence that the plaintiff placed herself in danger because of her own negligence and the defendant actually knew of the plaintiff’s danger and the defendant had an opportunity to take action to avoid the injury to the plaintiff by the use of ordinary care under the conditions and circumstances that existed at the time but failed to do so.
If you find such to be proved, then the failure of the defendant to use ordinary care under such circumstances to avoid the injury to the plaintiff would be considered the proximate cause of the plaintiff’s injury.

The court also charged the jury on the principle of comparative negligence. See OCGA § 51-11-7.

We agree with Booth that the evidence did not warrant the trial court’s charge on last clear chance. There was no evidence either that the plaintiff, Booth, had placed herself in danger prior to the defendant, Brewster, pulling out of the driveway, or that Brewster actually knew that Booth was in any danger. Although Brewster points to evidence that she contends showed Booth had knowledge and opportunity to take action, the charge given by the court did not pertain to a plaintiff’s knowledge and opportunity.

Decided November 7, 2012.

Cynthia N. Johnson, for appellant.

Downey & Cleveland, Kelley E. Webb, for appellee.

Nevertheless, we find no reversible error. It is true that “instructions not warranted by the evidence are cause for a new trial unless it is apparent that the jury could not have been misled thereby,” Dept. of Transp. v. Davison Investment Co., 267 Ga. 568, 570 (2) (481 SE2d 522) (1997) (citations and punctuation omitted), and Booth argues that the last clear chance charge could have misled the jury into believing that the last clear chance doctrine applied to Booth. But, as stated above, the plain language of the charge given by the court limited the application of the last clear chance doctrine to Brewster. Compare Fonts v. Builders Transport, 222 Ga. App. 568, 569-570 (1) (474 SE2d 746) (1996) (last clear chance charge that addressed whether either the plaintiff or the defendant could have avoided an accident through the use of ordinary care was reversible error, where the facts supported the giving of such charge only as to one of the parties) with Karp v. Niver, 142 Ga. App. 241, 242 (2) (235 SE2d 589) (1977) (erroneous giving of last clear chance charge that clearly addressed the defendant’s, and not the plaintiff’s, last clear chance was harmless error). Moreover, the court also specifically addressed the effect of any negligence on the part of Booth in its charge on comparative negligence. We find no ground for reversal.

Judgment affirmed.

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


text:
    A12A1564.
    CALLAWAY et al. v. GARLAND.
    (734 SE2d 90)
   MCFADDEN, Judge.

Peggy and Mike Callaway appeal an order returning custody of their grandson to his mother, Wendy Garland. The Callaways argue, first, that the trial court lacked jurisdiction due to an earlier appeal; but because they failed to show that appeal costs had been paid in the earlier appeal, they have failed to show that the earlier appeal had supersedeas effect. And as reasonable evidence supports the trial court’s decision to return custody to Garland, we affirm.

Garland was married to the Callaways’ son. In the course of their divorce proceedings, the trial court awarded custody of the child to the Callaways and granted Garland visitation. Apparently, Garland filed a pro se notice of appeal of that order. The Callaways filed the instant action to modify the visitation provisions of the custody award; they sought to suspend Garland’s visitation with her son or to require the visitation to be supervised. Garland filed a counterclaim, seeking custody of her son. (The child’s father, who is the Callaways’ son, is not involved in the proceeding. He is being prosecuted for felony aggravated assault and cruelty to children, and his bond conditions prohibit him from having contact with the child.)

The trial court awarded Garland custody. The Callaways appeal.

1. Supersedeas.

The Callaways argue that the trial court lacked jurisdiction over the entire proceeding because Garland had filed a notice of appeal of the original custody order. “[I]n a civil action, the filing of a notice of appeal does not serve as a supersedeas until all costs in the trial court have been paid. Here,... there is no indication that [Garland] paid all costs in the trial court.” (Citations omitted.) Lott v. Arrington & Hollowell, 258 Ga. App. 51, 54 (2) (a) (572 SE2d 664) (2002). Consequently the Callaways have not shown that supersedeas attached, and we must presume that the trial court had jurisdiction to enter the order now before us on appeal.

2. Sufficiency of the evidence.

The Callaways argue that the trial court erred in granting Garland custody. Once a court has awarded a third party permanent custody of a child in a proceeding to which a parent was a party, then

the roles of the parent and the third party reverse; that is, the third party now has the prima facie right to custody as against the parent who has lost the right to custody. The parent can regain custody upon showing by clear and convincing evidence his or her present fitness as a parent and that it is in the best interest of the child that custody be changed.

Durden v. Barron, 249 Ga. 686 (2) (290 SE2d 923) (1982). “If the record contains any reasonable evidence to support the trial court’s decision on a petition to modify custody, it will be affirmed.” (Citation omitted.) Lively v. Bowen, 272 Ga. App. 479 (612 SE2d 625) (2005).

(a) Current fitness.

The Callaways argue that Garland presented no evidence of her current fitness. But the trial court found that Garland was a fit parent who acts in the best interest of her child, and the record supports that finding. It found that Garland had overcome certain hardships, has demonstrated that her life is stable, and has demonstrated her good parenting abilities with her second child, a daughter, with whom her son has formed a strong bond. The report and testimony of the guardians ad litem support these findings. The guardians testified that Garland was fit to have custody, basing their conclusion on their observations of her and her home, their discussions with her witnesses, her job stability and their observations of her care of her second child. This is reasonable evidence to support the trial court’s conclusion that the evidence of the mother’s fitness is clear and convincing. See Lively, supra, 272 Ga. App. at 485 (1).

(b) Best interest of the child.

The Callaways argue that there is no evidence that it was in the child’s best interest for Garland to have custody. But the guardians ad litem expressed concern that the Callaways had intruded upon Garland’s exercise of her visitation rights with the child and that the Callaways had subjected the child to repeated questioning in an attempt to influence him and elicit information that they could use against Garland. They recommended that custody be awarded to Garland but that, after a period of time, the Callaways be granted visitation because of their bond with him.

The trial court found that the grandparents had engaged in a pattern of behavior to alienate the child from his mother; that “[t]he grandparents [had] subjected [the child] to excessive forensic interviews and ‘play therapy’ in an attempt to gain information to use against the mother,” even though the child had “suffered no physical, emotional or sexual abuse at the hands of the mother or in her care”; and that the child’s best interest would be served by living with his mother and his sister. The record supports that finding.

The guardians reported the Callaways took the child for more than ten interviews with various people in an effort to substantiate their unfounded suspicions that the child’s stepfather had molested him. They reported, for example, that the grandparents took the child to be interviewed by play therapist Linda Silva, whom they told of their suspicions. While the grandparents remained nearby, Silva attempted to conduct a forensic interview with the child. On another occasion, also with the grandparents nearby, Silva asked the child whether the stepfather had tied him up with a belt. The guardians noted their concern that “with Linda Silva’s encouragement[,] the grandparents ... continued to look for any and all imperfections the mother may have.”

Silva notified the Department of Family and Children Services of the grandparents’ allegations. The Department made a referral, and the grandparents took the child for an interview at a child advocacy center. Although the child never made a conclusive disclosure of abuse, the grandparents asked the child advocacy center to conduct additional interviews. Staff member Janet Kowalski conducted eight forensic interviews with the child. At the time the court appointed the guardians ad litem, the grandparents were making arrangements to take the child to yet another person for forensic interviews. In spite of the multiple interviews, the Department of Family and Children Services closed the case because the child made no disclosures of any sexual or physical abuse.

Decided November 7, 2012.

Janna D. Akins, Daniel J. Davenport, for appellants.

Ashleigh B. Merchant, for appellee.

During the course of the hearing, the trial court expressed disapproval of these activities, saying at one point, ‘You’re torturing that child,” and at another, “nine interviews is absolutely insane.” In his order, the trial court found, “The grandparents have subjected [the child] to excessive forensic interviews and ‘play therapy’ in an attempt to gain information to use against the mother to restrict her visitation with her son; these excessive interviews were not in the best interest of [the child].”

The record supports that finding. And it supports the trial court’s finding of clear and convincing evidence that returning custody to the mother is in the child’s best interest. See Lively, supra, 272 Ga. App. at 485 (1); see also Ceci & Bruck, Jeopardy in the Courtroom: A Scientific Analysis of Children’s Testimony (Amer. Psychol. Assn. 1995), ¶. 87-105 (summarizing social science research evidencing that “interviewer biases can... influence a child’s or adult’s behavior in a significant manner”), ¶. 107-125 (summarizingresearch evidencing the “baleful effects” associated with repeated questioning).

Judgment affirmed.

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


text:
    A12A1612.
    BOLAH v. DRISKELL.
    (734 SE2d 108)
   MCFADDEN, Judge.

Ian Bolah brought an action against Mea Driskell for injuries he sustained in a multi-vehicle collision that he alleged was caused by Driskell’s negligence. A jury returned a defense verdict. The trial court entered judgment on the verdict and denied Bolah’s motion for new trial. On appeal, Bolah argues that the trial court erred in allowing evidence of a settlement he received in connection with a motorcycle accident that had occurred about a year and a half earlier. We find that the trial court did not abuse its discretion in allowing the evidence, because it was relevant to impeach Bolah’s testimony regarding the extent of the injuries he sustained in the prior accident. Accordingly, we affirm.

The record shows that, during the trial, Bolah testified about the extent of the injuries from the prior motorcycle accident in an effort to distinguish them from the injuries sustained in the accident involving Driskell. On direct examination, Bolah stated that he went to the hospital after the prior motorcycle accident “because, you know, I got knocked off the bike. My left wrist, you know, I had abdomen stuff, a little bit of trauma, you know, knee’s feeling a little bit hurt.” He testified that he was able to go to work the next day and perform his job without difficulty, and that he did not have to return to the doctor for further treatment related to his injuries from the prior accident. Driskell’s counsel, however, sought to introduce on cross-examination evidence that Bolah had received a settlement of $20,000 in part to compensate him for physical injuries sustained in the prior motorcycle accident. Driskell argued to the trial court that the purpose of this evidence was to impeach Bolah’s credibility, given his testimony minimizing his injuries from the prior accident, and the trial court allowed the evidence over Bolah’s objection. “The admission or exclusion of evidence is a matter within the discretion of the trial court, and we review evidentiary decisions on an abuse of discretion standard.” (Citation omitted.) Stovall v. DaimlerChrysler Motors Corp., 270 Ga. App. 791 (608 SE2d 245) (2004).

“[Ejvidence as to the amount of a settlement or compromise in [an] earlier case is generally irrelevant and prejudicial and therefore inadmissible.” (Citation omitted.) Goforth v. Wigley, 178 Ga.App. 558, 560 (2) (343 SE2d 788) (1986). Here, however, the evidence that Bolah received a monetary settlement for his injuries in the prior motorcycle accident was relevant to the issue of impeachment, because a jury could find that the evidence contradicted Bolah’s testimony that his injuries were not serious enough to impair his job performance or require additional medical treatment. See OCGA § 24-9-82 (“A witness may be impeached by disproving the facts testified to by him.”). The conflict between the settlement evidence and Bolah’s testimony regarding the extent of his injuries from the prior accident distinguishes this case from the decisions cited by Bolah in support of his appeal. Compare Goforth, 178 Ga. App. at 560 (2) (trial court did not err in excluding evidence of amount of prior settlement where plaintiff did not deny she had suffered injuries in earlier incident); Fred F. French Mgmt. Co. v. Long, 169 Ga. App. 702, 704 (2) (314 SE2d 666) (1983) (trial court did not err in excluding evidence of workers’ compensation benefits made to plaintiff for unrelated injury; evidence was not necessary to impeach plaintiff’s testimony because she admitted unrelated injury and its effects).

Decided November 7, 2012.

Chauncy O. Bailey, Robert Kenner, Jr., for appellant.

Laura S. Maki, for appellee.

A trial court, in its discretion, may admit evidence relevant to the issue of impeachment even if the evidence would not qualify for admission on other grounds. See Pouncey v. Adams, 206 Ga.App. 126, 126-127 (1) (424 SE2d 376) (1992). Under these circumstances, we find no abuse of discretion in the trial court’s decision to allow the evidence for impeachment purposes. See id.

Judgment affirmed.

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


text:
    A12A1290.
    MEEK v. MALLORY AND EVANS, INC.
    (734 SE2d 109)
   Andrews, Judge.

Clay Meek appeals from the trial court’s grant of Mallory and Evans’s (landlord’s) motion for summary judgment on its claim that Meek breached his lease. For reasons that follow, we affirm in part and reverse in part.

The record shows the following undisputed facts. Meek signed a lease for a one-year term beginning August 17, 2007 and ending August 16,2008. The amount of rent for the initial one-year term was $1,700 a month. The lease provided for two additional one-year terms. If Meek wished to extend the term of the lease, he was required to give written notice to landlord not less than one month prior to the ' expiration of the current lease. The rent for the second one-year term was $1,900.

The lease provided for a security deposit of $2,000, one thousand of which was payable by check and the other thousand was paid by Meek’s performing work on the property, including painting and landscaping. At the end of the lease, however, only the $1,000 payment was refundable to Meek. Should Meek hold over at the expiration of a term, the monthly rental would be one-and-a-half times the rental paid for the last month of the lease.

The first 12-month term of the contract expired, and Meek did not request an extension. Meek continued to pay $1,700 a month until May 2009. Meek moved out of the house in mid-June 2009.

Landlord sued Meek for breach of the lease; Meek counterclaimed, alleging that landlord did not refund the entire $2,000 security deposit plus an additional amount of money spent by Meek in completing “substantial repairs” to the property. Both parties moved for summary judgment. The trial court granted landlord’s motion for summary judgment and denied Meek’s motion. This appeal followed.

To prevail at summary judgment under OCGA § 9-11-56, the moving party must demonstrate that there is no genuine issue of material fact and that the undisputed facts, viewed in the light most favorable to the nonmoving party, warrant judgment as a matter of law. OCGA § 9-11-56 (c).

Lau’s Corp. v. Haskins, 261 Ga. 491 (405 SE2d 474) (1991). Our reviewis de novo. Lake v. APH Enterprises, 306 Ga. App. 317, 318 (702 SE2d 654) (2010).

The trial court found that the dispositive facts were not in dispute and held that Meek extended the term of the lease for one additional 12-month term; that both Meek and landlord mutually departed from the terms of the lease, resulting in a monthly rent of $1,700 for that additional term, instead of $1,900 for months 13-24 or the $2,550 required by the lease if the tenant holds over. The trial court further held that Meek breached the lease by failing to pay rent for May, June, July and August, and by abandoning the premises when he moved out in June. The court awarded damages of $6,800 for breach of contract for unpaid rent for May, June, July and August plus 10 percent late fees of $680 and pre-judgment interest of 10 percent per annum. The court found that landlord was entitled to retain the $1,000 security deposit for unpaid rent and use it to offset Meek’s damages. Further, the court found that Meek had been stubbornly litigious and caused landlord unnecessary trouble and expense. Therefore, the court awarded attorney fees under OCGA § 13-6-11 in the amount of $3,000.

1. In his first enumeration of error, Meek claims that the trial court erred in holding that there was no tenancy-at-will created, because the lease, by its own terms, requires any extension to be in writing. Meek also argues that under the merger clause, any additions or amendments must be in writing.

“Construction of written contracts, even if they are ambiguous, is a matter for the court and no jury question arises unless after application of applicable rules of construction the ambiguity remains.” Chalkley v. Ward, 119 Ga. App. 227, 235 (166 SE2d 748) (1969). “The construction placed upon the lease, as evidenced by the conduct of the parties, is to be considered.” Id. at 231.

In Lanham v. McWilliams, 6 Ga. App. 85, 89 (64 SE 294) (1908), the court held that both landlord and tenant were bound for an additional term of one year where no notice was given of an intention to claim any additional term; but the tenant continued to occupy the premises into the second year and to pay the same rent month by month, and the landlord accepted it without question. Likewise, in Chalkley, supra,

when the lessor accepted the rent note, allowed the tenant to continue occupancy of the premises and to pay the taxes during the four years following expiration of the original term without requiring the written notice of intention, there was a temporary mutual departure from that provision and a quasi new agreement which did not require the notice.

Id at 232. Notably, in Chalkley, the court discussed the meanings of the terms “renew” and “extend,” stating that “ ‘renewal’ contemplates the execution of a new contract, whereas ‘extension’ does not.” Id. at 229.

In this case, the lease specifically provides for an extension, not a renewal. Accordingly, the trial court did not err in determining that the lease was extended for an additional 12-month term. See Candler v. Smyth, 168 Ga. 276, 281 (147 SE 552) (1929) (“if the stipulation is to be construed as merely an extension of the time under the old lease, and no new agreement was contemplated, then, no notice being expressly provided for in the contract, if the lessee merely remained in possession by virtue of the contract after the expiration of the [term], this would bind both the lessee and the lessor to an extension for the additional time stipulated in the lease”).

2. Next Meek contends that the trial court erred in holding that landlord did not accept timely notice to vacate and tender of possession. Meek claimed that he sent an e-mail stating his intention to vacate on June 1.

When a landlord rents a building and puts a tenant in possession of the premises (with consequent liability for rent) the possession of the premises can not be surrendered by the tenant during the term of the lease, unless the surrender be accompanied by an agreement on the part of the landlord to retake possession. . . . There must be either an express agreement to the surrender of possession on the part of the tenant, or such circumstances as compel the conclusion that the landlord consented to retake possession of his property.

Vaswani v. Wohletz, 196 Ga. App. 676, 677 (396 SE2d 593) (1990) (citation and punctuation omitted).

In this case, there is nothing in the record showing that landlord expressly agreed to the surrender of the property nor are there circumstances that “compel” the conclusion that it did so. Therefore, because we held in Division 1 that this was not a tenancy-at-will, Meek was liable for any remaining unpaid rent for the term of the lease.

Further,

[u]nder well-settled principles of Georgia law, a landlord’s possession of premises abandoned by a tenant does not constitute an acceptance of a surrender of the premises — or, as here — abandonment by the tenant. In such circumstances the landlord has the option of (1) terminating the lease, (2) obtaining another tenant while holding the original tenant liable for any deficiency that may occur, or (3) permitting the premises to remain vacant while collecting the agreed-upon rent from the original tenant.

Lawson v. Crawford, 220 Ga. App. 447, 448 (469 SE2d 507) (1996) (citation and punctuation omitted). Here, landlord did not terminate the lease, nor did it obtain another tenant. Therefore, Meek is responsible for the unpaid rent for the remainder of the term of the lease.

3. Because Meek is liable for unpaid rent under the contract, landlord was not barred from retaining the security deposit for nonpayment of rent. See Kimber v. Towne Hills Dev. Co., 156 Ga. App. 401, 402 (274 SE2d 620) (1980). Meek also claims, however, that he was entitled to the return of a $2,000 security deposit. Meek’s affidavit states that he completed certain repairs, including but not limited to painting and landscaping. Meek claims that he is entitled to the return of an additional $1,000, presumably the value of the painting and landscaping work.

Meek submitted no evidence, however, from which the trial court could determine that any work done by Meek totaled $1,000. Meek submitted photographs which presumably show that parts of the landscaping were overgrown, and also photographs of the interior, which were fuzzy and not helpful. Without more, there is no evidence of the value of any work done on the property. Accordingly, there was no error in the trial court’s holding that Meek was entitled to the refund of his $1,000 security deposit.

Decided November 8, 2012.

Guy K. Spicer, for appellant.

Miles, Patterson, Hansford & Tallant, Dana B. Miles, Lauren C. Giles, for appellee.

4. The trial court correctly calculated the amount of damages. The court held that, pursuant to the terms of the lease, Meek was liable for four months of unpaid rent at $1,700 per month, plus 10 percent late fees and 10 percent pre-judgment interest from August 17, 2009 to the date of judgment. Further, the trial court credited Meek with $1,000 from the unpaid security deposit. There was no error.

5. Next, Meek claims that the trial court improperly awarded attorney fees under OCGA § 13-6-11. The trial court found thatMeek had been stubbornly litigious and had caused plaintiff unnecessary trouble and expense, and awarded $3,000 in attorney fees under OCGA § 13-6-11. That Code section provides:

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

Thus, the language of OCGA § 13-6-11 prevents a trial court from ever determining that a claimant is entitled to attorney fees as a matter of law. “Although the trial court may grant attorney fees or litigation expenses under OCGA § 13-6-11 where it sits as the trier of fact, it is not a trier of fact on a motion for summary judgment.” Covington Square Assocs. v. Ingles Markets, 287 Ga. 445, 448 (696 SE2d 649) (2010) (citations and punctuation omitted). Accordingly, we reverse to the extent that the trial court granted summary judgment to landlord for attorney fees under OCGA § 13-6-11.

In light of our holdings in Divisions 1 through 4 above, it follows that Meek’s claim that he was entitled to an award of attorney fees is without merit.

Judgment affirmed in part and reversed in part.

Doyle, P. J., and Boggs, J., concur.


author: BARNES, Presiding Judge.

text:
    A12A1647.
    REED v. THE STATE.
    (734 SE2d 113)
   BARNES, Presiding Judge.

An eleven-person jury found Percy Joseph Reed guilty of aggravated assault, aggravated assault with intent to rob, and attempted armed robbery. After finding that the three counts merged as a matter of fact, the trial court merged the other two counts into the count for aggravated assault with intent to rob and sentenced him to twenty years imprisonment. Reed moved for a new trial, and the trial court denied the motion. On appeal, Read contends that the trial court erred in allowing the case to proceed with only eleven jurors and in sentencing him for aggravated assault with intent to rob rather than for attempted armed robbery. For the reasons discussed below, we conclude that, while the trial court did not err in allowing the case to proceed with eleven jurors, the court misapplied merger principles and erred in sentencing Reed for aggravated assault with intent to rob. Accordingly, Reed’s conviction for aggravated assault with intent to rob must be set aside and the case remanded for resentencing on his conviction for attempted armed robbery.

Following a criminal conviction, we view the evidence in the light most favorable to the jury’s verdict. See Vadde v. State, 296 Ga. App. 405 (674 SE2d 323) (2009). So viewed, the evidence showed that on July 2, 2004, Reed entered a feed-and-seed store in Tifton, Georgia, where he routinely purchased horse feed and supplies. Reed had been a customer at the store for approximately one year and had previously purchased goods there on account.

No one was in the store when Reed entered, except for one employee. Reed spoke with the employee about how much he owed on his account, which was overdue, and he told the employee that he wished to purchase two bags of oats. The employee went to the back of the store and retrieved the two bags.

After the employee returned to the front of the store with the two bags of oats, Reed spoke with him for a few more minutes and then said that he wished to purchase another bag of feed. The employee went to the back of the store and retrieved another bag. As the employee was on his way back to the front counter with the bag of feed, Reed suddenly struck him on the back of his head with a board from the store, causing him to briefly lose consciousness and fall to the floor. When the employee regained consciousness and attempted to get back up, Reed struck him two or three more times. The employee “decided to play dead,” and Reed stopped striking him. Reed then dragged the employee by his feet to the back of the store.

Reed left the employee at the back of the store and ran back to the front counter. As the employee attempted to get up from the floor, he heard the buzzer go off on the front cash register. According to the employee, the buzzer would go off when someone attempted to open the cash register using the wrong button. The employee also heard the front door bell ring and saw that another customer had entered the store.

Bleeding from the head, the employee began crawling toward the front of the store, and he saw Reed standing behind the counter where the cash register was located. The employee yelled out to the other customer that Reed was trying to rob him, and Reed ran from the store. The other customer dialed 911, and an ambulance and sheriff’s deputies arrived on the scene shortly thereafter. The employee was transported to the hospital, where he received stitches and staples in the back of his head and was treated for a concussion. Later that day, a law enforcement officer discovered Reed a short distance from the store and apprehended him.

Reed was indicted and tried before a jury on two counts of aggravated assault and one count of attempted armed robbery. In the first aggravated assault count, the indictment averred that Reed “did unlawfully make an assault upon the person of [the employee] with an object, namely, a wooden board, which when used offensively against another person is likely to result in serious bodily injury by hitting him with said board.” In the second aggravated assault count, the indictment averred that Reed “did unlawfully make an assault upon the person of [the employee] with the intent to rob by hitting him with a wooden board.” In the count for attempted armed robbery, the indictment averred that Reed

did unlawfully attempt to commit the crime of armed robbery in violation of OCGA [§] 16-4-1 and that [he] did knowingly and intentionally perform acts constituting a substantial step toward the commission of the crime by hitting [the employee] with a wooden board and attempting to open a cash register containing U.S. currency.

At trial, the store employee testified to the events as set out above. The customer who entered the store during the robbery also testified to what he had witnessed. In addition, the jury heard from several sheriff’s deputies involved in the investigation and in Reed’s apprehension. After the State rested, Reed chose to testify in his own defense. Reed denied trying to rob the feed-and-seed store, and he claimed that the employee had first attacked him with the board because he was angry with Reed for having not paid his overdue account. According to Reed, he struck the employee in self-defense.

After the evidence had closed and the jury had begun its deliberations, the trial court learned that one of the jurors had read a newspaper article about the case in violation of the court’s previous instructions. During questioning, the juror testified that she had “glanced” at the article but did not discuss it with the other jurors. Defense counsel asked that the juror be removed from the panel and the case be allowed to proceed with eleven jurors, noting that he had “talked to [Reed] just now and he agrees that’s the way to go.” The trial court asked, “Is that right, Mr. Reed?” Reed responded, ‘Yes, sir,” and the trial court excused the juror. The jury then continued its deliberations with only eleven jurors.

The eleven remaining jurors found Reed guilty of the two counts of aggravated assault and the one count of attempted armed robbery. The trial court found that the three counts merged as a matter of fact. In this respect, the trial court found that the first count of aggravated assault and the count for attempted armed robbery merged into the count for aggravated assault with intent to rob. Based upon its merger analysis, the trial court sentenced Reed to twenty years imprisonment for committing aggravated assault with intent to rob. Reed filed a motion for new trial, which the trial court denied, and this appeal followed.

1. Reed contends that the trial court erred in allowing the case to proceed with only eleven jurors. We disagree because Reed, through his trial counsel, waived his right to a twelve-person jury.

Counsel for an accused can validly waive the accused’s right to a jury of twelve “if (1) the waiver is made, without objection, in the accused’s presence or (2) the accused otherwise acquiesces in the waiver.” (Citation and punctuation omitted.) Davis v. State, 192 Ga. App. 47, 48 (3) (383 SE2d 615) (1989). See Hudson v. State, 250 Ga. 479, 483-484 (3) (a) (299 SE2d 531) (1983); Weeks v. State, 187 Ga. App. 307, 310 (2) (370 SE2d 344) (1988). The record reflects that Reed was present when his trial counsel requested that the case be allowed to proceed with only eleven jurors, did not object to his counsel’s request, and, in fact, expressly consented to the request when questioned about the issue by the trial court. Accordingly, the trial court committed no error in concluding that Reed had waived his right to a jury of twelve and in allowing the case to proceed with eleven jurors. See id.

2. Reed also argues that the trial court erred in merging the first count of aggravated assault and the count for attempted armed robbery into the count for aggravated assault with intent to rob. According to Reed, the aggravated assault counts were lesser offenses included in the attempted armed robbery count as a matter of fact. Consequently, he contends that the trial court should have merged the aggravated assault counts into the count for attempted armed robbery, and, therefore, should have sentenced him only on the latter count, which carried a maximum sentence of 10 years when the attempted armed robbery was committed in July 2004. See OCGA §§ 16-4-6 (a) (2004); 16-8-41 (b) (2004). See generally Rosser v. State, 312 Ga. App. 240, 240-241 (1) (718 SE2d 310) (2011) (criminal offense is to be punished according to sentencing range in effect at time of commission of the offense). We agree with Reed.

When the same conduct establishes the commission of more than one crime, a defendant may be prosecuted and found guilty of each crime but may not be sentenced for both. When the jury finds the defendant guilty of both crimes, the lesser offense merges into the greater offense and the court sentences on the greater offense only.

(Citations omitted.) Ellison v. State, 265 Ga. App. 446, 449 (3) (594 SE2d 675) (2004).

Here, the State does not dispute that the two counts of aggravated assault and the one count of attempted armed robbery merged as a matter of fact. And our Supreme Court and this Court have consistently held that when convictions for aggravated assault and attempted armed robbery merge as a matter of fact, the aggravated assault conviction is the lesser offense and should be merged into the attempted armed robbery conviction. See Hambrick v. State, 256 Ga. 148, 150-151 (4) (344 SE2d 639) (1986); Davis v. State, 312 Ga. App. 328, 330 (1) (718 SE2d 559) (2011); Garland v. State, 311 Ga.App. 7, 13 (3) (714 SE2d 707) (2011); Herndon v. State, 229 Ga.App. 457, 461 (11) (494 SE2d 262) (1997), overruled on other grounds, Felix v. State, 271 Ga. 534, 540 (523 SE2d 1) (1999); Redding v. State, 196 Ga.App. 751, 751-752 (397 SE2d 34) (1990). Consequently, the trial court erred in failing to merge the aggravated assault counts into the attempted armed robbery count for purposes of sentencing. We therefore vacate Reed’s judgment of conviction and sentence for aggravated assault with intent to rob, and we remand the case to the trial court for resentencing on his conviction for attempted armed robbery. See id.

Decided November 8, 2012.

John R. Mobley II, for appellant.

C. Paul Bowden, District Attorney, Erika S. Johnson, Assistant District Attorney, for appellee.

Judgment vacated and case remanded with direction.

Adams and McFadden, JJ., concur.

       Reed also was indicted and tried on one count of kidnapping, but he was acquitted on that count.

       Earlier in the case, one of the jurors had a death in the family and was replaced with the sole alternate.

       Reed suggests that our existing precedent on the waiver issue should be overturned and replaced with a rule requiring the trial court to have a more thorough colloquy with a criminal defendant before allowing the waiver of his right to a twelve-person jury. We decline to overturn our own precedent on this issue. Furthermore, we of course are bound by and cannot overturn our Supreme Court’s decision in Hudson, 250 Ga. at 484 (3) (a). See State v. Brown, 315 Ga. App. 282, 284 (726 SE2d 764) (2012) (reiterating that this Court is “bound to follow the decisions of our Supreme Court”).