text:
    A13A0388.
    CRUMITY v. THE STATE.
    (743 SE2d 455)
   Ray, Judge.

A jury found Roosevelt Crumity guilty of aggravated assault with a deadly weapon (OCGA § 16-5-21 (a) (1), (2)), aggravated stalking (OCGA § 16-5-91), and possession of a firearm during the commission of a felony (OCGA § 16-11-106). Crumity appeals the denial of his amended motion for new trial, contending that the evidence was insufficient to sustain his conviction for aggravated stalking and that he received ineffective assistance of counsel. For the reasons that follow, we affirm.

On appeal, Crumity no longer enjoys a presumption of innocence, and we construe the evidence, and all reasonable inferences therefrom, in a light most favorable to the jury’s verdict. Salazar v. State, 314 Ga. App. 83, 83 (722 SE2d 902) (2012).

So viewed, the evidence shows that Crumity was married to the victim. The relationship was tumultuous and violent, and involved numerous calls for police assistance. The victim obtained a temporary restraining order (“TRO”) against Crumity in 2007 requiring him to stay at least 200 yards away from her. After the entry of the TRO, Crumity told the victim that he would be back and that she was not getting rid of him. In contravention of the TRO’s terms, Crumity on various occasions drove past the victim’s house, followed her to work in his car, watched her go into her workplace from a parking lot that was only 30 to 50 feet from her workplace, and even went to the store where she worked. On these occasions, the victim was frightened and called police. On December 23, 2007, Crumity called the victim on the phone and told her he was going to kill her. The next morning, as the victim was leaving her house with her son to go to work, she saw Crumity approaching. He was pointing a shotgun at her. The son, who was armed, shot Crumity and then ran to the house to get another gun. He also called 911. Crumity, who was mumbling something about if he could not stay at the house, no one could, then shot the victim twice.

1. Crumity contends that the evidence was insufficient to sustain his conviction for aggravated stalking.

OCGA § 16-5-91 (a) provides:

A person commits the offense of aggravated stalking when such person, in violation of a... temporary restraining order, . . . 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.

OCGA § 16-5-90 (a) (1) defines harassing and intimidating behavior by a four-factor test: (1) a knowing and wilful course of conduct directed at the victim (2) which causes emotional distress by placing her in reasonable fear for her safety or the safety of someone in her immediate family (3) by establishing a pattern of harassing and intimidating behavior (4) which serves no legitimate purpose.

Crumity acknowledges that the State proved his violation of the protective order, that he engaged in prohibited contact, and that he did so without the victim’s consent. He argues, however, that the State failed to prove that he acted for the purpose of harassing and intimidating the victim. Specifically, he contends that OCGA § 16-5-90 (a) (l)’s knowing and wilful course of conduct and pattern of behavior requirements necessarily involve a “series of successive actions.” Daker v. Williams, 279 Ga. 782, 785 (621 SE2d 449) (2005). Crumity points to his own testimony as evidence that his proximity to the victim near her home and workplace did not involve the purpose of harassment or intimidation because he was visiting friends near her home, meeting a contractor near her workplace, or purchasing items from the store where she worked. This argument is without merit.

By its plain terms, OCGA § 16-5-91 prohibits even a single violation of a protective order, if that violation is . .. part of a pattern of harassing and intimidating behavior. ... In determining whether a defendant has exhibited such a pattern of behavior, the jury can consider a number of factors, including the prior history between the parties, the defendant’s surreptitious conduct, as well as his overtly confrontational acts, and any attempts by the defendant to contact, communicate with, or control the victim indirectly, as through third parties.

(Footnotes omitted.) Louisyr v. State, 307 Ga. App. 724, 729 (1) (706 SE2d 114) (2011).

From the facts outlined above, including both the parties’ prior history and the more recent contacts, threats, and telephone calls Crumity made to the victim, a rational jury was authorized to find a pattern of harassing and intimidating behavior sufficient to sustain the conviction. Louisyr, supra.

Crumity’s argument that his repeated proximity to the victim in violation of the protective order was not initiated for the purpose of harassing or intimidating her is also unavailing. It is well settled that on appeal, “[w]e do not weigh the evidence or decide the witnesses’ credibility, but only determine if the evidence is sufficient to sustain the convictions. We construe the evidence and all reasonable inferences from the evidence most strongly in favor of the jury’s verdict.” (Citations omitted.) Salazar, supra. “Moreover, given that [Crumity] testified at trial as to the reasons underlying his conduct, it was solely for the jury, viewing that testimony in light of the other evidence, to assess [Crumity’s] credibility and determine whether his testimony was truthful.” (Citation omitted.) Louisyr, supra at 730 (1). Here, the jury was entitled to disbelieve Crumity’s version of the facts, and to “take his untruthfulness as substantive and affirmative evidence of his guilt.” (Citation and punctuation omitted.) Id. The evidence was sufficient to sustain the conviction.

2. We turn next to Crumity’s contention that he received ineffective assistance of counsel. Crumity argues that trial counsel was ineffective because he “invaded the province of the jury” by asking Crumity on direct examination, “Do you expect the jury to believe that?”

We note that Crumity was acquitted of one of the charges of aggravated assault against him. We have held that acquittal is a relevant factor strongly supporting the conclusion that counsel’s assistance fell within the broad range of reasonably effective assistance that bar members in good standing are presumed to render. Goss v. State, 305 Ga. App. 497, 499 (2) (699 SE2d 819) (2010).

To prevail on an ineffective assistance of counsel claim, a criminal defendant must show both that his counsel’s performance was deficient and that the deficient performance so prejudiced him that there is a reasonable likelihood that, but for counsel’s errors, the outcome of the trial would have been different.... [T]he likelihood of a different result must be substantial, not just conceivable. We accept the trial court’s factual findings and credibility determinations unless clearly erroneous, but we independently apply the legal principles to the facts.

(Punctuation, footnotes and emphasis omitted.) Foster v. State, 318 Ga. App. 124, 125 (733 SE2d 423) (2012). “Trial tactics and strategy, no matter how mistaken in hindsight, are almost never adequate grounds for finding trial counsel ineffective unless they are so patently unreasonable that no competent attorney would have chosen them.” (Punctuation and footnote omitted.) Gray v. State, 291 Ga. App. 573, 579 (2) (662 SE2d 339) (2008). Further, absent testimony to the contrary, counsel’s actions are presumed strategic, and reasonableness is a question of law rather than a question of fact. Jacobs v. State, 299 Ga. App. 368, 372 (2) (683 SE2d 64) (2009).

At the motion for new trial hearing, Crumity’s defense counsel showed that his decisions were attributable to reasonable trial strategy. Counsel testified that he discussed with his client, prior to trial, the very type of question Crumity challenges on appeal. Counsel indicated that he made a strategic decision to ask Crumity whether he expected the jury to believe his testimony as a means of minimizing adverse effects on his client by pre-empting a question he expected the prosecution to ask. Counsel testified:

Decided May 16, 2013

Chaunda Brock, for appellant.

Paul L. Howard, Jr., District Attorney, Marc A. Mallon, Assistant District Attorney, for appellee.

[M]y experience when trying a case is that when the prosecutor conducts a cross-examination of a defendant, the prosecutor will routinely ask that very question, Do you expect the jury to believe this____One of the things that I will attempt to do is to anticipate the type of questions that a prosecutor will ask when cross-examining my client. And then [I] ask those very questions in a context where I can control the discussion in order to underscore the defense favorable features.

In analogous situations, we have found no ineffective assistance where as a matter of trial strategy defense counsel elicited negative information from a defendant or defense witness as a means of beating the State to the punch. See, e.g., Wilson v. State, 291 Ga. App. 69, 74-75 (4) (b) (661 SE2d 221) (2008) (no ineffective assistance where counsel did not except to trial court’s allowing defendant’s prior convictions to be used for impeachment, and in fact elicited evidence of client’s prior convictions); Battles v. State, 290 Ga. 226, 228-230 (2) (719 SE2d 423) (2011) (no ineffective assistance where counsel asked defense witness about a prior conviction and why she had been suspended from the practice of medicine).

In light of the foregoing, Crumity has failed to show that counsel’s performance was deficient, and further he “does not make any effort beyond cursory speculation to show how [he] met the prejudice prong of the [ineffective assistance] test.” (Citation omitted.) Waits v. State, 282 Ga. 1, 6 (4) (644 SE2d 127) (2007). Consequently, we conclude that the trial court did not err in finding that Crumity failed to carry his burden of proving that he received ineffective assistance of counsel.

Judgment affirmed.

Barnes, P. J., and Miller, J., concur.

       Crumity also argues that “a factual inquiry should be conducted” to determine whether he had a defense that was not presented, whether counsel consulted sufficiently with him, whether counsel adequately investigated the facts and law, and whether counsel was adequately prepared. He presents no factual argument or citations to the record in support of these contentions. An appellate court will not search the record for instances of error, as it is the burden of the party asserting error to show it affirmatively by the record. Jones v. State, 318 Ga. App. 342, 348 (3) (a) (iii), n. 4 (733 SE2d 400) (2012).


source: Caselaw Access Project

author: Ray, Judge.

license: Public Domain

text:
    A13A0514.
    HICKS v. THE STATE.
    (743 SE2d 458)
   Ray, Judge.

Following a jury trial, Stacy Leonard Hicks was convicted of felony fleeing or attempting to elude a police officer (OCGA § 40-6-395). He appeals the denial of his motion for new trial, contending that the evidence was insufficient to prove he committed a felony violation, as opposed to a misdemeanor violation, of OCGA § 40-6-395. We find the evidence sufficient to support the guilty verdict as to fleeing or attempting to elude; however, because there was insufficient evidence showing that there were traffic conditions that placed the general public at risk of serious injury, we vacate Hicks’ felony fleeing or attempting to elude conviction and sentence and remand the case with direction that a conviction and sentence be entered for a misdemeanor offense.

On appeal from a criminal conviction, the defendant no longer enjoys the presumption of innocence, and we neither weigh the evidence nor judge the credibility of the witnesses, but determine only if, after viewing the evidence in the light most favorable to the verdict, a rational trier of fact could have found the defendant guilty of the crime beyond a reasonable doubt. Jackson v. Virginia, 443 U. S. 307, 319 (III) (B) (99 SCt 2781, 61 LE2d 560) (1979).

So viewed, the evidence shows that in the early morning hours of April 3, 2010, an officer with the Effingham County Sheriff’s Office received a missing vehicle call for a maroon Mercedes sport utility vehicle. He spotted the vehicle and saw it collide with a steam roller parked beside the road. The vehicle was pulling a trailer, and the collision caused the trailer to detach and spill mattresses and other items into the roadway. After the collision, the officer activated his lights and began pursuit of the vehicle. The officer testified, and the video from the camera mounted on his police car shows, that after he activated his lights, the vehicle accelerated, drove through a stop sign without stopping, crossed over the white fog line on the edge of the roadway several times, and turned into two residential driveways before the driver, Hicks, abandoned the vehicle and fled on foot.

1. Hicks argues that the evidence was insufficient to convict him of felony, rather than misdemeanor, fleeing or attempting to elude. We agree.

Under OCGA § 40-6-395 (a), “[i]t shall be unlawful for any driver of a vehicle willfully to fail or refuse to bring his or her vehicle to a stop or otherwise to flee or attempt to elude a pursuing police vehicle . . . when given a visual or an audible signal to bring the vehicle to a stop.” OCGA § 40-6-395 (b) (1) provides that any person violating subsection (a), above, is guilty of a “high and aggravated misdemeanor,” while OCGA § 40-6-395 (b) (5) (A) (i)-(v) provides that any person who violates subsection (a), above, while fleeing or attempting to elude a pursuing police vehicle is guilty of a felony if he operates his vehicle in excess of 20 miles over the speed limit, strikes or collides with another vehicle or a pedestrian, flees in traffic conditions that place the general public at risk of receiving serious injuries, has an alcohol concentration of 0.08 grams or more within three hours of driving, or leaves the state.

The indictment charges Hicks with “willfully flee[ing from] a pursuing police vehicle in an attempt to escape arrest... in traffic conditions which placed the general public at risk of receiving serious injuries, after having been given a visual signal to bring his vehicle to a stop by an officer.”

The signal to stop may be “by hand, voice, emergency light, or siren.” OCGA § 40-6-395 (a). The only evidence of a signal to stop in the instant case was the officer’s activation of his lights after Hicks collided with the steam roller. As an initial matter, we note that the State presented no evidence of the speed limit in the area or the speed at which Hicks was driving, presented no evidence of a collision with a pedestrian or other vehicle in the time period after the officer activated his lights, and presented no evidence that Hicks left the state. Further, the officer testified that although he smelled alcohol on Hicks’ breath, he did not perform any tests to check Hicks’ intoxication level.

Additionally, the State presented no evidence of traffic conditions that placed the general public at risk of serious injury. The transcript contains no testimony related to risk to the general public, and the video of the chase, as recorded by the camera mounted on the police cruiser, shows empty roadways containing no other vehicles or pedestrians during the pendency of the pursuit. The prosecution cites Hinton v. State, 297 Ga. App. 565 (677 SE2d 752) (2009), arguing that so long as the jury viewed a police video of the chase, jurors determined “first hand” whether the evidence supported a finding that Hicks fled “in traffic conditions [which] placed the general public at risk of receiving serious injuries,” and thus the verdict cannot be overturned. This contention is incorrect.

In Hinton, for example, while the jury viewed a video of the chase, the evidence showed that the defendant reached speeds in excess of 100 miles per hour in a residential area, ran a stop sign, and jumped from the vehicle while it was still moving, allowing the car to strike a police cruiser and collide with a fence. Id. at 566 (1) (b). See also Ferguson v. State, 280 Ga. 893, 894 (1) (635 SE2d 144) (2006) (evidence sufficient to support felony fleeing or attempting to elude where defendant was driving 25-35 miles in excess of the speed limit and struck a car, killing its driver); Adams v. State, 293 Ga. App. 377, 377-378, 381 (2) (667 SE2d 186) (2008) (evidence sufficient to support felony fleeing or attempting to elude where defendant nearly struck a sheriffs deputy and did strike a marked police car); Buggay v. State, 263 Ga. App. 520, 521, 523 (2) (588 SE2d 244) (2003) (felony sentence under OCGA § 40-6-395 (b) (5) (A) upheld where defendant drove in excess of 100 miles per hour in heavy traffic).

Decided May 16, 2013.

Robert L. Persse, for appellant.

Richard A. Mallard, District Attorney, Joseph L. Cushner, Assistant District Attorney, for appellee.

It is well settled that for the jury’s verdict to be upheld, there must be some competent evidence, even if contradicted, to support each fact necessary to make out the State’s case. Ferguson v. State, 307 Ga. App. 232, 233 (1) (704 SE2d 470) (2010). Here, the State presented no such competent evidence and proved none of the elements required under OCGA § 40-6-395 (b) (5) (A). Thus, we must vacate Hicks’ felony sentence. Because the evidence does support a misdemeanor conviction, we remand the case with direction that a conviction and sentence be entered for a misdemeanor offense. See generally Schneider v. State, 312 Ga. App. 504, 509 (4) (718 SE2d 833) (2011).

2. Hicks contends that the trial court erred in imposing the maximum felony sentence without considering a less severe sentence. In light of our decision in Division 1, we need not reach this enumeration of error.

Judgment vacated and case remanded with direction.

Barnes, P. J., and Miller, J., concur.

       Hicks also was convicted of driving under the influence, failure to obey stop sign, weaving over the roadway, and obstruction of an officer, hut he does not appeal those convictions.

       OCGA § 40-6-395 was substantially amended effective July 1, 2012. See Ga. L. 2012, p. 729, § 1. Thus, we review Hicks’ case under the prior version of the statute in effect when he was convicted. See Ga. L. 2010, p. 256, § 2, effective July 1, 2010.


text:
    A13A0804.
    MARTIN v. THE STATE.
    (743 SE2d 462)
   Ray, Judge.

After a jury trial, Ronnie David Martin was convicted of criminal trespass (OCGA § 16-7-21), theft by taking motor vehicle (OCGA § 16-8-2), and felony theft by taking (OCGA § 16-8-2). Martin appeals from the conviction and judgment, arguing that the trial court erred in granting the State’s motion in limine to exclude his post-detention statements to an investigator as self-serving hearsay. Finding no error, we affirm.

The evidence that most strongly supports the verdicts was as follows: Deputy Nix of the Hall County Sheriff’s Department pulled over a white Ford Ranger truck because it was driving at a very slow speed and because the truck’s rear end was riding suspiciously low and was swaying from side to side. He testified that the truck bed was “overflowing” with metal tools, including several three-foot augers sitting on the top of the pile. When Deputy Nix approached the car, Kevin Williamson was driving the truck and Martin was seated atop a 50-pound bag of sugar in the passenger’s seat, and Martin was surrounded by a laptop, computer equipment, and electrical tools. Because Williamson and Martin could not provide credible answers as to how they came to possess the truck or its contents or where they were going, and because the driver was sweating and seemed very nervous, Deputy Nix detained and handcuffed the men.

Although the truck had no visible logos, the tag of the truck came back as being registered to Coleman Natural Foods, a Gainesville business. Employees of Coleman Natural Foods testified that the truck and its contents belonged to the company and had been stolen from the company’s warehouse earlier that evening. At the time of his arrest, Williamson, the driver, told investigators that Martin had helped him load the truck. However, at trial, Williamson denied that he had made this statement. Martin did not testify at trial. Trial testimony further showed that the truck contained at least six augers weighing between 175 and 300 pounds each, and that it would be almost impossible for a single man to load them into a truck.

This evidence was sufficient to authorize a rational finder of fact to find Martin guilty of criminal trespass, theft by taking motor vehicle, and felony theft by taking beyond a reasonable doubt. Jackson v. Virginia, 443 U. S. 307 (99 SCt 2781, 61 LE2d 560) (1979).

Martin’s sole enumeration of error is that the trial court erred in granting the State’s motion in limine seeking to exclude the audio recording of his post-detention statement as self-serving hearsay. Finding no error, we affirm.

Decided May 16, 2013.

Travis A. Williams, for appellant.

Investigator Jeremy Grindle questioned both men at the time of their roadside detention. Martin gave a recorded statement to Investigator Grindle, and prior to trial, the State filed a motion in limine to exclude this post-detention statement as self-serving hearsay unless Martin testified in his own defense. In a hearing prior to the introduction of evidence at trial, the trial court listened to the audio recording of this statement and granted the State’s motion. The Supreme Court of Georgia has held that “[s] elf-serving declarations ... are inadmissible hearsay unless the declarant testifies and is subject to cross-examination.” (Citation omitted.) Parker v. State, 276 Ga. 598, 598 (2) (581 SE2d 7) (2003).

On appeal, Martin enumerates this evidentiary ruling as error, arguing that the statement was not self-serving because in the statement “he admits that he was going to help Williamson unload the stolen truck.” However, although the trial court listened to the recorded statement prior to the introduction of evidence at trial, neither the recording nor a transcript of the statement was admitted into the record as evidence. It is well settled that appellant bears the burden of showing any alleged error affirmatively by the record. Hollis v. State, 201 Ga. App. 224, 224 (1) (411 SE2d 48) (1991). “The brief cannot serve in the place of the record or the transcript for the purpose of demonstrating error or for supporting a claim of error.” (Citations and punctuation omitted.) Lowery v. Horn, 147 Ga. App. 880 (251 SE2d 840) (1978). Accordingly, in the absence of the audio recording of the statement in the record or a transcript of such, this Court must presume as a matter of law that the trial court’s evidentiary findings were correct. See Arnold v. State, 305 Ga. App. 45, 48 (2) (699 SE2d 77) (2010). Accord Glean v. State, 197 Ga. App. 34, 35 (4) (397 SE2d 459) (1990).

Judgment affirmed.

Barnes, P. J., and Miller, J., concur.

LeeDarragh, District Attorney, Conley J. Greer, Assistant District Attorney, for appellee.

       We note that this statement of law is based on the law of evidence as it existed before the enactment of the new Georgia Evidence Code. See Ga. L. 2011, p. 99, § 101 (“This Act shall become effective on January 1, 2013, and shall apply to any motion made or hearing or trial commenced on or after such date.”). Because Martin’s trial occurred prior to January 1, 2013, we apply the law of evidence as it existed prior to the enactment of the new Georgia Evidence Code.


author: BARNES, Presiding Judge.

text:
    A13A0093.
    IGLESIA DEL DIOS VIVO COLUMNA Y APOYO DE LA VERDAD LA LUZ DEL MUNDO, INC. v. DOWNING.
    (742 SE2d 742)
   BARNES, Presiding Judge.

Iglesia Del Dios Vivo Columna Y Apoyo De La Verdad La Luz Del Mundo, Inc. (“Appellant”) appeals from the trial court’s order granting summary judgment to Gail Downing, in her official capacity as Tax Commissioner of Cobb County (the “Tax Commissioner”) and denying summary judgment to Appellant. This case turns on the legal question of whether the Tax Commissioner was authorized to use excess funds generated from a tax sale of property in 2007 to satisfy delinquent taxes owed on the property for tax years 2008-2010. Because we conclude that the Tax Commissioner’s actions were contrary to Georgia case and statutory law, we reverse the trial court’s decision.

The material facts are undisputed. In January 2007, the Tax Commissioner conducted a levy and tax sale of property located at 1671 Sams Street, Marietta, Cobb County, Georgia (the “Property”). The levy was for delinquent ad valorem taxes owed for the years 2004-2006. Appellant, a church, owned and occupied the Property at the time of the tax sale.

JB Holdings, Inc. purchased the Property at the tax sale, and a tax deed was executed in its favor, subject to Appellant’s right of redemption. The tax sale generated proceeds in excess of the delinquent taxes that were owed on the Property. The Tax Commissioner disbursed a portion of the excess funds to a creditor bank which held a security deed on the Property. Approximately $38,000 in excess funds remained after the disbursement to the security deed holder.

Appellant remained in possession of the Property after the tax sale, and JB Holdings did not foreclose upon Appellant’s statutory right of redemption. In 2008, 2009, and 2010, ad valorem taxes were not paid on the Property. The delinquent taxes owed for those years totaled approximately $4,700. The Tax Commissioner satisfied the unpaid taxes for years 2008-2010 out of the excess funds from the 2007 tax sale that otherwise would have been disbursed to Appellant.

In February 2011, Appellant sent a letter to the Tax Commissioner demanding payment of the excess funds from the 2007 tax sale. Appellant further demanded that the Tax Commissioner cease and desist from using the excess funds to satisfy delinquent ad valorem taxes that accrued after the 2007 tax sale.

The Tax Commissioner filed an interpleader action and deposited the remaining excess funds from the 2007 tax sale into the superior court registry. Those funds were awarded to Appellant in the interpleader action, but that action apparently did not address the issue of the Tax Commissioner’s previous deduction of the approximately $4,700 from the funds to satisfy the 2008-2010 taxes.

Separate from the interpleader action, Appellant filed a money rule petition against the Tax Commissioner pursuant to OCGA § 15-13-3. Appellant sought to recover the approximately $4,700 in excess funds from the 2007 tax sale that had been disbursed by the Tax Commissioner to pay the delinquent taxes on the Property for the years 2008-2010. It is the money rule petition brought by Appellant that is the subject of this appeal.

In June 2011, Appellant moved for summary judgment, contending that it was entitled to the approximately $4,700 in excess funds from the 2007 tax sale and that the Tax Commissioner was not authorized to satisfy the delinquent ad valorem taxes for 2008-2010 out of those funds. Appellant argued that JB Holdings, as the tax deed purchaser, was solely responsible for the taxes that accrued on the Property in the years after the tax sale. The Tax Commissioner cross-moved for summary judgment, contending that Appellant, as the defendant in fi. fa., was jointly liable with JB Holdings for the delinquent taxes and that it thus was entitled to satisfy the unpaid taxes out of the excess funds.

After hearing oral argument, the trial court entered an order denying Appellant’s motion for summary judgment and granting the Tax Commissioner’s motion for summary judgment. The trial court concluded that, while JB Holdings, as the tax deed purchaser, was obligated to pay the ad valorem taxes that accrued on the Property after the 2007 tax sale, Appellant continued to have a sufficient interest in the Property after the sale to be jointly liable for those taxes. In this regard, the trial court concluded that Appellant, the defendant in fi. fa., retained a taxable interest in the Property because it remained in possession of the Property and its right of redemption had not been foreclosed upon by JB Holdings. Having reached this conclusion, the trial court found as a matter of law that the Tax Commissioner acted properly in using the excess funds from the 2007 tax sale (which otherwise would have been paid out to Appellant) to satisfy the delinquent taxes owed on the Property for the years 2008-2010.

Appellant contends that the trial court erred in holding that Appellant, as the defendant in fi. fa., remained liable for ad valorem taxes that accrued on the Property after the tax sale because it remained in possession of the Property and JB Holdings had not foreclosed upon the right of redemption. According to Appellant, Georgia case and statutory law reflect that JB Holdings, as the tax deed purchaser, was the party responsible for taxes that accrued on the Property after the tax sale unless and until the right of redemption had been exercised. Consequently, Appellant maintains that the trial court committed reversible error in holding that the Tax Commissioner was authorized to use the excess funds from the 2007 tax sale of the Property that otherwise were owed to Appellant to satisfy the delinquent ad valorem taxes for years 2008-2010. We agree.

Under Georgia law, a tax commissioner holds any excess funds generated by a tax sale in a fiduciary capacity, see Alexander Investment Group v. Jarvis, 263 Ga. 489, 491-492 (2) (435 SE2d 609) (1993), and the disbursement of those funds is governed by OCGA § 48-4-5. See id. at 490 (1). That statute provides that any excess funds existing “after paying taxes, costs, and all expenses of a sale made by the tax commissioner” shall be distributed “to the owner or owners as their interests appear in the order of priority in which their interests exist.” OCGA § 48-4-5 (a). Pursuant to this provision, a tax commissioner is authorized to use the excess funds to satisfy any outstanding ad valorem taxes owed by the defendant in fi. fa. that accrued on the subject property before the tax sale. See Mulligan v. Security Bank of Bibb County, 280 Ga. App. 248, 250 (1) (633 SE2d 629) (2006). But the same is not true where the outstanding ad valorem taxes accrued on the subject property after the tax sale, because the tax deed purchaser is liable for those taxes, as reflected by precedent of our Supreme Court and by OCGA § 48-4-42, which addresses the amount payable for redemption.

In Patterson v. Florida Realty & Finance Corp., 212 Ga. 440, 442 (1) (b) (93 SE2d 571) (1956), the Supreme Court of Georgia concluded that a tax deed purchaser is responsible for ad valorem taxes that accrue on the subject property after a tax sale during the redemption period. The Supreme Court explained:

While it is true that the title which the [tax deed] purchaser acquires in consequence of a tax sale is not a perfect, fee-simple title, but is a defeasible title which terminates upon redemption within the time prescribed by statute, until redeemed, the [tax deed] purchaser acquires an interest in the property even during the time within which it might be redeemed, which is sufficient to render him liable for taxes accruing upon the property.

(Emphasis supplied.) Id. Likewise, in National Tax Funding, L.P. v. Harpagon Co., 277 Ga. 41, 43 (1) (586 SE2d 235) (2003), the Supreme Court of Georgia stated that although a tax deed purchaser is not entitled to exclusive possession of the property until the right of redemption has been terminated, “[a] tax deed vests the purchaser with a defeasible (and, incidentally, taxable) fee interest in the property.” (Emphasis supplied.) Patterson and National Tax Funding, L.P. are controlling Supreme Court authority reflecting that the tax deed purchaser (in this case, JB Holdings) is the party responsible for taxes accruing on the property after the tax sale, even during the period when the property could still be redeemed by the defendant in fi. fa. Cf. Croft v. Fairfield Plantation Property Owners Assn., 276 Ga. App. 313, 313-314 (1) (623 SE2d 531) (2005) (tax deed purchaser was responsible for payment of homeowner’s association assessments incurred after tax sale, although defendant in fi. fa.’s right to redeem the property had not been foreclosed upon by the purchaser).

OCGA § 48-4-42 also supports the conclusion that the tax deed purchaser is responsible for the ad valorem taxes that accrue on the property after the tax sale during the redemption period. That statute, which addresses the amount that must be paid by the defendant in fi. fa. to redeem the property sold at the tax sale, provides in relevant part:

The amount required to be paid for redemption of property from any sale for taxes as provided in this chapter, or the redemption price, shall with respect to any sale made after July 1,2002, be the amount paid for the property at the tax sale, as shown by the recitals in the tax deed, plus any taxes paid on the property by the purchaser after the sale for taxes, plus any special assessments on the property, plus a premium of 20 percent of the amount for the first year or fraction of a year which has elapsed between the date of the sale and the date on which the redemption payment is made and 10 percent for each year or fraction of a year thereafter. . . .

(Emphasis supplied.) OCGA § 48-4-42. By including in the redemption price the amount of taxes paid by the tax deed purchaser after the sale, OCGA § 48-4-42 contemplates that the tax deed purchaser will be responsible for paying the taxes and only requires the defendant in fi. fa. to reimburse the purchaser if he or she chooses to redeem the property.

The trial court, in reaching the conclusion that a defendant in fi. fa. can be held liable for ad valorem taxes accruing on the subject property after a tax sale, relied upon OCGA § 48-5-9, which provides:

Taxes shall be charged against the owner of property if the owner is known and against the specific property itself if the owner is not known. Life tenants and those who own and enjoy the property shall be chargeable with the taxes on the property.

Applying OCGA § 48-5-9 in the case of tax sales, the trial court concluded that Appellant, as defendant in fi. fa., retained a sufficient ownership interest in the Property after the tax sale to be held jointly liable with JB Holdings for the taxes that had accrued. In concluding that Appellant retained a sufficient ownership interest, the trial court noted that Appellant’s right of redemption had not been foreclosed upon by JB Holdings at that point and that Appellant remained in possession of the Property.

It is true that before the right to redemption has been foreclosed upon by the tax deed purchaser, the defendant in fi. fa. retains an interest in the subject property. In this respect, the defendant in fi. fa. retains the right to possess the property until the redemption period has been terminated, and the tax deed purchaser “is not entitled to possession, or to rents, issues, and profits during the time allowed for redemption.” (Citation and punctuation omitted.) Whitaker Acres, Inc. v. Schrenk, 170 Ga. App. 238, 240 (2) (316 SE2d 537) (1984). Moreover, a tax deed purchaser does not have fee simple title to the property purchased at the tax sale, but rather a defeasible title subject to the defendant in fi. fa.’s right to redeem. See National Tax Funding, L.P., 277 Ga. at 43 (1).

It does not follow, however, that a defendant in fi. fa. should be held liable under OCGA § 48-5-9 for ad valorem taxes on the subject property that accrued after the tax sale during the redemption period. As previously noted, our Supreme Court in Patterson and National Tax Funding, L.P. concluded that the tax deed purchaser is liable for ad valorem taxes that accrue on the property after the tax sale, and there is nothing in those binding opinions suggesting that a defendant in fi. fa. should be held jointly and severally liable for those taxes.

Furthermore, it is well settled that

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 whenever possible, so as to ascertain the legislative intendment and give effect thereto.

(Footnote omitted.) Aimwell, Inc. v. McLendon Enterprises, 318 Ga. App. 394, 397 (1) (734 SE2d 84) (2012). Thus, OCGA § 48-5-9 must be read together with OCGA § 48-4-42, which, as discussed above, reflects that the tax deed purchaser is the party responsible for paying ad valorem taxes accruing after the tax sale, with the defendant in fi. fa. only responsible for reimbursing the purchaser for the taxes if the defendant chooses to redeem the property. When construed with OCGA § 48-4-42, the “owner” of the property against whom the ad valorem taxes can be charged under OCGA § 48-5-9 is the tax deed purchaser, not the defendant in fi. fa. Alternatively, to the extent that the two statutes conflict, the more specific tax statute, OCGA § 48-4-42, must govern over the more general one, OCGA § 48-5-9. See Hubert Properties, LLP v. Cobb County, 318 Ga. App. 321, 323 (1) (733 SE2d 373) (2012) (noting that “a specific statute will prevail over a general statute, absent any indication of a contrary legislative intent, to resolve any inconsistency between them”) (citation and punctuation omitted). Accordingly, contrary to the trial court’s conclusion, OCGA § 48-5-9 does not authorize charging Appellant, as defendant in fi. fa., with the taxes that accrued on the Property after the tax sale during the redemption period.

Decided April 26, 2013

Reconsideration denied May 17, 2013

For these combined reasons, we conclude the trial court erred in holding that the delinquent ad valorem taxes owed on the Property for the years 2008-2010 could be paid from the excess funds owed to Appellant, as defendant in fi. fa., from the 2007 tax sale. Based on the Supreme Court cases of Patterson and National Tax Funding, L.P. and on the plain language of OCGA § 48-4-42, a tax deed purchaser, not the defendant in fi. fa., is obligated to pay ad valorem taxes that accrue on the subject property after the tax sale and before redemption, and excess funds owed to the defendant in fi. fa. cannot be used to satisfy that tax obligation of the purchaser.

A contrary holding would allow a tax deed purchaser to reap the benefits of the public investments in the community resulting from property taxation and any increases in the value of the property purchased at the sale that were caused by those investments, “without having to pay a proportional share of the cost of these benefits for an indefinite period of time.” Croft, 276 Ga. App. at 314 (1). It also would have the inequitable result of continuing to obligate a defendant in fi. fa. to pay ad valorem taxes on property even after suffering the loss occasioned by having the property sold by the Tax Commissioner for failure to pay ad valorem taxes. Consequently, equity and public policy buttress our conclusion that the trial court erred in granting summary judgment to the Tax Commissioner and denying it to Appellant on the issue of disbursement of the excess funds. The trial court, therefore, must be reversed.

Judgment reversed.

Miller and Ray, JJ., concur.

Ayoub & Mansour, John A. B. Ayoub, Carolina D. Bryant, for appellant.

Robert L. Beard, Jr., Fred D. Bentley, Jr., for appellee.

       Although a church, Appellant apparently failed to file for the proper exemption from taxation in the first instance.

       Title in land sold at a tax sale can be restored to the owner at the time of the sale, referred to as the “defendant in fi. fa.,” through the payment of the statutory amount of redemption (a) at any time within 12 months from the date of the tax sale, and (b) at any time after the tax sale until the right to redeem is foreclosed by the tax deed purchaser giving of the notice prescribed by OCGA § 48-4-45. See OCGA § 48-4-40; Croft v. Fairfield Plantation Property Owners Assn., 276 Ga. App. 311, 313 (1) (623 SE2d 531) (2005). In the present ease, Appellant did not exercise its right to redeem within 12 months from the date of the 2007 tax sale, but JB Holdings did not foreclose Appellant’s right to redeem during the ensuing years. Appellant has informed this Court that following the inception of the instant appeal in 2012, JB Holdings foreclosed the right of redemption, obtained a quiet title order, and took possession of the Property.

       At oral argument, we inquired as to whether principles of res judicata and collateral estoppel had any application in this case in light of the interpleader action. But as counsel for Appellant has pointed out and as our independent review of the record has confirmed, the issue of whether the interpleader action had any res judicata or collateral estoppel effect was not raised by the parties in their argument below or ruled upon by the trial court in its summary judgment order. “Appellate courts do not consider whether summary judgment should have been granted for a reason not raised below because, if they did, it would be contrary to the line of cases holding that a party must stand or fall upon the position taken in the trial court.” (Citation and punctuation omitted.) Wellons, Inc. v. Langboard, Inc., 315 Ga. App. 183, 186 (1) (726 SE2d 673) (2012). See also Nodvin v. West, 197 Ga. App. 92, 95 (3) (a) (397 SE2d 581) (1990) (“As the specific ground of collateral estoppel was never made a timely issue before the trial court, no question concerning this matter is presented for appellate review.”).

       The parties also discussed at oral argument whether JB Holdings, as the tax deed purchaser, should have been joined as a necessary party to the suit. But, as with the issues of res judicata and collateral estoppel previously discussed, the issue of whether JB Holdings was a necessary party was not raised by the Tax Commissioner or ruled upon by the trial court, and “issues presented for the first time on appeal furnish nothing for this Court to review.” (Citation and punctuation omitted.) Kammerer Real Estate Holdings v. PLH Sandy Springs, 319 Ga. App. 393, 398 (3) (734 SE2d 249) (2012).

       We note that the Tax Commissioner has an authorized statutory remedy to satisfy the 2008-2010 taxes at issue in this case. Specifically, the Tax Commissioner can levy those subsequent tax liens against the tax deed purchaser and again sell the Property to satisfy the unpaid taxes pursuant to OCGA § 48-4-1 et seq.


text:
    A13A0264.
    PUCKETT v. THE STATE.
    (743 SE2d 466)
   Ray, Judge.

Following a jury trial, Shannon Puckett was convicted on two counts of driving under the influence (OCGA § 40-6-391 (a) (1) (less safe) and (5) (alcohol concentration 0.08 or more)) and one count of speeding (OCGA § 40-6-181). Puckett appeals from her convictions, challenging the trial court’s decision to sequester her expert witness during the presentation of the State’s case. For the reasons that follow, we affirm.

Under OCGA § 24-9-61, either party has the right to have the witnesses of the other party examined out of the hearing of each other. This statute, known as the rule of sequestration, has been broadly applied by trial courts to exclude all witnesses from hearing the testimony of any other witnesses, and this practice has been expressly approved by this Court. See Axelburg v. State, 294 Ga. App. 612, 619 (3) (669 SE2d 439) (2008); Gray v. State, 222 Ga. App. 626, 631 (2) (476 SE2d 12) (1996). And “[t]he trial court is vested with broad discretionary powers in enforcement of the sequestration rule, which will not be controlled absent abuse of discretion.” (Citation omitted.) Lassiter v. State, 175 Ga. App. 338, 340 (5) (333 SE2d 412) (1985). We therefore review the record to determine if that abuse was committed.

This case stems from a traffic stop of a vehicle driven by Puckett on January 28, 2010. Based on the officer’s observations at the time of the stop, the officer suspected that Puckett was driving under the influence of alcohol, and a DUI Task Force officer was summoned to complete the investigation.

Officer Joshua Ferguson, a DUI Task Force officer trained in the administration of standardized field sobriety testing, arrived at the scene and performed a series of field sobriety tests on Puckett, which included the horizontal gaze nystagmus (“HGN”) test, the walk-and-turn test, and the one-leg-stand test. The results of each of these tests indicated impairment. Although a video camera mounted inside the officer’s patrol car recorded most of the field sobriety evaluations, Officer Ferguson’s administration of the HGN test was performed outside the view of the camera. Based on the results of the field sobriety testing and both officers’ observations of Puckett at the scene, Puckett was placed under arrest and charged with driving under the influence of alcohol.

Prior to trial, Puckett filed a motion to suppress which challenged, inter alia, Officer Ferguson’s failure to administer properly the HGN test. After an evidentiary hearing in which Officer Ferguson testified, the trial court denied the motion.

On the first day of trial, the State called Officer Ferguson as a witness and had him testify as to his training and experience in conducting standardized field sobriety tests, including the HGN test. Officer Ferguson testified as to how to conduct the HGN test and what clues to look for to indicate impairment. Officer Ferguson further testified that Puckett exhibited all of the clues to indicate impairment under the HGN test.

On the second day of trial, Puckett’s counsel brought a defense witness, Tony Corroto, into the courtroom to observe the continuation of Officer Ferguson’s testimony, and the State requested that the rule of sequestration be invoked. In response, Puckett’s counsel stated that she planned to call Corroto later as an expert on the subject of field sobriety evaluations, and she requested that Corroto be permitted to stay in the courtroom to assist in the defense and to observe Officer Ferguson’s testimony regarding the administration of the HGN test because such information was not recorded on the video of the traffic stop. The trial court denied Puckett’s request and applied the rule of sequestration equally to both parties. During the cross-examination of Officer Ferguson, Puckett twice renewed her request that Corroto be permitted in the courtroom so that he could observe Officer Ferguson demonstrate his method of administering the HGN test. The State objected, arguing that Puckett’s expert could offer his opinion as to Officer Ferguson’s administration of the HGN test in the context of hypothetical questioning from counsel. After acknowledging that Puckett’s counsel had the benefit of Officer Ferguson’s prior testimony regarding the administration of the HGN test from the hearing on the motion to suppress, the trial court denied counsel’s renewed requests and maintained its earlier decision to apply the rule of sequestration equally to both parties. Ultimately, Puckett’s counsel had Officer Ferguson demonstrate to the jury how he administered the HGN test without Corroto present in the courtroom, and counsel later elicited testimony from Corroto on the proper method of administering the HGN test and the factors that could affect its reliability.

On appeal, Puckett claims that the trial court abused its discretion when it excluded Corroto from the courtroom during Officer Ferguson’s testimony, thereby violating Puckett’s right to a fair trial.' Puckett argues that she was unable to mount a full and complete defense because Corroto was unable to provide testimony to appraise, critique, or refute Officer Ferguson’s method of administering the HGN test. We disagree.

It is undisputed that Corroto did not observe the actual HGN test that was administered to Puckett at the scene of the traffic stop. Thus, any opinion he could have properly formed with regard to Officer Ferguson’s method of administering the HGN test would have to have been based on Officer’s Ferguson’s testimony or on hypothetical questions posed by counsel. See Chambers v. State, 216 Ga. App. 361, 364 (4) (454 SE2d 567) (1995) (When facts at issue were not personally observed by expert witness, the expert’s opinion must be based on hypothetical questions.).

Even when an expert witness would be assisted by hearing the testimony of preceding witnesses instead of answering a hypothetical question and could assist counsel in conducting the cross-examination, the grant or denial of such exemption [from the rule of sequestration] lies within the sound discretion of the trial court and will not be disturbed absent a manifest abuse of discretion.

(Citations omitted.) Gray, supra.

Here, the trial court noted that Puckett had previously challenged Officer Ferguson’s method of administering the HGN test in a motion to suppress and had the benefit of his testimony prior to trial. Furthermore, nothing prevented Puckett’s counsel from using the facts obtained from Officer Ferguson’s in-court demonstration of the HGN test at trial to pose hypothetical questions to Corroto for the purpose of challenging Officer Ferguson’s method of administering the HGN test. Moreover, Puckett elicited testimony from Corroto on the proper method of administering the HGN test and how the reliability of the results can be compromised if the test is not conducted properly, which the jury could consider in comparison to Officer Ferguson’s in-court demonstration.

For the above reasons, we find that the witness sequestration did not prevent Puckett from challenging Officer Ferguson’s method of administering the HGN test. While we note that the trial court could have allowed Puckett’s expert witness to remain unsequestered under the circumstances of this case, we cannot say that the trial court abused its discretion in requiring the expert to be sequestered. McNeil v. State, 229 Ga. App. 149 (493 SE2d 570) (1997); Heath v. State, 223 Ga. App. 680, 681-682 (2) (478 SE2d 462) (1996). Accordingly, we affirm the trial court’s judgment.

Decided May 17, 2013.

Lawrence J. Zimmerman, for appellant.

Barry E. Morgan, Solicitor-General, Latonia P. Hines, Assistant Solicitor-General, for appellee.

Judgment affirmed.

Barnes, P. J., and Miller, J., concur.

       This Code section, which was in effect at the time of trial, has been repealed by Ga. L. 2011, p. 99, § 2, effective January 1, 2013.


author: MCMILLIAN, Judge.

text:
    A13A0363.
    RIVERS v. K-MART CORPORATION.
    (743 SE2d 464)
   MCMILLIAN, Judge.

We granted Richard Rivers’ application for interlocutory appeal to determine whether the trial court erred by denying his motion in limine seeking to exclude evidence of his prior criminal record in his action against K-Mart Corporation for malicious prosecution. As more fully set forth below, we find it necessary to remand this case for further consideration as directed in this opinion.

As is pertinent here, the record shows that in November 2008, Rivers was arrested and prosecuted for allegedly shoplifting at a K-Mart store in Jonesboro, Georgia. The charges against him were ultimately dismissed, and he instituted the present action against K-Mart for malicious prosecution. During discovery, Rivers disclosed his extensive criminal record, including several convictions for various offenses and numerous arrests which did not result in convictions. Rivers sought to exclude the evidence as prejudicial and irrelevant to the issues being tried, and K-Mart opposed the motion, arguing that the evidence was relevant on the issue of damages, specifically Rivers’ claim that he suffered emotional distress and anxiety as a result of his arrest and prosecution, and for purposes of impeachment. The trial court agreed with K-Mart and denied the motion, finding that it was relevant for the jury to consider the evidence of Rivers’ “exposure to the criminal justice system and its [e]ffect on him,” in evaluating Rivers’ claims for damages based on his emotional distress and anxiety. The trial court, however, did not make any findings concerning whether there was a danger that introduction of this evidence might prejudice Rivers’ claim or confuse or mislead the jury.

“Atrial court’s ruling on a motion in limine is reviewed for abuse of discretion.” (Citation and punctuation omitted.) McKissick v. Aydelott, 307 Ga. App. 688, 692 (2) (705 SE2d 897) (2011).

The first question we consider is whether the evidence was, as the trial court found, relevant to Rivers’ claim for damages based on emotional distress. At the time the motion in limine was decided, OCGA § 24-2-1 provided that “[ejvidence must relate to the questions being tried by the jury and bear upon them either directly or indi.rectly. Irrelevant matter should be excluded.” The new Evidence Code, under which this case will be tried, provides “the term ‘relevant evidence’ means evidence having any tendency to make the existence of any fact that is of consequence to the determination of the action more probable or less probable than it would be without the evidence.” OCGA § 24-4-401. And pursuant to OCGA § 24-4-402, “[ejvidence which is not relevant shall not be admissible.”

We have held that “[n]o precise and universal test of the relevancy of testimony is furnished by the law. The question must be determined in each case according to ... the teachings of reason and judicial experience.” (Citation and punctuation omitted.) Brock v. Wedincamp, 253 Ga. App. 275, 281 (1) (558 SE2d 836) (2002). And “[e]vidence of doubtful relevancy or competency should be admitted and its weight left to the jurors.” (Citation omitted.) American Multi-Cinema, Inc. v. Walker, 270 Ga. App. 314, 319 (4) (a) (605 SE2d 850) (2004).

Acknowledging our deference to the trial court’s discretion, we recognize that the fact that Rivers has been arrested and incarcerated on numerous occasions might have some probative value on the issue of whether Rivers suffered emotional distress and anxiety when he was arrested and incarcerated after being accused of shoplifting at K-Mart. Udemba v. Nicoli, 237 F3d 8, 15 (1st Cir. 2001); Halvorsen v. Baird, 146 F3d 680, 686-687 (II) (B) (9th Cir. 1998); Christmas v. City of Chicago, 691 FSupp.2d 811, 817-818 (I) (G) (N.D. Ill. 2010); Gonzalez v. City of Tampa, 776 So.2d 290, 293 (Fla. Dist. Ct. App. 2001). But concluding that the evidence is probative does not end our inquiry, and it should not have ended the trial court’s either. At the time the motion in limine was decided, our law provided that

trial judges may exercise discretion in excluding relevant evidence if its probative value is substantially outweighed by the risk that its admission will confuse the issue, mislead the jury, or create substantial danger of undue prejudice. In making their decision, trial courts should consider the potential prejudice to the parties, the complexity of issues and the potential for jury confusion, and the relative convenience, economy, or delay that may result.

(Citation omitted.) Wood v. D. G. Jenkins Homes, Inc., 255 Ga. App. 572, 573 (565 SE2d 886) (2002).

Further, under the new Evidence Code, it is similarly stated that “[rjelevant evidence may be excluded if its probative value is substantially outweighed by the danger of unfair prejudice, confusion of the issues, or misleading the jury or by considerations of undue delay, waste of time, or needless presentation of cumulative evidence.” OCGA § 24-4-403. As stated above, however, it does not appear from the trial court’s order that the court considered whether Rivers’ prior arrests nevertheless should be excluded because of their inherently prejudicial nature or because they potentially would confuse or mislead the jury. Thus, because this finding is within the trial court’s discretion, we must remand this case to the trial court for further consideration and findings in accordance with this opinion. Further, we remind the trial court that the future trial in this case will be governed by the new Evidence Code, and any additional motions or hearings should also be governed by those provisions. Lastly, because we are remanding this case for further proceedings after having previously allowed an interlocutory appeal on this issue, any appeal from the trial court’s subsequent order in this case may proceed directly to this Court.

Decided May 17, 2013.

Gillis & Creasy, James L. Creasy III, for appellant.

Strawinski & Stout, James S. Strawinski, Daniel G. Cheek, for appellee.

Case remanded with direction.

Andrews, P. J., and Dillard, J., concur.

       K-Mart reasoned that the jury should be allowed to weigh “the measure of emotional distress brought about by [Rivers’] arrest and prosecution [in this case] against the fact that he has been arrested over . .. (20) times.”

       The trial court also found the evidence might become admissible for impeachment purposes if Rivers opened the door to his criminal history or arrest record during trial, and Rivers does not challenge that portion of the trial court’s order.

       To prove a claim for malicious prosecution under OCGA § 51-7-40, the plaintiff must prove (1) prosecution for a criminal offense; (2) instigated without probable cause; (3) brought with malice; (4) under a valid warrant, accusation or summons; (5) which terminated favorably to the plaintiff; and (6) has caused damage to the plaintiff. Wal-Mart Stores, Inc. v. Blackford, 264 Ga. 612, 613 (449 SE2d 293) (1994); Renton v. Watson, 319 Ga. App. 896 (739 SE2d 19) (2013). Damages for emotional distress maybe recovered in an action for malicious prosecution. Turnage v. Kasper, 307 Ga. App. 172, 188 (2) (704 SE2d 842) (2010).

       “This Act shall become effective on January 1, 2013, and shall apply to any motion made or hearing or trial commenced on or after such date.” Ga. L. 2011, p. 99, § 101.

       We express no opinion on the viability of these principles under the new Evidence Code.

       Although we find that Rivers preserved this issue for appeal, it does not appear that the trial court was squarely presented with this argument.


author: Barnes, Presiding Judge.

text:
    A13A0027.
    PELHAM v. BOARD OF REGENTS OF THE UNIVERSITY SYSTEM OF GEORGIA.
    (743 SE2d 469)
   Barnes, Presiding Judge.

Jerome Pelham brought this action against the Board of Regents of the University System of Georgia (“Board of Regents”) seeking damages for personal injuries he suffered during football practice at Georgia Southern University (“Georgia Southern”) when the head coach allegedly ordered Pelham and the other players to fight each other during spring practice. The trial court dismissed Pelham’s complaint, concluding that his claims against the Board of Regents fell under the assault and battery exception to the Georgia Tort Claims Act, OCGA § 50-21-20 et seq. (“GTCA”), and thus were barred by the doctrine of sovereign immunity. For the reasons that follow, we affirm the trial court’s order of dismissal.

We review de novo a trial court’s grant of a motion to dismiss on sovereign immunity grounds, bearing in mind that “[t]he party seeking to benefit from the waiver of sovereign immunity has the burden of proof to establish waiver.” Bonner v. Peterson, 301 Ga. App. 443 (687 SE2d 676) (2009). The allegations of Pelham’s complaint, which the trial court accepted as true in ruling on the motion to dismiss, are as follows.

During the 2007-2008 academic year, Pelham was a student enrolled at Georgia Southern and a member of the varsity football team. During his recruitment to play football at the school, Pelham had been informed that he would be eligible to earn a scholarship through his participation and membership on the football team.

In late March 2008, Pelham and the rest of the Georgia Southern football team were participating in spring practice in full pads. The head football coach, Christopher Hatcher, instructed the players to line up in two single file lines facing each other. Coach Hatcher then paired specific players across from one another, often pairing mid-level or smaller players against larger first-string players. After lining up the players, Coach Hatcher announced that he wanted to see “who was tough enough to be on the team” and earn a scholarship. Coach Hatcher informed the players that he planned to walk down the line and, upon the blowing of his whistle, the pair of players in front of him were to fight each other. He emphasized that their membership on the team and eligibility for scholarships were dependent on his scrutiny of their performance in the fight.

Coach Hatcher then moved down the line and closely observed each pair of players fight each other upon his blowing of the whistle. There were no rules to the fights, and players were not restricted to contact allowed by the rules of football. Players were permitted to throw punches to the head and body of the other player with whom they were paired; hold and pull the face mask of the other player; grab the jersey of the other player; throw the other player to the ground by pulling his face mask; and trip or “hip toss” the other player. Coach Hatcher told his subordinate coaches not to interfere in the fights and informed the players that they were allowed to stop fighting only when he blew his whistle and moved on to the next pairing.

Coach Hatcher approached Pelham and the player with whom he was paired, blew his whistle, and instructed them to start fighting. Concerned that they would be cut from the team or lose their opportunity for a scholarship if they did not participate, the two players physically engaged each other. Pelham, who played the position of defensive end, placed his hands on the shoulders of the other player in the manner typical of a defensive lineman attempting to control an offensive lineman during a game situation. However, the other player grabbed Pelham by the face mask, jerked Pelham’s head from side to side, grabbed Pelham by the jersey, and twisted Pelham to the ground over the player’s leg by tripping him, all of which would have constituted penalties under the rules of football. Pelham fell awkwardly with the other player landing on top of him and his outstretched right leg, resulting in severe, permanent injuries to his right knee and leg.

Pelham subsequently commenced this action against the Board of Regents seeking recovery for his personal injuries sustained at the football practice. He asserted claims for negligence and negligence per se against the Board under a theory of respondeat superior, contending that Coach Hatcher’s instruction for the players to fight each other at the football practice violated Georgia’s anti-hazing law codified at OCGA § 16-5-61. Pelham further asserted that the Board of Regents was liable for the negligent training and supervision of Coach Hatcher and other coaching staff.

The Board of Regents answered and filed a motion to dismiss the complaint based on the doctrine of sovereign immunity, contending that Pelham’s claims were barred by the assault and battery exception to the waiver of sovereign immunity contained in the GTCA. The trial court granted the motion to dismiss, finding that the act that caused Pelham’s underlying loss constituted an assault and battery. Pelham now appeals from the trial court’s order of dismissal.

1. Pelham contends that the trial court erred in dismissing his negligence and negligence per se claims because they were predicated on Georgia’s anti-hazing law, OCGA § 16-5-61, and thus were not barred by sovereign immunity. We disagree because OCGA § 16-5-61 does not create a statutory waiver of the Board of Regents’ sovereign immunity.

Under the Georgia Constitution, sovereign immunity from suit extends to all state departments and agencies unless properly waived through an act passed by the General Assembly. Ga. Const. of 1983, Art. I, Sec. II, Par. IX (e). “The Board of Regents is the state agency vested with the governance, control, and management of the University System of Georgia,” and, therefore, is entitled to sovereign immunity from suit unless the legislature has waived its immunity. (Punctuation and footnote omitted.) Bd. of Regents of the Univ. Sys. of Ga. v. Ruff 315 Ga. App. 452, 456 (2) (726 SE2d 451) (2012).

Sovereign immunity is waived by a legislative act only if the statutory language “specifically provides that sovereign immunity is . . . waived and the extent of such waiver.” Gilbert v. Richardson, 264 Ga. 744, 748 (3) (452 SE2d 476) (1994), quoting Ga. Const. of 1983, Art. I, Sec. II, Par. IX (e). See Currid v. DeKalb State Court Probation Dept., 285 Ga. 184, 186 (674 SE2d 894) (2009). “In this regard, implied waivers of governmental immunity should not be favored.” (Citation and punctuation omitted.) Currid, 285 Ga. at 186. See City of Atlanta v. Gilmere, 252 Ga. 406, 409 (314 SE2d 204) (1984).

Georgia’s anti-hazing law, OCGA § 16-5-61, provides:

(a) As used in this Code section, the term:
(1) “Haze” means to subject a student to an activity which endangers or is likely to endanger the physical health of a student, regardless of a student’s willingness to participate in such activity.
(2) “School” means any school, college, or university in this state.
(3) “School organization” means any club, society, fraternity, sorority, or a group living together which has students as its principal members.
(4) “Student” means any person enrolled in a school in this state.
(b) It shall be unlawful for any person to haze any student in connection with or as a condition or precondition of gaining acceptance, membership, office, or other status in a school organization.
(c) Any person who violates this Code section shall be guilty of a misdemeanor of a high and aggravated nature.

Plainly, OCGA § 16-5-61, a criminal statute, does not evince a clear legislative intent to allow civil damages suits to be brought against the state for hazing violations. “Nowhere in [OCGA § 16-5-61] has the Legislature specifically provided that sovereign immunity has been waived and the extent of such waiver,” and, therefore, “no waiver can be shown.” (Punctuation and footnote omitted.) Ga. Dept. of Corrections v. James, 312 Ga. App. 190, 194 (1) (718 SE2d 55) (2011). Hence, Pelham’s only potential avenue ofrecovery was through the GTCA, which provides “the exclusive remedy for any tort committed by a state officer or employee.” OCGA § 50-21-25 (a). Compare Fulton County v. Colon, 316 Ga. App. 883, 884-885 (1) (730 SE2d 599) (2012) (private right of action provided by Georgia’s whistleblower statute, OCGA § 45-1-4, constitutes a waiver of the state’s sovereign immunity independent of the waiver in the GTCA).

2. Pelham further maintains that the trial court erred in concluding that he could not proceed with his negligence and negligence per se claims under the waiver of sovereign immunity contained in the GTCA because the assault and battery exception applied. Again, we disagree.

The GTCA provides for a waiver of the state’s sovereign immunity for torts committed by state officers and employees acting within the scope of their official duties or employment, “provided, however, that the state’s sovereign immunity is waived subject to all exceptions and limitations set forth in this article.” OCGA § 50-21-23 (a). In OCGA § 50-21-24, the General Assembly has set forth 13 exceptions to the waiver of sovereign immunity contained in the GTCA. If a tort claim falls within the scope of any of these exceptions, it is barred by sovereign immunity. See OCGA § 50-21-24 (“The state shall have no liability for losses resulting from [any of the enumeration exceptions.]”).

Included among the exceptions to the state’s waiver of sovereign immunity is the “assault and battery” exception, which provides that “[t]he state shall have no liability for losses resulting from . . . [a]ssault [and] battery.” OCGA § 50-21-24 (7). “This exception has been interpreted to mean that where a loss results from assault or battery, there is no waiver of sovereign immunity, even though a private individual or entity would be liable under like circumstances.” (Punctuation and footnote omitted.) Pak v. Ga. Dept. of Behavioral Health & Dev. Disabilities, 317 Ga. App. 486, 487 (731 SE2d 384) (2012).

Pelham asserts that his negligence and negligence per se claims did not fall within the assault and battery exception to the GTCA because the claims were predicated solely on Coach Hatcher’s act of “hazing” him, which Pelham claims occurred when Coach Hatcher required him to participate in a nonfootball activity that was highly dangerous or risk being excluded from scholarship consideration and membership on the team. As explained by Pelham, “the tortious act of hazing occurred well prior to the orchestrated fight the moment Coach Hatcher conditioned [Pelham’s] membership, standing and participation in the [Georgia Southern] football team upon participating in an activity defined as hazing by Georgia law.” According to Pelham, the focus of the sovereign immunity analysis should be on Coach Hatcher’s conduct, which was not itself an assault and battery, rather than on the fact that the end result of that conduct was the commission of an assault and battery by another football player.

This Court has consistently held that in determining whether the exception for assault and battery applies, the focus is not on the government action taken or the duty allegedly breached by the government, but on the act causing the underlying loss, and it is not necessary that such act have been committed by a state officer or employee. The Supreme Court of Georgia has affirmed this reasoning[.]

(Punctuation and footnote omitted.) Pak, 317 Ga. App. at 487 & n. 4 (listing cases). See Youngblood v. Gwinnett Rockdale Newton Community Svc. Bd., 273 Ga. 715, 717 (3) (545 SE2d 875) (2001) (“Unlike other subsections within OCGA § 50-21-24, subsection (7) is not limited in application to acts taken by a State officer or employee but covers all losses resulting from the torts enumerated therein. The focus, therefore, is not on the duty allegedly breached by the State but on the act causing the underlying loss regardless of who committed the act.”) (citation omitted). Accordingly, if a plaintiff’s injury was caused by an assault and battery committed by a third party, the state is immune from suit even if the assault and battery was facilitated by or resulted from the prior negligent performance of a state officer or employee. See Youngblood, 273 Ga. at 717 (3) (community service board that negligently placed plaintiff’s mentally disabled daughter in residential home where she was beaten by her caretakers was immune from liability under the assault and battery exception).

Applying these principles to the present case, we conclude that the assault and battery exception barred the claims asserted by Pelham. The complaint reveals that the loss suffered by Pelham was the severe injury to his leg resulting from being grabbed, tripped, and violently thrown to the ground with the other player landing on top of his outstretched leg. Because the act causing the underlying loss in this case — the other player physically attacking Pelham — constituted an assault and battery, the exception found in OCGA § 50-21-24 (7) applied. See Youngblood, 273 Ga. at 717 (3). The trial court thus committed no error in dismissing Pelham’s negligence and negligence per se claims on sovereign immunity grounds.

3. Lastly, Pelham argues that the assault and battery exception to the GTCA had no bearing upon or application to his separate claims for the Board of Regents’ negligent failure to properly train the coaching staff on university policies and procedures and state laws related to hazing, and for the Board’s negligent failure to properly supervise the coaching staff to prevent hazing during football practices. We are unpersuaded.

In determining whether the [assault and battery] exception applies, our focus is not on which particular state law causes of action a plaintiff has set forth in her complaint, but rather on the underlying conduct that allegedly caused the plaintiffs loss. Any alleged losses arising out of conduct that would constitute the common law tort of assault or battery upon the plaintiffs person fall within the exception, irrespective of what particular state law causes of action the plaintiff brings in order to recover for those losses [.]

(Citations and footnote omitted.) Davis v. Standifer, 275 Ga. App. 769, 774 (1) (b) (621 SE2d 852) (2005). Because, as previously discussed, Pelham’s underlying injury was the result of the assault and battery committed upon him by another football player, the assault and battery exception applied so as to bar all of his claims, including his claims for negligent training and supervision. See id. at 775 (1) (b) (plaintiff could not circumvent assault and battery exception by alleging that the attack of the victim resulted from the state being “negligent or deliberately indifferent in their hiring, instruction, supervision, control, and discipline” of its officers or employees).

In sum, we conclude that the trial court did not err in dismissing under the GTCAall of Pelham’s claims asserted against the Board of Regents. In reaching this conclusion, we certainly do not condone the alleged misconduct of the Georgia Southern coaching staff in this case; in fact, we urge the state to independently investigate the matter and commence any administrative disciplinary proceedings that might be warranted as the result of such an investigation. Nevertheless, while we sympathize with Pelham,

sovereign immunity is a harsh doctrine, not an equitable one. Indeed, it is just the opposite of equity —• it is the state declaring that it cannot be sued even where it would otherwise be liable. Nevertheless, it is a constitutionally recognized doctrine, and the constitution expressly provides that immunity for tort claims can be waived only by a legislative act specifically providing for such waiver and setting forth the extent thereof.

(Punctuation and footnote omitted.) Pak, 317 Ga. App. at 489. The trial court’s order of dismissal, therefore, must be affirmed.

Judgment affirmed.

Miller and Ray, JJ., concur.

Decided May 20, 2013.

Ney, Hoffecker & Erck, Charles E. Hoffecker, for appellant.

Samuel S. Olens, Attorney General, G. MichaelBanick, Sharon P. Horne, Assistant Attorneys General, for appellee.

       Because a motion to dismiss on sovereign immunity grounds is based upon the trial court’s lack of subject matter jurisdiction, the trial court is entitled to make factual findings necessary to resolve the jurisdictional issue. See OCGA § 9-11-12 (b) (1); Dept. of Transp. v. Dupree, 256 Ga. App. 668, 676 (1) (c) (570 SE2d 1) (2002). When the trial court determines the jurisdictional issue based upon conflicting facts, the court’s determination is reviewed on appeal under the any evidence rule. Bonner, 301 Ga. App. at 443. In the present case, however, the trial court did not make any factual findings but instead found that even if Pelham’s factual allegations were true, his claims were barred by sovereign immunity.

       Pelham also asserted negligence and punitive damages claims against Coach Hatcher and the Athletic Director of Georgia Southern in their individual capacities, but those claims were later dismissed without prejudice in a consent order.

       See also Pak, 317 Ga. App. at 488-489 (Georgia Department of Behavioral Health & Developmental Disabilities entitled to sovereign immunity where it discharged patient from treatment facility over mother’s objection and patient thereafter killed mother); Southerland v. Ga. Dept. of Corrections, 293 Ga. App. 56, 58-59 (1) (666 SE2d 383) (2008) (Georgia Department of Corrections entitled to sovereign immunity where inmate was killed by fellow inmate); Davis v. Standifer, 275 Ga. App. 769, 773-775 (1) (b) (621 SE2d 852) (2005) (state entities entitled to sovereign immunity where victim claimed state patrol officer sexually assaulted her during traffic stop); Ga. Military College v. Santamorena, 237 Ga. App. 58, 59-61 (1) (a) (514 SE2d 82) (1999) (Georgia Military College protected by sovereign immunity where its alleged negligence led to student being raped by other student in barracks); Dept. of Human Resources v. Hutchinson, 217 Ga. App. 70, 71-73 (1) (456 SE2d 642) (1995) (Department of Human Resources entitled to sovereign immunity where it placed juvenile in contract home and juvenile thereafter shot operator of the home).


author: MCFADDEN, Judge.

text:
    A13A0408.
    BROWN v. THE STATE.
    (743 SE2d 474)
   MCFADDEN, Judge.

After a bench trial, Anthony Scott Brown was convicted of criminal attempt to commit child molestation, OCGA §§ 16-4-1,16-6-4 (a) (1), and computer child exploitation, OCGA § 16-12-100.2 (d) (1). He appeals. Because we find that the evidence was sufficient, that the state had jurisdiction to prosecute Brown for these offenses, and that the offenses did not merge for sentencing, we affirm.

1. Sufficiency of the evidence.

Brown argues that the evidence was insufficient to support his conviction for attempted child molestation. When a defendant challenges the sufficiency of the evidence supporting his criminal conviction, “the relevant question is whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt.” (Citation omitted; emphasis in original.) Jackson v. Virginia, 443 U. S. 307, 319 (III) (B) (99 SCt 2781, 61 LE2d 560) (1979).

So viewed, the evidence showed that on June 3, 2009, a Whitfield County, Georgia, sheriffs deputy posted a “Craigslist” advertisement in which he purported to be “Brittany,” a female looking for male companionship. Brown, a 26-year:old Tennessee resident, responded to the advertisement. The two began communicating, first by e-mail and then by Internet instant messages. In a June 7 e-mail, “Brittany” told Brown that she was only 14 years old. Brown then asked what she had in mind, and “Brittany” gave a vague response. Brown then responded: “ah, i see i see, so your looking for someone to basicly, take your virginity, and show you the world of such pleasures, well i súpose i could help you with that, if your interested.” In a subsequent e-mail on June 7, Brown asked “Brittany” what she was “interested in learning.” In her reply, “Brittany” mentioned that she lived in north Georgia. In his next e-mail, Brown asked “Brittany” if she was “looking forward to high school” and then stated:

i could teach you everything if you like, but only if you feel comftable enough to learn, and don’t worry i know your not some sort of a nasty girl, i can tell you really don’t know much, i do need to know though, you are a virgin right? you know your first time might hurt some, so i need to know so i could try to make things as painless as possible.

Later on June 7, in a series of instant messages, Brown and “Brittany” discussed more specifically where in Georgia she lived, and Brown again asked what she would be comfortable doing, mentioning both oral and vaginal sexual contact. He then asked, “if we was to meet up, do you have any place in mind, or know of any places where we wouldnt be botherd during your learning process?” “Brittany” replied that she often would sneak out and meet friends behind her apartment. Brown emphasized that he was “serious about meeting up” with “Brittany.”

On June 14, Brown initiated another series of instant messages with “Brittany.” Brown asked whether she had found a “teacher” and stated that he would “still be willing to if your still interested.” He asked “Brittany” when she “would like to do this,” and the two arranged for a date and time to meet at her apartment. Brown asked “where are we going to do this” and suggested her room. When “Brittany” expressed concern about getting hurt, Brown responded, “I’ll try not to,... i mean you know losing your virginity will be alittle painfull right?” He asked that “Brittany” “wear as little as possible” when they met and stated that, although he was allergic to “protection,” he could “pull out before i went too far” and also mentioned that he did not have any sexually transmitted diseases and that doctors had told him he was sterile. He then stated that “when it comes time for that, it maybe abit too painfull for you to handle, so may not beable to lose your virginity on the first time.”

The two engaged in another series of instant messages on June 15 and 16. Brown asked “Brittany’ to masturbate and digitally penetrate herself in preparation for their meeting. He later asked her how it felt and stated that it “will feel even better when someone eles does it.” He also asked questions about how to contact her and find her apartment. And he again stated that he did not know if “Brittany” would experience pain and again suggested that she masturbate and digitally penetrate herself to give her “an idea of what it would feel like to lose your virginity.”

On June 18, Brown asked “Brittany” in an instant message if she was looking forward to their meeting, planned for the next day, and the two confirmed the time and place of their meeting. Brown described the vehicle he would be driving and the clothes he would be wearing. The following morning, Brown arrived at the planned location in Whitfield County, Georgia, where law enforcement officers arrested him.

This evidence was sufficient to show attempted child molestation. The state was required to prove that Brown “took a substantial step towards doing ‘any immoral or indecent act to or in the presence of or with any child under the age of 16 years with the intent to arouse or satisfy the sexual desires of either the child or (himself).’ ” (Quoting OCGA § 16-6-4 (a) (1), citing OCGA § 16-4-1.) Castaneira v. State, 321 Ga. App. 418, 423 (2) (740 SE2d 400) (2013). The trial court could find from the evidence in this case that Brown traveled to an arranged location to have sexual intercourse with 14-year-old “Brittany,” and that this was a substantial step toward committing the offense of criminal attempt to commit child molestation. See Castaneira, 321 Ga. App. at 423 (2) (evidence that defendant engaged in sexually explicit on-line communications with law enforcement officer posing as 15-year-old girl, arranged to meet her to engage in sexual activities, and went to the arranged meeting place was sufficient to sustain his conviction for attempted child molestation); Logan v. State, 309 Ga. App. 95, 99-100 (2) (a) (709 SE2d 302) (2011) (evidence that defendant, via electronic communications, asked law enforcement officer posing as 14-year-old girl to engage in sexual intercourse and oral sodomy, and then carried a condom to an arranged meeting place, was sufficient to show that defendant took a substantial step toward committing child molestation and aggravated child molestation); Smith v. State, 306 Ga. App. 301, 302 (1) (702 SE2d 211) (2010) (evidence that defendant engaged in sexually explicit on-line conversations with an adult posing as a 15-year-old girl, drove to an arranged meeting place, and then fled from law enforcement officers who were waiting at that place, was sufficient to sustain his conviction for attempted child molestation). Compare Heard v. State, 317 Ga. App. 663, 666 (731 SE2d 124) (2012) (finding insufficient evidence to show that defendant had committed a substantial step toward committing crime of enticing a child, where even if intended victim had complied with defendant’s requests, certain elements of the crime would not have been established). The fact that “Brittany” did not actually exist and thus Brown was never in “her” presence does not preclude his conviction for attempted child molestation. See Dennard v. State, 243 Ga. App. 868, 871 (1) (a) (534 SE2d 182) (2000).

2. Jurisdiction.

Brown argues that the state lacked jurisdiction to prosecute him because he was a Tennessee resident with no ties to Georgia -before being lured to this state by law enforcement officers. But Georgia law pertinently provides that “a person shall be subject to prosecution in this state for a crime which he commits, while either within or outside the state, . . . if . . . [t]he crime is committed either wholly or partly within the state[.]” OCGA § 17-2-1 (b).

The state had jurisdiction under OCGA § 17-2-1 to prosecute Brown for attempted child molestation. Brown committed that crime at least partly within Georgia when he took a substantial step in Georgia toward committing child molestation, namely by traveling to Georgia to meet with 14-year-old “Brittany” for the purpose of engaging in sexual activities with her. See generally Raftis v. State, 175 Ga. App. 893, 894-895 (1) (334 SE2d 857) (1985) (Georgia had jurisdiction under OCGA § 17-2-1 to prosecute defendant for conspiracy to commit drug offense because there was evidence that defendant, while in Georgia, agreed to and made arrangements with another person to buy marijuana from a third party in Florida, authorizing a finding that defendant’s conduct in Georgia was in furtherance of the conspiracy).

The state also had jurisdiction under OCGA § 17-2-1 to prosecute Brown for computer child exploitation. The Code section establishing that crime subjects a person to prosecution in Georgia under OCGA § 17-2-1 for “any conduct made unlawful by [OCGA § 16-12-100.2] which the person engages in while... [e]ither within or outside of this state if, by such conduct, the person commits a violation of [OCGA § 16-12-100.2] which involves ... another person believed by such person to be a child residing in this state.” OCGA § 16-12-100.2 (h). Here, the evidence showed that, after being told that “Brittany” lived in Georgia, Brown violated OCGA § 16-12-100.2 by utilizing computer on-line services to continue to communicate with her and to entice her to meet him to engage in sexual activities. See OCGA § 16-12-100.2 (d) (1) (making it unlawful for any person intentionally or wilfully to, inter alia, utilize a computer on-line service to entice or attempt to entice a person believed to be a child to commit any illegal act described in OCGA § 16-6-4 relating to child molestation). In addition, in addressing violations of OCGA § 16-12-100.2, Georgia courts have held that a defendant utilizes computer on-line services in the county of the recipient of the computer messages, even when the defendant sent the messages from elsewhere. See Patel v. State, 282 Ga. 412, 412-413 (1) (651 SE2d 55) (2007) (defendant alleged to have violated OCGA § 16-12-100.2 by sending explicit Internet messages to a law enforcement officer posing as an underage girl “utilized computer on-line services in [the recipient’s] [c]ounty,” even though he sent the messages from a different county); Selfe v. State, 290 Ga. App. 857, 861-862 (2) (660 SE2d 727) (2008) (in case involving violation of OCGA § 16-12-100.2, citing Patel to find venue in county where law enforcement officer posing as underage girl received sexually explicit messages, even though defendant sent them from a different county). Under the reasoning of these cases, Brown utilized computer on-line services in Georgia, where the law enforcement officer posing as “Brittany” received the messages. Accordingly, he committed the offense of computer child exploitation at least partly in Georgia, giving the state jurisdiction under OCGA § 17-2-1 to prosecute him for that offense.

3. Merger.

Alternatively, Brown argues that, for sentencing purposes, his conviction for attempted child molestation must merge into his conviction for computer child exploitation. The parties dispute whether merger is precluded by the provision of the computer child exploitation statute, which states that “[a]ny violation of this Code section shall constitute a separate offense.” OCGA § 16-12-100.2 (i). We note that our Supreme Court has held that similar language in the statute establishing the offense of possession of a firearm or knife during the commission of a felony, OCGA § 16-11-106 (e), evidences a “legislative intent to provide punishment for both the possession offense and the predicate felony.” State v. Marlowe, 277 Ga. 383, 385 (1) (a) (589 SE2d 69) (2003). But we need not resolve today the effect of the language in OCGA § 16-12-100.2 (i).

Even if, as Brown contends, merger of a computer child exploitation statute offense with an attempted child molestation offense is required in an appropriate case — OCGA § 16-12-100.2 (i) notwithstanding — merger is not required in this case. “To determine if one crime is included in and therefore merges with another, we apply the ‘required evidence’ test set forth in Drinkard v. Walker, 281 Ga. 211 (636 SE2d 530) (2006). Under that test, we examine whether each offense requires proof of a fact which the other does not.” (Citation and punctuation omitted.) Thomas v. State, 292 Ga. 429, 433 (4) (738 SE2d 571) (2013). Here, the computer child exploitation offense required the state to prove that Brown used computer on-line services to entice a child to commit acts violating the prohibition against child molestation, OCGA § 16-12-100.2 (d) (1), which the state did not need to prove for the attempted child molestation conviction, OCGA §§ 16-4-1,16-6-4 (a) (1). The attempted child molestation offense required the state to prove that Brown had the intent to commit child molestation and committed a substantial step toward the commission of that crime, OCGA §§ 16-4-1,16-6-4 (a) (1), neither of which the state had to prove for the computer child exploitation conviction, OCGA § 16-12-100.2 (d) (1). Contrary to Brown’s suggestion, the Drinkardrequired evidence test for merger applies to cases involving attempt crimes. See, e.g., Castaneira, 321 Ga. App. at 429 (6). Because Brown’s convictions for offenses in this case “each required proof of a fact which the other did not[,] . . . [t]he trial court did not err in sentencing [him] on both of these convictions.” Id. Accord Thomas, 292 Ga. at 433 (4).

Decided May 20, 2013.

Michael R. McCarthy, for appellant.

Herbert M. Poston, Jr., District Attorney, Mark P. Higgins, Jr., Susan L. Franklin, Assistant District Attorneys, for appellee.

Judgment affirmed.

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

       We have quoted Brown’s statements exactly as they appear in the e-mails and instant messages, including any spelling or other errors.


text:
    A13A0471.
    MALONE v. THE STATE.
    (743 SE2d 479)
   Barnes, Presiding Judge.

Mario A. Malone was indicted for committing the crimes of incest, aggravated child molestation, aggravated sexual battery, aggravated sodomy, and child molestation. Following a hearing, Malone entered a nonnegotiated guilty plea on all counts, and he was sentenced to serve 30 years in confinement. Malone appeals from the trial court’s subsequent denial of his motion to withdraw his guilty plea. Finding no abuse of discretion, we affirm.

Malone argues that the State failed to show that he entered his plea with an understanding of the consequences because he was under the influence of medication when he entered his plea. Whether to grant a motion to withdraw a guilty plea is “within the sound discretion of the trial court and will not be disturbed absent a manifest abuse of such discretion.” (Footnote omitted.) Frost v. State, 286 Ga. App. 694 (649 SE2d 878) (2007). Upon a challenge to the validity of a guilty plea, the State has “the burden of showing affirmatively from the record that the defendant offered his plea knowingly, intelligently, and voluntarily.” (Footnote omitted.) Id. The State’s burden may be met “by (1) showing on the record that the defendant was cognizant of his rights and the waiver of those rights, or (2) using extrinsic evidence that shows affirmatively that the guilty plea was entered knowingly and voluntarily.” (Footnote omitted.) Shaw v. State, 302 Ga. App. 363, 364 (1) (691 SE2d 267) (2010).

The evidence shows that the State initially offered Malone a negotiated plea of 20 years to serve 12. Malone told his attorney that he wanted to accept the plea offer, but Malone attempted to commit suicide on the day he was to appear in court to enter the plea. At the subsequent plea calendar Malone changed his mind and declined to enter a plea, although he met with his counsel later and indicated that he had made a mistake and did want to enter a plea. Malone’s attorney then met with Malone and his family and explained to them that the trial court had stated that any subsequent plea would be nonnegotiated and could not be withdrawn.

At the commencement of the plea hearing, the trial court announced that jury selection for Malone’s trial was scheduled to commence the following Monday and that “the Court doesn’t do negotiated pleas ... during the trial calendar,” but that the case could be resolved if that was what Malone wished. The prosecutor, after confirming that if Malone entered a guilty plea it would be nonnegotiated, described in detail the factual basis for the charges and recommended that Malone be sentenced to 25 years to serve 20. Malone’s attorney confirmed that Malone wished to plead guilty, and he acknowledged that they had “thrown away” the State’s previous plea offer, but asked the court to “temper this sentencing.” Malone’s attorney also represented to the trial court that Malone was currently being treated with Remeron, an anti-depressant medication, but that Malone had told him that he “is perfectly clear-headed today.”

Malone took the stand and, under questioning by the State, represented that he was “under medicine.” However, when asked, “Are you under any alcohol, drugs or any other substance that interferes with your ability to understand what you are doing and think clearly at this time,” Malone answered, “No.” Malone confirmed, among other things, that he understood that the maximum sentence for the charges against him was two life sentences, followed by eighty years, and that the trial court was not bound by any promises or recommendations and could impose such a sentence. Malone then pled guilty to the charges, and the trial court accepted Malone’s plea of guilty as freely and voluntarily given before sentencing him to serve 30 years in confinement.

At the hearing on Malone’s motion to withdraw his guilty plea, Malone testified that he did not enter the guilty plea of his own free will. According to Malone, he was taking “Remerol,” a depression medication, and when asked the “kind of effect” the drug had on him, he responded, “[j]ust tired, frustrated, aggravated.” He also testified that he was taking medication for other illnesses, such as high blood pressure, but he did not know what those medications were, and he was “not really sure” if the other medications affected his ability to think. According to Malone, his state of mind at the hearing was such that he “wanted to actually go to sleep and never wake up again.” Malone further maintained that he entered a guilty plea because he thought he was going to be sentenced consistently with the State’s plea offer of “the 20 years to serve 12.”

Malone’s defense counsel testified that on the morning of the plea hearing he explained to Malone that it “was totally up to the judge whether or not he went along with the plea.” According to counsel, he did not have any concerns about Malone’s medications impacting on his ability to understand what was going on in court. And counsel “saw nothing at all that would make me think [Malone] did not know what he was doing.”

Based on our review of the evidence, we find no error. “The record contains no evidence, other than [Malone’s] own self-serving statements during the hearing on his motion to withdraw the plea, that he labored under any impairment at the time of the plea proceeding.” Brown v. State, 259 Ga. App. 576, 578 (578 SE2d 188) (2003). On the other hand, Malone’s testimony during the plea hearing as well as the testimony of defense counsel during the hearing on the motion to withdraw the plea show that although Malone was taking an antidepressant medication, his mental faculties were not impaired thereby and he understood that the trial court was not bound by the State’s initial plea offer in determining his sentence. See McDowell v. State, 282 Ga. App. 754, 756 (639 SE2d 644) (2006) (where trial court was aware that defendant was taking prescribed medications and defendant’s testimony at plea hearing was that his prescribed medications did not affect his ability to understand the plea proceedings, trial court was not under any duty to make further inquiry into the medication’s effect on defendant’s ability to competently enter his plea). To the extent that the evidence is in conflict, it was for the trial court to determine the credibility of Malone’s testimony at the hearing on the motion to withdraw. See Brown, 259 Ga. App. at 578. The evidence shows that the State carried its burden of showing that Malone offered his plea knowingly, intelligently, and voluntarily, and we find that the trial court did not abuse its discretion in denying Malone’s motion to withdraw his guilty plea.

Decided May 20, 2013.

Gerard B. Kleinrock, for appellant.

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

Judgment affirmed.

Miller and Ray, JJ., concur.

       The trial court sentenced Malone to 30 years to serve on the count of child molestation, 30 years to serve on the count of aggravated child molestation, 30 years to serve on the count of aggravated sodomy, 20 years to serve on the count of aggravated sexual battery, and 20 years to serve on the count of incest, with all the sentences to run concurrently.

       In a series of questions and answers, Malone confirmed that his lawyer had explained the charges against him and that he understood: that he had the right to a jury trial; that he could have a jury trial by pleading not guilty or remaining silent; that he had the right to assistance of trial counsel; that he was entitled to the presumption of innocence; that he had the right not to incriminate himself; that he had the right at a jury trial to question witnesses against him and to subpoena witnesses on his behalf; and that he was giving up all those rights by pleading guilty.