author: Adams, Judge.

text:
    A11A1071.
    DEMORY v. THE STATE.
    (721 SE2d 93)
   Adams, Judge.

The trial court granted an oral motion for mistrial asserted by Cedric Rafael Demory in his trial on charges of burglary, felony obstruction of an officer and misdemeanor possession of marijuana. Demory subsequently filed a “Plea of Former Jeopardy” on the ground that the mistrial was caused by the intentional misconduct of the prosecutor. The trial court denied that plea, and Demory appeals.

Where, as here, a mistrial is granted at the request of a criminal defendant, retrial is not prohibited on the basis of double jeopardy unless it is established that the State intended to goad the defendant into moving for a mistrial in order for the State to avoid a reversal due to prosecutorial or judicial error, or otherwise to obtain a more favorable chance of a guilty verdict on retrial. Whether the prosecutor intended to goad the defendant into moving for mistrial calls for the trial court to make a finding of fact by inferring the existence or nonexistence of intent from objective facts and circumstances. When the trial court sits as the fact-finder, its resolution of factual issues will be upheld by the appellate court unless it is clearly erroneous. A trial court’s findings of fact will not be deemed to be clearly erroneous if there is any evidence to support them, and this holds true even if the findings are based upon circumstantial evidence and the reasonable inferences which flow from them.

(Citations and punctuation omitted.) Brown v. State, 303 Ga. App. 814 (694 SE2d 385) (2010). “It doesn’t even matter that [the prosecutor] knows he is acting improperly, provided that his aim is to get a conviction. The only relevant intent is the intent to terminate the trial, not the intent to prevail at trial by impermissible means.” (Citation and punctuation omitted.) State v. Traylor, 281 Ga. 730, 732 (642 SE2d 700) (2007).

The evidence at trial showed that the home of Jack and Violet Waldrip was burglarized on November 5, 2009. It appeared that someone broke into the Waldrips’ house by breaking a glass door leading to a porch at the rear of the home and reaching in to unlock a deadbolt. Police lifted what appeared to be recent fingerprints from the door area and one of the prints was matched to Demory, who was subsequently arrested for the crime. Some of the items taken from the Waldrips’ home were later produced by Shacara Rucker, a friend of the Waldrips and Demory’s cousin, or recovered by Sheklia Rucker, Shacara’s sister.

During the State’s examination at trial of Dan Schraeder, an investigator with the Gainesville Police Department, the prosecutor asked whether Schraeder ever had the chance to meet Demory after his fingerprints had been discovered at the scene. Schraeder responded that he did meet Demory. Demory’s attorney moved for a mistrial, arguing that this question was a violation of Demory’s Fifth Amendment right to remain silent because there was no testimony that he had spoken to Demory as he had testified regarding other individuals. His attorney argued that the clear intent of the question was to let the jury know that “everybody else spoke to the police,” but Demory had not. The prosecutor informed the trial court that, to the contrary, she had instructed the investigator not to comment on Demory’s right to remain silent. The trial court denied Demory’s motion.

Demory subsequently took the stand and testified that on the day of the robbery, his cousin Shacara asked him to drive her to a house he later learned was the Waldrips’ house. He waited for her in the car and when she did not return, he went to the back door to find her, and he placed his hand on the glass. They then drove to a pawnshop where Shacara attempted to sell jewelry, but was told it was worthless. In reviewing the events of that day on cross-examination, the prosecutor asked Demory, “Have you ever told the police officer about Shacara going into the house?” Demory replied, “I had never been questioned.” His attorney then again moved for a mistrial on the ground that the question violated Demory’s Fifth Amendment rights.

The prosecutor first attempted to defend the question as relevant, but after the trial court stated that he believed the question to be improper, she asked for curative instructions. The trial judge decided to take the night to consider the motion. The next morning, the prosecutor conceded that her research had shown that her question had been improper, but she argued against a mistrial, citing cases to assert that her question should be considered harmless error. The trial court ruled, however, that the question deprived Demory of a fair trial and granted the motion for mistrial. Afterward, the State re-indicted Demory on the same charges and also indicted Shacara Rucker as a co-defendant in the burglary, although she had not previously been indicted, and Demory filed his plea in bar.

At the hearing on Demory’s plea, the prosecutor stated in her place that she did not intend to goad the defense in moving for a mistrial. She said the prosecution did not want a mistrial. The prosecutor believed that the trial was going very well, in fact “better than a lot of the cross-examinations that I have done in my career.” She said that she had asked similar questions in other trials and that she was surprised when Demory’s attorney asked for a mistrial. When she discovered in her research that the question was considered improper, she was “mortified.” The prosecutor later took the stand and testified that she had been a lawyer for ten years, and that she had tried approximately seventy-five jury trials. The prosecutor stated that she felt that it was “very obvious” that Demory’s trial testimony was not credible because she believed that he had given “multiple inconsistent statements throughout the course of his testimony, both direct and cross-examination, so I was very pleased with how the trial was going.” She felt her question was relevant and because she did not realize it was improper, she felt the motion for mistrial would quickly be denied. But the prosecutor acknowledged that other members of the prosecution team appeared to be more concerned at the time about the propriety of the question. She also asserted that the prosecution team did not want a mistrial because they had to work “pretty hard” to track down and coordinate the witnesses, some of whom had left law enforcement.

The trial court denied Demory’s plea in bar based upon the prosecutor’s testimony that “she was unaware that this particular question under these particular circumstances would be an improper comment on the Defendant’s right to remain silent”; the State’s “diligent efforts” to save the case and oppose the motion for mistrial; and the tenor of the trial up to the point of the question. The court, who was there to observe the trial as it progressed, found the prosecutor’s statement that the trial was going well to be credible.

Demory argues on appeal, however, that the question in this case was so “blatant and so contrary to the most basic rules of prosecu-torial procedure and conduct” that it cannot be attributed to negligence. We disagree. The prosecutor’s question in this case does not rise to the level of the prosecutorial misconduct in the cases upon which Demory relies. Compare, e.g., Anderson v. State, 285 Ga. App. 166, 167 (645 SE2d 647) (2007) (prosecutor elicited specific testimony from police officer that defendant refused to sign a waiver of his rights after being arrested); Wilson v. State, 233 Ga. App. 327, 329-330 (3) (503 SE2d 924) (1998) (physical precedent only) (prosecutor asked defendant if he had tried to negotiate a nolo contendere plea, which necessarily entails an admission of guilt, to the charges at issue).

In denying the plea, the trial court stated that the prosecution’s question was an unintentional reference to Demory’s right to remain silent. We cannot say that this finding was clear error because the record contains evidence to support the trial court’s conclusion that the prosecutor’s question was not intended to goad the defense into seeking a mistrial. The prosecutor consistently opposed the mistrial and requested a curative instruction instead. The trial judge, who had the opportunity to observe the prosecutor’s demeanor and the progress of the trial, found the prosecutor’s explanation and assessment of the case to be credible. “Where, as here, the evidence authorized the trial court to find that the person in control of the prosecution did not instigate any such misconduct either directly or through collusion in order to goad the defendant into moving for a mistrial, double jeopardy does not bar retrial.” (Punctuation and footnote omitted.) Brown v. State, 303 Ga. App. at 818. See also Allen v. State, 302 Ga. App. 852, 854 (691 SE2d 908) (2010).

Decided October 7, 2011

Reconsideration denied December 12, 2011

Travis A. Williams, H. Bradford Morris, Jr., Larry L. Duttweiler, t for appellant.

Lee Darragh, District Attorney, Wanda L. Vance, Kelley M. Robertson, Assistant District Attorneys, for appellee.

Judgment affirmed.

Barnes, P. J., and Blackwell, J., concur.

       Another attorney with less experience testified that she recognized immediately that they were heading for a mistrial. Nevertheless, this Court has acknowledged that the experience of the prosecutor is not determinative on the issue of whether to grant a double jeopardy plea in bar. Brown v. State, 303 Ga. App. at 817.

       “A plea of nolo contendere constitutes a plea of guilty except that it cannot work any civil disqualification upon the defendant.” (Citation and punctuation omitted.) McMahon v. State, 308 Ga. App. 292, 294 (1) (a) (707 SE2d 528) (2011).

       Cf. Williams v. State, 258 Ga. 305, 312 (1) (A) (369 SE2d 232) (1988) (actions of the prosecutor constituting even intentional prosecutorial misconduct do not raise the bar of double jeopardy, notwithstanding the fact that the defendant was thereby deprived of due process of law, unless the prosecutor’s actions were intended to subvert the protections afforded by the Double Jeopardy Clause).


source: Caselaw Access Project

license: Public Domain

text:
    A11A0807.
    ONUMAH v. THE STATE.
    (721 SE2d 115)
   Adams, Judge.

Kalu Tumi Owens Onumah was convicted by a jury of six counts of armed robbery, six counts of aggravated assault, six counts of kidnapping, six counts of false imprisonment, one count of obstruction of an officer and one count of possession of marijuana. After merging the aggravated assault convictions with the armed robbery convictions, the trial court sentenced Onumah to life in prison with the possibility of parole on each of the armed robbery counts, twenty years to serve on each kidnapping count, ten years to serve on each of the false imprisonment counts and twelve months to serve on the remaining counts, all to run concurrently. He appeals following the denial of his motion, as amended, for new trial.

1. Onumah first argues that the trial judge erred by finding that she was required to sentence him to life in prison on his armed robbery convictions pursuant to OCGA § 17-10-7 (a). However, this contention has previously been decided adversely to Onumah. State v. Baldwin, 167 Ga. App. 737, 739 (3) (307 SE2d 679) (1983); see also Singleton v. State, 293 Ga. App. 755, 756-757 (2) (667 SE2d 711) (2008); Perkinson v. State, 265 Ga. App. 502, 502-503 (3) (594 SE2d 381) (2004); State v. Scott, 265 Ga. App. 387 (593 SE2d 923) (2004).

2. Onumah next argues that his kidnapping convictions must be reversed because, as to each victim, the evidence of asportation was insufficient.

The crimes in this case were committed on April 1, 2009, and Onumah was tried in March 2010. Thus, the trial court correctly charged the jury on this issue pursuant to Garza v. State, 284 Ga. 696, 701-702 (1) (670 SE2d 73) (2008), as the post-Garza amendment to the kidnapping statute applies only to crimes committed on or after July 1, 2009. OCGA § 16-5-40.

As applicable here, four factors are considered in determining the sufficiency of the evidence of asportation in kidnapping cases. Those four factors are:

(1) the duration of the movement; (2) whether the movement occurred during the commission of a separate offense; (3) whether such movement was an inherent part of that separate offense; and (4) whether the movement itself presented a significant danger to the victim independent of the danger posed by the separate offense.

Garza, 284 Ga. at 702 (1).

However, as our Supreme Court has noted “[i]n cases where the Garza standard is applicable, this Court has not required the satisfaction of all four factors to establish that asportation has occurred.” Hammond v. State, 289 Ga. 142, 144 (2) (710 SE2d 124) (2011). Rather, even when the movement is of minimal duration and occurs before or during the commission of other offenses, asportation has been satisfied where the movement is not an “inherent part” of any other offense, and the “movement create[s] an additional danger to the victims by enhancing the control” of the perpetrators. Tate v. State, 287 Ga. 364, 366 (1) (a) (695 SE2d 591) (2010). “The test was designed to determine whether the movement was one ‘serving to substantially isolate the victim from protection or rescue — or merely a “criminologically insignificant circumstance” attendant to some other crime.’ Garza, 284 Ga. at 702 (1).” Wright v. State, 300 Ga. App. 32, 34 (1) (684 SE2d 102) (2009).

In this case, the evidence showed that on April 1, 2009, four men, two of them carrying guns, entered the Pawn Mart located in Forest Park, Georgia at about 6:00 p.m., which was closing time. At the time they entered there were three employees and three customers in the store. All of the victims except the store manager were in the front part of the store, and they were ordered to get down on the floor; the perpetrators “ushered” them, at gunpoint, into the back office where a safe was located, shut the office door and ordered everyone not to move and to keep their heads down. The store manager, who had been in the office talking on the phone with the district manager when the robbers entered the shop, stepped out of the office toward the front of the store but he too was ordered down on the floor and back into the office. Once everyone was in the office, the store manager was ordered to open the safe, and jewelry and cash were removed. The perpetrators also took personal belongings, such as wallets, debit cards, jewelry and calculators from some of the people in the store. The perpetrators then left the store, the store manager locked the door and the police were called. About an hour after the robbery, police located black bags containing the items taken from the safe.

Based on these events, Onumah was charged with separate counts of kidnapping for each person in the store at the time of the robbery. As to the five customers and employees who were in the front of the store at the time the robbers entered, it is apparent from both the testimony and videotape of the events that moving those victims into the office was not an “inherent part” of the robbery, but was done to isolate them from outside view and to significantly decrease the chance they could summon assistance. This movement was not necessary to complete the robbery, as the other victim, the store manager, was the person they got to open the safe, and the presence of the other victims in the room was not incidental to the furtherance of the crime. Further, the perpetrators could have taken the victims’ belongings when they were forced to the floor after the men entered the store, without moving them into a more isolated space.

Although the question is closer as to the store manager, Jack Butcher, who was already in the office when the robbers entered the store, one camera view on the videotape introduced at trial shows, as stated above, that he came out of the office when the robbers came in, but that they forced him to the floor, and then back into the office where the other victims were also taken. Thus, while he was closer to the office when the perpetrators entered the shop and was moved a shorter distance back into the office than the other victims, he too was forced first to the floor and then back into the office. This movement clearly enhanced the control the robbers had over him and the other victims, and likewise served to prevent him from being observed by someone coming into the shop since the office door was closed after the victims were herded inside, also decreasing his chance of rescue.

Onumah further argues that the victims were not isolated because they were brought into the same space, and cites to Williams v. State, 304 Ga. App. 787, 789 (697 SE2d 911) (2010), for the proposition that moving the victims into the same area does not serve to isolate them under the meaning of Garza. In Williams, the gunman moved two victims from a bank office into the bank lobby, where they were told to sit with the other victims. Id. at 787. Conversely, Onumah and his accomplices moved all of the victims except Butcher from the front area of the pawn shop, where they would have been visible to passers-by and an employee could have used a “panic button” behind the counter to alert police, to a small back room. And the fact that one of the perpetrators held a gun to the back of one of the employees and asked if she had hit the panic button further suggests that the motive for moving the victims to the back room was specifically to “isolate [them] from protection or rescue.” Garza, 284 Ga. at 702. Butcher was moved back into the office, which again presented a significant danger to him by isolating him, shielding them all from public view, and enhancing the perpetrators’ control over all of them.

In Henderson v. State, 285 Ga. 240 (675 SE2d 28) (2009), our Supreme Court found that asportation was satisfied under the Garza factors when three gunmen entered a duplex and robbed four men before forcing them to remove their clothes and sit on the floor of one room. Despite the fact that the gunmen only moved the victims from one room to another and that the movement was of minimal duration, the Court found that the movement was not an inherent part of the armed robbery and “created an additional danger to the victims by enhancing the control of the gunmen over them.” Id. at 245 (5). This holding eviscerates Onumah’s argument that victims cannot be isolated when they are brought into the same area.

Based on the foregoing, we conclude that the evidence was sufficient to support Onumah’s convictions for kidnapping.

3. Lastly, Onumah argues that his convictions for armed robbery, kidnapping and false imprisonment must be reversed because the evidence that he was one of the assailants was insufficient.

Onumah was apprehended by police wearing a gray hooded sweatshirt with a white shirt over it, the same attire worn by one of the gunmen as shown in surveillance footage. On his person he was carrying a gun holster, a pair of sunglasses, a bag of marijuana, and black garbage bags with blue ties, identical to the bags that the robbers were carrying as they fled the scene of the crime, and in which the goods stolen from the pawn shop were found. While he was not carrying a garbage bag containing stolen goods by the time he was apprehended, the arresting officer testified that Onumah was carrying a full garbage bag when he first began to pursue him. Two garbage bags were later found in the parking lot through which the officer and Onumah had run, but the officer did not witness Onumah drop either bag. Further, one of the customers in the store testified that he had previously worked at the pawn shop, that Onumah was his cousin, and that he used to work with one of the other perpetrators.

Circumstantial evidence of identity may be sufficient to enable a rational trier of fact to find a defendant guilty beyond a reasonable doubt. E.g., Mays v. State, 198 Ga. App. 402, 403 (3) (401 SE2d 597) (1991). The jury heard the evidence presented at trial in this case and found that it was sufficient under the standard of Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560) (1979), to prove beyond a reasonable doubt that Onumah was one of the perpetrators of the crimes charged. We agree, and thus this enumeration affords no basis for reversal.

Decided November 15, 2011

Reconsideration denied December 12, 2011

David J. Walker, for appellant.

Tracy Graham-Law son, District Attorney, Lisa L. Wells, Billy J. Dixon, Assistant District Attorneys, for appellee.

Judgment affirmed.

Barnes, P. J., and Blackwell, J., concur.


author: Miller, Presiding Judge.

text:
    A11A1150.
    YI v. LI et al.
    (721 SE2d 144)
   Miller, Presiding Judge.

Appellant-defendant (the “Seller”) entered into a valid contract to sell her ice cream store franchise to Appellees-plaintiffs (the “Purchasers”). Transfer of the franchise was never consummated, however, and the Purchasers brought suit against the Seller for rescission, fraud, and termination of the contract. Following a jury trial, a verdict was returned in favor of the Purchasers on both their rescission and fraud claims. The Seller filed a motion for judgment notwithstanding the verdict, or in the alternative, a new trial. The trial court granted the Purchasers a new trial on their fraud claim only. The Purchasers, however, subsequently dismissed their fraud claim, and the trial court ultimately entered an amended judgment as to the Purchasers’ remaining claim for rescission of the contract. The Seller appeals the trial court’s denial of her motion for judgment notwithstanding the verdict on the Purchasers’ rescission claim, contending that rescission was improper in this case. Finding no evidence of breach by the Seller that would authorize the Purchasers to unilaterally rescind the contract for nonperformance under OCGA § 13-4-62, we must reverse the judgment below and direct that judgment be entered in accordance with the Seller’s motion for judgment notwithstanding the verdict on the Purchasers’ claim for rescission.

In reviewing the denial of a . . . motion for a [judgment notwithstanding the verdict] or motion for new trial, this Court must affirm if there is any evidence to support the jury’s verdict, and in making this determination, we must construe the evidence in the light most favorable to the prevailing party.

(Citation and punctuation omitted.) Ferman v. Bailey, 292 Ga. App. 288, 290 (2) (664 SE2d 285) (2008); Signsation, Inc. v. Harper, 218 Ga. App. 141, 142 (2) (460 SE2d 854) (1995) (“[T]he determinative question is not whether the verdict and the judgment of the trial were merely authorized, but is whether a contrary judgment was demanded.”) (citations and punctuation omitted).

Examining the record in the light most favorable to the Purchasers, the evidence shows that the Seller was a party to a franchise agreement with Bruster’s Ice Cream, Inc. (“Bruster’s”), pursuant to which she operated a Bruster’s ice cream store in Duluth, Georgia. The Seller met the Purchasers in late 2006, at which time the parties first discussed the Purchasers’ interest in acquiring the Bruster’s franchise owned and operated by the Seller. In February 2007, the Purchasers submitted to Bruster’s an application for the right to operate a franchise store. The Purchasers thereafter attended a Bruster’s franchising seminar, as well as multiple meetings with Bruster’s vice president of sales. At a meeting on May 26, 2007, the Purchasers signed a franchise agreement (although it was not signed by Bruster’s) and paid Bruster’s a franchise transfer and training fee.

The parties eventually entered into an amended stock purchase agreement (the “Purchase Agreement” or “Agreement”) that required the Purchasers to pay $300,000 for all of the Seller’s “issued and outstanding shares of [Eastern Source Investment Inc.],” for the purpose of operating the Seller’s Bruster’s ice cream store. The Purchase Agreement set forth in relevant part:

The closing of the transactions contemplated hereby (the “Closing”) shall take place ... on the earlier of July 31, 2007 (the “Closing Date”), provided that the closing is conditioned upon the obtaining of (i) Landlord’s Consent, (ii) Franchisor’s Consent.
Consents. The execution, delivery and performance by the Seller of the Seller Agreements, [] and the consummation of the transactions contemplated herein do not require the consent, approval or action of, or any filing with or notice to, any government or other person, except (1) the consent and approval of Bruster’s, a Pennsylvania limited partnership, regarding the Franchise Agreement (“Franchisor’s Consent”)-, and (2) the consent and approval of [the landlord], regarding the [l]ease . . . [of] . . . the [p]rem-ises ....
Termination for Certain Reasons. Notwithstanding anything in this Agreement to the contrary, this Agreement may be terminated prior to the Closing Date as follows: (a) by either party, if the Franchisor’s Consent cannot be obtained....

The Purchaser knew that as of June 13, 2007, Bruster’s had not yet consented to the transfer or otherwise approved them as franchisees; nevertheless, they proceeded to execute the Agreement and pay the Seller $230,000.

The very next day, June 14, 2007, the Purchasers took possession of the ice cream store and operated it continuously until December 1, 2007. Despite the fact that the Purchasers were essentially acting in the role of franchisees during this time, Brus-ter’s never consented to the parties’ proposed transfer of the Seller’s franchise. On August 7, 2007, Bruster’s memorialized in writing that it was withholding its consent of the transfer. In a letter dated September 13, 2007, the Purchasers formally notified the Seller that they were rescinding the Purchase Agreement and demanded that the Seller not only return all monies paid with respect to the Purchase Agreement, but also take back possession of the ice cream store. The Seller, however, refused to do either.

The Purchasers subsequently brought suit against the Seller for rescission, fraud, and termination of the contract. The parties’ claims were tried before a jury, which returned a verdict in favor of the Purchasers for both their fraud and rescission claims and awarded the Purchasers general damages ($265,172.37), attorney fees and costs ($86,057.06), and punitive damages ($200,000). The trial court entered a judgment upon the jury’s verdict. Thereafter, the Seller filed a motion for judgment notwithstanding the verdict, or in the alternative, for a new trial. Finding that there was insufficient evidence to support the Purchasers’ fraud claim, the trial court entered an order purporting to grant the Seller’s motion for new trial as to the fraud claim. The trial court subsequently clarified its order to explain that it intended to leave the rescission verdict and judgment undisturbed and to also expressly deny the Seller’s motion for new trial on the rescission claim. In light of the ruling, the Purchasers dismissed their fraud claim. To reflect its grant of a new trial, and the Purchasers’ subsequent dismissal of the fraud claim, the trial court entered an amended judgment contemplating only the Purchasers’ claim for rescission.

On appeal, the Seller asserts that the trial court erred by denying her motion for judgment notwithstanding the verdict on the Purchasers’ rescission claim because such claim was improper in this case.

“A party may rescind a contract without the consent of the opposite party on the ground of nonperformance by that party but only when both parties can be restored to the condition in which they were before the contract was made.” OCGA § 13-4-62. “[T]o justify rescission, there must be a ‘material nonperformance or breach’ by the opposing party.” Forsyth County v. Waterscape Svcs., 303 Ga. App. 623, 633 (2) (b) (694 SE2d 102) (2010). Further, “[t]he remedy of rescission for nonperformance is appropriate when the breach is so substantial and fundamental as to defeat the object of the contract.” (Emphasis supplied.) Lanier Home Center v. Underwood, 252 Ga. App. 745, 746 (1) (557 SE2d 76) (2001).

In setting forth a rescission claim for nonperformance in this case, the Purchasers premised their claim upon the failure of a contingency that acted as a condition precedent in the Purchase Agreement. See OCGA § 13-3-4 (“A condition precedent must be performed before the contract becomes absolute and obligatory upon the other party.”). Notably, the Purchase Agreement expressly provided that the Seller’s obligations to execute, deliver, and perform under the Agreement were conditioned upon the consent and approval of Bruster’s, as the franchisor.

“Even though the failure to meet such a contingency is not a condition precedent to the existence of a valid contract, it is reasonable to hold that the obtaining of [Bruster’s consent] was a condition precedent to the duty of both parties to render their promised performances.” (Citation and punctuation omitted.) Desmear Systems v. Vines, 305 Ga. App. 730, 732 (700 SE2d 711) (2010). Thus, the failure to satisfy the condition precedent here excused the parties’ obligations and performance under the Purchase Agreement. Significantly, the Purchase Agreement did not place the duty of satisfying the condition, i.e., obtaining Bruster’s consent, upon the Seller. Rather, the evidence showed that the Purchasers were the ones who pursued and coordinated their efforts to obtain the required consent directly with Bruster’s. Consequently, it cannot be said that the failure to satisfy the condition constituted a breach by the Seller. Moreover, in the absence of any evidence that the Seller engaged in conduct that prevented the satisfaction of the condition, there was no evidence that the Seller did anything wrong or otherwise caused a breach of the Purchase Agreement provisions.

Thus, the trial evidence did not support the remedy of rescission for nonperformance under OCGA § 13-4-62. Therefore, the jury’s rescission verdict was not supported by the evidence and it was error to deny the Seller’s motion for judgment notwithstanding the verdict as to the Purchasers’ rescission claim. Accordingly, we reverse the judgment below and direct that a judgment be entered in accordance with the Seller’s motion for judgment notwithstanding the verdict.

Decided November 21, 2011

Reconsideration denied December 13, 2011

Pierce & Dunkelberger, J. Wayne Pierce, for appellant.

Taylor, English & Duma, Richard A. Kaye, E. Peyton Nunez, Craig K. Pendergrast, for appellees.

Judgment reversed with direction.

Ellington and Doyle, JJ., concur.

       The Purchasers’ claim for termination of the contract was not before the jury because the trial court granted the Seller’s motion for directed verdict as to that claim.

       In an alternative claim of error, the Seller also contends that the trial court erred by entering an amended judgment on the Purchasers’ rescission claim and requests this Court to grant a new trial on such claim. Because we conclude that the evidence does not support a claim for rescission, however, we need not address the Seller’s alternative argument.

       This agreement amended the parties’ original May 25, 2007, agreement only with respect to the purchase price and the manner of payment.

       The payment terms of the Purchase Agreement provided for $230,000 to be paid by the Purchasers at the time of execution, and the remaining $70,000 to be financed by the Seller and repaid by the Purchasers in 24 monthly installment payments.

       The parties testified that Eastern Source Investment Inc. was a company doing business as Bruster’s, and that the Seller had to sell the Purchasers her shares of this company in order to transfer her Bruster’s franchise.

       The Purchase Agreement defined “Seller Agreements” as the Agreement itself “and all of the other documents and agreements contemplated herein to which the Seller is a party

       Although the Purchase Agreement contemplated that closing of the transaction would take place on July 31, 2007, the Seller’s position is that on the same day the parties executed the Agreement, they also closed their transaction. The Purchasers, however, although conceding that no closing took place on July 31, 2007, argue that closing could not have occurred because Bruster’s never provided its consent to the transfer.

       The Purchasers ceased operations as of December 1, 2007, pursuant to Bruster’s policy permitting closure of its ice cream stores during the winter months.

       Financial concerns regarding the volume of the store versus the proposed purchase price were ultimately the basis upon which Bruster’s decided to deny the transfer.

       Although not an issue on this appeal, we nevertheless note that a trial court cannot state that the evidence presented by the Purchasers on the matter of fraud was insufficient and then purport to grant the Seller’s motion for new trial on the matter. See Diegert v. Cedarbrook Homes, 267 Ga. App. 264, 265 (599 SE2d 211) (2004). “If the evidence is insufficient, the trial court must rule in favor of the [Seller] on this claim, not allow it to he re-litigated.” Id.

       In omitting the Purchasers’ fraud claim, the amended judgment also excluded the punitive damages that were awarded by the jury as such were claimed only in connection with the Purchasers’ dismissed fraud claim.

       As an initial matter, we note that this Court is constrained by what the law says we can review, which in this case, is the question of whether there was any evidence to support the Purchasers’ claim for rescission of the contract. See Forrest Cambridge Apartments v. Redi-Floors, Inc., 295 Ga. App. 840, 842 (3) (673 SE2d 318) (2009) (“We are limited on appeal to those grounds presented to and ruled upon by the trial court and then enumerated as error.”) (citations and punctuation omitted).

       Given our conclusion, we need not address the Seller’s additional arguments as to why rescission was improper.


author: SMITH, Presiding Judge.

text:
    A11A1346.
    CAPITAL FINANCIAL SERVICES GROUP, INC. v. HUMMEL et al.
    (721 SE2d 108)
   SMITH, Presiding Judge.

In this action for conversion, Capital Financial Services Group, Inc. (“Capital”), solely owned by Michael Levy, appeals from the trial court’s grant of summary judgment to Levy’s ex-wife Sirka Hummel and the law firm representing Hummel in a divorce action filed by Levy. Because the trial court properly granted summary judgment to Hummel and the law firm, we affirm.

“On appeal from a grant of a motion for summary judgment, we review the evidence de novo, viewing it in the light most favorable to the nonmovant, to determine whether a genuine issue of fact remains and whether the moving party is entitled to judgment as a matter of law. [Cit.]” Simprop Acquisition Co. v. L. Simpson &c. Unitrust, 305 Ga. App. 564 (1) (699 SE2d 860) (2010). So viewed, the record reveals that in November 2007, Levy filed for divorce from his then wife Hummel. The law firm of Warner, Mayoue & Bates, EC. (“Warner, EC.”) represented Hummel in the divorce action. On March 11, 2009, during the divorce proceedings, the trial court entered a standing order which provided in part:

Each party to a divorce or separate maintenance action is hereby enjoined and restrained from selling, encumbering, trading, contracting to sell, or otherwise disposing or removing from the jurisdiction of the court, any of the property belonging to the parties except in the ordinary course of business.

Warner, EC. sent letters to Scottrade and Wachovia informing them of the standing order with a copy of the order attached. In response, Wachovia and Scottrade froze Levy’s accounts. Levy filed a “Motion for Equitable Relief and Modification of the Standing Order” on May 18, 2009, seeking in part to compel Warner, EC. to contact Scottrade and Wachovia to inform them that he “is not prohibited from having access to the funds, or the accounts.” Before the court ruled on Levy’s motion, Scottrade and Wachovia released their respective holds placed on Levy’s accounts after being contacted by either Levy’s counsel or Hummel’s counsel, Warner, EC.

On August 3, 2009, nunc pro tunc to June 19, 2009, the trial court denied Levy’s motion for equitable relief, ruling that the standing order was a matter of public record and that Warner, EC. properly published, i.e., issued copies of the order, to the financial institutions holding Levy’s accounts. The court also noted that “counsel for [Hummel] did attempt to ameliorate any damages to [Levy], if any, by their cooperation with [Levy’s] counsel.”

Although not included in the record here on appeal, the parties agree that Levy and Hummel entered into a settlement agreement, and a final judgment and decree of divorce was entered on April 7, 2010. Around May 14, 2010, Levy, as the sole shareholder, director, and officer of Capital, attempted to execute a stock trade on Capital’s behalf using a TD Ameritrade (“Ameritrade”) account. Levy was informed by Ameritrade that, in response to a letter from Warner, EC., the account had been subject to a “civil levy” or “third preliminary injunction” since March 11, 2009 (the date of the standing order), and that either a court order or confirmation from Warner, EC. would be necessary for the account to be released. Capital sent a letter to Warner, EC. demanding that it contact Ameritrade to inform Ameritrade that Capital’s account should be released. Warner, EC. responded that although it sent a letter and copy of the standing order to Ameritrade, the firm had not directed Ameritrade to place a “civil levy” on Capital’s Ameritrade account. It also asked Levy to request Ameritrade to contact Warner, EC. to resolve the issue. When the account was not released, Capital filed a complaint for conversion against Warner, EC. and Hummel.

Warner, EC. and Hummel moved for summary judgment on Capital’s conversion claim on the ground it was barred by collateral estoppel because the trial court had previously ruled that Warner, EC. properly issued copies of the standing order. Capital responded to the motion, arguing that the elements of conversion demonstrate that collateral estoppel is not a defense, and that in any case the failure to instruct Ameritrade to release its account after being notified of the problem is a “separate and distinct act supporting a claim for conversion.”

At the hearing on the motion, Warner, EC. and Hummel argued that collateral estoppel barred relitigation of the issue of whether they properly published the standing order, and also argued that there is no cause of action for conversion because there was “no holding of that account by [Warner, EC.] or anything else.” Warner, EC. and Hummel then asked the court to “grant a summary judgment for [Warner, EC. and Hummel] saying that there’s no cause of action, and that judgment is a matter of law in favor of Ms. Hummel, as well as [Warner, EC.].” Capital argued at the hearing that defense counsel’s “representation [of] ownership [as] a function of conversion is incorrect,” and explained what it considered to be the elements necessary to prove conversion. Capital argued further at the hearing that the trial court’s previous ruling — that Warner EC. and Hummel properly issued copies of the standing order — was irrelevant to its conversion claim, and then argued to the court that collateral estoppel did not bar its conversion claim.

Following the hearing, the trial court entered an order granting Warner, EC.’s and Hummel’s motion for summary judgment but containing no recitation of facts or analysis. The court also entered an “Order Releasing Accounts” informing Ameritrade that Levy’s divorce was final as of April 30, 2010, and ordering Ameritrade to release Capital’s accounts.

Capital argues on appeal that the evidence demonstrates that Warner, EC. was in control of its Ameritrade account and that collateral estoppel does not bar its conversion claim. We find that the trial court properly granted summary judgment because the undisputed facts before the trial court show that Capital cannot establish the elements necessary to support a cause of action for conversion as a matter of law.

“Conversion consists of an unauthorized assumption and exercise of the right of ownership over personal property belonging to another, in hostility to his rights; an act of dominion over the personal property of another inconsistent with his rights; or an unauthorized appropriation.” (Citation and punctuation omitted.) J. Kinson Cook &c. v. Heery/Mitchell, 284 Ga. App. 552, 558 (c) (644 SE2d 440) (2007).

Moreover, it is immaterial that such dominion was exercised in good faith, for whoever meddles with another’s property, whether as principal or agent, does so at his peril, and it makes no difference that in doing so he acts in good faith. In order to establish a claim for conversion, the complaining party must show (1) title to the property or the right of possession, (2) actual possession in the other party, (3) demand for return of the property, and (4) refusal by the other party to return the property.

Decided November 9, 2011

Reconsideration denied December 13, 2011

Isenberg & Hewitt, Ryan L. Isenberg, for appellant.

(Citation, punctuation and footnote omitted.) Trey Inman & Assoc, v. Bank of America, 306 Ga. App. 451, 457 (4) (702 SE2d 711) (2010).

Capital has failed to show an act of dominion or exercise of the right of ownership over, or unauthorized appropriation of its Ameri-trade account by Warner, EC. Here, Warner, EC. did not place the hold on Capital’s account, nor did it have the authority to do so. See J. Kinson Cook &c., supra, 284 Ga. App. at 558 (c) (because construction management company only reviewed and made recommendations regarding pay requests for school construction project, it did not possess or exercise dominion over funds for project where school district paid invoices and retained control over funds). And Ameritrade’s interpretation of Warner, EC.’s letter and the trial court’s standing order did not constitute an unauthorized appropriation by Warner, EC. See Both v. Frantz, 278 Ga. App. 556, 558-559 (1) (629 SE2d 427) (2006) (no conversion of funds by law firm where firm prepared power of attorney that allowed couple’s daughter and a third party to withdraw funds from husband and wife’s joint account).

Capital argues in the alternative that Warner, EC. is also liable for conversion for failing to contact Ameritrade after being notified that Capital’s account had been frozen. But Warner, EC. cannot be held liable for conversion for the failure to release dominion or control over Capital’s property when it did not exercise that control. Compare Glisson v. Freeman, 243 Ga. App. 92, 106 (2) (532 SE2d 442) (2000) (broker’s wrongful transfer of funds from one account to another account and refusal to reverse transfer deprived account holder of her property).

Because Capital has failed to show an act of dominion or exercise of the right of ownership by Warner, EC. over its Ameritrade account, the trial court properly granted summary judgment to Warner, EC. on Capital’s conversion claim.

Judgment affirmed.

Mikell and Dillard, JJ., concur.

Swift, Currie, McGhee & Hiers, James T. McDonald, Jr., Terry O. Brantley, Ariel D. Zion, for appellees.

       We note that Levy, the sole officer of Capital, did not appeal from the trial court’s ruling that Warner, EC. properly published the trial court’s standing order.


author: ELLINGTON, Judge.

text:
    A11A1746.
    AMBATI v. BOARD OF REGENTS OF THE UNIVERSITY SYSTEM OF GEORGIA.
    (721 SE2d 148)
   ELLINGTON, Judge.

Balamurali Ambati appeals from an order of the State Court of Richmond County which dismissed this civil action against the Board of Regents of the University System of Georgia d/b/a Medical College of Georgia based upon the court’s finding that the Board of Regents is immune from suit under the Georgia Tort Claims Act (“GTCA”), OCGA § 50-21-20 et seq. For the reasons that follow, we affirm.

Ambati was employed as an associate professor at the Medical College of Georgia while he completed his Ph.D. there in cell biology. During that time, an academic review committee investigated whether he had committed research misconduct. Thereafter, Ambati filed the instant suit against the college, alleging several tort causes of action, all based upon the disclosure of private information during the course of the academic investigation. The Board of Regents moved to dismiss the suit, contending that Ambati’s claims fall within two exceptions to the GTCA’s general waiver of sovereign immunity for tort claims against the Board of Regents. Specifically, the Board of Regents argued that Ambati’s claims arise from an alleged interference with his contractual rights as an employee of the college and, therefore, OCGA § 50-21-24 (7) applies. The Board of Regents also argued that the academic review committee’s actions were “quasi-judicial” and, therefore, OCGA § 50-21-24 (5) applies. The state court agreed that both exceptions apply and granted the motion to dismiss on sovereign immunity grounds.

Decided November 22, 2011

Reconsideration denied December 13, 2011

Trotter Jones, James B. Trotter, William A. Trotter III, Chilivis, Cochran, Larkins & Bever, Anthony L. Cochran, for appellant.

Samuel S. Olens, Attorney General, Claude M. Sitton, Assistant Attorney General, for appellee.

In this appeal, Ambati challenges only the application of OCGA § 50-21-24 (5) and ignores the fact that the state court also granted the Board of Regents’ motion on another, independent basis. It is the function of this Court to address only those claims of error raised on appeal, and the application of OCGA § 50-21-24 (7) was not challenged as error. Therefore, even if we were to agree with Ambati that the “quasi-judicial” administrative action exception to the waiver of sovereign immunity does not apply, it would not result in a reversal of the court’s judgment because the dismissal order remains in effect on an independent basis. Issuing an opinion as to the applicability of OCGA § 50-21-24 (5) under these circumstances would be, in essence, rendering an advisory opinion on a moot point. Prime Home Properties v. Rockdale County Bd. of Health, 290 Ga. App. 698, 701 (2) (660 SE2d 44) (2008) (“Because the award may be sustained on independent grounds, the merits of which are not before us, addressing the error raised would be purely advisory, and this we are not authorized to do.”). Consequently, we must affirm.

Judgment affirmed.

Miller, P. J., and Doyle, J., concur.

       This is the third appearance of this case before this Court. In Bd. of Regents &c. of Ga. v. Ambati, 299 Ga. App. 804 (685 SE2d 719) (2009), we affirmed a Fulton County jury verdict awarding Ambati $650,000 in damages and $292,862 in OCGA § 13-6-11 attorney fees. We also affirmed an order of the State Court of Richmond County dismissing individual employee defendants from the instant suit on immunity grounds in an unpublished opinion, Ambati v. Atherton, 305 Ga. App. XXII (Case No. A10A0831) (July 9, 2010).

       Ambati alleged that the college breached a legal duty to him found in its rules and procedures for academic inquiries, that it publicly disclosed private facts during that inquiry, that the inquiry was retaliatory in nature and, therefore, that it violated the state constitution, and that the college negligently supervised the academic inquiry.

       A motion to dismiss asserting sovereign immunity is based upon the trial court’s lack of subject matter jurisdiction, rather than the merits of the plaintiffs claim. See Dept. ofTransp. v. Dupree, 256 Ga. App. 668, 671 (1) (570 SE2d 1) (2002); OCGA § 9-11-12 (b) (1). Sovereign immunity “is not an affirmative defense, going to the merits of the case, but raises the issue of the trial court’s subject matter jurisdiction to try the case, and waiver of sovereign immunity must be established by the party seeking to benefit from that waiver; thus, the plaintiffs had the burden of establishing waiver of sovereign immunity.” Id. “The trial court’s ruling on the motion to dismiss on sovereign immunity grounds is reviewed de novo, while factual findings are sustained if there is evidence supporting them.” (Citation and punctuation omitted.) Coosa Valley Technical College v. West, 299 Ga. App. 171 (682 SE2d 187) (2009).


author: Ellington, Judge.

text:
    A11A1903.
    ALEXIS v. THE STATE.
    (721 SE2d 205)
   Ellington, Judge.

A DeKalb County jury found Todd Alexis guilty of two counts of armed robbery, OCGA § 16-8-41 (a); two counts of aggravated assault with intent to rob, OCGA § 16-5-21 (a) (l); and one count of criminal attempt to commit armed robbery, OCGA §§ 16-4-1, 16-8-41 (a). Alexis appeals from the denial of his motion for new trial, contending that his trial counsel was ineffective, that the trial court erred in admitting photographic evidence, and that the State failed to prove the venue of one of the armed robberies beyond a reasonable doubt. Finding no error, we affirm.

Viewed in the light most favorable to the jury’s verdict, the record reveals the following relevant facts. At about 11:00 p.m. on September 22, 2008, Alexis and his friends, Christopher Lee and Stephen Wyatte, were driving around in Lee’s maroon Buick, talking about robbing someone. They spotted a man walking along the sidewalk on Panola Road near Cavalier Crossing in Lithonia, DeKalb County, and they decided to rob him. Lee pointed a replica of an AK-47 machine gun at the man and said: “Give me everything you’ve got.” Alexis also had a weapon, a black handgun. A third man, Wyatte, stayed in the car. The victim gave the robbers his wallet, credit cards, and $80. At trial, the victim identified Alexis as one of his robbers, and he also identified the car and weapons used in the crime.

Around 11:00 p.m. on September 25, 2008, Alexis, Lee, and Wyatte decided to commit another robbery. They saw a man walking along the sidewalk on DeKalb Medical Parkway in DeKalb County, and Lee parked his car near the man. Alexis and Lee got out of the car, brandishing their weapons. This time Alexis had the AK-47 and Lee, the handgun. The robbers took the victim’s wallet, cash, cell phone and other possessions. At trial, the victim identified Alexis as one of the men who robbed him and also identified the car and the weapons used in the crime.

On September 30, 2008, Alexis, Lee, and Wyatte decided to rob a dry cleaner in the Kroger Plaza on North Decatur Road in DeKalb County. In preparation for the robbery, they added a silver 9mm handgun to their arsenal and decided to use T-shirts tied around their faces as masks. Lee parked his car in an adjacent apartment complex, and the three got out of the car with their weapons and masks. They climbed over a fence into the Kroger parking lot whereupon they began casing the dry cleaners in preparation for the robbery.

A uniformed officer testified that, on that same day, he received a call from dispatch advising him that three men with masks and a shotgun had been seen in the adjacent apartment complex walking toward the Kroger. The officer relayed this information to an off-duty officer who was working as a security guard in the Kroger parking lot. The off-duty officer quickly spotted the three men walking between the apartment complex and the dry cleaner, observed them peering through the windows of the dry cleaner, and saw one man holding what appeared to be a weapon with a long barrel. When the off-duty officer ordered the men to stop, they fled toward the apartment complex and got into a maroon Buick. Thereafter, the uniformed officer saw the maroon Buick being driven away and he pursued it into a nearby apartment complex where he and other officers apprehended Lee and Wyatte. Although Alexis escaped, the police later arrested him based upon his co-defendants’ having identified him as a participant in the crimes.

Alexis’ co-defendants testified against him at trial, contending that Alexis was a willing participant in the two armed robberies of the individual victims and in the attempted armed robbery of the dry cleaner. Alexis’ fingerprints were found on Lee’s car. The police found Alexis’ cell phone in Lee’s car, and it contained digital images of him brandishing a silver handgun.

1. Alexis contends the State failed to establish venue beyond a reasonable doubt as to the September 22, 2008 armed robbery. We disagree. The victim of that crime testified that he was robbed while walking along Panola Road near Cavalier Crossing in Lithonia. Both Lee and Wyatte testified that they saw the victim as they were driving down Cavalier Crossing. A DeKalb County police officer testified that he was familiar with the area where Panola Road intersects with Cavalier Crossing, as it was “just up from his job,” and he testified that the area is “still in DeKalb County. Lithonia.”

“Venue is a jurisdictional fact, and is an essential element in proving that one is guilty of the crime charged. Like every other material allegation in the indictment, venue must be proved by the prosecution beyond a reasonable doubt.” (Punctuation and footnotes omitted.) Jones v. State, 272 Ga. 900, 901 (2) (537 SE2d 80) (2000). The State may use both direct and circumstantial evidence to establish venue. Bruce v. State, 252 Ga. App. 494, 498 (1) (b) (555 SE2d 819) (2001). “Whether the evidence as to venue satisfied the reasonable-doubt standard was a question for the jury, and its decision will not be set aside if there is any evidence to support it.” (Punctuation and footnote omitted.) Bynum v. State, 300 Ga. App. 163, 167 (4) (684 SE2d 330) (2009).

Here, the testimony of the victim and of Alexis’ co-defendants established that the robbery occurred very near, within human sight distances of, the intersection of two specific roads. The testimony of the officer, who was familiar with the area where the roads intersected, established that the area was in DeKalb County. While “area” near an “intersection” is somewhat vague, the jury was nevertheless authorized to conclude that the officer was using the terms in a broad enough sense to encompass the location of the crime, based upon his familiarity with the area. See Ward v. State, 270 Ga. App. 427, 428 (606 SE2d 877) (2004) (testimony that an intersection where a crime occurred was within the county was sufficient to prove venue as to that crime beyond a reasonable doubt). See also Bruce v. State, 252 Ga. App. at 498 (1) (b) (the jury was authorized to infer that a police officer’s statement that “all this” took place within the county was sufficiently precise to describe the crimes alleged under the circumstances). Therefore, we conclude that the evidence was sufficient to prove venue beyond a reasonable doubt as to the September 22, 2008 armed robbery.

2. Alexis contends the trial court erred in admitting State’s Exhibits 19 and 19A, which depict Alexis holding a silver handgun, because the photograph used in the exhibits was not sufficiently authenticated and because it was unduly prejudicial.

A party lays a proper foundation for the admission of a photograph by showing that it fairly and accurately represents the object, scene, or person depicted. See Davis v. State, 253 Ga. App. 803, 806 (6) (560 SE2d 711) (2002); Jones v. State, 161 Ga. App. 218, 218-219 (1) (288 SE2d 293) (1982). “[A]ny witness familiar with the subject depicted can authenticate a photograph; the witness need not be the photographer nor have been present when the photograph was taken.” (Footnote omitted.) Davis v. State, 253 Ga. App. at 806 (6). “Moreover, the quantum of evidence required to sufficiently identify photographs as true and accurate representations of what they purport to depict is a matter within the discretion of the court, and the trial court’s decision will not be overturned absent an abuse of discretion.” (Citations and punctuation omitted.) Wegman-Fakunle v. State, 277 Ga. App. 198, 199 (1) (626 SE2d 170) (2006).

Both Lee and Wyatte testified that the photograph was, indeed, an accurate depiction of Alexis holding a handgun. This is all that is required to authenticate the photograph; therefore, the trial court did not abuse its discretion in determining that a sufficient foundation had been laid concerning the photograph’s authenticity.

Although the photograph was properly authenticated, the court also required the State to show that the photograph was relevant to the issues at trial, and that the probative value of the photograph outweighed any prejudice. “Photographs which are relevant to any issue in the case are admissible even though they may have an effect upon the jury.” (Citations omitted.) Ramey v. State, 250 Ga. 455, 456 (1) (298 SE2d 503) (1983). “Whether to admit evidence is a matter resting in the trial court’s sound discretion, and evidence that is relevant and material to an issue in the case is not rendered inadmissible because it incidentally places the defendant’s character in issue.” (Citation omitted.) Wolfe v. State, 273 Ga. 670, 674 (4) (a) (544 SE2d 148) (2001). “The standard of review of the trial court’s ruling on a challenge to evidence on the ground that its probative value is outweighed by its tendency to unduly prejudice the jury is an abuse of discretion standard.” (Citation omitted.) Holland v. State, 221 Ga. App. 821, 825 (3) (472 SE2d 711) (1996). See also Carroll v. State, 261 Ga. 553, 554 (2) (408 SE2d 412) (1991).

Alexis’ defense at trial was that he was not present during the robberies, that the victims’ identification of him was tainted, and that Lee and Wyatte only named him as a participant in the crimes in order to get a favorable plea bargain from the State. The State used the photograph in State’s Exhibit 19A to further link Alexis to the crimes, especially the September 30 armed robbery attempt, and to corroborate the testimony of the co-defendants by showing the following facts. The photograph was taken from a single digital image entitled “me,” and it depicted Alexis holding a silver handgun. The image was time-stamped “9-13-2008,” a few weeks before the robberies. The police found the image stored on two cell phones, a red one and a black one. The red cell phone was removed from Alexis’ person when he was arrested. The black cell phone was found in Lee’s car during the execution of a search warrant immediately following the September 30 attempted armed robbery. Both cell phones were identified as either belonging to Alexis or having been in his recent possession. Alexis’ co-defendants testified that Alexis carried a silver handgun during the September 30 attempted armed robbery, and the silver handgun was admitted into evidence at trial. Lee also identified the silver handgun depicted in State’s Exhibit 19A as the one Alexis used in the September 30 crime. Given this evidence, evidence which links Alexis to the crimes and which corroborates the testimony of his co-defendants, the trial court did not abuse its discretion in determining that the photograph’s probative value outweighed any prejudicial impact. See Polke v. State, 203 Ga. App. 306, 310 (4) (417 SE2d 22) (1992) (a photograph of the defendant found in a house used for trafficking cocaine was relevant as evidence tending to establish that the house was defendant’s residence).

3. Alexis contends he received ineffective assistance of counsel at trial because counsel failed to object to alleged hearsay testimony and failed to object to statements made by the prosecutor during closing argument.

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

(Citations and punctuation omitted.) Robinson v. State, 277 Ga. 75, 75-76 (586 SE2d 313) (2003). “As a general rule, matters of reasonable tactics and strategy, whether wise or unwise, do not amount to ineffective assistance of counsel.” (Citation and punctuation omitted.) Grier v. State, 273 Ga. 363, 365 (4) (541 SE2d 369) (2001).

(a) Alexis contends that his trial counsel should have objected to the testimony of an investigator from the district attorney’s office who stated that Alexis’ black cell phone was retrieved from Lee’s car pursuant to a search warrant. Alexis argues that, had a hearsay objection been made and sustained, there would have been no physical evidence linking him to the crimes.

Pretermitting whether the investigator’s statement was hearsay, counsel’s failure to object does not necessarily constitute deficient performance. Had counsel objected, and had the objection been sustained, the prosecution could have recalled to the witness stand the detective who performed the search to clarify where Alexis’ black cell phone had been found. The record shows, however, that counsel, during cross-examination of the investigator, opted to emphasize and to exploit the fact that the State did not have an itemized list of the items recovered from Lee’s car, that there was no photograph in evidence showing where the phone was found, and that the investigator had no personal knowledge of the search of Lee’s car. “Not objecting to testimony but instead subjecting it to cross-examination may be part of a reasonable trial strategy[.]” (Footnote omitted.) Al-Attawy v. State, 289 Ga. App. 570, 573 (1) (657 SE2d 552) (2008). By taking this tack, counsel was able to argue at closing: “Wouldn’t you think if he had found the cell phones in the car, he would have taken a picture of them? . . . But according to this (indicating [the photographs taken of the search of Lee’s car]), they didn’t get them out of the car.” Given the record in this case, it appears that counsel made a strategic decision on how best to deal with a perceived evidentiary gap concerning Alexis’ cell phone. Consequently, counsel’s failure to object did not constitute deficient performance. See Grier v. State, 273 Ga. at 365 (4).

Decided December 13, 2011.

(b) Alexis contends that his trial counsel should have objected to statements made by the prosecutor during closing argument that he argues impermissibly bolstered the credibility of Alexis’ co-defendants. The prosecutor stated: “And, Ladies and Gentlemen, if I thought for one second that these defendants^] after the stories that they gave the police[,] were going to come in here and lie to you, they would not have sat on that witness stand. They have nothing to hide at this point.”

The prosecutor’s remark was made in response to defense counsel’s argument that both Lee and Wyatte had given many previous statements to the police before they ultimately pleaded guilty and got “a deal,” that those prior statements conflicted with their trial testimony, and that both co-defendants lied at trial, and that their trial testimony was fabricated to suit the prosecution’s theory of the case. Specifically, defense counsel argued:

What reason would we have to believe this story that’s been changed so many times? I believe that he told the story [on the witness stand] because that suited the needs of this case. Now he’s got his story straight.... That’s the one they want you to believe. Not these others because that doesn’t suit the prosecution’s needs.

Read in context, the prosecutor’s challenged remarks were not an expression of her personal belief that the witnesses were being truthful; rather, it was her denial of defense counsel’s accusation that she would knowingly present perjured testimony. See Manley v. State, 284 Ga. 840, 844-845 (2) (b) (672 SE2d 654) (2009) (After defense counsel argued that the State and its witnesses had improperly targeted the defendant and had purposely and wrongfully manipulated the evidence, the State was entitled to respond to these direct accusations of wrongdoing. The Supreme Court ruled that the State’s comments did not constitute an opinion about the veracity of these witnesses, but merely urged the jury to make a deduction about their veracity from the evidence presented.). Because the challenged argument is permissible, trial counsel’s failure to object to it does not support an ineffective assistance claim. Adams v. State, 283 Ga. 298, 302 (3) (e) (658 SE2d 627) (2008).

Consequently, the trial court did not err in denying Alexis’ motion for new trial.

Judgment affirmed.

Miller, P. J., and Doyle, J., concur.

Gerard B. Kleinrock, for appellant.

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

       At sentencing, the court entered an order finding that the convictions for aggravated assault merged with the convictions for armed robbery.

        Jackson v. Virginia, 443 U. S. 307, 319 (III) (B) (99 SC 2781, 61 LE2d 560) (1979).

       Only State’s Exhibit 19A was published to the jury. It is a redacted version of State’s Exhibit 19. The court directed the State to crop the original photograph to remove an image on Alexis’ shirt which contained the word “Kills.”


author: BARNES, Presiding Judge.

text:
    A11A0836.
    GOODMAN v. THE STATE.
    (717 SE2d 496)
   BARNES, Presiding Judge.

Gene Nelson Goodman appeals pro se from two convictions of misdemeanor criminal trespass pursuant to OCGA § 16-7-21 (b) (3). For the following reasons, we affirm.

The evidence shows that on May 6, 2010, a warrant for criminal trespass was issued for Goodman when, after being banned from Ware Manor Apartments by the apartment manager, he was discovered on the property. A second warrant was issued for Goodman the next day, May 7, 2010, when he was again discovered on the apartment premises. The State thereafter filed criminal trespass accusations against Goodman based on the incidents. Following a bench trial, he was found guilty of two counts of criminal trespass and sentenced to twelve months probation.

To the best we are able to ascertain Goodman’s enumerations of error, he contends that the arrest warrants were invalid because the affidavits were not sufficient, that the police officer who swore out the second warrant did not appear in court, that he was prosecuted twice for the same crime in violation of the Fifth Amendment, that he was not permitted to confront certain witnesses at trial, that certain witnesses were not subpoenaed for trial, and that trial counsel was ineffective.

We are unable to address any error related to proceedings at the trial because there is no transcript of the trial court proceedings in the appellate record. Holley v. State, 257 Ga. App. 249 (570 SE2d 688) (2002). As appellant, the burden was on Goodman to arrange for the preparation and filing of a transcript of the trial court proceedings necessary for consideration of his appeal. Stanley v. Stanley, 111 Ga. 798-799 (596 SE2d 138) (2004). Although he made reference to a trial transcript in his appellate brief — “see trial transcript in record on appeal” — he does not denote such references with page or volume numbers. We do not know whether Goodman raised an issue regarding double jeopardy below, and it is well settled that “[w]e will not consider errors, even those of constitutional magnitude, unless they were raised and ruled on in the trial court.” Jones v. State of Ga., 249 Ga. App. 64, 67 (2) (547 SE2d 725) (2001).

Decided October 4, 2011

Reconsideration dismissed December 14, 2011.

Gene N. Goodman, pro se.

Joseph R. Johnson, Jr., Solicitor-General, for appellee.

Regarding the sufficiency of the affidavits for the arrest warrants,

[p]retermitting whether the arrest warrants were valid, a new trial [is not] required because the sanction for an unconstitutional arrest is the exclusion of the evidence obtained as a result of that arrest. The sanction is not the suppression of the prosecution. [Goodman] has not identified any evidence obtained as a result of his arrest under these warrants.

(Citations omitted.) Austin v. State, 286 Ga. App. 149, 152-153 (2) (648 SE2d 414) (2007).

We further note that Goodman’s brief does not comport with Court of Appeals Rule 25 (a) (1), as it does not “contain a succinct and accurate statement of the proceedings below and the material facts relevant to the appeal,” nor does it state “the method by which each enumeration of error was preserved for consideration” on appeal. Goodman’s enumerated errors are not supported by citations to the record, argument, or legal authority contrary to Court of Appeals Rule 25 (c) (2). See Gardner v. State, 289 Ga. App. 359, 359-360 (657 SE2d 288) (2008).

Proceeding pro se does not relieve Goodman of his obligation to comply with the rules of this Court. “Our requirements as to the form of appellate briefs were created, not to provide an obstacle, but to aid parties in presenting their arguments in a manner most likely to be fully and efficiently comprehended by this Court.” Aldalassi v. Drummond, 223 Ga. App. 192 (1) (477 SE2d 372) (1996).

Judgment affirmed.

Adams and Blackwell, JJ., concur.

       A person commits the offense of criminal trespass when he or she knowingly and without authority: . . . Remains upon the land or premises of another person or within the vehicle, railroad car, aircraft, or watercraft of another person after receiving notice from the owner, rightful occupant, or, upon proper identification, an authorized representative of the owner or rightful occupant to depart.


text:
    A11A1280.
    In the Interest of N. H., a child.
    (721 SE2d 103)
   BARNES, Presiding Judge.

The minor mother of two-year-old N. H. appeals an order of the juvenile court in which the court after a review hearing continued custody of the child with the Fulton County Department of Family and Children Services (“DFACS”). She contends that the juvenile court erred when it held the hearing without the mother being present, and in admitting into evidence documents that were not authenticated. Upon our review, we discern no error and affirm the juvenile court.

The evidence shows that the 14-year-old mother was in DFACS care on June 20, 2008, when she gave birth to N. H. The newborn was subsequently placed in DFACS custody on July 10, 2008, and later found to be deprived. An order extending custody of N. H. with DFACS was entered on August 18, 2009. On June 11, 2010, DFACS filed another deprivation petition because the 2009 order was going to expire on July 6, 2010, and the “conditions of deprivation as found by [the] court [had] not been alleviated.” A hearing was held on June 28, 2010, at which the mother was present via telephone and represented in court by her attorney. N. H. was again determined to be deprived, and custody was continued with DFACS.

The review hearing at issue in this appeal was held on September 15, 2010, and the mother was not present for the hearing. The mother’s attorney requested that the hearing be continued until the mother was present. The trial court tendered as evidence a letter from Laurel Heights Hospital where the mother was a patient explaining that it was “clinically contraindicated for the mother to be transported to attend a hearing at this time.” The mother’s attorney objected to the admission of the letter on the basis that it could not be properly authenticated because the person who prepared it was not present at the hearing. The trial court noted that at an earlier hearing “we tried to involve [the] mother by telephone and mother had a hard time communicating,” and proceeded without the mother. The DFACS caseworker and the mother’s paternal grandmother, with whom N. H. was placed, testified at the hearing.

1. On appeal, the mother first contends that the trial court erred when it did not continue the review hearing until the mother could be present.

“A trial court’s decision to grant or to deny a continuance will not be disturbed absent abuse of discretion.” In the Interest ofT.R., 270 Ga. App. 401, 401-402 (1) (606 SE2d 630) (2004).

The fundamental idea of due process is notice and an opportunity to be heard. The Code recognizes that the parent is a party to proceedings involving his child. As parties to a deprivation hearing, parents are entitled to notice and an adequate opportunity to be heard.

(Citations and punctuation omitted.) In the Interest of A. J., 269 Ga. App. 580, 581 (1) (604 SE2d 635) (2004). However, unless the mother can establish that she was harmed by the alleged due process violation, reversal is not required. In the Interest of M. S., 279 Ga. App. 254, 261 (1) (630 SE2d 856) (2006), overruled on other grounds, In the Interest ofJ. M. B., 296 Ga. App. 786, 791 (676 SE2d 9) (2009) (denial of counsel during the termination of parental rights hearing not subject to harmless error analysis).

Here, pretermitting whether it was error for the juvenile court to fail to continue the hearing until such time that the mother could be present, the mother has not shown how she was harmed by not being present for the review hearing. She does not allege that continued custody of N. H. with DFACS was inappropriate, see OCGA § 15-11-58 (n) (3); In the Interest of J. E, 280 Ga. App. 100,105 (2) (633 SE2d 442) (2006), that her attorney did not adequately represent her interest at the hearing, or that the evidence at the hearing did not clearly and convincingly show that the child would continue to be deprived if returned to her as of the date of the hearing. See In the Interest of C. H., 305 Ga. App. 549, 559 (2) (a) (700 SE2d 203) (2010). In fact, the mother does not argue that the juvenile court erred in its disposition of the case.

Thus, as the mother did not establish that she was harmed by not being present for the hearing, reversal is not required.

2. Although the mother argues that the juvenile court erred in admitting into evidence certain documents, including the letter from Laurel Heights and various other medical and psychological reports of the minor mother and N. H., it is well settled that in all juvenile court proceedings involving custody of a child, “all information helpful in determining the questions presented, including oral and written reports, may be received by the court and relied upon to the extent of its probative value even though not otherwise competent in the hearing on the petition.” OCGA § 15-11-56 (a). Moreover, there is no reversible error where the evidence introduced (not including the hearsay) is sufficient to support the findings of the trial judge. In the Interest of A. A., 252 Ga. App. 167, 168 (1) (555 SE2d 827) (2001).

Here, the DFACS caseworker testified extensively about the mother’s present inability to care for N. H., including her mental health problems for which she was receiving treatment at Laurel Heights. Likewise, the great-grandmother also testified about the mother’s condition and inability to care for the child.

Moreover, here, as in the first division, the mother has failed to show how she was harmed by the entry of the documents into evidence. See In the Interest ofD. W, 294 Ga. App. 89, 94 (3) (a) (668 SE2d 533) (2008) (“An appellant must show harm as well as error to prevail on appeal; error to be reversible must be harmful.”) (punctuation and footnote omitted).

Decided October 20, 2011

Reconsideration denied December 14, 2011.

Nathan A. Hayes, for appellant.

Samuel S. Olens, Attorney General, Shalen S. Nelson, Senior Assistant Attorney General, Lytia G. Brown, for appellee.

Judgment affirmed.

Adams, J., concurs. Blackwell, J., concurs in Division 2 and in the judgment.


author: McFADDEN, Judge.

text:
    A11A1808.
    THOMPSON v. THE STATE.
    (721 SE2d 106)
   McFADDEN, Judge.

We granted David Garland Thompson’s application for discretionary review of the superior court’s order revoking his probation. Thompson argues that his probated sentence had already run when the state petitioned to revoke it. But Thompson had violated conditions of his probation. He has not shown that the court erred in finding that his sentence was tolled. Accordingly, we affirm.

In April 2001, Thompson was convicted of possession of methamphetamine and sentenced to seven years’ confinement, six of which were to be served on probation. On October 29, 2002, the superior court issued a warrant for Thompson’s arrest for violating certain conditions of his probation, including the condition that he report to his probation supervisor. The warrant instructed the sheriff or another law enforcement official to “take the body” of Thompson, and to keep him until he may “be returned to this Court.” On February 28, 2003, a sheriffs deputy signed the following statement of “non est inventus” on the back of the warrant: “The undersigned officer hereby certifies that a thorough and diligent search for the probationer listed in this warrant has been made at but not limited to places of abode, known places of frequencies, and others and that His/Her whereabouts are unknown and cannot be located.” On March 27, 2003, the trial court entered an order tolling the running of Thompson’s probated sentence. On the order was a probation officer’s signed but unsworn statement that the October 2002 warrant had not been served because Thompson could not be located.

In December 2010, Thompson was arrested for committing several new offenses, and on December 27, 2010, the state petitioned to revoke his probation. Although Thompson admitted to the state’s allegations that he violated the terms and conditions of his probation, including having failed to report to his probation officer since 2002, he opposed the state’s petition on the ground that his probated sentence should not have been tolled because the statutory requirements for tolling had not been met. Absent tolling, Thompson’s sentence would have run in 2008, before the state brought the revocation petition. The superior court, however, held that Thompson’s sentence had been tolled by the signed non est inventus statement on the October 2002 arrest warrant, which the court further held had been returned on the date the deputy sheriff signed it, February 28, 2003. Accordingly, the court revoked Thompson’s probation.

OCGA § 42-8-36 governs the tolling of a probated sentence when the probationer cannot be located. The version of that Code section in effect in 2003, when the superior court found the tolling had begun, provided two bases upon which a probated sentence could be tolled.

OCGA § 42-8-36 (a) (2) (2002) allowed the tolling of a probated sentence if the probation supervisor submitted an affidavit to the court stating that a probationer had absconded and could not be found, effective on the date the affidavit was submitted. But in this case the probation officer’s signed statement that Thompson could not be located was unsworn, so it did not constitute an affidavit and did not satisfy the requirement of OCGA § 42-8-36 (a) (2) (2002). See Wilson v. State, 292 Ga. App. 540, 544 (664 SE2d 890) (2008). See generally Sambor v. Kelley, 271 Ga. 133, 133-134 (1) (518 SE2d 120) (1999) (an affidavit is a statement under oath taken before a person having the authority to administer such oath).

Alternatively, under OCGA § 42-8-36 (a) (1) (2002), the running of a probated sentence was automatically tolled by

[t]he failure of a probationer to report to his probation supervisor as directed or a return of non est inventus or other return to a warrant, for the violation of the terms and conditions of probation, that the probationer [could not] be found in the county that appear [ed] from the records of the probation supervisor to be the probationer’s county of residence.

OCGA § 42-8-36 (a) (1) (2002) further provided: “The effective date of the tolling of the sentence shall be the date that the officer returns the warrant showing non est inventus. Any officer authorized by law to issue or serve warrants may return the warrant for the absconded probationer showing non est inventus.” (OCGA § 42-8-36 (a) was later amended, effective July 1, 2010, to remove the provision that the effective date of the tolling was the date of the warrant’s return and to add a requirement that the warrant showing non est inventus be filed with the court for a probated sentence to be tolled. See Ga. L. 2010, pp. 557-558, § 1.)

“The tolling of a probated sentence following the return of a warrant showing non est inventus is intended to prevent the probationer from avoiding the potential adverse impact of revocation merely by avoiding the court.” Cauldwell v. State, 211 Ga. App. 417, 418 (439 SE2d 90) (1993). In this case, Thompson had avoided the court since 2002, notwithstanding the warrant for his arrest and in violation of the terms and conditions of his probation.

Nevertheless, Thompson argues that he should not be subject to probation revocation pursuant to OCGA § 42-8-36 (a) (1) (2002), because the warrant showing non est inventus was not returned to the court. The evidence of record, however, does not address what happened to that warrant after the non est inventus statement was signed on February 28, 2003. At a hearing during the revocation proceedings, Thompson’s counsel tendered as a hearing exhibit a copy of the warrant that she had obtained from a probation officer. Thompson’s counsel also argued that the warrant was not in the superior court clerk’s file, but the record contains no evidence on this point. See Bruce v. State, 302 Ga. App. 810, 811, n. 6 (692 SE2d 13) (2010) (arguments of counsel during a motion hearing are not evidence). Although the record reflects that counsel handed the clerk’s file to the judge during the hearing, it does not reflect the specific contents of that file. The record on appeal contains another copy of the warrant showing non est inventus, which does not appear to be the copy tendered into evidence by Thompson’s counsel at the hearing; no explanation was provided as to how this other copy became a part of the record. The state offered to present evidence “to substantiate the return of this warrant,” but the court declined the offer, holding that the warrant itself, bearing the signature of the officer on the statement of non est inventus, was sufficient to demonstrate its return.

It is Thompson’s burden as the appellant to show error affirmatively by the appellate record. See Westmoreland v. State, 287 Ga. 688, 696 (10) (699 SE2d 13) (2010). The record in this case shows that, after a warrant was issued for Thompson’s arrest, a deputy sheriff signed a statement of non est inventus on the back of the warrant. Compare Wilson, 292 Ga. App. at 542 (the mere issuance of a warrant for a probationer’s arrest is insufficient to toll a probated sentence). And Thompson has not pointed to evidence in this appellate record supporting his assertions that the warrant with the signed statement of non est inventus was not found in the clerk’s file or otherwise returned to the superior court. We cannot, based on this record, find that the trial court erred in holding that Thompson’s probated sentence was tolled by the return of a warrant showing non est inventus and thus in revoking Thompson’s probation.

Decided November 2, 2011

Reconsideration denied December 14, 2011.

Clark & Towne, Jessica R. Towne, for appellant.

Daniel J. Porter, District Attorney, James V. Branch, Assistant District Attorney, for appellee.

Judgment affirmed.

Phipps, P. J., and Andrews, J., concur.


text:
    A09A2025.
    PRICE v. THE STATE.
    (721 SE2d 217)
    Decided December 14, 2011.

      Adam S. Levin, for appellant.

      Lee Darragh, District Attorney, Lindsay H. Burton, Assistant District Attorney, for appellee.
   BARNES, Presiding Judge.

In Price v. State, 303 Ga. App. 589 (693 SE2d 826) (2010), we upheld Robert Price’s convictions for burglary and criminal trespass. On certiorari, the Supreme Court reversed our decision. Price v. State, 289 Ga. 459 (712 SE2d 828) (2011). The Supreme Court held that the trial court’s failure to charge the jury as to Price’s defense of mistake of fact was reversible error. Accordingly, our prior opinion is vacated, and the judgment of the Supreme Court is made the judgment of this court.

Judgment reversed.

Miller, P. J., and Andrews, J., concur.


author: PHIPPS, Presiding Judge.

text:
    A11A1226, A11A1656.
    WHITFIELD v. THE STATE (two cases).
    (721 SE2d 211)
   PHIPPS, Presiding Judge.

James Whitfield appeals the denial of his motion for an out-of-time appeal. For reasons that follow, the judgment in Case No. A11A1226 is vacated, and that case is remanded with direction; Case No. A11A1656 is dismissed.

Whitfield has represented himself throughout his case. After a jury trial, Whitfield was convicted on February 18, 2008 for driving under the influence and failure to maintain lane. He filed a timely motion for new trial. The trial court entered an order denying the motion on June 27, 2008.

Several weeks later, Whitfield filed an amended motion for new trial, and the trial court entered an order denying that motion. Whitfield then sought an extension of time in which to file a notice of appeal under OCGA § 5-6-39 (a) (1), which the trial court granted. And upon Whitfield’s subsequently-filed notice of appeal from the “judgment of conviction and sentence herein on February 18, 2008,” Case No. A09A0888 was docketed in this court. But the merits of Whitfield’s conviction challenges were not addressed because, as we explained in an order entered in January 2009,

Whitfield’s second motion for new trial, filed after the trial court had denied his first motion for new trial, is in substance an extraordinary motion for new trial. As such, Whitfield was required to follow the discretionary appeal procedure before filing his notice of appeal. Because Whitfield failed to follow the proper appellate procedure, this appeal is DISMISSED for lack of jurisdiction.

The Supreme Court of Georgia denied his petition for certiorari.

Whitfield then filed in the trial court a motion for an out-of-time appeal, citing OCGA § 15-6-21 (c) and Shouse v. State, and claiming that he had not timely received the order denying his motion for new trial entered on June 27, 2008. He asserted that the trial court had entered that order without conducting a hearing, then sent that order denying his motion to “the wrong address leaving [him] to believe [that] no Order had been filed, where he subsequently amended his motion for new trial filed July 14th 2008 to include additional evidence.” The trial court denied the motion for an out-of-time appeal, finding that it had notified Whitfield using the “current address on file with this Court.” These direct appeals ensued.

Case No. A11A1226

1. Whitfield contends that the trial court erred by denying his motion for an out-of-time appeal.

OCGA § 15-6-21 (c) states, in pertinent part, “[I]t shall be the duty of the judge to file his or her decision with the clerk of the court in which the cases are pending and to notify the attorney or attorneys of the losing party of his or her decision.” Thus, in Shouse v. State, wherein the defendant’s notice of appeal from a judgment had been filed too late and the defendant claimed that he had not timely learned of the judgment, we held:

Under OCGA § 15-6-21 (c) the trial court was required to notify the attorney of the losing party of its decision on the motion. Pro se defendant should have been notified. If he was not, the failure would not extend the time for filing a notice of appeal. However, it could furnish a basis for the grant of an out-of-time appeal in that he was deprived of his right to appeal, which is of constitutional dimensions.

Citing Cambrón v. Canal Ins. Co., we explained further in Shouse that the issue then was

whether [the] defendant received notice and delayed taking action, in which case he has forfeited his right to appeal, or whether there was no timely notice, in which case either the judgment should be set aside and a new judgment entered from which a timely appeal might be taken or an out-of-time appeal should be considered.

Thereupon, we remanded the case to determine, in accordance with Cambrón, whether the defendant had been notified as required under OCGA § 15-6-21.

Under Cambrón, “the trial court must first make a finding regarding whether the duty imposed by OCGA § 15-6-21 (c) was met.” Cambrón instructs that relief is to be afforded the losing party “where no notice [was] sent by the trial court or by the clerk to the losing party.” Cambrón further directs that “where notice was sent and received, and the trial judge so finds, he should refuse” relief.

Here, the judge refused to grant Whitfield’s motion for an out-of-time appeal, but did not find that Whitfield had received notice. Moreover, the record shows that, as support for his motion, Whitfield attached thereto a copy of the face of an envelope, which he claimed evidenced that the trial court had mailed the order to the wrong address. The envelope named Whitfield as the recipient and provided a recipient’s address that was the same address displayed on the distribution list attached to the trial court’s June 27 order denying Whitfield’s motion for new trial. Also, the envelope identified as the sender the judge who had denied Whitfield’s motion for new trial, and it provided a sender’s address. Notably, the envelope was stamped: “RETURN TO SENDERE,] NOT DELIVERABLE AS ADDRESSEDU UNABLE TO FORWARD.”

Moreover, the recipient’s address provided on the envelope was not the address shown for Whitfield on other documents in the record such as: the traffic citations issued to Whitfield that gave rise to his convictions; the waiver of arraignment/notice of trial, which Whitfield signed; Whitfield’s amended motion for new trial; or the court’s distribution list attached to the order ruling upon the amended motion. Indeed, the record before us does not show that Whitfield, who acted pro se throughout his case, used the address shown on the envelope on any of his pleadings.

Decided December 14, 2011.

Carmen D. Smith, Solicitor-General, R. Leon Benham, Assistant Solicitor-General, for appellee.

Under these circumstances, we cannot discern from the language used in the order denying Whitfield’s motion for an out-of-time appeal — that the trial judge had notified Whitfield using the “current address on file with this Court” — a finding of compliance with OCGA § 15-6-21 (c) or that notice was (timely) received.

[W]e are unable to determine whether the trial court’s denial of the motion [for an out-of-time appeal] was proper under Cambrón. Therefore, the trial court’s order denying the motion [for an out-of-time appeal] is vacated, and this case is remanded to the trial court with direction that it make the necessary findings under Cambrón. If the court finds that [Whitfield] received no notice of the entry of [the June 27, 2008 order denying his motion for new tried], then the motion [for an out-of-time appeal] must be granted.

2. Given the foregoing, Whitfield’s remaining contentions challenging his DUI conviction are not properly before us. Therefore, we do not reach them.

Case No. A11A1656

3. Case No. A11A1656 is dismissed as duplicative of Case No. A11A1226.

Judgment vacated and case remanded with direction in Case No. A11A1226. Appeal dismissed in Case No. A11A1656.

Andrews and McFadden, JJ., concur.

       (Citations omitted.)

       Case No. S09C0944, denied May 4, 2009.

       189 Ga. App. 531 (376 SE2d 911) (1988).

       See Richards v. State, 275 Ga. 190, 191 (563 SE2d 856) (2002) (denial of a motion for out-of-time appeal is directly appealable when the criminal conviction at issue has not undergone appellate review).

       Supra.

       Id.

       Id. (citations omitted); see Veasley v. State, 272 Ga. 837, 839 (537 SE2d 42) (2000) (where a convicted defendant does not receive timely notice under OCGA § 15-6-21 (c) of an order denying his motion for new trial, he can either request an out-of-time appeal or move to set aside the orders denying his motion for new trial).

       246 Ga. 147 (269 SE2d 426) (1980).

        Shouse, supra at 531-532 (citation omitted).

       Id. at 532.

        Pierce v. State, 289 Ga. 893, 895 (2) (717 SE2d 202) (2011) (citations and punctuation omitted).

        Cambrón, supra at 148 (1); see Veasley, supra at 838-839; Shouse, supra at 531-532.

        Cambrón, supra at 149 (1).

         It would have been the better practice for Whitfield to attach an affidavit to his motion evidencing that notice was not received; however, the record contains no response by the state to Whitfield’s motion for an out-of-time appeal; thus, there is no evidence in the record contradicting Whitfield’s claim that he was not timely notified. See Sea Tow/Sea Spill of Savannah v. Phillips, 247 Ga. App. 613, 614 (2) (545 SE2d 34) (2001) (it would have been the better practice for losing party to attach an affidavit to its motion evidencing that notice was not received; however, lack of affidavit was not fatal to losing party’s quest for relief, where it was uncontroverted that losing party did not receive notice of the adverse decision).

       See generally Lovell v. Thomas, 279 Ga. App. 696, 703 (1) (c) (632 SE2d 456) (2006) (evidence that a letter was written, properly addressed with correct postage affixed, deposited in the United States mail, and never returned to the sender, creates a rebuttable presumption that the recipient received the letter).

       This document shows an address that Whitfield used repeatedly. (Said address appears also on a form used in connection with Whitfield’s first appointment with his probation officer.)

       We note that Whitfield included no address on his motion for new trial. See USCR 36.4 (“All . . . pleadings and other documents shall bear the signature of the responsible attorney or party who prepared the document, with the preparer’s name, proper address and telephone number typed or printed underneath.”).

       See generally Kendall v. Peach State Machinery, 215 Ga. App. 633, 634-635 (2) (451 SE2d 810) (1994) (language employed by trial court, coupled with lack of finding regarding compliance with OCGA § 15-6-21 (c), made uncertain whether trial court’s decision was proper under Cambrón) (physical precedent only).

        Pierce, supra (citations and punctuation omitted); see Veasley, supra; Brown v. E.I. du Pont de Nemours & Co., 240 Ga. App. 893, 895-896 (4) (525 SE2d 731) (1999); Shouse, supra; Kendall, supra.