author: Branch, Judge.

text:
    A13A1679.
    CHAMPION WINDOWS OF CHATTANOOGA, LLC v. EDWARDS.
    (756 SE2d 314)
   Branch, Judge.

JoAnne Edwards contracted with Champion Windows of Chattanooga, LLC (“Champion” or “Champion-Chattanooga”), for the construction of a deck and screened porch at her residence in Ring-gold. After Champion had partially constructed the deck and the porch, Edwards refused to allow Champion to complete the project. Champion then filed the current breach of contract action against Edwards in Catoosa County Superior Court. Edwards filed an answer and counterclaims, in which she sought rescission of the contract and damages for negligent construction. Following a bench trial, the court entered judgment in favor of Edwards, finding that she was entitled to rescind the contract based on Champion’s fraud and that she was entitled to damages resulting from Champion’s defective workmanship on the portion of the project that it had constructed. Champion now appeals from that order, asserting that the trial court’s judgment is unsupported by the evidence. We agree. Accordingly, we reverse the order of the trial court and remand the case for entry of judgment in favor of Champion on its breach of contract claim and for a determination of damages.

On an appeal from an entry of judgment following a bench trial, we apply a de novo standard of review to any questions of law decided by the trial court, but will defer to any factual findings made by that court if there is any evidence to sustain them. Lifestyle Home Rentals v. Rahman, 290 Ga. App. 585 (660 SE2d 409) (2008). “However, if the trial court makes a finding of fact which is unsupported by the record, [that finding] cannot be upheld” and any judgment based upon such a finding must be reversed. (Citation and punctuation omitted.) Wilen v. Murray, 292 Ga. App. 30, 31 (663 SE2d 403) (2008).

The record shows that Champion-Chattanooga was incorporated in 1998 and that it is a local subsidiary or division of a national corporation based in Cincinnati, Ohio, that does business under the trade name Champion Window. This parent corporation, in turn, owns three Ohio-based factories, which manufacture the components used in the screened porches, decks, and patio rooms sold and built by Champion Window and its subsidiaries. Champion Window owns 75% of Champion-Chattanooga and the Chattanooga division obtains all of the products it sells from Champion Window or its wholly-owned subsidiaries. Additionally, all of Champion-Chattanooga’s employees, including its sales representatives and its managers who construct the patio rooms, decks, and screened porches, travel to Ohio for training at the Champion Window corporate campus. It is the understanding of these employees that although their immediate supervisors are located in Chattanooga, they work for Champion Window (the parent corporation).

In April 2006, after seeing Champion Window’s advertisement in a magazine, Edwards called the telephone number listed in the ad to inquire about the construction of a screened porch at her residence. According to Edwards’s testimony, she understood that she was calling a business in Chattanooga, Tennessee, and she believed she was calling the local office of a national corporation (Champion Window), that had been in business since 1953. During the phone call, Edwards made an appointment to meet with a Champion representative at her home the following day.

On April 25, 2006, Donald McKenna, a factory sales representative for Champion Window who worked out of the Chattanooga division, visited Edwards in her home and provided her with information regarding Champion Window’s products and services. McKenna told Edwards what he referred to as “the Champion story,” and provided her with a brochure about Champion Window and its products. McKenna also discussed with Edwards the type of deck, porch, or patio room she was interested in and showed her samples of the building materials manufactured by Champion Window. After Edwards decided that she wanted a deck and screened porch, McKenna priced the project for her. The parties then negotiated over the price, and after McKenna offered her a 15 percent discount, Edwards agreed to contract with Champion for the project. The agreed upon contract price was $29,991, with Edwards providing a down payment of $9,000 with the balance to be due when construction was complete.

McKenna wrote out the contract using a preprinted form bearing the corporate logo of Champion Window and a Chattanooga address. McKenna filled in blanks and checked boxes on the form specifying the dimensions of the deck and porch, the material to be used, and, where relevant, the color of those materials. He also drew a “layout sketch” of the project in a designated space on the form, which included the dimensions of the proposed construction and its position relative to Edwards’s house. Printed on the form, in a separate box immediately next to the contract price is a notice captioned, “BUYER’S RIGHT TO CANCEL.” The notice states:

BUYER MAY CANCEL THIS CONTRACT BY DELIVERING WRITTEN NOTICE TO THE SELLER AT ANY TIME PRIOR TO MIDNIGHT OF THE THIRD BUSINESS DAY AFTER THE DATE OF THIS TRANSACTION. BUYER MAY USE THIS CONTRACTAS THAT NOTICE BY WRITING “I HEREBY CANCEL” AT THE BOTTOM AND ADDING BUYER’S NAME AND ADDRESS. THE NOTICE MUST BE DELIVERED TO THE SELLER AT THE ADDRESS SHOWN ABOVE.

Additionally, immediately above the contract’s signature lines is a paragraph which contains the following sentence: “Since this contract calls for made to order goods, it is not subject to cancellation except as stated above.”

Edwards signed the contract, and she testified that, before she did so, she read the entire document. She also explained that before she signed, she confirmed with McKenna that Champion had been in business since 1953, “because I wanted to go with a large company, because I thought they would be more reputable.” McKenna also signed the contract, on the line designated “Champion Representative.”

Construction on the deck and porch began sometime in June 2006. On approximately June 27,2006, when the project was about 50 percent complete, Edwards’s ex-husband, Greg Edwards, called John McGill, a division manager for Champion Window who oversees the Chattanooga subsidiary, and informed McGill that he had problems with the price of the project and he wanted the work stopped. McGill and McKenna met with Greg and JoAnne Edwards at Edwards’s residence on June 28, 2006 in an attempt to resolve any problems with the project, and according to McGill, Greg Edwards told them that the project “was too much money . . . and that he was putting a stop work order on it.”

Greg Edwards testified that he contacted McGill because he had concerns with both the cost of the project and the quality of the construction. He requested that Champion provide him with an itemized cost list and, when it provided that list at the June 28 meeting, it showed what he believed to be an exorbitant cost for a screen door, and he became even more concerned about the cost. He further explained, “I knew that it [the project] was a $10,000-to-$14,000 job, and [Champion’s] charging a woman $29,000 for it.” Mr. Edwards also testified that his concerns over construction problems grew when McGill was shown those concerns and responded by indicating that Champion would fix any problems on the “punch list” at the end of construction. In Mr. Edwards’s opinion, the concerns he was raising were far more serious than those that could be addressed as part of a punch list.

Following the meeting with McGill and McKenna, Greg and JoAnne Edwards sent a letter to McGill in which they stated: “This letter is to confirm our conversations of June 27 and 28. All work on [the] screen porch is ordered stopped immediately. Under no circumstances will Champion Window [ ] be paid for any work done after June 27.” On June 29, 2006, Champion’s attorney sent a letter to Edwards demanding that the company be allowed to complete the contract. In response, Edwards returned the letter on which she and/or her ex-husband had written, “It is not my intent to allow Champion back on this property... contact Robbie Stultz [Edwards’s attorney] with all further communications.” Champion then sent another letter asking to be allowed to complete the contract, but it never received a response.

After Edwards’s continued refusal to honor the contract, Champion filed the current action on July 7, 2006. Trial was held on November 14, 2007. Five years and three months later, on February 11, 2013, the trial court entered an order, drafted by Edwards’s lawyer and finding that Edwards was entitled both to rescind the contract and to recover damages for Champion’s negligence in performing work pursuant to that contract. This appeal followed.

1. The trial court found that Edwards was entitled to rescind the contract based on Champion’s “knowingly... false representations as to its work product, its history as a corporation, and its affiliation with Champion [Window].” On appeal, Champion contends that the trial court’s findings are unsupported by the evidence and, accordingly, the court’s conclusion that Edwards was entitled to rescission constitutes legal error. We agree.

To justify rescission of a contract for fraud in the inducement, the party seeking rescission must prove that the party with whom it contracted made a knowingly false representation; that it did so with the intent of inducing the first party to act in reliance on the deliberate misrepresentation; and that the first party justifiably relied on the misrepresentation, to that party’s detriment. See Turner Outdoor Advertising v. Fidelity Eastern Financial, 185 Ga. App. 815, 816 (366 SE2d 201) (1988). “When evidence as to any one of these elements is lacking,” then the rescission claim must fail. (Footnote omitted.) Young v. Oak Leaf Builders, 277 Ga. App. 274, 278 (3) (626 SE2d 240) (2006). Here, we find that Edwards failed to present evidence showing either that Champion made any deliberate and knowing misrepresentation to her or that she detrimentally relied on any such misrepresentation.

The trial court’s finding that Champion knowingly made a false representation as to “its history as a corporation and its affiliation with Champion [Window]” is apparently based on Edwards’s contention that Champion Windows of Chattanooga, LLC, the company with whom she contracted and which did not exist until 1998, misrepresented itself as Champion Window, a company that had been in business since 1953. The evidence, however, shows that Champion-Chattanooga is a subsidiary or division of Champion Window. The parent corporation has 75% ownership of, and therefore controls, Champion-Chattanooga. Additionally, Champion-Chattanooga has no website independent of Champion Window; if a person wants to access information on the Internet about the Chattanooga division of Champion Window, he must go through the corporate website of the parent company. All of the employees working out of the Chattanooga division are trained by Champion Window at the parent company’s corporate campus, and the employees view themselves as working for the parent corporation. Most importantly, all of the products sold by the Chattanooga division are obtained from Champion Window, and both the labor and the materials on projects sold, installed, or constructed by Champion-Chattanooga are backed by a 15-year warranty from Champion Window. Given this evidence, the trial court erred in finding that any statements or representations to Edwards that she was contracting for the goods and services of Champion Window could be construed as false.

Nor does the evidence support the trial court’s finding that Champion knowingly made a false representation “as to its work product.” As best we can tell from the record, this finding resulted from Edwards’s assertion that, despite advertising its products as being manufactured by Champion Window, the screen doors on her porch were manufactured by a third party, Falcon Door and Window Company. The actual sales materials allegedly relied on by Edwards in this regard make the following statements: “Each [patio] room is built to match the design of your home”; patio rooms and porch enclosures are “[d]esigned, manufactured, constructed, and guaranteed by Champion”; “Champion patio rooms are manufactured in our own factory”; and “Champion designs, manufactures, installs and guarantees your patio room.”

The evidence presented at trial showed that the walls, roof, windows, and screens used in the screened porch being constructed for Edwards were all manufactured at one of three facilities owned by Champion Window, and the doors were manufactured to Champion Window’s specifications. In light of this evidence, we fail to see how the statements in the advertising material can be viewed as false. The advertisement stated that Champion manufactured the actual parts of the room itself; it says nothing about the doors. More importantly, assuming that the door could be considered a component of the room, Edwards failed to show how any misrepresentation regarding the door’s manufacturer was material—i.e., that she would have received different or better doors if they had actually been manufactured by Champion, as opposed to being manufactured for Champion. See Greenwald v. Odom, 314 Ga. App. 46, 55 (2) (723 SE2d 305) (2012) (“[a] fact is material if its existence or nonexistence is a matter to which a reasonable man would attach importance in determining his choice or action in the transaction in question”) (citations and punctuation omitted).

Finally, regardless of Edwards’s proof regarding any arguably false statements made by Champion, her rescission claim would still fail. This is so because she did not present any evidence showing that she relied on these alleged misrepresentations to her detriment. See Turner Outdoor Advertising, 185 Ga. App. at 816-817 (reversing judgment in favor of defendant, which had prevailed on its counterclaim for rescission, where defendant had failed to show it relied on the alleged misrepresentations of the opposing party or that it had suffered damages as a result of any such reliance). Here, we have carefully scrutinized all of Edwards’s testimony, and she never stated that she would not have entered the contract had she known either that she was contracting with a local division of Champion Window, rather than the parent company itself, or that the screen doors to be installed on the project were manufactured for Champion, rather than by Champion. Accordingly, she failed to show that she relied on any misrepresentations of Champion when she executed the contract. See Young, 277 Ga. App. at 279 (3) (affirming a grant of summary judgment against parties seeking rescission of a contract and noting that the allegedly defrauded parties had presented no evidence showing how the alleged misrepresentation had influenced their decision to proceed with the contract); Greenwald, 314 Ga. App. at 55-56 (2).

Moreover, assuming that Edwards’s testimony could be construed as showing reliance, she failed to show how she was damaged by this reliance. See Robertson v. Panlos, 208 Ga. 116, 119 (65 SE2d 400) (1951) (“[a]n essential element of an action for rescission of a contract by reason of fraud is injury to the complaining party”). Specifically, the evidence showed that Edwards received products that were manufactured by Champion Window and that were constructed or installed by an employee who had been trained by Champion Window, at the parent company’s corporate facilities. Edwards also received a 15-year warranty from Champion Window (the parent company) on all the labor and materials that went into her deck and screened porch. Accordingly, Edwards failed to show how any product or benefit she received would have been different had she contracted directly with Champion Window, as opposed to Champion-Chattanooga. For this additional reason, therefore, the trial court erred in finding that Edwards was entitled to rescind the contract. See Tyson v. McPhail Properties, 223 Ga. App. 683, 687 (5) (478 SE2d 467) (1996) (holding that a party could not prevail on its affirmative defense of rescission where it offered no evidence as to how it was damaged by the alleged misrepresentations of the other party).

2. The trial court found in favor of Edwards on her claim for negligent construction and awarded her $1,500 in damages on this claim, based on the testimony of Edwards’s expert witness that it would cost that amount to have the negligently constructed project torn down and removed from Edwards’s property. Because the trial court’s findings with respect to the negligent construction claim are unsupported by either the evidence or the law, we also reverse this part of the trial court’s order.

We first note that as a matter of law, Edwards could not recover on both her claim for rescission and her claim for negligent construction, because her claim for negligent construction was based upon a contractual duty. See Fields Bros. Gen. Contractors v. Ruecksties, 288 Ga. App. 674, 676-677 (1) (655 SE2d 282) (2007) (“there is implied in every contract for work or services a duty to perform it skillfully, carefully, diligently, and in a workmanlike manner”) (footnote omitted). And rescission represents “a remedy in which neither party is held liable in damages for breach of the contract,” because the contract is considered void. (Citations omitted.) Martin v. Rollins, Inc., 238 Ga. 119, 120 (1) (231 SE2d 751) (1977). Accordingly, if the contract was void, Edwards could not recover damages for its breach. Given that we have found that Edwards failed to prove her claim for rescission, however, we address the merits of her negligent construction claim.

In support of this claim, Edwards introduced the testimony of Vincent Morris, who was qualified as an expert on the subject of deck construction. Morris testified that he inspected the deck approximately two months after Champion had ceased work on the project and found what he believed were six or seven “major violations” of the “Georgia Building Code.” These alleged violations included a lack of footings in the post holes; problems with the deck framing; problems with the length of the spans; the installation of a single band of wood, as opposed to a double band, on the deck perimeter; the lack of flashing between the deck and the house; and defects in the construction of the stairs. On cross-examination, however, Morris admitted that most, if not all, of the problems he found could be corrected. He also acknowledged that the project did not look finished to him, as there was still “quite a bit” to be done. Morris further stated that in his experience as a contractor, he would expect a customer to tell him if she saw problems with or was dissatisfied with a project, so that he could correct any deficiencies. And he admitted that if a building inspector pointed out code violations, a contractor would have no choice but to fix the project at its own expense, so that it complied with the applicable building code.

When questioned about the alleged problems with the construction, Rick Tragesser, the Champion Patio Room Manager who performed that construction, stated that there were a number of corrections that would need to be made before the project was considered completed. Champion was never given the opportunity to complete the project, however, and therefore it could not remedy the admitted deficiencies. Tragesser also testified that the project would not be considered complete until approved by the building inspector, and if the building inspector found any code violations, Champion would correct them. Similarly, McKenna testified that if Champion was made aware of problems with its construction or if the customer was dissatisfied with Champion’s work, the company would remedy the problems. McGill echoed this sentiment, noting that Champion provided a 15-year warranty on both materials and labor.

Based on this evidence, the trial court found that Champion was negligent in constructing the project because “it violated applicable building codes” and its work was “not performed in a workmanlike manner.” This finding, however, ignores the fact that Edwards failed to prove her claim that Champion’s work violated applicable building codes — i.e., that the company was negligent per se. Although Edwards’s expert testified that Champion’s work violated the “Georgia Building Code” in several ways, Edwards did not introduce any state, county, city or other building code into evidence. Moreover, the expert did not identify any specific code sections (either by name or number) as having been violated. Rather, he simply testified as to the various defects in the project that he claimed did not meet “code requirements.” Given Edwards’s failure to introduce either a copy of the applicable building code or identify with specificity the sections of that code that Champion’s construction violated, she also failed to prove her claim of negligence per se. See Norman v. Jones Lang LaSalle Americas, 277 Ga. App. 621, 629 (2) (b) (627 SE2d 382) (2006) (affirming grant of summary judgment in favor of defendant on plaintiff’s claims of negligence per se, where plaintiff failed to offer into evidence a copy of the applicable building code or specify which sections of the code the defendant had violated); Spooner v. City of Camilla, 256 Ga. App. 179, 184 (2) (b) (568 SE2d 109) (2002) (plaintiffs could not prove their claim of negligence per se where they failed to identify any specific statute, rule, or regulation allegedly violated by the defendants; the testimony of plaintiffs’ expert that he knew such rule existed because he had read “various rules and regulations” was hearsay and therefore lacked probative value).

Additionally, as a matter of law “[a] party to a contract can not cause a breach or delay in compliance by the other, and then set up the breach or delay so caused as freeing him from the contract.” (Citation and punctuation omitted.) Ray M. Wright, Inc. v. Stinchcomb, 259 Ga. App. 212, 215 (1) (576 SE2d 566) (2002). See also Georgia 20 Properties LLC v. Tanner, 255 Ga. App. 6, 10 (2) (564 SE2d 459) (2002) (“[a] party cannot avoid the obligations of a contract by frustrating the performance of a condition precedent”) (footnote omitted). Here, the evidence showed that all of the alleged defects could have been remedied, a fact that even Edwards’s expert conceded. Edwards, however, refused to allow Champion to complete the contract and therefore deprived it of the opportunity to cure any alleged defects in its work. In other words, Edwards’s contractual breach resulted in Champion’s alleged breach of its contractual obligation to provide a product free of defective workmanship. Having caused this alleged breach, Edwards could not thereafter seek to recover for it. See Allied Enterprises v. Brooks, 93 Ga. App. 832, 834 (3) (93 SE2d 392) (1956) (“[w]here a defendant prevents the performance of a stipulation of a contract undertaken by the plaintiff, he is estopped from setting up in his own behalf any injury which may have resulted from the nonperformance of such condition”) (citation and punctuation omitted).

Decided March 14, 2014.

Duncan, Hatcher, Hixson & Fleenor, Everett L. Hixson, Jr., for appellant.

Robert L. Stultz, for appellee.

For the reasons set forth above, we reverse the order of the trial court granting judgment in favor of Edwards on her claims for rescission and negligent construction. Additionally, given that Edwards’s only defense to Champion’s breach of contract claim was rescission, and given that she was not entitled to rescind the contract, we further find that the trial court erred in failing to find in favor of Champion on its breach of contract claim. Accordingly, we remand the case for entry of judgment in favor of Champion and for a trial on the issue of damages.

Judgment reversed and case remanded with direction.

Phipps, C. J., and Ellington, P. J., concur.

       Edwards also asserted claims for alleged violations of Georgia’s Fair Business Practices Act (OCGA § 10-1-390 et seq.) and a violation of the “peddler” ordinances of Catoosa County. The trial court did not award judgment to Edwards on these claims.

       The brochure appears to have been produced by the parent corporation for use by all of its subsidiaries. It bears the corporate logo of Champion Window, advertises the company as having been in business since 1953, and lists the website of Champion Window (www. championwindow.com).

       Edwards paid this deposit via check, made payable to “Champion Window.”

       This note was signed by both Greg and JoAnne Edwards.

       Although both the transcript and the trial court’s order refer to the November 14 proceeding as a “hearing,” it is clear that what transpired was a bench trial.

       Notably, although the court found that Edwards was entitled to rescission, its order did not require Champion to return the $9,000 down payment it had received from Edwards or otherwise award judgment to Edwards in that amount. Nor did the order require Edwards to return to Champion its materials which the company had left on Edwards’s property for the purpose of completing the screened porch and deck and which Edwards had retained, even after purporting to rescind the contract. Rather, the only relief afforded by the order was a judgment of $1,500 in favor of Edwards and against Champion, as damages for Edwards’s negligent construction claim.

       When questioned about this fact at trial, McKenna explained that Falcon manufactured the doors under contract with Champion Window, to Champion Window’s specifications.

       In this regard, we note that Edwards’s only complaint regarding the door had nothing to do with its quality. Rather, once Edwards asked for and received an itemized price list of the components of the project, she thought she was being charged too much for the doors and too much for the overall project.

       We do not address Edwards’s claim that Champion Window (the parent company) should have been named as a party to this action, either in lieu of or in addition to Champion-Chattanooga. “Issues and objections not raised in the trial court and ruled on by the trial court are deemed waived and cannot be raised for the first time on appeal.” (Footnote omitted.) West v. State, 300 Ga. App. 583, 585 (2) (685 SE2d 486) (2009). Thus, because Edwards did not raise this issue in the court below, she has waived this potential defense. HWA Properties v. Community & Southern Bank, 322 Ga. App. 877, 881 (1) (a) (746 SE2d 609) (2013) (in a suit to recover on a note and guaranty, defendants’ failure to raise any defense related to plaintiff’s status as a holder or nonholder in possession of the note and guaranty under the Commercial Code resulted in a waiver of that defense).

       In this regard, we note that Champion is seeking to recover the balance of the contract price. However, the contract does not contain a liquidated damages provision, and the general measure of damages in a case such as this
      is the net profit to which the contractor would have been entitled had full performance of the contract been permitted. That figure is reached by subtracting from the contract price the amount which full performance would have cost the contractor. If performance by either party had begun prior to the breach, adjustments must be made to ensure that the contractor receives the full amount of the profit, but no more. First, there must be added to the profit figure the amount of the contractor’s net loss up to the point of the breach. That figure is reached by subtracting from the expenses incurred by reason of the contractor’s performance the salvage or resale value of the material left on hand. The sum of those figures (the profit which would have been realized from full performance plus net loss incurred by performance to the date of breach) may in no event exceed the contract price. Second, there must be deducted from the recovery those amounts received by the contractor from the owner as prepayment or progress payment.

        Williams v. Kerns, 153 Ga. App. 259, 266-267 (1) (265 SE2d 605) (1980). See also Dill v. Chastain, 234 Ga. App. 770, 771 (507 SE2d 872) (1998).


source: Caselaw Access Project

author: BARNES, Presiding Judge.

license: Public Domain

text:
    A13A1745.
    POOLE v. THE STATE.
    (756 SE2d 322)
   BARNES, Presiding Judge.

Mark Winford Poole entered a plea of guilty but mentally ill to three counts of terroristic threats and two counts of stalking pursuant to North Carolina v. Alford, 400 U. S. 25 (91 SCt 160, 27 LE2d 162) (1970). During the same term of court, Poole filed a motion to withdraw his guilty plea and a motion in arrest of judgment, both of which the trial court denied. On appeal, Poole contends that the trial court erred in denying his motion to withdraw his guilty plea because the court failed to follow the procedure set forth in OCGA § 17-7-131 (b) (2) for acceptance of a plea of guilty but mentally ill. Poole also contends that the trial court erred in denying his motion in arrest of judgment with respect to the terroristic threats counts because the indictment failed to allege with sufficient particularity the “crime of violence” threatened against the victims and failed to allege any corroboration for the alleged threats. For the reasons discussed below, we affirm.

1. Poole first argues that he was entitled to withdraw his plea to the terroristic threats and stalking charges because the trial court failed to follow the procedures set forth in OCGA § 17-7-131 (b) (2)for acceptance of a plea of guilty but mentally ill. We are unpersuaded because Poole has failed to prove that withdrawal of his plea is necessary to correct a manifest injustice.

Mental illness is not an element of the underlying criminal offense, see Spivey v. State, 253 Ga. 187, 189 (2) (319 SE2d 420) (1984), and the trial court is to sentence a defendant found guilty but mentally ill “in the same manner as a defendant found guilty of the offense,” except in death penalty cases. OCGA § 17-7-131 (g) (1), (j). See Snyder v. State, 201 Ga. App. 66, 70 (10) (410 SE2d 173) (1991). “[T]he guilty but mentally ill verdict merely allows for accommodation to the mental health needs of those defendants who are guilty, but have a mental disorder which falls short of insanity and delusional compulsion.” (Citation, punctuation and emphasis omitted.) Dimauro v. State, 185 Ga. App. 524, 526 (4) (364 SE2d 900) (1988). Specifically, Georgia law provides that a defendant found guilty but mentally ill at the time of the underlying offense “shall be committed to an appropriate penal facility and shall be evaluated then treated, if indicated, within the limits of state funds appropriated therefor, in such manner as is psychiatrically indicated for his or her mental illness.” OCGA § 17-7-131 (g) (1). If clinically indicated, a defendant found guilty but mentally ill also can be temporarily transferred from a penal facility to the Department of Behavioral Health and Developmental Disabilities for treatment of his or her mental illness. See OCGA § 17-7-131 (g) (2).

OCGA § 17-7-131 (b) (2) sets forth the procedures that are to be followed by the trial court when a defendant chooses to enter a plea of guilty but mentally ill. That statutory subsection provides in relevant part:

A plea of guilty but mentally ill at the time of the crime . . . shall not be accepted until the defendant has undergone examination by a licensed psychologist or psychiatrist and the court has examined the psychological or psychiatric reports, held a hearing on the issue of the defendant’s mental condition, and is satisfied that there is a factual basis that the defendant was mentally ill at the time of the offense [.]

We have held that the procedural requirements of OCGA § 17-7-131 (b) (2) are sufficiently fulfilled if a factual basis for the plea of guilty but mentally ill was established at the plea hearing. See Cullers v. State, 247 Ga. App. 155, 156-157 (543 SE2d 763) (2000) (two psychological evaluations were conducted, one at request of trial court and other at request of defendant, and the findings of both reports were read into record at plea hearing); Barber v. State, 240 Ga. App. 156, 157-158 (2) (522 SE2d 528) (1999) (defense counsel obtained an independent psychiatric report and read the defendant’s psychiatric history into the record at plea hearing).

As the State conceded at the hearing on Poole’s motion to withdrawhisplea,theproceduralrequirementsimposedbyOCGA § 17-7-131 (b) (2) were not followed at the plea hearing in the present case. At the plea hearing, the State recited the factual basis for the terroristic threats and stalking charges against Poole, but there was no discussion by either party of the factual basis for Poole pleading guilty but mentally ill. Furthermore, Poole and his counsel expressly withdrew at the hearing their previously filed motion for a psychological or psychiatric examination, and thus the trial court was not presented with any psychological or psychiatric reports regarding Poole’s mental status at the time he committed the underlying offenses.

Nevertheless, we conclude that even if the State cannot demonstrate that the trial court complied with OCGA § 17-7-131 (b) (2), Poole was not automatically entitled to withdraw his plea of guilty but mentally ill. In reaching this conclusion, we look to the analogous context where a trial court fails to comply with the procedural requirements for pleas imposed by the provisions of Uniform Superior Court Rule (“USCR”) 33. In that context, it is well settled that even if the record does not adequately demonstrate compliance with the provisions of USCR 33, a defendant is entitled to withdraw his plea “only to correct a manifest injustice.” (Citation, punctuation and footnote omitted.) Foster v. State, 281 Ga. App. 584 (1) (636 SE2d 759) (2006). See Smith v. State, 287 Ga. 391, 399 (3) (697 SE2d 177) (2010).

This high standard is justified for several reasons. First, once sentence is imposed, the defendant is more likely to view the plea bargain as a tactical mistake and therefore wish to have it set aside. Second, at the time the sentence is imposed, other portions of the plea bargain agreement will often be performed by the prosecutor, such as the dismissal of additional charges or the return or destruction of physical evidence, all of which may be difficult to undo if the defendant later attacks his guilty plea. Finally, a higher post-sentence standard for withdrawal is required by the settled policy of giving finality to criminal sentences which result from a voluntary and properly counseled guilty plea.

(Citation omitted.) Smith, 287 Ga. at 400 (3).

In the recent Smith case, our Supreme Court held that the reasons for requiring a showing of manifest injustice in the context of a violation of USCR 33’s provisions applied with equal force to a motion to withdrawaguiltypleabasedonaviolationofOCGA § 17-7-93 (c), which requires a trial court to advise a defendant on the record that his guilty plea may have an impact on his immigration status. Smith, 287 Ga. at 400 (3). The Supreme Court reasoned that the manifest injustice standard should control, particularly since OCGA § 17-7-93 (c) did not specify a different remedy for violations of its terms. Id. Compare OCGA § 17-8-57 (requiring by its express terms reversal of conviction and grant of new trial where trial judge in criminal case expresses or intimates opinion as to what has or has not been proven or as to the guilt of the accused).

By analogy to Smith, we conclude that the reasons for requiring a showing of manifest injustice apply equally to motions to withdraw a guilty plea based on a violation of OCGA § 17-7-131 (b) (2). As with the statute at issue in Smith, OCGA § 17-7-131 (b) (2) does not specify a different remedy for violations of its terms. Accordingly, we conclude that a defendant who seeks to withdraw a plea of guilty but mentally ill based on an alleged violation of OCGA § 17-7-131 (b) (2) must prove that withdrawal is necessary to correct a manifest injustice.

To prove manifest injustice, Poole must “show some real harm or prejudice” resulting from the violation of OCGA § 17-7-131 (b) (2). Smith, 287 Ga. at 400 (3). See Williams v. State, 287 Ga. App. 754, 755 (652 SE2d 637) (2007) (manifest injustice analysis requires that alleged violation “be tested for harm”). Poole, however, has failed to make such a showing. At the hearing on his motion to withdraw his plea, Poole presented no evidence whatsoever that he has been harmed or prejudiced by the entry of his plea of guilty but mentally ill. Moreover, as we explained in Barber, 240 Ga. App. at 158 (3),

the “guilty but mentally ill” plea is for the benefit of the defendant, because (1) it provides for mental health treatment during the sentence, and (2) it recognizes a reduced level of culpability. Therefore, if the sentencing court fail [s] to strictly comply with OCGA § 17-7-131 (b) (2), such failure inure[s] to [the defendant’s] benefit and [is] harmless error.

Consequently, withdrawal of Poole’s plea of guilty but mentally ill is not necessary to correct a manifest injustice, and we therefore affirm the trial court’s denial of his motion to withdraw his plea.

2. Poole contends that the trial court erred in denying his motion in arrest of judgment with respect to the terroristic threats charges because the indictment (a) failed to allege with sufficient particularity the “crime of violence” threatened against the victims and (b) failed to allege any corroboration for the alleged threats. We disagree with both contentions.

A person commits the offense of a terroristic threat when he or she threatens to commit any crime of violence with the purpose of terrorizing another. The crime of making terroristic threats focuses solely on the conduct of the accused and is completed when the threat is communicated to the victim with the intent to terrorize.

(Citations and punctuation omitted.) Clement v. State, 309 Ga. App. 376, 379 (1) (710 SE2d 590) (2011). See OCGA § 16-11-37 (a). Thus, “[t]he essential elements of terroristic threats and acts are: (1) a threat to commit any crime of violence (2) with the purpose of terrorizing another.” (Citation and punctuation omitted.) Martin v. State, 219 Ga. App. 277, 283 (10) (464 SE2d 872) (1995). A defendant cannot be convicted of terroristic threats based on “the uncorroborated testimony of the party to whom the threat is communicated.” OCGA § 16-11-37 (a).

Here, each of the three terroristic threats counts of the indictment states that Poole is accused of the offense of terroristic threats, cites to the pertinent criminal statute (OCGA § 16-11-37), and alleges that Poole, “with the intent to terrorize,” threatened to commit a “crime of violence” against a specific victim on a specific date or limited range of dates, “contrary to the laws of this State, the good order, peace and dignity thereof.” The three counts do not identify the particular “crime of violence” threatened by Poole and do not make any reference to corroboration.

Poole did not file a pretrial motion, such as a general or special demurrer, challenging the sufficiency of the indictment. Instead, he waited until after entering his plea of guilty but mentally ill to challenge the indictment in his motion in arrest of judgment.

(a) We reject Poole’s contention that the trial court should have granted his motion in arrest of judgment because the indictment failed to allege with sufficient particularity the “crime of violence” threatened against the victims. “Amotion in arrest of judgment must be based upon a defect that the accused might otherwise have challenged by a timely general demurrer.” Lowe v. State, 276 Ga. 538, 539 (2) (579 SE2d 728) (2003). See Swanson v. State, 309 Ga. App. 381, 382 (708 SE2d 307) (2011). “A general demurrer challenges the validity of an indictment by asserting that the substance of the indictment is legally insufficient to charge any crime,” and it should be granted “only when an indictment is absolutely void in that it fails to charge the accused with any act made a crime by the law.” (Citations, punctuation and emphasis omitted.) State v. Wilson, 318 Ga. App. 88, 91-92 (1) & n. 10 (732 SE2d 330) (2012). Put another way,

[t]he true test of the sufficiency of an indictment to withstand a general demurrer [ ]... is found in the answer to the question: Can the defendant admit the charge as made and still be innocent? If he can, the indictment is fatally defective. If the indictment is fatally defective, the sufficiency of the indictment can be questioned by general demurrer or by motion in arrest of judgment.

(Citation and punctuation omitted.) State v. Eubanks, 239 Ga. 483, 485 (238 SE2d 38) (1977).

The indictment in the present case was not fatally defective for failing to specify the “crime of violence” threatened against the victims. Each of the three terroristic threats counts recited all of the elements of the crime and couched the allegations in the language of the terroristic threats statute, OCGA § 16-11-37 (a). The general rule is that “[a]n indictment which charges a defendant with the commission of a crime in the language of a valid statute is sufficient to withstand a [general] demurrer charging that the indictment is insufficient to charge the defendant with any offense under the laws of this state.” Stewart v. State, 246 Ga. 70, 72 (2) (268 SE2d 906) (1980). See Carter v. State, 252 Ga. 502, 504 (3) (315 SE2d 646) (1984) (“An indictment is not subject to general demurrer when it is written in the form set out in OCGA § 17-7-54... and couched in the language of the statute alleged to have been violated.”) (citation and punctuation omitted); State v. Austin, 297 Ga. App. 478, 479 (677 SE2d 706) (2009) (“By tracking the statute, the [S]tate presented a technically correct allegation.”) (footnote omitted). Furthermore, Poole could not have admitted the allegations of the indictment without admitting that he was guilty of the crime of terroristic threats. It follows that the indictment was not fatally defective and that Poole could not succeed on his motion in arrest of judgment. Compare Newsome v. State, 296 Ga. App. 490, 491-493 (1) (675 SE2d 229) (2009) (count of accusation charging defendant with violation of family violence order was fatally defective and subject to general demurrer, where count recited only limited portions of the statute and did not otherwise state any specific facts upon which charge was based, and, as a result, failed to set out all of the essential elements of the crime).

Instead, as Poole’s counsel conceded at the hearing on the motion, the contention that the indictment failed to allege with sufficient particularity the “crime of violence” threatened against the victims was “more of a special demurrer issue that was missed.” See, e.g., State v. Delaby, 298 Ga. App. 723, 725-727 (681 SE2d 645) (2009) (defendant filed special demurrer to influencing a witness counts on ground that use of word “intimidation” in indictment was generic and should be defined with greater specificity); State v. Tate, 262 Ga. App. 311, 314 (2) (b) (585 SE2d 224) (2003) (defendant filed special demurrer to terroristic threats count on ground that indictment failed “to assert the specific threat alleged to have been made by him”). “In contrast to a general demurrer, a special demurrer merely objects to the form of an indictment and seeks more information or greater specificity about the offense charged.” (Emphasis omitted.) Wilson, 318 Ga. App. at 92 (1). See Christian v. State, 288 Ga. App. 546, 548 (2) (654 SE2d 452) (2007) (defendant seeking “greater specificity with regard to the ... circumstances of the alleged crime” must file special demurrer). But “[a] special demurrer is waived if not raised before pleading to the merits of the indictment” and cannot be raised after conviction by a motion in arrest of judgment. Harris v. State, 258 Ga. App. 669, 670-671 (1) (574 SE2d 871) (2002). See McDaniel v. State, 298 Ga. App. 558, 559-560 (680 SE2d 593) (2009). Consequently, by failing to timely file a special demurrer, Poole waived his right to seek greater specificity in the form of the indictment, and he cannot now resurrect his challenge to the indictment in the guise of a motion in arrest of judgment. See McDaniel, 298 Ga. App. at 559-560.

(b) We likewise reject Poole’s contention that the indictment was required to set out the evidence that would be used by the State to corroborate the testimony of the victims about the terroristic threats. As previously noted, the essential elements of the crime of terroristic threats are a threat to commit a crime of violence with the purpose of terrorizing another. See OCGA § 16-11-37 (a); Martin, 219 Ga. App. at 283 (10). Corroboration is not an element of the offense, but rather an additional evidentiary rule imposed on the State by statute. And, as we have repeatedly explained, “it is not necessary for the [S]tate to spell out in the indictment the evidence on which it relies for a conviction.” (Footnote omitted.) Scruggs v. State, 309 Ga. App. 569, 573 (2) (b) (711 SE2d 86) (2011). See Mell v. State, 69 Ga. App. 302, 304 (1) (25 SE2d 142) (1943). Hence, the trial court committed no error in denying Poole’s motion in arrest of judgment on this asserted ground.

Judgment affirmed.

Miller and Ray, JJ., concur.

Decided March 14, 2014

Steven A. Miller, for appellant.

Leigh E. Patterson, District Attorney, C. Stephen Cox, Assistant District Attorney, for appellee.

       OCGA § 17-7-93 (o) provides:
      In addition to any other inquiry by the court prior to acceptance of a plea of guilty, the court shall determine whether the defendant is freely entering the plea with an understanding that if he or she is not a citizen of the United States, then the plea may have an impact on his or her immigration status. This subsection shall apply with respect to acceptance of any plea of guilty to any state offense in any court of this state or any political subdivision of this state.

       We note that if neither the record from the plea hearing nor other portions of the record demonstrate a factual basis for the defendant to have pled guilty to the underlying criminal offense, withdrawal of the defendant’s guilty plea may be necessary to correct a manifest injustice. See generally Brownlee v. City of Atlanta, 212 Ga. App. 174, 174-175 (441 SE2d 492) (1994); Watt v. State, 204 Ga. App. 839, 840 (1) (420 SE2d 769) (1992). But, as previously noted, mental illness is not an element of the underlying offense. See Spivey, 253 Ga. at 189 (2). Furthermore, the purpose for requiring a trial court to inquire into the factual basis supporting the underlying offense “is to protect against someone pleading guilty when that person may know what he has done but may not know that those acts do not constitute the crime with which he is charged.” State v. Evans, 265 Ga. 332, 334 (2) (454 SE2d 468) (1995). That concern is not present here, where the State recited the factual basis for Poole pleading guilty to the terroristic threats and stalking charges at the plea hearing.

       In Lee v. State, 117 Ga. App. 765, 766 (162 SE2d 229) (1968), we held that the trial court should have granted the defendant’s demurrer to the indictment alleging threats of blackmail because the State “must allege the threat with such clearness and certainty as to apprise the accused of the particular acts or words or writing which is the gist of the offense.” Notably, however, we did not specify in Lee whether the defendant had filed a general or special demurrer to the indictment, and thus that procedural issue was never addressed. As such, Lee is not inconsistent with our conclusion in the present case that Poole should have sought greater specificity regarding the terroristic threats counts through a special demurrer.


author: ELLINGTON, Presiding Judge.

text:
    A13A1924.
    HUTCHINS v. THE STATE.
    (756 SE2d 347)
   ELLINGTON, Presiding Judge.

A Walton County jury found Amanda Hutchins guilty of violating OCGA § 16-13-30.5 (a) (2), pertaining to the use or conveyance of certain substances used in the manufacture of controlled substances; and OCGA § 16-5-73 (b) (1), pertaining to the presence of children during the manufacture of methamphetamine. Hutchins appeals from the denial of her motion for a new trial, contending that her trial counsel was ineffective, that the trial court erred in giving certain jury instructions, and that the evidence was insufficient to support the convictions. For the reasons that follow, we reverse the judgments of conviction.

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

Further, under former OCGA § 24-4-6, “[t]o warrant a conviction on circumstantial evidence, the proved facts shall not only be consistent with the hypothesis of guilt, but shall exclude every other reasonable hypothesis save that of the guilt of the accused.” See Merritt v. State, 285 Ga. 778, 779 (1) (683 SE2d 855) (2009). A reasonable hypothesis is one founded in the evidence. See Smith v. State, 284 Ga. 304, 306 (2) (667 SE2d 65) (2008). Whether an alternative hypothesis is reasonable is a question generally committed to the jury that heard the evidence, “and where the jury is authorized to find that the evidence, though circumstantial, was sufficient to exclude every reasonable hypothesis save that of guilt, the appellate court will not disturb that finding, unless the verdict of guilty is unsupportable as a matter of law.” (Citations and punctuation omitted.) Phillips v. State, 287 Ga. 560, 562 (1) (697 SE2d 818) (2010). Viewed in the light most favorable to the jury’s verdict, the record contains the following relevant evidence. Amanda Hutchins and her three-year-old child lived with her mother, Elaine Calmes, and her mother’s husband, William Calmes, from January through August 2011 at their home in Walton County. In early 2011, an investigator with the Walton County Sheriff’s Office received a tip from confidential informants that methamphetamine was being manufactured and sold from the Calmeses’ property. Using confidential informants, the investigator made two “controlled buys” of methamphetamine from that address. On April 8 and August 11, 2011, William Calmes sold an informant drugs. Prior to these two transactions, an informant had purchased methamphetamine from Elaine Calmes at a public library. Although the investigating officer testified that an informant told him that Hutchins was at home during one of the drug sales, there is no evidence that Hutchins witnessed the transactions. Further, there is no evidence that her child was present during the drug sales. Based on the evidence of the drug sales and a statement from the informant that methamphetamine was being manufactured in a shed on the property, the investigator obtained a warrant to search the premises.

The investigator and other officers executed the search warrant at 9:00 a.m. on August 22,2011. Hutchins, her boyfriend, the Calmeses, and a guest were present in the home. The child was in daycare. After the officers secured the home, an investigator told Hutchins that he suspected her mother of manufacturing methamphetamine and asked where her mother kept the pseudoephedrine. Hutchins led the investigator to a cabinet over the stove from which he recovered two packages of the drug. The investigator testified that Hutchins told him that her mother had obtained the pseudoephedrine the night before. The prosecution offered no store receipts or other records or testimony establishing when and where the pseudoephedrine had been purchased or by whom. The investigators also found other items in the kitchen cabinets that could be used to make methamphetamine, including Epsom salts, baking soda, coffee filters, hydrogen peroxide, a Coleman camping stove, and propane fuel. Hutchins told the police that she knew her mother had, in the past, kept supplies for making methamphetamine on the property.

The investigators found no drugs or materials for manufacturing methamphetamine in Hutchins’ bedroom or in the bathrooms. On the top shelf of a closet in the Calmeses’ bedroom, the investigators found a metal pot and three bottles containing clear liquids. A test of the liquid in one of the bottles revealed the presence of methamphetamine. The investigators recovered small packages of suspected methamphetamine from the Calmeses’ bedroom. They also found Elaine Calmes’ recipe for making methamphetamine. In a drawer in the living room, investigators found plastic bags containing jars of lye and opened cold packs, items used in making methamphetamine. The investigators also found a glass pipe in the living room, but they did not test it for drug residue. In the back yard, the police found a pile of partially burnt trash which contained, among other things, empty pseudoephedrine blister packs and plastic bottles. A GBI agent described the Calmeses’ method of making methamphetamine a “one pot” or a “shake and bake” operation, one that would yield the drug in a “quick process.”

Based on the quantity and type of substances found in the Calmeses’ home, investigators opined that the home was an “active meth lab.” Although there was no evidence of anything resembling an assembled lab, and the house did not smell of chemicals associated with the process of manufacturing methamphetamine, the investigators explained that methamphetamine could be manufactured quickly anywhere in the house. Elaine Calmes admitted to an investigator that she had made methamphetamine in the past and that she was thinking about doing it again. She said that Hutchins had no involvement with the drugs. William Calmes told the investigator that his wife had made methamphetamine in the past, but that she “runs [family members] out of the house when she does it.” The investigator admitted that the confidential informant had told him that he had seen the methamphetamine being manufactured in the shed behind the house.

Hutchins testified in her defense, and she told the jury that she knew that her mother had a drug problem and that her mother had made methamphetamine in the past, but she testified that she was unaware that her mother had resumed making the drug. Hutchins said she would not have brought her child to stay there had she known. Hutchins worked days and had never smelled anything in the house to make her suspect the existence of a meth lab. She admitted that she had bought pseudoephedrine at her mother’s request over a year before the house was searched, but that it was for her stepfather’s use for a sinus congestion. She admitted showing the investigators where her mother kept the pseudoephedrine, but also noted that the cabinet contained other over-the-counter medicines. She admitted showing the investigators the kitchen cabinets containing the other chemicals, but she explained that the items were ordinary household products to her. She testified that her parents burned trash in the back yard because they had no trash pick-up. She also testified that the shed in the back yard was her stepfather’s, and that he kept it locked and monitored by an alarm system. She did not enter her parents’ bedroom, and their room was kept locked when they were out.

(a) The State failed to present sufficient evidence to allow the jury to find beyond a reasonable doubt that Hutchins violated OCGA § 16-13-30.5 (a) (2) as alleged in the indictment. The State averred that Hutchins, on or about August 22, 2011, unlawfully possessed a list of household items, including pseudoephedrine, “with the intent to knowingly convey” those items to the Calmeses “for use in the manufacture of methamphetamine[.]”

The evidence shows that all of the items listed in the indictment were found in common areas of the house. Though Hutchins was arguably in joint possession of the items, there was no evidence that she alone possessed them or that she had the present intent to convey them because those items were also in the joint possession of the Calmeses. While it is possible that Hutchins may have had sole possession of the items in the recent past with the requisite intent to convey them to the Calmeses for the alleged illegal use, the State submitted no evidence from which the jury might reasonably draw that inference.

At most, Hutchins’ testimony establishes that her mother bought the two boxes of pseudoephedrine found in the cabinet. Even if the jury discounted Hutchins’ testimony and assumed that she had lied, there is still no evidence establishing that Hutchins had possessed the pseudoephedrine with the requisite intent of conveying it to the Calmeses for the manufacture of methamphetamine. The only evidence the State adduced linking Hutchins to any of the household items listed in the indictment was her awareness of and proximity to them. Given only that evidence, the jury would only be able to speculate as to whether Hutchins had recently had sole possession of those items and, if so, whether she had intended to convey them to the Calmeses. Thus, there is no evidence in this entirely circumstantial case from which a jury could exclude every other reasonable hypothesis save that of the guilt of the accused; therefore, the evidence was insufficient to support the jury’s verdict of guilt as to this conviction beyond a reasonable doubt. See, e.g., In the Interest of J. S., 303 Ga. App. 788, 790-791 (1) (694 SE2d 375) (2010) (The circumstantial evidence of the defendant’s spatial proximity to cocaine concealed in a car’s console did not satisfy the state’s burden of excluding every other reasonable hypothesis as to why defendant moved his hands near the console, nor did it prove his constructive possession of the cocaine.); Parker v. State, 297 Ga. App. 384, 386-387 (1) (677 SE2d 345) (2009) (The circumstantial evidence did not exclude the reasonable hypothesis that the defendant was at the victim’s barn to return an item that he was alleged to have burgled.). Accordingly, Hutchins’ conviction for violating OCGA § 16-13-30.5 (a) (2) must be reversed.

(b) However, the State presented sufficient evidence to allow the jury to find beyond a reasonable doubt that Hutchins violated OCGA § 16-5-73 (b) (1) as alleged in the indictment. The State contended that, on or about August 22, 2011, Hutchins “did intentionally cause and permit a child under the age of 18 years [ ] to be present where methamphetamine was being manufactured” by the Calmeses.

It is clear from the record evidence that the Calmeses sold and possessed methamphetamine, that a confidential informant had seen a meth lab in the shed behind the Calmeses’ home, and that the Calmeses possessed the chemicals and the equipment for making methamphetamine. Given this evidence, as well as the opinion testimony of the investigators, a jury could reasonably infer that the Calmeses were actively manufacturing methamphetamine on their property. The jury could also infer from the evidence that Hutchins was aware that her mother was manufacturing methamphetamine, and that she intentionally permitted her three-year-old child to live in the home while that activity was occurring. While it is conceivable, as Hutchins testified, that she was unaware that her mother had resumed manufacturing methamphetamine, the jury was authorized to conclude from the evidence that such a hypothesis was unreasonable given the following: Hutchins knew how methamphetamine was manufactured and what it smelled like, she knew that the chemicals needed to make methamphetamine were present in the home, and she knew that her mother had a history of manufacturing and selling the drug from her home. Although the evidence of Hutchins’ guilt is circumstantial, the jury could nevertheless exclude every other reasonable hypothesis save that of the guilt of the accused; therefore the evidence was sufficient to support the jury’s verdict as to Hutchins’ conviction for violating OCGA § 16-5-73 (b) (1) beyond a reasonable doubt. See, e.g., Green v. State, 283 Ga. 126, 130 (1) (657 SE2d 221) (2008); Bryant v. State, 282 Ga. 631, 634 (1) (651 SE2d 718) (2007).

2. Hutchins contends that her trial counsel provided ineffective assistance by, inter alia, failing to object to inadmissible bad character evidence. We agree, and, for the following reasons, we reverse.

Under Strickland v. Washington, 466 U. S. 668 (104 SCt 2052, 80 LE2d 674) (1984), “[t]o prevail on a claim of ineffective assistance of trial counsel, [Hutchins] bears the burden of showing both that trial counsel was deficient and that [she] was prejudiced by the deficiency.” (Citations omitted.) Welbon v. State, 278 Ga. 312, 313 (2) (602 SE2d 610) (2004). Concerning the first prong of the Strickland test, Hutchins “must overcome the strong presumption that counsel’s conduct falls within the broad range of reasonable professional conduct.” (Citations and punctuation omitted.) Morgan v. State, 275 Ga. 222, 227 (10) (564 SE2d 192) (2002). In order to show the requisite prejudice, Hutchins “must show that there is a reasonable probability that, but for counsel’s unprofessional errors, the result of the proceeding would have been different[.]” (Citations and punctuation omitted.) Miller v. State, 285 Ga. 285, 286 (676 SE2d 173) (2009). When reviewing an ineffective assistance claim, “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 omitted.) Suggs v. State, 272 Ga. 85, 88 (4) (526 SE2d 347) (2000).

The trial transcript reveals that the lead investigator testified at length during the State’s case-in-chief concerning Hutchins’ alleged involvement in a suspected illegal “pill ring.” Counsel interposed no objection to this testimony, and the record does not indicate that the State had been allowed to inquire into Hutchins’ participation in the pill ring as a similar transaction. The following excerpts from the lead investigator’s testimony were admitted without objection:

[I r] eceived information from the confidential informant that Amanda Hutchins was involved in obtaining ... oxycodone and OxyContin, which are very addictive prescription drugs, another huge problem in our county. The informant advised me that [Hutchins] was involved with the Youngs but did not know which Youngs it was. The Youngs are a family in our county. Some of them are involved in the movement of prescription drugs through our country. What they’ll do is they’ll go out and they’ll send out people to obtain a prescription from a doctor’s office for pain medication, pain clinics. They’ll go get the oxycodone, the roxys, which are, you can gain anywhere from $15 to $20 a pill on the street. It’s an opiate. It’s a Schedule II-level narcotic, which is very addictive. It’s very addictive to these people. . . .
I asked [Hutchins] to tell me about the people she was taking to the doctor fraudulently to obtain prescription medications. [She] told me that she had taken people to the doctor but did not know what they did with the pills after that, which again, I seen a lot of deception. I asked [Hutchins], whom do you take to the doctor. She said she took some of the Youngs. At that point, these particular people are of great interest to our narcotics unit.

The investigator also testified, without objection, as to his opinion of Hutchins’ truthfulness:

I can tell deception right away. I’ve had hundreds of hours of interviews, interrogation schools. [Hutchins] was being deceptive. She knew what was there. She knew where the chemicals were. She showed me where the stuff was. She knew what was going on in that house.

The investigator also testified that he believed that Hutchins was aware of drug sales being made from the Calmeses’s home, and he gave that opinion after reiterating that he had heard that Hutchins was part of a pill ring.

The prosecutor also thoroughly cross-examined Hutchins on her involvement in what the State characterized as a “massive narcotics pill ring.” During cross-examination, the prosecutor stated that the confidential informant had implicated Hutchins in the pill ring, asserted that Hutchins had bought pills at the behest of a specific person, and argued that Hutchins knew that some of these pills were being distributed to her mother. When the prosecutor asked Hutchins whether she knew that members of the pill ring were involved in criminal activity, defense counsel finally objected. Given that evidence concerning the pill ring had already been admitted, however, the court allowed the question but instructed the prosecutor not to state whether Hutchins’ alleged involvement in the pill ring expressly constituted criminal activity.

Statement that Hutchins participated in a conspiracy to fraudulently obtain prescription narcotics and to resell them in a street-level drug operation was objectionable as it was improper character evidence. See Johnson v. State, 275 Ga. 508, 510 (3) (570 SE2d 292) (2002) (The trial court erred in admitting evidence of prior independent crimes when the defendant had not placed his character in issue and when the prior crimes had not been admitted as similar transactions.); Doyal v. State, 287 Ga. App. 667, 669 (2) (653 SE2d 52) (2007) (The trial court erred in admitting an officer’s testimony that he had received complaints that the defendant was selling methamphetamine as that evidence improperly placed the defendant’s character in issue.). At the hearing on Hutchins’ motion for new trial, Hutchins’ trial counsel offered no strategic basis for admitting the evidence; rather she testified that she did not think the evidence was harmful. As there was no strategic reason for failing to object to this bad character evidence, counsel’s performance was deficient, and the trial court erred in holding otherwise. See Emilio v. State, 263 Ga. App. 604, 605 (1) (588 SE2d 797) (2003) (Counsel was deficient in eliciting statements accusing the defendant of trafficking, statements which constituted bad character evidence.); Harris v. State, 251 Ga. App. 879, 881 (3) (555 SE2d 485) (2001) (Counsel was deficient in failing to object to testimony that defendant had been charged with robbery in another jurisdiction.). Accordingly, we now turn to the second prong of Hutchins’ ineffective assistance claim.

We note that, in her closing argument, the prosecutor explained the reason she solicited the evidence about the pill ring:

And I had a reason. And it goes to this case, and it goes hand in hand with this case because it was about getting pills, getting pills for someone who is highly suspected of running an illegal operation and then just not asking any questions about it. Getting paid for it. Not going to ask any questions. Not involved. I don’t know. What did she do in this case? Yeah, I got Pseudoephedrine, yeah. . . .
No, this is not about drug addicts. This is about drug dealers, and this is about a meth lab, and this is about the fact that [Hutchins] knew it was there.

It is clear that the prosecution used the evidence concerning Hutchins’ involvement in the alleged pill ring to cast her in the role of a drug dealer with an intimate knowledge of the drug trade gleaned from personal experience. Such evidence also demonstrates, as the prosecutor argued, that Hutchins had a propensity to commit the type of crime for which she was charged — buying pills for someone else. Thus, the evidence severely undermined Hutchins’ credibility with respect to key issues at trial: whether she knew that the pseudoephedrine pills and other chemicals in the house were being used by her mother to manufacture methamphetamine and, given that knowledge, whether she intentionally permitted her child to be present where methamphetamine was being manufactured. Given that the evidence in this case was circumstantial and that the jury’s finding of guilt turned on what Hutchins reasonably should have deduced from the evidence recovered from the home, we must conclude that there is a reasonable probability that the outcome would have been different had it not been for trial counsel’s deficient performance in failing to exclude this bad character evidence. See Emilio v. State, 263 Ga. App. at 605 (1) (There was a reasonable probability that the outcome would have been different had it not been for trial counsel’s deficient performance in allowing the jury to hear that the defendant had outstanding criminal warrants.); Harris v. State, 251 Ga. App. at 881 (3) (In a case that turned largely on the credibility of the defendant, there was a reasonable probability that the outcome would have been different had it not been for counsel’s deficient performance in allowing in evidence of the defendant’s criminal history.). See also Merritt v. State, 255 Ga. 459, 460 (2) (339 SE2d 594) (1986) (“We strongly disapprove the gratuitous introduction of irrelevant and prejudicial [character evidence], particularly where, as here, the prejudicial testimony is elicited from a witness by the prosecutor.”).

3. Hutchins contends the trial court erred in giving a charge on wilful blindness. Although we have reversed Hutchins’ convictions on other grounds, we address this claim of error because it may recur on retrial. The court charged the jury as follows:

Decided March 14, 2014.

Travis A. Williams, H. Bradford Morris, Jr., for appellant.

Layla H. Zon, District Attorney, M. Reid Peacock, Assistant District Attorney, for appellee.

The element of knowledge, intent, may be satisfied by inferences drawn from proof that a defendant deliberately closed her eyes to what would otherwise have been obvious to her. A finding beyond a reasonable doubt of conscious purpose to avoid enlightenment would permit an inference of knowledge. Stated another way, a defendant’s knowledge of a fact may be inferred from willful blindness to the existence of a fact. Again, whether or not you draw any such inference is a matter solely within your discretion.

As we have held, a charge on wilful blindness or deliberate ignorance is

appropriate when the facts support the inference that the defendant was aware of a high probability of the existence of the fact in question and purposely contrived to avoid learning all of the facts in order to have a defense in the event of a subsequent prosecution. A court should not instruct a jury on deliberate ignorance when the evidence points to actual knowledge or no knowledge on the defendant’s part.

(Footnotes omitted.) Williamson v. State, 300 Ga. App. 538, 549 (6) (685 SE2d 784) (2009). Further, “[t]he deliberate ignorance instruction, when appropriate, provides another way to satisfy the knowledge element of a criminal offense, not the intent element.” (Footnote omitted.) Id. at 549-550 (6). Consequently, a charge on deliberate ignorance that equates knowledge with intent, or which tends to confuse those concepts, is erroneous. Id. Although the record before us contains some evidence which would support a deliberate ignorance or wilful blindness charge, giving the instant charge was error under the circumstances because it contained language which could have misled the jury into equating knowledge with intent. See id.

Judgment reversed.

Phipps, C. J., and Branch, J., concur.

       The State alleged that she violated this Code section by possessing pseudoephedrine tablets and other items “with the intent to knowingly convey” them to others “for use in the manufacture of methamphetamine].]”

       The State alleged that she violated this Code section when she “did intentionally cause and permit a child under the age of 18 years] ] to be present where methamphetamine was being manufactured].]”

       Because this case was tried before January 1, 2013, our new Evidence Code does not apply. See Ga. L. 2011, pp. 99, 214, § 101. We note that this evidentiary rule is now found at OCGA § 24-14-6.

        Jackson v. Virginia, 443 U. S. at 319 (III) (B).

       We note that the State presented the testimony of the lead investigator, who testified that Hutchins was rumored to be part of a “pill ring” that had obtained narcotics for others. Trial counsel failed to object to the admission of that testimony, and counsel’s alleged deficient performance forms the basis of one of Hutchins’ claims of error. See Division 2, infra. However, because that evidence should have been excluded, we do not include it in the statement of relevant facts.

       We note that the State could have indicted Hutchins for intentionally causing or permitting a child “to be present where any person is ... possessing a chemical substance with the intent to manufacture methamphetamine,” as provided in OCGA § 16-5-73 (b) (1), but that the State chose not to do so.


author: Dillard, Judge.

text:
    A13A2077.
    BERINGER v. EMORY.
    (756 SE2d 329)
   Dillard, Judge.

Marybeth S. Beringer appeals the trial court’s order holding her in contempt of a child-custody and visitation agreement with Jimmy R. Emory, a separate but related order to pay Emory’s attorney fees, and a later order denying her motion for a copy of the contempt-hearing transcript. We agree with Beringer that the trial court erred in denying her a copy of the contempt-hearing transcript. And because we should not resolve challenges to the other orders without the transcript, we reverse the transcript order and remand the case to the trial court.

The record reflects that this is the second appearance of this case before this Court. In September 2012, Emory filed a motion for contempt against Beringer, contending that she was in violation of a provision in the parties’ child-custody and visitation agreement that prohibited the presence of unrelated, adult overnight guests of the opposite sex while the child was also present. Emory later amended the motion for contempt to further allege that Beringer was sending inappropriate text messages to the child. And on October 10, 2012, the trial court held an evidentiary hearing on Emory’s motion and request for attorney fees and, that same day, issued a final order holding Beringer in contempt, and also issued a separate “Floyd order” on attorney fees. Specifically, the trial court found that Beringer violated the clause prohibiting overnight guests of the opposite sex and sent inappropriate text messages to the child, and, pursuant to OCGA § 19-6-2, ordered Beringer to pay Emory’s attorney fees and other expenses of litigation. Additionally, the trial court modified the parties’ visitation provisions.

On November 5, 2012, Beringer filed an application for discretionary appeal with this Court, which was granted on November 21, 2012. Thereafter, Beringer filed a notice of appeal in the lower court and, additionally, a motion to compel production of the contempt-hearing transcript. However, the trial court never ruled upon Beringer’s motion, and her appeal was docketed in this Court as Case No. A13A1031 on January 23, 2013. Three days prior to docketing, Beringer filed with this Court a motion to compel production of the contempt-hearing transcript.

The record in Case No. A13A1031 contained a brief excerpt from the contempt hearing, which indicated that Emory’s counsel represented to the trial court that Beringer elected not to participate in takedown of the proceeding. The excerpt, in its entirety, read as follows:

THE COURT: We have Emory versus Beringer. Let’s have opening statements.
[EMORY’S COUNSEL]: Ready, your honor.
[BERINGER’S COUNSEL]: Ready, your honor.
[EMORY’S COUNSEL]: I’d like to note for the record that we have requested takedown and Ms. Beringer has elected not to participate in the takedown.

Due to the fact that the excerpt in the record did not “show that the trial court made any ruling on this issue” at the hearing, and because the trial court was best suited to make a determination of same, we remanded the case, in the prior appeal, to the lower court to determine whether a ruling on the matter had been made.

The case has now returned to us following remand to the trial court, that court having denied the motion to compel production of the contempt-hearing transcript. And in denying the motion on remand, the trial court ruled as follows:

At the commencement of the hearing in this matter, both parties were represented by counsel. A court reporter was present. Immediately prior to the commencement of the proceedings and in the presence of the trial judge, the court reporter was requested by [Emory’s] counsel to take down the proceedings. [Beringer’s] counsel was asked by the court reporter if she wished to share in the takedown and she expressly declined. [Emory’s] counsel accurately recited the express refusal on the record at the commencement of the hearing, as evidenced by the transcript excerpt filed in support of [Emory’s] brief filed in opposition to the present motion.

Beringer now appeals the orders made pursuant to the October 2012 contempt hearing, as well as the trial court’s post-remand denial of her motion to compel production of the contempt-hearing transcript.

At the outset, we note that in civil cases, “a court reporter and official transcript are not generally required, although a transcript may be needed to obtain full appellate review.” And after notes from a proceeding have been transcribed, “the court reporter must certify the transcript and file the original and one copy with the clerk of the trial court.” Then, upon filing, the transcript becomes “a public record that is equally available to all parties.” Nevertheless, a party who elects at the start of a proceeding to “solely bear the takedown costs for preparing a transcript may keep another party from obtaining the transcript if, at the start of those proceedings, the other party expressly refuses to participate in the takedown costs.”

To foreclose a losing party’s access to a proceeding transcript for failure to participate in takedown, the party seeking forfeiture must not only “make the express refusal known to the judge before trial,” but must also “invoke a ruling of the trial judge at the commencement of the proceedings.” And as set forth in our order remanding this case to the trial court, Emory, as the party seeking a forfeiture of Beringer’s right to a transcript, had the burden of demonstrating that those requirements had indeed been met.

Here, the trial court’s post-remand order confirms that, as represented on the record by Emory’s counsel, an express refusal was made by Beringer in response to an inquiry by the court reporter in open court prior to commencement of the proceedings. Nevertheless, we remanded to the trial court because it was better suited to make a determination on the second requirement: whether a ruling was made on the issue of Beringer’s refusal to participate in takedown. And following remand, the court’s order makes no mention of any such ruling having been made. As such, because Emory failed to invoke a ruling, the trial court erred in denying Beringer’s motion to compel production of the transcript.

Our Supreme Court has been explicit that the requirement for forfeiture of access to a transcript is twofold. Indeed, as recently as 2011 in Kent v. Kent, the Supreme Court of Georgia held that a trial court erred in denying a party’s request to obtain a transcript when the court “did not rule at the beginning of the trial that [the party] had expressly refused to share payment for the takedown . . . .” And in so holding, the Supreme Court disapproved of cases that either affirmed denial of access to a proceeding transcript without a ruling by the trial court or failed to consider this additional requirement.

In light of our Supreme Court’s established bright-line procedural rule and its explicit disapproval of cases that did not inquire as to whether, in addition to an express refusal to participate in take-down, the trial court made a ruling on same, we hold that the trial court in the case sub judice erred in denying Beringer’s motion to compel a copy of the contempt-hearing transcript. And because the trial court erred in denying Beringer’s motion for a transcript of the contempt hearing, she was unable to cite the transcript in support of her challenges to the contempt order and attorney fees order. Accordingly, we reverse the transcript order and remand the case to allow entry of an appropriate order granting Beringer a transcript, after which she may seek review of the orders holding her in contempt and requiring payment of Emory’s attorney fees.

Decided March 14, 2014.

Quoc Van, for appellant.

Stephen M. Worrall, for appellee.

Judgment reversed and case remanded with direction.

Andrews, P. J., and McMillian, J., concur.

        See Floyd v. Floyd, 247 Ga. 551, 553 (1) (277 SE2d 658) (1981) (“We hold that where, on motion for contempt, an order is entered requiring payment of sums past due, a person can be ordered to jail by a subsequent order, entered after hearing, finding that the prior order has been disobeyed.”).

       Although Beringer’s prior appeal was originally filed via the discretionary-appeal procedures, we granted her application because Beringer had the right to a direct appeal. See OCGA § 5-6-35 (j); see also OCGA § 5-6-34 (a). Thus, contrary to assertions in Emory’s brief in the case sub judice, the record in the prior appeal did not—and does not—exclusively exist in the form of an application. And at the time of addressing the current appeal, this Court still retained the record from the prior appeal, the remittitur in that case having been issued on March 4, 2013, and filed in the lower court on March 18,2013. See Court of Appeals Rule 42 (b) (“One year after the remittitur has issued, the party paying for the record and transcript may claim them. Otherwise, all records, record appendices and transcripts shall be recycled, unless the parties notify the Clerk, in writing, that the record should be maintained, and the reason therefore.”). We do, however, take this opportunity to remind parties that if they “anticipate that the case will return to the Court or be appealed to the United States Supreme Court, the parties must notify the Clerk, in writing, to hold the record.” Court of Appeals Rule 42 (c).

        Norman v. Doby, 321 Ga.App. 126, 130 (3) (741 SE2d 293) (2013) (punctuation omitted).

        Id. (punctuation omitted).

        Id. (punctuation omitted).

        Id.; see Harrington v. Harrington, 224 Ga. 305, 305-06 (2) (161 SE2d 862) (1968).

        Giddings v. Starks, 240 Ga. 496, 496 (241 SE2d 208) (1978) (per curiam).

        Id. at 497.

        See Moore v. Ctr. Ct. Sports & Fitness, 289 Ga. App. 596, 600 (1) (657 SE2d 548) (2008). Cf. Giddings, 240 Ga. at 497 (“If a party wishes to rely upon the Harrington rule, he must invoke a ruling of the trial judge at the commencement of the proceedings, that his opponent has expressly refused to participate in the costs of reporting.”).

       See supra notes 7-8 and accompanying text.

       289 Ga. 821 (716 SE2d 212) (2011).

        Id. at 824 (2) (b) (emphasis supplied).

        Id. at 825-26 &n.1 (disapproving of BMW Bank of N.Am. v. Short, 300 Ga.App. 430 (685 SE2d 390) (2009); Ruffin v. Banks, 249 Ga. App. 297 (548 SE2d 61) (2001); Tow v. Reed, 180 Ga. App. 609 (349 SE2d 829) (1986)); see BMW Bank of N. Am., 300 Ga. App. at 432 (1) (affirming denial of access to transcript when “the arbitrator never ruled on the question”); Ruffin, 249 Ga. App. at 299 & n.5 (failing to mention whether trial court ruled at commencement of proceeding that party had expressly refused to participate in takedown costs); Tow, 180 Ga. App. at 610 (failing to address whether trial court ruled at commencement of proceeding that party had expressly refused to participate in takedown costs); see also Moore, 289 Ga. App. at 600 (1) n.6 (noting that Ruffin and Tow appeared to be inconsistent with Supreme Court precedent by failing to consider whether the trial court ruled at the commencement of the proceedings that the relevant party had expressly refused to participate in takedown costs).

        See Kent, 289 Ga. at 826 (3).

        See id. We further note that the trial court may, if it so desires, require Beringer to pay for the transcript and the court-reporter services that produce it. See id. at 825 (2) (c) (“[T]he court may of course require the party seeking a transcript after the proceeding to pay for it and the court reporter services that produce it. . . .”).