author: MILLER, Presiding Judge.

text:
    A16A1994.
    KAMARA v. HENSON et al.
    (796 SE2d 496)
   MILLER, Presiding Judge.

Joyce Kamara sued Podiatric Surgeon Mark Henson, along with his practice, The Outpatient Center for Foot Surgery, Inc., and his corporation, Mark J. Henson, DPM, PC. (collectively “Defendants”), alleging that Defendants were responsible for negligently performing surgical procedures on Kamara’s feet in 2011. Defendants moved for summary judgment on the sole ground of judicial estoppel, contending that Kamara’s claims were barred because she failed to list them as an asset in her Chapter 7 Bankruptcy Petition in 2012. Kamara then filed a motion to disqualify Defendants’ lead attorney and his firm (collectively “Defense Counsel”), on the ground that Defense Counsel had represented Kamara’s expert in previous medical malpractice cases more than 20 years ago.

The trial court granted Defendants’ motion for summary judgment and denied Kamara’s motion to disqualify Defense Counsel. After a thorough review of the record, we reverse the grant of summary judgment to Defendants because Kamara is not judicially estopped from bringing her claims against Defendants. We affirm the trial court’s denial of Kamara’s motion to disqualify Defense Counsel, however, because the trial court did not abuse its discretion in denying the motion in the absence of an actual conflict of interest or actual impropriety.

Summary judgment is proper when there is no genuine issue of material fact and the movant is entitled to judgment as a matter of law. A de novo standard of review applies to an appeal from a [grant or] denial of summary judgment, and we view the evidence, and all reasonable conclusions and inferences drawn from it, in the light most favorable to the nonmovant.

(Citations omitted.) GEICO Gen. Ins. Co. v. Wright, 299 Ga. App. 280, 281 (682 SE2d 369) (2009).

So viewed, the limited record before us shows that Kamara first sought treatment from Dr. Henson in April 2010, and Dr. Henson performed surgeries on Kamara’s feet on February 23, 2011 and March 9, 2011. Several months later, in November 2011, Kamara consulted another podiatrist for a second opinion, and shortly thereafter, she retained counsel.

In March 2012, Kamara filed a Chapter 7 Bankruptcy Petition in the United States Bankruptcy Court for the Northern District of Georgia. Kamara listed an unrelated $10,000 personal injury claim in her schedule of personal property, but she did not list her claims against Defendants. In August 2012, Kamara obtained an expert affidavit from Podiatric Surgeon Mel J. Colon (“Kamara’s Expert”), and she filed the instant medical malpractice and negligence suit against Defendants in January 2013. After Defendants filed their motion for summary judgment on the sole ground of judicial estoppel, butbefore entry ofthe trial court’s summaryjudgment order, Kamara amended her bankruptcy petition to include her claims against Defendants.

1. Kamara contends that the trial court erred in granting summary judgment to the Defendants on the ground of judicial estoppel because she successfully amended her bankruptcy petition to include her claims. We agree.

The essential function and justification of judicial estop-pel is to prevent the use of intentional self-contradiction as a means of obtaining unfair advantage in a forum provided for suitors seeking justice. The primary purpose of the doctrine is not to protect the litigants, but to protect the integrity of the judiciary. The doctrine is directed against those who would attempt to manipulate the court system through the calculated assertion of divergent sworn positions in judicial proceedings and is designed to prevent parties from making a mockery of justice through inconsistent pleadings.

(Citations and punctuation omitted.) Johnson v. Trust Co. Bank, 223 Ga. App. 650, 651 (478 SE2d 629) (1996). Under Georgia law, “a debtor filing for bankruptcy under Chapter 7 . . . may voluntarily amend the schedule [of assets] to avoid consequences such as judicial estoppel.” (Citation omitted.) Benton v. Benton, 280 Ga. 468, 469 (629 SE2d 204) (2006).

Where a plaintiff, who initially fails to list a claim in her bankruptcy petition, successfully amends her asset schedules to include that claim, “it cannot be said as a matter of law that [the] plaintiff intentionally attempted to manipulate and deceive the court system, or that [she] was attempting to make a mockery of the system through inconsistent pleading.” Johnson, supra, 223 Ga. App. at 651. Moreover, where the plaintiff amends her bankruptcy asset schedules, this Court cannot say that the plaintiff’s present position is inconsistent with one that she successfully asserted in a prior proceeding. Id. at 652.

Here, the record shows, and the Defendants conceded during oral argument, that Kamara successfully amended her bankruptcy asset schedules, while her bankruptcy case was still open, to list her claims against the Defendants. Accordingly, Kamara is not attempting to manipulate the court system or take an inconsistent position and, therefore, judicial estoppel does not bar recovery on her claims. Johnson, supra, 223 Ga. App. at 651-652; Smalls v. Walker, 243 Ga. App. 453, 456 (2) (532 SE2d 420) (2000). Consequently, we reverse the trial court’s order granting summary judgment to the Defendants and remand this case for proceedings consistent with this opinion.

2. Kamara also contends that the trial court erred in denying her motion to disqualify Defense Counsel due to an irreconcilable conflict of interest. We disagree.

We review a trial court’s decision on a motion to disqualify counsel for an abuse of discretion, and we “must be mindful that the client’s right to counsel of choice is an important interest which requires that any curtailment of it be approached with great caution.” (Citations omitted.) Cardinal Robotics v. Moody, 287 Ga. 18, 22 (694 SE2d 346) (2010). Accordingly, we look to the facts “peculiar to [this] case in balancing the need to ensure ethical conduct on the part of the lawyers appearing before the court and other social interests, which include the litigant’s right to freely chosen counsel.” (Citation and punctuation omitted.) Duvall v. Bledsoe, 274 Ga. App. 256, 258 (617 SE2d 601) (2005). Moreover, we are mindful that disqualification of chosen counsel is an extraordinary remedy and should be granted sparingly Bernocchi v. Forcucci, 279 Ga. 460, 462 (2) (614 SE2d 775) (2005).

As the party seeking disqualification, [Kamara] had the burden to demonstrate to the [trial] court that disqualification was warranted, and [she] had to do so by showing that the matters embraced within the pending suit are substantially related to the matters or the cause of action involved in the previous representation. To be substantially related for the purpose of assessing the need for disqualification means that the former case in which the lawyer was involved has both material as well as logical connections to the pending litigation, and as noted, the party seeking the disqualification must establish the existence of such a substantial relationship.

(Citations and punctuation omitted; emphasis supplied.) Cardinal Robotics, supra, 287 Ga. at 21.

Here, it is undisputed that Defense Counsel’s representation of Kamara’s Expert occurred 20 to 25 years ago and involved a witness, rather than a party to the present action. Moreover, this is not a situation involving representation of a client against a former client “in an action that is of the same general subject matter, and grows out of an event that occurred during the time of such representation!)]” (Punctuation and emphasis omitted.) Crawford W. Long Mem. Hosp. of Emory Univ. v. Yerby, 258 Ga. 720, 722 (3) (373 SE2d 749) (1988). Nor is this a case involving a party’s insistence on the counsel of an attorney who has a previous or ongoing relationship with an opposing party See Wheat v. United States, 486 U. S. 153, 159 (II) (108 SCt 1692, 100 LE2d 140) (1988). Consequently, there is no evidence of harm and therefore no actual impropriety. See Outdoor Advertising Assn. of Ga. v. Garden Club of Ga., 272 Ga. 146, 151 (2) (c) (527 SE2d 856) (2000) (former Attorney General not disqualified under Yerby, supra, where action arose from event — new legislation — that occurred after Attorney General left office); Nat. Media Svcs. v. Thorp, 207 Ga. App. 70, 71 (1) (427 SE2d 61) (1993) (attorney not disqualified where instant action was neither substantially related to former representation nor related to same general subject matter of the former representation).

Kamara argues that Defense Counsel can use confidential information to attack her expert’s credibility for impeachment purposes. This argument amounts to no more than a bare assertion that Defense Counsel’s decades-old representation of Kamara’s Expert is substantially related to the present case, because Defense Counsel has no memory regarding his representation of Kamara’s Expert, and Defense Counsel retained no files or other information concerning the facts or details of that representation. This Court has held that a litigant’s “bare assertion of a substantial relationship between the lawsuits is insufficient to sustain its burden.” (Citation omitted.) Cardinal Robotics, supra, 287 Ga. at 22; Duvall, supra, 274 Ga. App. at 260 (same). Here, there is no material and logical connection between Defense Counsel’s decades-old representation of Kamara’s Expert and Kamara’s present action against Defendants. See Cardinal Robotics, supra, 287 Ga. at 21-22. Consequently, Kamara has not met her burden of establishing a substantial relationship between the present case and previous representation of Kamara’s Expert.

Although Kamara relies on the Georgia Rules of Professional Conduct to support her position, in the absence of evidence to the contrary, this Court will presume that our State Bar members have properly complied with the Bar’s disciplinary rules and ethical directives. Gene Thompson Lumber Co. v. Davis Parmer Lumber Co., 189 Ga. App. 573, 575 (1) (377 SE2d 15) (1988). Moreover, for Kamara to have standing to move to disqualify Defense Counsel on the basis of a conflict of interest under the Rules of Professional Conduct, “there must be a violation of the rules which is sufficiently severe to call in question the fair and efficient administration of justice, and [Kama-ra’s] counsel must provide substantiation.” (Citations omitted.) Bernocchi, supra, 279 Ga. at 463 (2). Kamara has failed to meet this standard.

Kamara specifically argues that Defense Counsel should have been disqualified under Rule 1.9 (a), which states that

[a] lawyer who has formerly represented a client in a matter shall not thereafter represent another person in the same or a substantially related matter in which that person’s interests are materially adverse to the interests of the former client unless the former client gives informed consent, confirmed in writing.

(Emphasis supplied.) Ga. Rules of Professional Conduct, Rule 1.9 (a).

Contrary to Kamara’s argument, Defense Counsel’s representation of Defendants in this case does not violate Rule 1.9. There is no substantial relationship between this case and Defense Counsel’s decades-old representation of Kamara’s Expert. Moreover, we note that Defense Counsel disclosed to Defendants the prior representation of Kamara’s Expert, as well as Defense Counsel’s duty of confidentiality to Kamara’s Expert, and Defense Counsel informed Defendants that Defense Counsel is precluded from using any confidential information obtained from Kamara’s Expert in the present suit. Absent an actual conflict of interest or actual impropriety, we cannot say that the trial court abused its discretion in denying Kamara’s motion to disqualify Defense Counsel. See Blumenfeld v. Borenstein, 247 Ga. 406, 409-410 (276 SE2d 607) (1981) (mere appearance of impropriety is an insufficient ground for disqualification). Consequently, we affirm the trial court’s judgment in this regard.

Decided January 27, 2017.

Geerdes & Associates, Holly L. Geerdes, Thomas M. West, for appellant.

Nall & Miller, Robert L. Goldstucker, Patrick N. Arndt, for appellees.

In sum, we affirm the denial of Kamara’s motion to disqualify Defense Counsel, because there is no actual conflict of interest or actual impropriety. We reverse the grant of summary judgment to the Defendants on the limited ground of judicial estoppel, because Kamara successfully amended her bankruptcy petition and, therefore, is not judicially estopped from bringing her claims against Defendants. Finally, we remand this case for proceedings consistent with this opinion.

Judgment affirmed in part and reversed in part, and case remanded.

McFadden, P. J., and McMillian, J., concur.

       Kamara’s motion also sought, in the alternative, to strike Defendants’ answers and stay discovery.

       The appellate record contains a copy of Kamara’s amended asset schedules, and the parties conceded at oral argument that Kamara successfully amended her bankruptcy petition to list her claims against the Defendants.

       Compare Southmark Corp. v. Trotter, Smith & Jacobs, 212 Ga. App. 454 (442 SE2d 265) (1994) (judicial estoppel barred plaintiff’s claims where plaintiff failed to disclose its claims in its amended schedules).

       Defense Counsel’s files relating to the representation of Kamara’s Expert were destroyed more than 13 years ago; Defense Counsel retained no files or other information concerning the facts or details of any of the cases involved in that representation; and Defense Counsel has no memory of the allegations made against Kamara’s Expert in any of the cases, the defense to those allegations, or the outcome of those cases.

       We also reject Kamara’s argument regarding an attorney’s duty of confidentiality under Rules 1.6 (Confidentiality of Information), 1.7 (Conflict of Interest), and 1.8 (Prohibited Transactions) . As set forth above, Kamara is neither a current, nor a former client of Defense Counsel, and there is no actual impropriety or conflict of interest in this case.


source: Caselaw Access Project

author: Andrews, Judge.

license: Public Domain

text:
    A16A1504.
    MAXEY v. SAPP et al.
    (796 SE2d 740)
   Andrews, Judge.

Lori S. Maxey sued her siblings, sister-in-law, and niece, seeking to impose a constructive trust on real property formerly belonging to her mother. Following the close of evidence at trial, the trial court directed a verdict for the defendants. Maxey appeals, asserting that questions of fact remain for resolution by the jury. We agree and reverse.

Atrial court properly grants a motion for directed verdict where “there is no conflict in the evidence as to any material issue and the evidence introduced, with all reasonable deductions therefrom, . . . demand[s] a particular verdict.” Troutman v. Troutman, 297 Ga. App. 62 (676 SE2d 787) (2009) (citation and punctuation omitted). We review a directed verdict ruling under the “any evidence” standard, construing the evidence most favorably to the nonmoving party See id.

So viewed, the evidence shows that Dewitt Hugh Sapp, Sr. (“Hugh Sr.”) and Gloria June Sapp had five children: Maxey, Dewitt Hugh, Jr. (“Buddy”), Larry, Ann, and Karen. In 1975, Hugh Sr. and Gloria executed a joint will providing that if one of them died, the survivor would inherit the other’s property. The will further stated: “Upon the death of the survivor of either of us the remainder of our estate, if any, real and personal, is devised and bequeathed to our children, share and share alike, among our five children.”

During his lifetime, Hugh Sr. amassed an estate that included ownership of all stock in Sapp’s Saw Shop, Inc., a business he began in 1961, and five tracts of real property Hugh Sr. died in 2001, leaving the business and the land to his wife. Gloria subsequently conveyed her interest in the corporation to Larry, although she remained a corporate officer and its registered agent.

In June 2007, a Sapp’s Saw Shop employee sued Larry and the corporation, alleging that Larry had invaded her privacy and caused her emotional distress by installing surveillance equipment in an employee bathroom. Gloria, who was seriously ill with cancer and undergoing treatment at the time, was upset by the lawsuit, expressing concern that her property might be lost through the litigation. Shortly after the legal proceedings began, Gloria transferred the five tracts of land that she had inherited from Hugh Sr. to Buddy and his wife, Sharon Sapp. Approximately six months later, on December 12, 2007, Gloria died.

Maxey learned about the property transfer while meeting with her siblings a few days after Gloria’s funeral. Buddy told her that Gloria had transferred the land to protect it from the litigation and that once “the lawsuit was over... [the property] would be divided up equally” amongst the siblings, as their mother had intended. The siblings then agreed on the property division, identifying parcels for each individual.

Several years later — after the lawsuit had been dismissed — Buddy and Sharon deeded to Karen and Ann the parcels of property that they had selected. Karen then deeded her property to her daughter, Kara. No transfer, however, was made to Maxey, and the 17 acres earmarked for her remained in Buddy’s name. According to Buddy, Maxey was causing “trouble,” threatening to hire a lawyer if he did not transfer the property, and he refused to “convey under threats.”

Maxey subsequently filed suit, seeking a declaration that Buddy and Sharon held the five tracts in a constructive trust for the benefit of Gloria’s children. She also requested that the deeds conveying property to Ann, Karen, and Kara be cancelled so that the land could be distributed properly The case proceeded to trial, and the defendants moved for a directed verdict after the close of evidence, asserting that Maxey had not proven her constructive trust theory The trial court agreed, directed a verdict for the defense, and later denied Maxey’s motion for new trial. This appeal followed.

“A constructive trust is a trust implied whenever the circumstances are such that the person holding legal title to property, either from fraud or otherwise, cannot enjoy the beneficial interest in the property without violating some established principle of equity.” OCGA § 53-12-132 (a). In other words, equity does not allow “one with a legal interest in a piece of property a windfall recovery when the beneficial interest should flow to another.” Ansley v. Raczka-Long, 293 Ga. 138, 141 (3) (744 SE2d 55) (2013) (citation and punctuation omitted). Parol evidence regarding the nature of the transaction, the circumstances, and the parties’ conduct maybe presented to support a constructive trust finding. See Edwards v. Edwards, 267 Ga. 780, 781 (2) (482 SE2d 701) (1997). Generally, however, a constructive trust cannot be imposed on real property “based solely on a broken verbal promise to hold or transfer the land for the benefit of another.” Parris v. Leifels, 280 Ga. 135, 136 (625 SE2d 390) (2006). A broken verbal promise may form the basis for a constructive trust on land only “if it was fraudulently made with the intention of being broken and for the purpose of thereby obtaining title.” Id. (citation and punctuation omitted).

In directing a defense verdict, the trial court concluded that Maxey had not established the fraud necessary to impose a constructive trust based on a broken verbal promise. Maxey’s allegations, however, did not rest solely on evidence that Buddy and Sharon broke a promise to hold the property for the siblings’ benefit. She also offered evidence that Gloria had always intended for her children to share in the property and transferred it to Buddy simply to protect it from a legal judgment. And testimony supported the conclusion that the siblings agreed on an appropriate distribution plan after Gloria’s death, a plan that Buddy followed with respect to Karen and Ann but refused to apply to Maxey because he thought she was causing trouble for the family

These circumstances parallel those confronted by our Supreme Court in Edwards, supra. The grandmother in Edwards intended to bequeath real property to her three grandsons, but conveyed the land to her daughter to qualify for government assistance benefits. Following the grandmother’s death, the daughter deeded parcels of the property to two of the grandsons. The land intended for the third grandson, however, included the house in which the daughter and her husband lived, and the parties had agreed that the third grandson would receive this property only after their death. The daughter eventually died, leaving the property to her husband, who remarried and put the land up for sale, spurring litigation. Id. at 780-781.

The Supreme Court found that material issues of fact remained as to whether the daughter and her husband had agreed to hold the property in trust for the third grandson, noting that “[t]o allow the [husband] to sell the property while holding it for [the grandson’s] ultimate benefit would result in the [husband’s] unjust enrichment.” Edwards, supra at 782 (2). Although two justices dissented, asserting that the grandson had not shown fraud, id. at 783-784, the majority found the evidence sufficient to sustain a constructive trust theory See id. at 782 (2). The evidence presented in this case — particularly the circumstances of the transfer, Gloria’s desire that the property be divided among the siblings, and the distributions to Karen and Ann — similarly supports the theory. See id.

Moreover, even if Maxey’s constructive trust allegations were based solely on a broken verbal promise, issues of fact remain regarding fraud and Buddy’s intent to perform. According to Buddy, his mother authorized him to cut Maxey out of the distribution. He testified that he had the right “not to give [Maxey] any land if she caused trouble,” and he told relatives that she would get nothing if she took him to court. Maxey, however, offered contrary evidence regarding Gloria’s intentions, including that she wanted her children to share equally in the property

This conflicting evidence raises factual questions as to whether Buddy agreed to hold the land in trust for his siblings, but planned to distribute it according to his own wishes, rather than his mother’s instructions. The trial court, therefore, erred in directing a verdict for the defendants. See Hood v. Smoak, 271 Ga. 86, 88 (516 SE2d 301) (1999) (trial court erred in granting directed verdict on constructive trust claim where evidence authorized jury to conclude that defendant fraudulently induced plaintiff to put property in her name with no intention of honoring their agreement); see also ASC Constr. Equip. USA v. City Commercial Real Estate, 303 Ga. App. 309, 315 (3) (693 SE2d 559) (2010) (“Because fraud is inherently subtle, [it] may be proved by slight circumstances, and whether a misrepresentation is fraudulent and intended to deceive is generally a jury question.”) (citation and punctuation omitted).

Decided February 1, 2017.

Hugh J. McCullough, for appellant.

Ligón, Lindberg & Lanier, C. Foster Lindberg, for appellees.

Judgment reversed.

Doyle, C. J., and Ray, J., concur.

       The Supreme Court’s “equity jurisdiction is not invoked if the issue raised on appeal involves only whether the evidence is sufficient to authorize the imposition of an implied trust.”
        Robertson v. Robertson, 333 Ga. App. 864, 867, n. 4 (778 SE2d 6) (2015). Maxey, therefore, properly filed her appeal in this Court. See id.


author: Bethel, Judge.

text:
    A16A1573.
    OKLAHOMA GAMING VENTURES, INC. v. PCT HOLDINGS, LLC.
    (796 SE2d 752)
   Bethel, Judge.

Oklahoma Gaming Ventures, Inc. (“Oklahoma Gaming”), appeals from the final judgment entered against it following a bench trial. In its final judgment, the trial court ordered Oklahoma Gaming to pay amounts past-due and owing under contract and to remove PCT Holdings’ software from its gaming machines. The trial court also found PCT Holdings’ termination of that contract proper. Oklahoma Gaming argues that the trial court should have found that PCT Holdings waived the applicable contractual payment provision through its conduct, and therefore the trial court erred in finding PCT Holdings’ termination of the contract justified. We disagree and affirm because under the evidence, the trial judge was authorized to find that the requirements of a mutual disregard of the contract were not present.

“On appeal from the entry of judgment in a bench trial, the evidence must be viewed in the light most favorable to the trial court’s findings of fact.” Realty Lenders v. Levine, 286 Ga. App. 326, 326-327 (649 SE2d 333) (2007). So viewed, the trial record reflects that PCT Holdings owned a specific type of gaming software, which had originally belonged to its predecessor-in-interest, Kodiak Gaming Ventures (“Kodiak Gaming”). Kodiak Gaming entered into agreements with Oklahoma Gaming that permitted Oklahoma Gaming to use Kodiak Gaming’s slot machine software and to place machines loaded with the software at various locations. Disputes between Oklahoma Gaming and Kodiak Gaming eventually arose, which led the two parties to sign a settlement and release agreement in 2009. The parties later began feuding once more — this time over payments and other alleged defaults — culminating in Kodiak Gaming demanding full payment of past-due amounts and instructing Oklahoma Gaming to stop using its software. Several months later and after not receiving the requested amounts due, Kodiak Gaming terminated the agreements with Oklahoma Gaming. After acquiring the assets of Kodiak Gaming, PCT Holdings brought suit against Oklahoma Gaming. Oklahoma Gaming made a partial payment of the amount due, and the claims brought by PCT Holdings were eventually dismissed without prejudice, and then refiled and consolidated with the initial action. In the consolidated action, PCT Holdings contends that Oklahoma Gaming breached the contract between the parties, prompting PCT Holdings to terminate the contract, and operated the machines for a broader period of time than had initially been disclosed to PCT Holdings so that additional revenue was due to PCT Holdings. PCT Holdings further argued that to the extent Oklahoma Gaming operated the machines outside of the license agreement, they were entitled to an injunction forcing Oklahoma Gaming to stop using PCT Holdings’ software.

The trial court awarded $4,910.55 to PCT Holdings for the additional months Oklahoma Gaming had operated the software and found that although PCT Holdings accepted late payments from Oklahoma Gaming, there was no mutual departure from the terms of the contract specifying the time for payment. Rather, PCT Holdings regularly requested timely payment. The trial court also awarded injunctive relief to PCT Holdings, ordering Oklahoma Gaming to remove PCT Holdings’ software from its machines. This appeal followed.

Oklahoma Gaming argues that the trial court should have found that the parties mutually disregarded the payment provisions of the applicable contract because the record is devoid of evidence showing that PCT Holdings insisted on timely payment. In support of its argument, Oklahoma Gaming relies on OCGA § 13-4-4.

OCGA § 13-4-4 provides:

Where parties, in the course of the execution of a contract, depart from its terms and pay or receive money under such departure, before either can recover for failure to pursue the letter of the agreement, reasonable notice must be given to the other of intention to rely on the exact terms of the agreement. The contract will be suspended by the departure until such notice.

Decided February 1, 2017.

Mark Ford, for appellant.

The Katz Law Firm, Samuel E. Katz, for appellee.

“For a departure from the terms of a contract to be sufficient to require notice by one of the parties of his or her intention to insist upon strict compliance with the contract, the departure must be mutual and intended, such that the parties have essentially a new agreement concerning the requirements of the original contract.” Duncan v. Lagunas, 253 Ga. 61, 62 (1) (316 SE2d 747) (1984) (citations omitted). Whether there has been a mutual departure from the terms of a contract is a question for the factfinder. See Continental Cas. Co. v. Union Camp Corp., 230 Ga. 8, 11 (1) (195 SE2d 417) (1973); Pierre v. St. Benedict’s Episcopal Day School, 324 Ga. App. 283, 286 (1) (750 SE2d 370) (2013); First Union Nat. Bank of Ga. v. Davies-Elliott, Inc., 215 Ga. App. 498, 504 (2) (452 SE2d 132) (1994).

The testimony before the trial court established that while PCT Holdings sometimes accepted late payment, the company also complained of their untimeliness and insisted on regular payments. Thus, under the evidence, the trial judge was authorized to find that the requirements of a mutual disregard of the contract were not present. See Phoenix Air Conditioning Co. v. Towne House Developers, 124 Ga. App. 782, 785 (186 SE2d 429) (1971).

Judgment affirmed.

Dillard, P. J., and Reese, J., concur.

       PCT Holdings filed a motion to dismiss this appeal, arguing that it was untimely under OCGA § 5-6-38. We disagree and deny that motion.

       We will refer to Kodiak Gaming Ventures as PCT Holdings for the remainder of this opinion.


author: DOYLE, Chief Judge.

text:
    A16A1782.
    ENTWISLE v. THE STATE.
    (796 SE2d 743)
   DOYLE, Chief Judge.

Following a jury trial, Joe Don Entwisle was convicted of first degree burglary, second degree burglary, criminal trespass, two counts of theft by taking, theft by receiving, computer invasion of privacy, and possession of a firearm by a convicted felon. Entwisle appeals the denial of his subsequent motion for new trial, arguing that trial counsel was ineffective; that the trial court erred by admitting his prior convictions without holding a hearing as required by OCGA § 24-4-403; and that the evidence was insufficient to support his conviction for first degree burglary For the reasons that follow, we reverse the denial of Entwisle’s motion for new trial as to computer invasion of privacy, and we affirm his remaining convictions.

On appeal, the evidence must be viewed in the light most favorable to support the verdict; indeed, the evidence is construed in favor of the verdict. [Entwisle] no longer enjoys a presumption of innocence. Moreover, an appellate court determines evidence sufficiency and does not weigh the evidence or determine witness credibility.

So viewed, the record shows that in early 2013, Entwisle approached the back door to Villa Hizer’s home, wearing a backpack, and told her that he lived on a nearby street and was looking for his missing dog. Hizer had never seen Entwisle during the 35 years she had lived in her home, nor had she seen a dog matching the description given by Entwisle. A few weeks later, on April 23, 2013, Hizer returned home after being out of town, entered through the carport door, which appeared to be unlocked, and noticed that certain doors were ajar and dresser drawers were on the floor. The following items were missing from Hizer’s home: watches, jewelry, baseball cards, a laptop computer, a gun, sterling silver lighters, and a piece of paper listing security codes. Hizer and police also discovered that a lock on one of her dining room windows had been broken, and there were pry marks on the outside of the window frame.

Also on April 23, 2013, police arrived at a location in response to a “fight call.” When they arrived, officers learned that one of the suspects had fled the scene in a green Ford heading toward Payne Road. Shortly thereafter, an officer spotted the Ford parked near what appeared to be an abandoned house on Payne Road. The officer saw that the back door to the house was ajar, leading him to believe that the fleeing suspect had entered the home.

The officer attempted to enter the home, but the door was blocked by a stove; he then saw Jennifer Rowland, later identified as Entwisle’s girlfriend, inside the house. While the officer spoke with Rowland, he heard another person running inside the house. The officer went around to the front door and knocked, and Rowland opened the door and squeezed through, making sure the officer could not see inside. While speaking with Rowland, the officer heard another person moving around inside the house, and Rowland eventually admitted her boyfriend, Entwisle, was inside. Rowland agreed to go inside; the officer, concerned for his safety, prevented her from closing the door and followed her into the house, where he found Entwisle hiding in a bedroom. While he was in the house, the officer observed two new bicycles in the kitchen, several suitcases, and many cardboard boxes. He applied for a warrant to search the house, but the warrant was denied.

Thereafter, Hizer purchased a new computer and attempted to restore her computer files using Carbonite, an online backup system she had installed on the laptop that was stolen from her home. While doing so, Hizer learned that someone had used the laptop the day after it was stolen and opened her Quicken files, which contained private financial data, including her credit card and bank account information.

An investigator obtained from Carbonite the IP addresses that were used to access Hizer’s computer, including one from the Kings Inn motel. The investigator then learned that Rowland had rented a room at that motel, and Entwisle had stayed there with her. The investigator also discovered that someone using Hizer’s computer after it was stolen had accessed an e-mail account containing Ent-wisle’s name.

After learning that Entwisle had been the subject of the investigation at the Payne Road house on the same day that Hizer’s home had been burglarized, the investigator obtained a search warrant for the Payne Road house, which warrant he executed on May 6, 2013. During the search, police recovered numerous stolen items, some of which belonged to Hizer and her husband, including jewelry, a watch, a piece of paper containing various security alarm codes, a pair of eyeglasses, and Hizer’s husband’s driver’s license. Police also found a crowbar, which the investigator later compared to and found consistent with the markings on Hizer’s window frame.

On March 9, 2013, at approximately 10:00 a.m., James McCrary and his wife returned to their home on Burnett Ferry Road in Floyd County after breakfast and discovered that the glass on the door leading from their patio to the garage was broken and scattered on the floor inside the garage. Later that afternoon, police arrived at Holland Drive in response to a 911 call reporting “suspicious activity.” Police found various items, including tools, strewn on the side of the roadway near the woods. An officer followed a trail through the woods, along which he found additional items on the ground, including a hand truck, until he reached the back of McCrary’s property on nearby Burnett Ferry Road. There, the officer saw a free-standing workshop behind McCrary’s property, and McCrary confirmed that the items found in the woods belonged to him and were taken from his workshop.

Entwisle’s girlfriend, Rowland, testified later at trial that at his request, she dropped Entwisle off on Holland Drive on March 9, 2013. Pursuant to his request, Rowland returned to the same spot approximately 15 minutes later, but she could not find Entwisle. While she was driving and looking for him, he called and advised her that he had seen police in the area; Rowland left the area after she received the call, saw the police cars, and “had a bad feeling.” Later that night, Rowland was at a friend’s house less than a mile from where she dropped Entwisle off on Holland Road when Entwisle arrived on a bike. Entwisle, who had multiple scratches, was angry with Rowland because she would not help him retrieve from the woods items that he said he got from a nearby home; Entwisle told her that he had to cover himself and the items with leaves when the police arrived in the area.

Following a jury trial, Entwisle was convicted of first degree burglary, second degree burglary, criminal trespass, two counts of theft by taking, theft by receiving, computer invasion of privacy, and possession of a firearm by a convicted felon. The trial court denied Entwisle’s motion for new trial, and this appeal followed.

1. Entwisle contends that he received ineffective assistance of counsel. We find no basis for reversal.

[T]o prevail on a claim of ineffective assistance of counsel, [Entwisle] must show both that counsel’s performance was deficient, and that the deficient performance was prejudicial to his defense. To meet the first prong of the required test, he must overcome the “strong presumption” that counsel’s performance fell within a wide range of reasonable professional conduct, and that counsel’s decisions were made in the exercise of reasonable professional judgment. The reasonableness of counsel’s conduct is examined from counsel’s perspective at the time of trial and under the particular circumstances of the case. To meet the second prong of the test, he must show that there is a reasonable probability that, absent any unprofessional errors on counsel’s part, the result of his trial would have been different. We accept the trial court’s factual findings and credibility determinations unless clearly erroneous, but we independently apply the legal principles to the facts.

(a) Trial counsel filed and argued a motion to suppress the evidence found at the Payne Road house. Entwisle argues, however, that trial counsel rendered ineffective assistance in doing so by “fail[ing] to argue any applicable law and surrendering] the issue so quickly as if no motion was filed at all.” Specifically, Entwisle contends that trial counsel should have argued that Entwisle had a protected Fourth Amendment interest in the Payne Road house based upon his status as a guest and because he was performing renovation work on the property in exchange for rent, making the property a workspace.

In his motion to suppress, Entwisle averred that: he lived on 107 Lindsey Terrace; the Payne Road house was owned by Delane Lynch, his sister-in-law; no one lived in the Payne Road house; and Lynch had given Entwisle permission to be at the Payne Road home to work. Based upon those assertions, the trial court concluded that Entwisle did not have standing to challenge the search of the Payne Road house and denied the motion to suppress.

At trial, the investigating officer testified that the house was “very dilapidated, . . . had no running water[,] . . . had no power. . . . It was in rough shape. . . . [I]t was very dirty . . . The house was . . . basically to me unlivable.” Lynch, the owner, testified that during the time Entwisle was found in her house, “[v]agrants [went] in and out of my house all the time because it’s—the grass [has grown] up all the way to the roof, and they can go in and out easily.” At the time the police executed the search warrant of the house, they found a note, which stated:

As of 4/22/2013, property at 124 Payne Road is being occupied by Joe Don Entwisle and Jenny Rowland. The house is not abandoned. They are there to clean up, stay, protect, and reside. . . . Any questions concerning searching the house should be at the discretion of the occupants of the house.

The note was signed by Lynch. Rowland testified at trial that she and Entwisle lived in the house on Payne Road “[f]or a brief time,” conceding that it did not have utilities or running water. According to Rowland, instead of paying rent for the house, she and Entwisle were supposed “to fix the place up.”

“In order to claim the protection of the Fourth Amendment against unreasonable search and seizure, a defendant must demonstrate that he personally has an expectation of privacy in the place searched, and that his expectation is reasonable.” “[A] defendant must demonstrate both a ‘subjective’ expectation of privacy and that the expectation is one that society is willing to recognize as reasonable.”

Regardless of whether Entwisle lived in the Payne Road house, “a place need not be respondent’s ‘home,’ temporary or otherwise, in order for him to enjoy a reasonable expectation of privacy there. The Fourth Amendment protects people, not places, and provides sanctuary for citizens wherever they have a legitimate expectation of privacy.”

A person has a legitimate expectation of privacy in his . . . home and may have a legitimate expectation of privacy in a house in which the person is an overnight guest; however, one who is merely present with the consent of the householder may not claim the protection of the Fourth Amendment.

Pretermitting whether a favorable ruling on the motion to suppress the evidence was possible, however, Entwisle has failed to demonstrate that counsel’s failure to more emphatically argue the motion constituted ineffective assistance. “Trial tactics and strategy, no matter how mistaken in hindsight, are almost never adequate grounds for finding trial counsel ineffective unless they are so patently unreasonable that no competent attorney would have chosen them.” Given Entwisle’s position at the time he filed the motion to suppress that neither he nor anyone else lived in the Payne Road house at the time of the search and that he lived elsewhere, we find no basis to conclude that counsel’s decision against arguing more strenuously for suppression of the evidence “was, at the time of trial, unreasonable.” And “the fact that present counsel disagrees with trial counsel’s strategy does not render such strategic decision unreasonable.”

(b) Entwisle maintains that trial counsel was ineffective by failing to object to the hearsay testimony by Hizer introduced by the State to support the computer invasion of privacy charge. We agree.

At trial, Hizer testified that after the burglary at her home, she learned from Carbonite that someone had used her computer to access her Quicken files, which contained financial information regarding her bank and credit card accounts, and she immediately contacted her bank and credit card companies as a result. Entwisle argues that this testimony constituted inadmissible hearsay

OCGA § 24-8-801 (c) provides: “‘Hearsay’ means a statement, other than one made by the declarant while testifying at the trial or hearing, offeredin evidence to prove the truth of the matter asserted.”

The State argues that Hizer’s testimony was not hearsay, but was instead admissible to explain her subsequent conduct in contacting her bank and credit card companies and to show how the investigator identified Entwisle as a potential suspect in the burglary. Pursuant to former OCGA § 24-3-2,

[w]hen, in a legal investigation, the conduct and motives of the actor are matters concerning which the truth must be found (i.e., are relevant to the issues on trial), then information, conversations, letters and replies, and similar evidence known to the actor are admissible to explain the actor’s conduct.

That Code section, however, was not carried over into the new Evidence Code. Hizer’s statement about what she learned from Carbonite was introduced to prove that Entwisle used her computer to access her financial information and therefore constitutes hearsay. The State does not contend that Hizer’s statement is admissible under any other exception to the hearsay rule.

Although the decision of whether to interpose certain objections is generally a matter of trial strategy and tactics, trial counsel provided no reason for failing to object to [Hizer’s] hearsay testimony about [someone using her computer to access her financial information]. In assessing the objective reasonableness of a lawyer’s performance, we are not limited to the subjective reasons offered by trial counsel for his conduct. Instead, we consider whether “a reasonable lawyer might have done what the actual lawyer did — whether for the same reasons given by the actual lawyer or different, reasons entirely”; if the answer to that question is yes, then the “actual lawyer cannot be said to have performed in an objectively unreasonable way.” In this case, we cannot identify any reason why a reasonable attorney would have decided not to object to the hearsay testimony that provided the only evidentiary basis for a conviction of [computer invasion of privacy]. [] As a result, trial counsel was deficient for failing to object to [Hizer’s] hearsay testimony.
The prejudice from trial counsel’s deficiency is clear. [Hizer’s] hearsay testimony was the only evidence offered to prove the elements of the [computer invasion of privacy] offense [ ]. Had this evidence been excluded, there would not have been sufficient evidence to convict [Entwisle] of [that offense]. Thus, but for counsel’s performance, more than a reasonable probability exists that the outcome of the trial would have been different, and this amounted to ineffective assistance of counsel. Accordingly, we reverse the trial court’s denial of [Entwisle’s] motion for a new trial with respect to the [computer invasion of privacy conviction].

2. Entwisle argues that the trial court erred by admitting evidence of prior bad acts. This enumeration presents no basis for reversal.

OCGA § 24-4-404 (b) provides in relevant part:

Evidence of other crimes, wrongs, or acts shall not be admissible to prove the character of a person in order to show action in conformity therewith. It may, however, be admissible for other purposes, including, but not limited to, proof of motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or accident. . . .
A three-part test determines the admissibility of evidence under this Code section: (1) the evidence must be relevant to an issue other than defendant’s character; (2) the probative value must not be substantially outweighed by its undue prejudice; [and] (3) the government must offer sufficient proof so that the jury could find that defendant committed the act. A decision to admit such evidence will not be reversed absent a clear abuse of discretion.

Pursuant to OCGA § 24-4-403, evidence offered for a proper purpose under this rule may be excluded “if its probative value is substantially outweighedby the danger of unfair prejudice, confusion of the issues, or misleading the jury or by considerations of undue delay, waste of time, or needless presentation of cumulative evidence.”

On appeal, Entwisle argues that the trial court erred by admitting the prior bad acts under OCGA § 24-4-404 (b) without undertaking the balancing test required by OCGA § 24-4-403. At the outset, we note that Entwisle has failed to identify precisely what evidence he challenges, nor does he provide any record citations to specific rulings by the trial court on this issue or his objections thereto, hindering our review of this enumeration. “It is not this Court’s job to cull the record on behalf of the appellant to find alleged errors. Accordingly, [Entwisle] has failed to carry his burden of showing an abuse of discretion by the trial court in admitting the [prior bad acts]. . . .”

Notwithstanding Entwisle’s waiver of this enumeration, however, it presents no basis for reversal. Our review of the record shows that although the trial court did not make specific findings regarding whether the probative value of the prior crimes was outweighed by its prejudicial impact, it explicitly referenced the balancing test and noted that “the evidence must satisfy Rule 403.” Thus, by admitting the evidence, the trial court implicitly found that the evidence was admissible pursuant to this test. Further,

it is only unfair prejudice, substantially outweighing probative value, which permits exclusion of relevant matter. As we have noted, OCGA § 24-4-403 offers an extraordinary remedy that must be used sparingly because it results in the exclusion of concededly probative evidence. In close cases, the balance is struck in favor of admissibility.

Again, Entwisle has not offered any specific argument regarding the prejudicial impact of the evidence, failing to meet his burden of showing an abuse of discretion. Finally, Entwisle has failed to establish that admission of the prior crimes was not harmless in light of the strong evidence admitted at trial that he committed the crimes for which he was convicted.

3. Entwisle contends that the evidence was insufficient to support his conviction for first degree burglary of McCrary’s home. We disagree.

OCGA § 16-7-1 (b) provides in relevant part that “[a] person commits the offense of burglary in the first degree when, without authority and with the intent to commit a felony or theft therein, he . . . enters or remains within an occupied, unoccupied, or vacant dwelling house of another. . .

Entwisle contends that the State failed to prove that he entered the building based upon McCrary’s trial testimony that the person who broke the glass “didn’t get into the house. They... just broke the window.” This argument is meritless.

The evidence supported a finding that Entwisle, without authority, entered the workshop at the back of McCrary’s property and took multiple items, and he broke the glass on the door leading from the patio to the garage of McCrary’s occupied home, but the door was locked with a deadbolt and could not be opened without a key Viewing the evidence in a light most favorable to the verdict, there was sufficient evidence from which a rational trier of fact could find beyond a reasonable doubt that Entwisle “ ‘[broke] the plane of the structure with the intent to steal or with the intent to commit a felony therein.’ ”

Decided February 1, 2017

Lee & Ziegler, Konrad G. W. Ziegler, for appellant.

Leigh E. Patterson, District Attorney, Natalee L. Staats, Assistant District Attorney, for appellee.

Judgment affirmed in part and reversed in part.

Andrews and Ray, JJ., concur.

       OCGA § 16-7-1 (b).

       OCGA § 16-7-1 (c).

       OCGA § 16-7-21 (a).

       OCGA § 16-8-2.

       OCGA § 16-8-7 (a).

       OCGA § 16-9-93 (c).

       OCGA § 16-11-131 (b).

        Serritt v. State, 261 Ga. App. 344 (582 SE2d 507) (2003). See also Jackson v. Virginia, 443 U. S. 307, 319 (III) (B) (99 SCt 2781, 61 LE2d 560) (1979).

       Police also found a level with Entwisle’s name written on it in marker, as well as a document indicating that Entwisle and Rowland were authorized to occupy the house.

       The door was locked with a deadbolt, and it required a key to be unlocked.

       The jury also found Entwisle guilty of another count of second degree burglary and another count of theft by taking, but those counts were merged with others during sentencing.

       (Citations and punctuation omitted.) Allen v. State, 296 Ga. 785, 792-793 (10) (770 SE2d 824) (2015), citing Strickland v. Washington, 466 U. S. 668, 687 (III) (104 SCt 2052, 80 LE2d 674) (1984).

       (Citations and punctuation omitted.) Smith v. State, 284 Ga. 17, 21 (3) (663 SE2d 142) (2008).

        Rashid v. State, 292 Ga. 414, 418 (3) (737 SE2d 692) (2013).

       (Punctuation omitted.) Moses v. State, 328 Ga. App. 625, 626 (2) (a) (760 SE2d 217) (2014), quoting Arnold v. State, 237 Ga. App. 857, 859 (1) (517 SE2d 97) (1999).

       (Punctuation omitted.) Brown v. State, 295 Ga. 695, 697-698 (2) (763 SE2d 710) (2014), quoting Smith, 284 Ga. at 21 (3).

       The State argues that the officer’s initial entry into the Payne Road house on April 23, 2013, was justified by exigent circumstances. In the order denying the motion for new trial, the trial court agreed, concluding that “the officer was allowed to enter the house ... to conduct a protective sweep[,] • • • [and t]he officer had an articulable suspicion that the suspect was in the house.”

       (Punctuation omitted.) Flemister v. State, 317 Ga. App. 749, 757 (4) (b) (732 SE2d 810) (2012), quoting Gray v. State, 291 Ga. App. 573, 579 (2) (662 SE2d 339) (2008).

        Hampton v. State, 295 Ga. 665, 670 (2) (763 SE2d 467) (2014).

       Id., citing McKenzie v. State, 284 Ga. 342, 349 (4) (e) (667 SE2d 43) (2008).

       Entwisle was tried in September 2014. Therefore, the new Evidence Code applied to his trial. See Ga. L. 2011, pp. 99, 214, § 101 (“This Act shall become effective on January 1, 2013, and shall apply to any motion made or hearing or trial commenced on or after such date.”).

        Momon v. State, 249 Ga. 865, 867 (294 SE2d 482) (1982).

       Even if OCGA § 24-3-2 were in effect at the time of Entwisle’s trial, it would not have authorized the admission of Hizer’s testimony because
      where the conduct and motives of the actor are not matters concerning which the truth must be found (i.e., are irrelevant to the issues on trial) then the information, etc. on which he or she acted shall not be admissible under OCGA § 24-3-2. In the case before us, the conduct and motives of [Hizer and the investigator] were not relevant to the issues on trial.
      (Punctuation omitted.) Teague v. State, 252 Ga. 534, 535 (1) (314 SE2d 910) (1984).

       In its order denying Entwisle’s motion for new trial, the trial court concluded that Hizer’s testimony was cumulative of the investigating officer’s testimony regarding Carbonite . But the officer testified only that information he obtained from Carbonite led him to an e-mail address linked to Entwisle ; he did not testify that Entwisle used Hizer’s computer in an attempt to access her financial information.

       To support a conviction for computer invasion of privacy as charged in the indictment, the State was required to prove that Entwisle “use[d] a computer or computer network with the intention of examining [Hizer’s] employment, medical, salary, credit, or any other financial or personal data . . . with knowledge that such examination is without authority. . . .” OCGA § 16-9-93 (c).

       (Citations and punctuation omitted.) Taylor v. State, 337 Ga. App. 486, 497-498 (4) (b) (i) (788 SE2d 97) (2016).

       (Punctuation and footnote omitted.) Chase v. State, 337 Ga. App. 449, 454 (3) (787 SE2d 802) (2016), quoting Bradshaw v. State, 296 Ga. 650, 656 (3) (769 SE2d 892) (2015) and citing
        Olds v. State, 299 Ga. 65, 70 (2) (786 SE2d 633) (2016) (notingthat although the Court’s application of the test in Bradshaw “may have caused some confusion,” “Bradshaw correctly identified the general requirements for the admission of evidence of other acts.”).

       (Punctuation omitted.) Smart v. State, 299 Ga. 414, 417 (2) (788 SE2d 442) (2016).

       (Citation and punctuation omitted.) Hunt v. State, 336 Ga. App. 821, 829 (2) (b) (783 SE2d 456) (2016), quoting Maxwell v. State, 290 Ga. 574, 575 (2) (722 SE2d 763) (2012).

       See Chase, 337 Ga. App. at 455 (3) (a).

       (Punctuation and footnotes omitted; emphasis in original.) Id., quoting Wilson v. State, 336 Ga. App. 60, 63 (2) (b) (783 SE2d 662) (2016).

       Although Entwisle lists and analyzes multiple cases addressing prejudice in this context, he fails to tie them in any way to the prior acts in this case, which he also fails to identify with any specificity.

       See Hunt, 336 Ga. App. at 829 (2) (b).

       See Hood v. State, 299 Ga. 95, 105-106 (4) (786 SE2d 648) (2016) (admission of evidence of prior crimes was harmless because “the evidence that [ajppellant committed the crimes for which he was convicted was strong, making it highly unlikely that the jury convicted him based on [the prior crimes]”), citing Peoples v. State, 295 Ga. 44, 55 (757 SE2d 646) (2014); Lingo v. State, 329 Ga. App. 528, 533 (765 SE2d 696) (2014) (physical precedent only) (finding harmless evidence admitted in violation of OCGA § 24-4-404 because of strong evidence that the defendant committed the charged crimes).

       Entwisle challenges his conviction on Count 3, which charged him with first degree burglary of McCrary’s home. Count 4 charged Entwisle with second degree burglary of McCrary’s workshop; Entwisle was found guilty on Count 4, but it was merged with Count 3 at sentencing.

        Meadows v. State, 264 Ga. App. 160, 164(3) (590 SE2d 173) (2003), citing Hewatt v. State, 216 Ga. App. 550, 551 (2) (455 SE2d 104) (1995) (defendant entered victim’s home by “breaking the plane” when he attempted to crawl in a window); Mullinnix v. State, 177 Ga. App. 168, 169 (338 SE2d 752) (1985) (defendant “broke the plane” of a building when he reached through a door knob hole to remove an alarm device with intent to steal). See also Kent v. State, 84 Ga. 438, 440 (11 SE 355) (1889) (“[A]n entry by turning a bolt, not made for the purpose of lawful business, nor within business hours, is an entry by breaking.”).


author: DILLARD, Presiding Judge.

text:
    A16A1817.
    HOWARD v. THE STATE.
    (796 SE2d 757)
   DILLARD, Presiding Judge.

In 1987, following a trial, Ernest Howard was convicted on two counts of aggravated assault, one count of kidnapping with bodily injury, and one count of rape. Howard appeals his convictions and the denial of his motion for new trial, challenging the sufficiency of the evidence supporting his convictions, arguing that the State failed to prove venue and maintaining that the trial court erred in denying his claims of ineffective assistance of counsel. For the reasons set forth infra, we affirm.

Viewed in the light most favorable to the jury’s verdict, the record shows that around 1:00 a.m. on November 8, 1986, C. B. and G. H. set out with a group of friends to a popular unlicensedbar called Jay Wright’s in Lizella, Bibb County, Georgia. While there, a young man, ultimately identified as Howard, asked G. H. to dance and offered to buy her a drink, which she refused. After an hour or so, a fight broke out amongst some of the bar’s patrons, and, in the confusion that ensued, the friends who had driven C. B. and G. H. to the bar left without them. Seeing that C. B. and G. H.’s friends had stranded them at the bar, Howard offered to drive the women home. The two women accepted Howard’s offer and accompanied him to his car, at which point C. B. sat in the front passenger’s seat and G. H. sat in the back of the vehicle.

Within a few minutes of leaving the bar, the women realized that Howard was not driving in the direction of their homes. When they asked him to explain this unexpected detour, Howard claimed that he needed to inform his mother that he would be late getting home. But shortly thereafter, Howard drove into some nearby woods via an unpaved, gravel road and stopped the car. Once parked, he reached under the driver’s seat to retrieve a large knife, held the knife close to C. B.’s neck, and ordered both women to undress. The women complied, but after doing so, C. B. told Howard that she needed to go to the bathroom and asked if she could exit the vehicle. After finishing, C. B. started toward the car but then suddenly slammed the passenger door shut and fled into the brush.

Howard immediately ordered G. H. to yell for her friend to return to the vehicle, and G. H. complied. But after several minutes, it became apparent that C. B. was not going to return, so Howard left the area and drove around for about three minutes before again parking. Once there, he raped G. H. and afterward told her to put her clothes back on. Howard then drove away from the area, stopped near a school, told G. H. to get out of his car, and then drove off. Eventually, G. H. waved down a passing motorist, who coincidentally had just assisted a police officer in changing another motorist’s flat tire. The motorist helped G. H. into his vehicle and returned to where he had assisted the police officer, who at this point was still aiding the other motorist. After G. H. recounted the abduction, the officer made arrangements to have her transported to a hospital.

Meanwhile, after slamming the passenger door of Howard’s car and fleeing, C. B. ran for several minutes through brambles and marshy areas before happening upon a group of young men who were camping in a cove on Lake Tobesofkee. Waking the men up, C. B. recounted the abduction and advised that her friend was still being held hostage. Agreeing to help, one of the campers told C. B. to get into his truck, and he started the engine. As he did, he saw headlights illuminate from another vehicle, which appeared to be parked across part of the lake in another cove but was now beginning to move. Believing it to be C. B.’s assailant, the camper drove to the area where he had seen the headlights, but by the time he arrived, there were no other vehicles in sight. Consequently, at C. B.’s request, the camper drove her home.

Although both C. B. and G. H. provided a physical description of their assailant, neither was familiar with Howard, and thus, law enforcement initially made no arrest. But a few weeks later, C. B. was out at a different, nightclub when Howard approached her and asked if he knew her from somewhere. Immediately recognizing Howard as her assailant, C. B. lied about knowing him and gave him a fake name. C. B. also refused Howard’s offer of a ride home, and while still at the club, a friend told C. B. that she knew Howard, but only by his first name, which she said was Ernest. A few days afterward, another friend informed C. B. of Howard’s last name and his place of employment. Subsequently, both C. B. and G. H. went to Howard’s workplace, observed him from a distance, and positively identified him as their assailant. The women then informed a detective with the Macon Police Department, who obtained a warrant for Howard’s arrest and, in fact, arrested him after he came to the police station for questioning.

Thereafter, the State charged Howard, via indictment, with two counts of aggravated assault with a deadly weapon (one count for each victim), one count of kidnapping with bodily injury, one count of rape, and two counts of aggravated sodomy (both counts pertaining to G. H.).The case then proceeded to trial, during which the State presented the foregoing evidence. And at the conclusion of the trial, the jury convicted Howard on both aggravated-assault charges, the kidnapping-with-bodily-injury charge, and the rape charge, but it acquitted him on both aggravated-sodomy charges.

The procedural history of Howard’s case following his 1987 conviction can aptly be described as tortuous. His trial counsel filed a timely motion for new trial, which he later amended. On August 8, 1989, the trial court held a hearing on Howard’s motion, during which his counsel informed the court that Howard wanted to obtain new counsel and allege claims that his trial counsel rendered ineffective assistance. The trial court denied the majority of Howard’s motion, but it agreed to hold a second hearing, in which Howard could assert his ineffective-assistance claims. The court then held this second hearing on September 28, 1989, during which Howard’s trial counsel testified regarding his representation.

On November 2, 1989, the trial court issued an order denying Howard’s motion for new trial, but it is unclear whether Howard ever received a copy of that order at that time. Over the course of the next 20 years, Howard, for the most part acting pro se, filed numerous motions with the trial court and nearly as many unsuccessful attempts to appeal the denials of those motions. Then, on September 27, 2013, Howard filed a motion for an out-of-time appeal, alleging—as he had done several times previously—that he did not receive a copy of the trial court’s November 2,1989 order until 1992. The trial court denied this motion as moot based on Howard having already filed another notice of appeal regarding other court orders. Howard appealed that order, and this Court vacated the trial court’s judgment and remanded the case for a determination of whether Howard had timely received notice of the trial court’s November 2, 1989 order. But agreeing with the State that it would be impossible to determine whether Howard timely received the order, the trial court granted Howard’s motion for an out-of-time appeal. This appeal follows.

1. Howard contends, generally, that the evidence was insufficient to support his convictions. We disagree.

At the outset, we note that when a criminal conviction is appealed, the evidence must be viewed in the light most favorable to the verdict, and the appellant no longer enjoys a presumption of innocence. And in evaluating the sufficiency of the evidence to support a conviction, we do not weigh the evidence or determine witness credibility but only resolve whether “a rational trier of fact could have found the defendant guilty of the charged offenses beyond a reasonable doubt.” Accordingly, the jury’s verdict will be upheld so long as “there is some competent evidence, even though contradicted, to support each fact necessary to make out the State’s case[.]” With these guiding principles in mind, we turn first to Howard’s specific challenge in this regard.

Former OCGA § 16-5-21 (a) (2) provided, in pertinent part: “A person commits the offense of aggravated assault when he assaults... [wjith a deadly weapon . . . which, when used offensively against a person, is likely to or actually does result in serious bodily injury.” Under former OCGA § 16-5-40 (a), “[a] person commits the offense of kidnapping when he abducts or steals away any person without lawful authority or warrant and holds such person against his will.” And “[a] person convicted of the offense of kidnapping shall be punished by . . . life imprisonment... if the person kidnapped shall have received bodily injury^]” Finally, under former OCGA § 16-6-1 (a), “[a] person commits the offense of rape when he has carnal knowledge of a female forcibly and against her will,” and “[cjarnal knowledge in rape occurs when there is any penetration of the female sex organ by the male sex organ.”

In this case, the State presented evidence that Howard offered to drive the two victims home but then took them to a remote location and ordered the women to undress while he brandished a knife. Then, after C. B. escaped, Howard drove G. H. to another remote location and forced her to engage in sexual intercourse. Nevertheless, Howard argues that the evidence was insufficient because it was vague and there were some conflicts in the victims’ testimony. But it is the role of the jury, not this Court, to “determine the credibility of the witnesses and to resolve any conflicts or inconsistencies in the evidence.” And here, the jury resolved those conflicts against Howard. Thus, the evidence was sufficient to support Howard’s convictions.

2. Howard also contends that the State failed to prove beyond a reasonable doubt that Bibb County was the proper venue. Again, we disagree.

The Georgia Constitution requires that venue in all criminal cases “be laid in the county in which the crime was allegedly committed.” And as with every other material allegation contained in an indictment, the State must prove venue beyond a reasonable doubt. But the State may do so by circumstantial evidence. Accordingly, as is the case with regard to the sufficiency of the evidence generally, the standard of review of the sufficiency of the evidence to support venue is whether, after viewing the evidence in the light most favorable to the State, any rational trier of fact could have found venue beyond a reasonable doubt. Importantly, venue is a question for the jury, and “its decision will not be set aside if there is any evidence to support it.” Bearing this legal backdrop in mind, we turn now to Howard’s claim of error.

In this matter, both C. B. and G. H. conceded in their testimony that when Howard drove to the remote location where he parked, they did not know where they were. Nevertheless, the camper from whom C. B. sought help after she escaped testified that he and his friends were camping in a cove on Lake Tobesofkee in Bibb County when they encountered C. B. And indeed, C. B. noted that much of the area through which she fled was surrounded by water. The camper further testified that when he started his truck, he saw the headlights of another vehicle in a nearby cove illuminate and, given the early hour, presumed it was C. B.’s assailant. Additionally, the detective who investigated the case testified that the area where C. B. escaped and fled was Lake Tobesofkee in Bibb County And he further testified that based on G. H.’s testimony that the second area where Howard parked after C. B. escaped was only three minutes away from the first area, this second location where the rape occurred was also more than likely within Bibb County.

Notwithstanding the foregoing testimony, Howard argues that because both victims conceded that they were not familiar with the area where their assailant took them, the State failed to prove venue. But as previously noted, the State may prove venue through circumstantial evidence. And the testimony from the camper and the detective certainly constituted circumstantial evidence that the crimes occurred in Bibb County. Moreover, there was no evidence presented that “any incident related to the crime took place outside of [Bibb] County.” Accordingly, the evidence here was sufficient for the jury to conclude beyond a reasonable doubt that venue for the crimes was in Bibb County.

3. Finally, Howard also contends that the trial court erred in denying his claims of ineffective assistance of counsel. Once again, we disagree.

In order to evaluate Howard’s claim of ineffective assistance of counsel, we apply the two-pronged test established in Strickland v. Washington, which requires Howard to show that his trial counsel’s performance was “deficient and that the deficient performance so prejudiced [him] that there is a reasonable likelihood that, but for counsel’s errors, the outcome of the trial would have been different.” In addition, there is a strong presumption that trial counsel’s conduct falls within the broad range of reasonable professional conduct, and a criminal defendant must overcome this presumption. Unless clearly erroneous, this Court will uphold a trial court’s factual determinations with respect to claims of ineffective assistance of counsel; “however, a trial court’s legal conclusions in this regard are reviewed de novo.” With these guiding principles in mind, we turn now to Howard’s claims of ineffective assistance.

(a) Failure to call witnesses. During his motion for new trial, Howard argued that his trial counsel rendered ineffective assistance by failing to locate and call a host of witnesses. But on appeal, Howard argues only generally that this failure to locate and call witnesses constituted ineffective assistance. In fact, on appeal, he references no specific witnesses who should have been called and does not even argue how trial counsel’s alleged failure to call these unnamed witnesses affected the outcome of his trial. Suffice it to say, merely alleging that counsel provided ineffective assistance, without more, is “insufficient to establish a claim of ineffective assistance of counsel.” Moreover, under the rules of this Court, an appellant must support enumerations of error with argument and citation of authority, and “mere conclusory statements are not the type of meaningful argument contemplated by our rules.” Thus, Howard’s arguments in this regard have been abandoned.

Nevertheless, we will address trial counsel’s failure to call the two witnesses, who seemed to be the focus of Howard’s arguments during the hearing on the motion for new trial. Specifically, Howard claimed that trial counsel rendered ineffective assistance by failing to locate a woman named Patricia, who along with her cousin, Howard claims left the unlicensed bar with him on the night in question and was with him for much of that evening. Additionally, Howard argued that trial counsel was ineffective by failing to call his girlfriend, Valerie Goins, who would have testified that Howard was home with her by 12:30 a.m. on the night in question.

In considering this argument, we first note that the decision on which defense witnesses will be called is “a matter of trial strategy and tactics and does not usually constitute ineffective assistance of counsel.” Indeed, which witnesses to call and all other strategies and tactical decisions are “the exclusive province of the lawyer after consultation with his client, and whether an attorney’s trial tactics are reasonable is a question of law, not fact.”

Turning to the specific witnesses at issue, with regard to Patricia, trial counsel testified that Howard only knew her first name and believed that she had attended Crandall College. Based on this information, trial counsel searched the college’s records, but was unable to find Patricia. But given Howard’s lack of sufficient information regarding this alleged witness’s full name, her whereabouts, or how to find her, trial counsel’s failure to locate her certainly did not constitute ineffective assistance.

With regard to Valerie Goins, trial counsel testified that he decided not to call her as a witness because she would have testified that Howard returned home that night around 12:30 a.m., which was inconsistent with the statement Howard provided to law enforcement about being with Patricia and her cousin all night. As previously noted, the determination as to which defense witnesses will be called is “purely a matter of trial strategy and tactics, and trial strategy and tactics do not equate with ineffective assistance of counsel.” And given trial counsel’s reasonable explanation for his strategy here, his decision to not call Goins as a witness certainly did not render his assistance ineffective.

(b) Failure to adequately prepare. Howard also generally contends that his trial counsel rendered ineffective assistance by not spending enough time meeting with witnesses prior to trial. But trial counsel’s testimony during the hearing on the motion for new trial, in which he discussed the fact that he spoke with all the witnesses and potential witnesses, except for the victims, who refused to speak with him, belies this contention. Accordingly, there is no basis for finding that Howard’s trial counsel provided ineffective assistance in this regard.

(c) Failure to make objections. Finally, Howard argues—again only very generally—that his trial counsel rendered ineffective assistance by failing to object when the State’s prosecutor employed leading questions during the direct examination of the State’s witnesses, including the victims. Putting aside the fact that Howard fails to specifically identify the objectionable leading questions on appeal, he never questioned his trial counsel during the hearing on his motion for new trial about the alleged failure to object to these nondescript questions. And in the absence of evidence to the contrary, “counsel’s decisions are presumed to be strategic and thus insufficient to support an ineffective assistance of counsel claim.” Indeed, the decision not to object to leading questions is “often the result of reasonable trial strategy.” And given that Howard has not made a contrary showing in this regard, he has failed to demonstrate that his trial counsel performed deficiently.

Decided February 1, 2017.

Jonathan P Waters, for appellant.

K. David Cooke, Jr., District Attorney, Jason M. Wilbanks, Assistant District Attorney, for appellee.

For all of the foregoing reasons, we affirm Howard’s convictions and the denial of his motion for new trial.

Judgment affirmed.

Reese and Bethel, JJ., concur.

        See, e.g., Powell v. State, 310 Ga. App. 144, 144 (712 SE2d 139) (2011).

        See former OCGA § 16-5-21 (a) (2) (1991).

        See former OCGA § 16-5-40 (a), (b) (1994).

        See former OCGA § 16-6-1 (a) (1994).

        See former OCGA § 16-6-2 (a) (1994).

        See English v. State, 301 Ga. App. 842, 842 (689 SE2d 130) (2010); see also Jackson v. Virginia, 443 U. S. 307, 319 (III) (B) (99 SCt 2781, 61 LE2d 560) (1979).

        Joiner v. State, 299 Ga. App. 300, 300 (682 SE2d 381) (2009); see also Jackson, 443 U. S. at 319 (III) (B).

        Miller v. State, 273 Ga. 831, 832 (546 SE2d 524) (2001) (punctuation omitted).

        See former OCGA § 16-5-21 (a) (2) (1991).

        See former OCGA § 16-5-40 (a) (1994).

        See former OCGA § 16-5-40 (b) (1994).

        Harris v. State, 332 Ga. App. 789, 790-91 (1) (775 SE2d 165) (2015) (punctuation omitted); see Brock v. State, 293 Ga. 156, 157-58 (1) (743 SE2d 410) (2013) (“It is the jury’s role to assess the credibility of witnesses and resolve any inconsistencies in the evidence.”).

        See Bester v. State, 294 Ga. 195, 195-96 (1) (751 SE2d 360) (2013) (holdingthat evidence was sufficient to support defendant’s convictions on rape and aggravated assault charges); Dennis v. State, 293 Ga. 688, 689-90 (1) (748 SE2d 390) (2013) (holdingthat defendants moving victims from their own vehicle before shooting them was sufficient to support kidnapping-with-bodily-injury charge); Wallace v. State, 294 Ga. App. 159, 159-60 (1) (669 SE2d 400) (2008) (holding that evidence the defendant brandished a knife, moved victim under a desk in her office, forced her to have sexual intercourse there, and scratched her hip while doing so supported defendant’s aggravated-assault, kidnapping-with-bodily-injury, and rape convictions).

        Jones v. State, 272 Ga. 900, 901 (2) (537 SE2d 80) (2000); see Ga. Const. Art. VI, Sec. II, Par. VI (“ [A] 11 criminal cases shall be tried in the county where the crime was committed, except cases in the superior courts where the judge is satisfied that an impartial jury cannot be obtained in such county.”); OCGA § 17-2-2 (a).

        Jones, 272 Ga. at 901 (2); accord Muldrow v. State, 322 Ga. App. 190, 192 (2) (a) (744 SE2d 413) (2013).

        Walton v. State, 293 Ga. 607, 609 (2) (748 SE2d 866) (2013); accord Stockard v. State, 327 Ga. App. 184, 185 (761 SE2d 351) (2014).

        Thompson v. State, 277 Ga. 102, 103 (1) (586 SE2d 231) (2003).

        Davis v. State, 328 Ga. App. 796, 797-98 (1) (760 SE2d 728) (2014) (punctuationomitted); see Graham v. State, 275 Ga. 290, 292 (2) (565 SE2d 467) (2002) (noting that whether venue has been properly proved is a question of fact for the jury).

        Walton, 293 Ga. at 609 (2).

        See O’Donnell v. Smith, 294 Ga. 307, 311-12 (2) (a) (751 SE2d 324) (2013) (finding proof of venue sufficient when the “jury heard testimony that the victim was found lying down and injured in Fulton County”).

        Id. at 312 (2) (a).

        See id. at 311-12 (2) (a) (holding that State proved venue for murder when victim’s body was found in Fulton County, and scene of stabbing appeared to be within 100 yards from where body was found). Compare Jones, 272 Ga. at 903-04 (3) (finding that State failed to prove venue when only evidence presented was that murder victim’s neighbor’s home—across the street from victim’s home—was in Fulton County). We note that although the case has not been overruled, the logic in Jones has been called into question. See O’Donnell, 294 Ga. at 313-14 (Nahmias, J., concurring) (opining that, in the absence of evidence to the contrary, jurors can very reasonably infer that a location within 100 yards of a location in a particular county is in the same county and that Jones should be overruled if its erroneous logic would result in a conviction being reversed due to purportedly insufficient proof of venue).

       466 U. S. 668, 687 (III) (104 SCt 2052, 80 LE2d 674) (1984).

        Chapman v. State, 273 Ga. 348, 349-50 (2) (541 SE2d 634) (2001); see Strickland, 466 U. S. at 687 (III); Ashmid v. State, 316 Ga. App. 550, 556 (3) (730 SE2d 37) (2012).

        Chapman, 273 Ga. at 350 (2); see Cammer v. Walker, 290 Ga. 251, 255 (1) (719 SE2d 437) (2011) (“A claim of ineffective assistance of counsel is judged by whether counsel rendered reasonably effective assistance, not by a standard of errorless counsel or by hindsight.” (punctuation omitted)).

        Sowell v. State, 327 Ga. App. 532, 539 (4) (759 SE2d 602) (2014).

        Tyner v. State, 313 Ga. App. 557, 565 (6) (b) (722 SE2d 177) (2012) (punctuationomitted); see Brewer v. State, 280 Ga. 18, 20-21 (3) (622 SE2d 348) (2005) (holding that defendant’s mere allegations of ineffective assistance were insufficient to prevail on such a claim).

        See Court of Appeals Rule 25 (c) (2) (providing that “[a]ny enumeration of error which is not supported in the brief by citation of authority or argument may be deemed abandoned”).

        Brittain v. State, 329 Ga. App. 689, 704 (4) (a) (766 SE2d 106) (2014) (punctuation omitted).

        See Brewer, 280 Ga. at 20-21 (3) (holding that defendant’s mere allegations of ineffective assistance were insufficient to prevail on such a claim); Brittain, 329 Ga. App. at 704 (4) (a) (holding that defendant abandoned majority of his ineffective assistance claims by making only conclusory arguments and failing to support such argument with citations to authority).

        Tyner, 313 Ga. App. at 564 (6) (a) (punctuation omitted); see Perdue v. State, 298 Ga. 841, 845 (3) (785 SE2d 291) (2016) (noting that it is well established that the decision as to which defense witnesses to call is a matter of trial strategy and tactics).

        Tyner, 313 Ga. App. at 564 (6) (a) (punctuation omitted).

        See Mattox v. State, 305 Ga. App. 600, 606 (3) (699 SE2d 887) (2010) (holding that trial counsel’s inability to locate witness did not constitute ineffective assistance when defendant only knew witness’s first name and the apartment complex where he believed the witness lived).

        Davenport v. State, 308 Ga. App. 140, 154 (2) (b) (706 SE2d 757) (2011) (punctuation omitted); see Perdue, 298 Ga. at 845 (3) (noting that it is well established that the decision as to which defense witnesses to call is a matter of trial strategy and tactics).

        See Moss v. State, 298 Ga. 613, 619 (5) (d) (783 SE2d 652) (2016) (holding that given trial counsel’s concerns about witness’s credibility and status as a felon, his decision not to call witness was reasonable); Davenport, 308 Ga. App. at 154 (2) (b) (holding that trial counsel did not render ineffective assistance in failing to call witness given counsel’s testimony that he determined witness would not be favorable for defendant).

        See Rice v. State, 292 Ga. 191, 209 (9) (d) (733 SE2d 755) (2012) (finding that contrary to defendant’s claim, trial counsel did investigate case by consulting with a computer expert on certain issues, and therefore, trial counsel did not render ineffective assistance in this regard); Gadson v. State, 252 Ga. App. 347, 352 (11) (c) (556 SE2d 449) (2001) (holding that defendant failed to show that his trial counsel provided ineffective assistance by failing to adequately investigate the case because record demonstrated that counsel did in fact prepare for trial and interview witnesses).

        See supra note 30; see also Maxwell v. State, 290 Ga. 574, 575 (2) (722 SE2d 763) (2012) (holding that defendant’s conclusory allegation that trial counsel failed to object to leading questions without specifying such instances did not support a claim of ineffective assistance of counsel).

        Mitchell v. State, 290 Ga. 490, 492 (4) (a) (722 SE2d 705) (2012) (punctuation omitted).

        Id.

        See id. (holding that defendant failed to show that his trial counsel rendered ineffective assistance by not objecting to the State’s leading questions when there was no evidence that such failure was not based on trial strategy).