author: McMlLLIAN, Judge.

text:
    A16A1047.
    HARRIS v. THE STATE.
    (792 SE2d 409)
   McMlLLIAN, Judge.

Brandon Taurus Harris was charged with aggravated sodomy, aggravated sexual battery, and family violence battery under OCGA § 16-5-23.1 (f) (2). A jury found him guilty of family violence battery but acquitted him of the sex offense charges. He appeals following the denial of his motion for new trial, as amended, arguing in his sole enumeration of error that the trial court improperly admitted evidence of his prior convictions for family violence battery and simple battery Finding no error, we affirm.

Construed to support the jury’s verdict, the evidence shows that at the time of the offense in August 2012, Harris, his girlfriend, and her child were living in the home of the girlfriend’s aunt and her then 20-year-old daughter, who is the victim in this case. A few weeks after Harris and his girlfriend moved in, they got into an argument and separately left the home. Later that evening, Harris called the victim and her mother, who said that Harris could come back to the house. The victim testified that she was talking on a cell phone in the living room when Harris arrived back at the house and that he went into her bedroom. She followed him into the bedroom and they talked briefly, but then the victim’s mother came into the room and the victim left. After the victim’s mother talked to Harris for a few minutes, she went back to her own bedroom. The victim then went back into her bedroom.

The victim testified that Harris had brought two bottles of liquor with him, and he kept encouraging her to drink some of the alcohol so she took a few sips. The victim said that at some point Harris started telling her he had always wanted to be with her instead of his girlfriend “and stuff like that.” She responded that she had a boyfriend and at first just laughed it off, explaining that he had always been the “flirty type.” She said they talked of other matters for a bit, but then he began telling her again that he wanted to be with her. The victim testified that Harris became sexually aggressive, grabbing her vagina through her pants and putting his other hand on the back of her head to try and make her kiss him. The victim said she kept telling Harris to stop and tried to push him away, but he put his hand inside her pants and inside her vagina. She said that he also grabbed the back of her neck and pushed her head down toward his penis, attempting to push it into her mouth. The victim testified that she continued to struggle and pull away, and Harris grabbed her by the hair and started hitting her in the face with his fists. The victim testified that she was screaming and telling him to stop and was finally able to push him away and run out of the room.

The victim testified that she then ran through her mother’s bedroom and into a bathroom. The victim said she took a bath and that she was attempting to text her boyfriend, but he did not text her back. She testified that she got out of the bath and re-dressed, and then she slowly walked back and peeked into the door of her room, where she saw Harris sleeping on her bed. The victim then walked outside and called her sister-in-law and then the police, who came to her home. The victim was examined at the home by paramedics, and pictures taken at the scene showing bruising and swelling to the victim’s face and a split inside her lower lip were introduced at trial.

Prior to trial, the State gave notice that it intended to introduce evidence showing Harris had committed another act of family violence battery and a simple battery in 2009 against his estranged wife and her sister, respectively The State argued that the evidence was permissible to show motive, specifically that Harris uses physical violence to control women who have denied him something he wants. The trial court ruled that the evidence was admissible for that purpose, and after the trial court gave the jury limiting instructions, the victims both testified at trial.

First, Harris’ wife, from whom he had been estranged for a number of years, testified that in 2009, while she and Harris were still living in the same household, she and Harris started arguing when she refused to go to a fast food restaurant to get him something to eat. The argument escalated, and she decided to leave so she started gathering up her belongings. Harris started punching her in the back of the head, and she curled up against the wall with her back to him to protect herself. She kept yelling at him to stop, and he quit hitting her and she left the house.

Harris’ wife later returned to the house with her sister to get crates for her dogs. Harris would not let them in the house and started yelling and poking his sister-in-law in the face and pulling her hair and twisting her arm. Someone called the police, and Harris was subsequently charged with and entered guilty pleas to one count of family violence battery and one count of misdemeanor battery based on these incidents.

Harris now argues the trial court erred in admitting this evidence to show his motive because the other acts evidence was not relevant for that purpose and even if it was, the probative value of the evidence was substantially outweighed by its undue prejudice.

Harris was tried after the effective date of the new Evidence Code, and thus OCGA §§ 24-4-403 and 24-4-404 govern the admission of this evidence. OCGA § 24-4-404 (b) provides:

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. . . .

However, under OCGA § 24-4-403, even relevant evidence offered for a proper purpose may be excluded “if its probative value is substantially outweighed by the danger of unfair prejudice, confusion of the issues, or misleading the jury or by considerations of undue delay, waste of time, or needless presentation of cumulative evidence.” Id.; State v. Jones, 297 Ga. 156, 158 (1) (773 SE2d 170) (2015).

Georgia courts employ a three-part test to determine the admissibility of evidence of other acts under these Code sections. Bradshaw v. State, 296 Ga. 650, 656 (3) (769 SE2d 892) (2015); Jones, 297 Ga. at 158 (1). To be admissible, the State must show that: (1) the extrinsic or other acts evidence is relevant to an issue other than a defendant’s character (OCGA § 24-4-404 (b)); (2) the probative value of the other acts evidence is not substantially outweighed by its unfair prejudice (OCGA § 24-4-403); and (3) there is sufficient proof so that the jury could find that the defendant committed the other act. Jones, 297 Ga. at 158-59 (1); Bradshaw, 296 Ga. at 656 (3); Wilson v. State, 336 Ga. App. 60, 62 (2) (783 SE2d 662) (2016). Relevance under thefirstprong of the test is determined by reference to OCGA § 24-4-401, which deems evidence relevant if it has “any tendency to make the existence of any fact that is of consequence to the determination of the action more probable or less probable than it would be without the evidence.” Id. However, while

Rule 404 (b) explicitly recognizes the relevance of other acts evidence offered for a permissible purpose[, it], at the same time, prohibits the admission of such evidence when it is offered solely for the impermissible purpose of showing a defendant’s bad character or propensity to commit a crime.

(Emphasis in original.) Jones, 297 Ga. at 159 (2). We review the trial court’s decision to admit other acts evidence for a clear abuse of discretion. Bradshaw, 296 Ga. at 656 (3).

Here, at the urging of the State, the trial court admitted the other acts evidence to support Harris’ motive in assaulting the victim.

Evidence of another crime may be admitted “to show the defendant’s motive for committing the crime with which he is charged,” but not to demonstrate “a propensity to act in accordance with the character indicated by that [other crime or] conduct.” United States v. Cunningham, 103 F3d 553, 556 (7th Cir. 1996).

Amey v. State, 331 Ga. App. 244, 250 (1) (a) (770 SE2d 321) (2015). Our Supreme Court has defined motive “as the reason that nudges the will and prods the mind to indulge the criminal intent.” (Citation and punctuation omitted.) Bradshaw, 296 Ga. at 657 (3). “[T]o be admitted to prove motive, extrinsic evidence must be ‘logically relevant and necessary to prove something other than the accused’s propensity to commit the crime charged.’ Paul S. Milich, Georgia Rules of Evidence § 11.3, p. 244 (2014).” Brooks v. State, 298 Ga. 722, 726 (2) (783 SE2d 895) (2016).

We find no abuse of discretion in the admission of the other acts evidence under the facts of this case. Although motive was not an element of the charged offense, the other acts evidence was relevant to shed light on why Harris reacted as he did when the victim did not acquiesce to his sexual advances. The victim testified that Harris hit her after she would not let him force his penis into her mouth and while she was struggling to get up and away from him. Similarly, his wife testified that Harris began hitting her while she was attempting to pack her things and leave after she had refused to accede to his wishes, and her sister testified that he struck out at her physically while she was attempting to enter the premises to retrieve something for her sister. Thus, the other acts evidence showed Harris’ willingness to use physical violence against female victims whom he knew in an attempt to intimidate them or bend them to his will when they did not accede to his demands or were otherwise acting against his wishes. Accordingly, the evidence was relevant for the permissible purpose of showing the impetus behind Harris’ action of punching the victim in the face when she did not willingly agree to be his sexual partner. See Smart v. State, 299 Ga. 414 (788 SE2d 442) (2016) (evidence of acts of domestic violence committed against appellant’s ex-wife admissible to show that control was the impetus behind appellant’s violent behavior in trial for malice murder based on beating death of his then wife); Anthony v. State, 298 Ga. 827, 832 (4) (785 SE2d 277) (2016) (evidence of other acts such as cutting his wife’s tires and threatening victim with a gun admissible in trial for murder because it showed “appellant’s desire to take revenge and to provoke confrontation in response to his wife’s affair with the victim”); Bradshaw, 296 Ga. at 657 (3) (evidence of another murder committed six months before charged murder relevant to prove motive because it showed appellant’s willingness to use violence in response to cheating on a drug deal); cf. Brooks, 298 Ga. at 726-27 (2) (fact that the accused had committed the same type of crime in the past did not, without more, prove his motive to commit the same type of crime again when earlier crime was unrelated and unnecessary to prove why seven years later appellant committed the crime for which he was on trial); Amey, 331 Ga. App. at 250 (1) (b) (same).

Having determined that the evidence was relevant, we must also consider whether the evidence should have been excluded under Rule 403, which, among other things, provides for the exclusion of relevant evidence “if its probative value is substantially outweighed by the danger of unfair prejudice. . . OCGA § 24-4-403. The Supreme Court has explained that “[t]he application of the Rule 403 test is a matter committed principally to the discretion of the trial courts,” but it has also found that “the exclusion of evidence under Rule 403 is an extraordinary remedy [that] should be used only sparingly” (Citation and punctuation omitted.) Olds v. State, 299 Ga. 65, 70 (2) (786 SE2d 633) (2016). See also Hood v. State, 299 Ga. 95, 103 (4) (786 SE2d 648) (2016) (“The major function of Rule 403 is to exclude matter of scant or cumulative probative force, dragged in by the heels for the sake of its prejudicial effect.”) (citation and punctuation omitted).

In determining whether relevant evidence is more probative than prejudicial, our Supreme Court has explained that “[generally speaking, the greater the tendency to make the existence of a fact more or less probable, the greater the probative value.” Olds, 299 Ga. at 75 (2). And “the extent to which evidence tends to make the existence of a fact more or less probable depends significantly on the quality of the evidence and the strength of its logical connection to the fact for which it is offered”; “how much it adds ... to the other proof available to establish the fact for which it is offered”; and “the need for the evidence.” Id. at 75-76 (2).

Here, the physical evidence left little doubt that the victim had suffered an injury to her face, the question being how she sustained the injuries. The only direct proof that Harris inflicted the victim’s injuries came from her testimony, which Harris sought to discredit by pointing out that no one testified that she did not have these injuries prior to her alleged altercation with Harris and that she could have been injured by other means such as forcefully biting her lip or slipping in a bathtub. Thus, the other acts evidence that Harris resorted to violence toward other women who did not accede to his demands was needed by the State to counter Harris’ defense and to support its case that Harris intentionally hit the victim in the face after she refused his sexual advances. This evidence added significantly to the other proof used to establish that Harris hit the victim. See Anthony, 298 Ga. at 833 (4) (other acts evidence needed to counter appellant’s testimony at trial and theory of self-defense on which he relied). Although the evidence was prejudicial, “as almost all evidence presented by the State will be,” we agree with the trial court that on balance any such prejudice did not substantially outweigh the probative value of the evidence in this case. Smart, 299 Ga. at 419 (2) (b). See also United States v. King, 713 F2d 627, 631 (III) (11th Cir. 1983) (“[I]n a criminal trial relevant evidence is inherently prejudicial; it is only when unfair prejudice substantially outweighs probative value that [Federal Rule 403] permits exclusion.”) (emphasis omitted).

Decided October 5, 2016.

Teresa L. Doepke, for appellant.

Layla H. Zon, District Attorney, Madalyn S. Davis, Assistant District Attorney, for appellee.

Accordingly, the trial court did not abuse its discretion in admitting the other acts evidence, and Harris is not entitled to a new trial on this basis. See Jones, 297 Ga. at 159 (1) (Appellate courts will overturn a trial court’s decision to admit evidence of other acts “only where there is a clear abuse of discretion.”).

Judgment affirmed.

Miller, P. J., and McFadden, J., concur.

        Jackson v. Virginia, 443 U.S. 307 (99 SCt 2781, 61 LE2d 560) (1979).

       Harris, who entered guilty pleas to the prior offenses, makes no contention that the State failed to prove that he committed the crimes.


source: Caselaw Access Project

license: Public Domain

text:
    A16A1144.
    KING v. THE STATE.
    (792 SE2d 414)
   McMlLLIAN, Judge.

Jeffrey King appeals the denial of his motion for new trial after a jury convicted him of one count of driving under the influence (“DUI”) to the extent that it was less safe to drive. As his sole argument on appeal, King asserts that the trial court erred in admitting evidence of his statement to police that he had a prior DUI because its probative value was substantially outweighed by its unfair prejudice. We affirm for the reasons set forth below.

While on patrol at approximately 8:00 a.m. on November 29, 2014, an officer with the Henry County Police Department observed a J eep Grand Cherokee pulled off the road with its flashers on and its hood up. When the officer stopped to offer help, he encountered King, who was standing on the passenger side of the vehicle. King told the officer that he had pulled over because he needed to add antifreeze to his car. The officer observed that King was “a little bit unsteady” on his feet, his speech was “rather slurred,” and he smelled strongly of alcohol. King admitted to the officer that he had had a drink “a while ago.” King then granted the officer permission to search his car, and during that search, the officer found an unopened 24-ounce can of beer.

Because King stated that he had health issues with his back stemming from a recent automobile accident and that he was legally blind in one eye, the officer decided not to perform most of the standard field sobriety tests. However, he did ask King to recite the alphabet from G to M, which King was unable to do accurately At that point, the officer determined based on his training and experience that King was under the influence of alcohol to the extent that he was not safe to operate a motor vehicle, and he placed King under arrest. The officer then read King the implied consent warning, during which King stated that he was familiar with the warning because he had a prior DUI. King consented to a breath test, but after the officer placed him in the back of the police car, he began to complain of back pain and indicated that he wanted an ambulance. The officer called for medical assistance, and King was transported to the hospital by ambulance. Accordingly, the breath test was not performed, but King later consented to a blood test, which showed a blood alcohol level of 0.307.

Before trial, King filed a generalized motion to suppress, which the trial court denied following a hearing. King did not specifically address his statement regarding his prior DUI in that motion. In the meantime, the State filed a notice of its intent to introduce evidence of a 2011 guilty plea King made to a 2010 DUI charge, but the prosecutor announced on the first day of trial that the State would not be going forward with that evidence. In response, King’s attorney made an oral motion in limine to redact the video of the traffic stop to remove the portion in which King mentions his prior DUI, arguing that the statement would constitute improper character evidence since the State indicated that it did not intend to introduce evidence of the prior DUI. The trial court denied King’s motion, finding that the statement was voluntary, not the product of custodial interrogation, and that it was relevant to the case because it showed that King understood the implied consent notice. At trial, the officer testified about the statement, and the jury was shown an unredacted video of King’s arrest.

King again raised the issue in his amended notice for new trial, arguing that the trial court erred in denying the motion in limine because it failed to conduct a hearing under OCGA § 24-4-404 (b) (“Rule 404 (b)”) to determine whether the evidence was “unfairly prejudicial compared to its probative value.” In addressing King’s motion for new trial on this ground, the trial court noted that the parties’ “fairly brief” discussion of the issue before trial “touched on several areas: (1) the significance of the state withdrawing its intent to use prior bad acts, (2) voluntariness concerns, (3) character evidence, and (4) relevance.” Acknowledging that it had not previously undertaken the Rule 404 (b) analysis on the record, the trial court applied the analysis in denying the motion for new trial. This appeal followed.

In order for other acts evidence to be admissible under Rule 404 (b), the State must show (1) the evidence is relevant to an issue in the case other than the defendant’s character, (2) sufficient proof to enable the jury to find that the defendant committed the act in question, and (3) “the probative value of the other acts evidence is not substantially outweighed by its unfair prejudice, i.e., the evidence must satisfy the requirements of [OCGA § 24-4-403 (‘Rule 403’)].” State v. Jones, 297 Ga. 156, 158-59 (1) (773 SE2d 170) (2015). See also Olds v. State, 299 Ga. 65, 70 (2) (786 SE2d 633) (2016); Bradshaw v. State, 296 Ga. 650, 656 (3) (769 SE2d 892) (2015). See OCGA § 24-4-404 (b).

On appeal, King does not dispute the trial court’s findings on the first two requirements under Rule 404 (b). Rather, he confines his argument to the trial court’s ruling on the third requirement, asserting that the trial court erred in finding that the admission of the evidence was not unduly prejudicial in light of what he argues was its slight probative value because the State did not need the evidence to prove its case.

Rule 403 provides: “Relevant evidence may be excluded if its probative value is substantially outweighed by the danger of unfair prejudice, confusion of the issues, or misleading the jury or by considerations of undue delay, waste of time, or needless presentation of cumulative evidence.” OCGA § 24-4-403. The Supreme Court has explained that “[t]he application of the Rule 403 test is a matter committed principally to the discretion of the trial courts,” but it has also found that “the exclusion of evidence under Rule 403 is an extraordinary remedy [that] should be used only sparingly” (Citation and punctuation omitted.) Olds, 299 Ga. at 70 (2). See also Hood v. State, 299 Ga. 95, 103 (4) (786 SE2d 648) (2016) (“The major function of Rule 403 is to exclude matter of scant or cumulative probative force, dragged in by the heels for the sake of its prejudicial effect.”) (citation and punctuation omitted).

Our consideration of the probative value of King’s statement necessarily involves consideration of the relevance of the statement to the issues in the case. As the Supreme Court recently explained,

[r]elevance and probative value are related, but distinct, concepts. Relevance is a binary concept — evidence is relevant or it is not — but probative value is relative. Evidence is relevant if it has “any tendency” to prove or disprove a fact, whereas the probative value of evidence derives in large part from the extent to which the evidence tends to make the existence of a fact more or less probable.

(Emphasis in original.) Olds, 299 Ga. at 75 (2). See also OCGA § 24-4-401 (“[T]he term ‘relevant evidence’ means evidence having any tendency to make the existence of any fact that is of consequence to the determination of the action more probable or less probable than it would be without the evidence.”).

Moreover, in determining whether relevant evidence is more probative than prejudicial, our Supreme Court has explained that “[generally speaking, the greater the tendency to make the existence of a fact more or less probable, the greater the probative value.” Olds, 299 Ga. at 75 (2). And “the extent to which evidence tends to make the existence of a fact more or less probable depends significantly on the quality of the evidence and the strength of its logical connection to the fact for which it is offered”; “how much it adds ... to the other proof available to establish the fact for which it is offered”; and “the need for the evidence.” Id. at 75-76 (2).

As found by the trial court, the prior DUI was relevant to King’s intent to drive while intoxicated, his defense at trial that the State had failed to prove that he had driven while intoxicated (as opposed to becoming intoxicated after stopping the vehicle by the side of the road), and “peculiarities about the investigation,” including why King suddenly developed back pain moments after consenting to a breath test. We agree. As explained in Jones, a material issue in the State’s prosecution was intent and “because the same state of mind was required for committing the prior act and the charged crimes, i.e., the general intent to drive while under the influence of alcohol,” evidence of King’s prior DUI was relevant to show King’s intent on this occasion. 297 Ga. at 160-61 (2).

Decided October 6, 2016.

Jordan K. Van Matre, for appellant.

Likewise, the relevance of the prior DUI was heightened because King’s defense was that he did not drive the vehicle while intoxicated, “making evidence that he had voluntarily driven under the influence of alcohol on a previous occasion all the more relevant because it tended to show that it was more likely that he intentionally did so on this occasion.” Jones, 297 Ga. at 161 (2).

Turning to the probative value of the prior DUI, this case presents facts somewhat unusual for a DUI in that no witness observed King actually driving the vehicle, making it even more difficult for the State to prove intent and the fact that King had been driving. King’s admission to a prior DUI had a strong logical connection to his commission of the DUI charged in this case, and that evidence added significantly to the otherwise circumstantial evidence that he actually had been driving while intoxicated. Thus, as the trial court explained in its order, the State needed this evidence to support its case and to counter King’s defense. Although evidence of the statement was prejudicial “as almost all evidence presented by the State will be,” we agree with the trial court that any such prejudice did not outweigh the probative nature of the evidence in this case. Smart v. State, 299 Ga. 414, 419 (2) (b) (788 SE2d 442) (2016). See also United States v. King, 713 F2d 627, 631 (III) (11th Cir. 1983) (“[I]n a criminal trial relevant evidence is inherently prejudicial; it is only when unfair prejudice substantially outweighs probative value that [Federal Rule 403] permits exclusion.”) (emphasis omitted).

Accordingly, because we cannot say the trial court abused its discretion in admitting evidence of King’s statement, we affirm. See Jones, 297 Ga. at 159 (1) (Appellate courts will overturn a trial court’s decision to admit evidence of other acts “only where there is a clear abuse of discretion.”).

Judgment affirmed.

Miller, P. J., and McFadden, J., concur.

John A. Pipkin III, Solicitor-General, MaryGrace K. Bell, Assistant Solicitor-General, for appellee.

       The jury acquitted King of a separate count of DUI per se.

       Neither the State nor King raises an issue on appeal as to whether this type of evidence required the trial court to conduct a Rule 404 (b) analysis. Thus, we pretermit the question and assume that Rule 404 (b) applies for purposes of this appeal.


author: Dillard, Judge.

text:
    A16A1230.
    THE STATE v. GARLEPP.
    (790 SE2d 839)
   Dillard, Judge.

Following a traffic stop, Ryan Garlepp received citations for failing to wear a seat belt and driving with more than 0.02 percent blood-alcohol content while under the age of 21 (“DUI per se (under 21)”). After he paid a fine to dispose of the failure-to-wear-a-seat-belt citation, the State charged him, via accusation, with, inter alia, DUI per se (under 21). Garlepp then filed a plea in bar on the ground of procedural double jeopardy, which the trial court granted. On appeal, the State challenges the grant of Garlepp’s plea in bar, arguing that the trial court erred in identifying the solicitor-general’s office generally as the proper prosecuting officer and in finding that both offenses in question were known to the proper prosecuting officer. For the reasons set forth infra, we agree that the trial court erred and, thus, reverse.

At the outset, we note that on appeal from the grant or denial of a double jeopardy plea in bar, we review the trial court’s oral and written rulings as “a whole to determine whether the trial court’s findings support its conclusion.” But when the evidence is uncon-troverted and witness credibility is not an issue, “our review of the trial court’s application of the law to the undisputed facts is de novo.”

So viewed, the record shows that at approximately 7:30 a.m. on May 23, 2015, a Cherokee County sheriff’s deputy observed a white pickup truck swerve wildly to its right to avoid hitting a vehicle in front of it, that had stopped to make a left turn into the parking lot of a fast-food restaurant. Believing that the pickup truck had been following the other vehicle too closely, the deputy initiated a traffic stop and immediately noticed that the driver, ultimately identified as Garlepp, was not wearing his seat belt. Upon approaching the vehicle and speaking to Garlepp, the deputy smelled an alcoholic beverage odor and asked Garlepp, who was 20 years old at the time, if he had been drinking. Garlepp admitted that he had been drinking, but claimed that he drank his last beer around 12:30 a.m. while camping.

Shortly thereafter, another sheriff’s deputy—who had been called to the scene by the first deputy—arrived and had Garlepp perform several field-sobriety tests, which indicated impairment, and also administered an alco-sensor breath test, which returned a positive result for alcohol. Consequently, the second deputy arrested Garlepp for DUI per se (under 21) and read him the implied-consent notice for suspects under the age of 21. And at some point that same morning, Garlepp received a citation for failing to wear a seat belt and a separate citation for DUI per se (under 21). Both citations were filed with the Cherokee County State Court Clerk’s Office that day, but for unknown reasons, they were assigned different case numbers.

On June 5, 2015, an unidentified assistant solicitor-general amended Garlepp’s seat-belt citation, which entailed adding the applicable subsection to the offense’s Code section and—illegibly— initialing the edit. On June 8, 2015, Garlepp paid the fine for his seat-belt citation via the Cherokee County Clerk of Court’s traffic tickets website, and, coincidentally, that same day, another assistant solicitor-general, David McElyea, reviewed Garlepp’s DUI per se citation file, determined that Garlepp was not eligible for the Cherokee County DUI/Drug Court, and signed a recommendation form indicating as much.

On June 15,2015, the solicitor-general’s office filed an accusation charging Garlepp with DUI less safe, DUI per se (under 21), underage possession of alcohol, and following too closely Then, on June 24, 2015, Garlepp filed a motion in autrefois convict and plea of former jeopardy, arguing that because he disposed of the seat-belt citation by paying the fine online, any further prosecution for crimes arising out of the same conduct was barred by procedural double jeopardy under OCGA § 16-1-7. Several months later, the trial court held a hearing on the issue, which concluded with the court determining that double jeopardy, indeed, barred any further prosecution. Consequently, on January 8, 2016, the trial court issued an order granting Garlepp’s motion and plea in bar. This appeal by the State follows.

The State contends that the trial court erred in granting Gar-lepp’s plea in bar under OCGA § 16-1-7 (b), arguing in two separate enumerations of error that the entire solicitor-general’s office was not the proper prosecuting officer and that both offenses in question were not known to the proper prosecuting officer. We agree with the latter argument and, thus, reverse the trial court’s ruling.

The prohibition against double jeopardy in both the United States Constitution and the Georgia Constitution protects our citizens from, inter alia, being prosecuted a second time for the same offense after an acquittal or conviction. Our General Assembly has also enacted several statutory provisions—OCGA §§ 16-1-6, 16-1-7, 16-1-8—that “also provide limitations on multiple prosecutions, convictions, and punishments for the same criminal conduct.” And because Georgia law “expands the proscription of double jeopardy beyond that provided for in the United States and Georgia Constitutions,” we look to the foregoing statutory provisions to resolve issues of double jeopardy.

Procedural double jeopardy under Georgia law is set forth in OCGA § 16-1-7 (b), which “prohibits multiple prosecutions for the same conduct.” More specifically, OCGA § 16-1-7 (b) provides that “[i]f the several crimes arising from the same conduct are known to the proper prosecuting officer at the time of commencing the prosecution and are within the jurisdiction of a single court, they must be prosecuted in a single prosecution . . . And as we have previously explained, this statutory provision requires the State to “prosecute crimes in a single prosecution if the crimes (1) arise from the same conduct, (2) are known to the proper prosecuting officer at the time of commencing the prosecution, and (3) are within the jurisdiction of a single court.” Thus, for procedural double jeopardy to attach, “all three prongs outlined above must be satisfied.”

Here, it is undisputed that the subject crimes arise from the same conduct and that they are both within the jurisdiction of the Cherokee County State Court. Thus, our focus is on the second prong of OCGA § 16-1-7 (b), the knowledge ofthe proper prosecuting officer. In that regard, in Baker v. State, the Supreme Court of Georgia declined to adopt a constructive-knowledge test but, instead, held that OCGA § 16-1-7 (b) applies “only to such crimes which are actually known to the prosecuting officer actually handling the proceedings.” Moreover, under this “actual knowledge test,” the defendant bears the burden of “affirmatively showing that the proper prosecuting officer actually knew that there were other crimes arising out of the same conduct as the crime that the officer was prosecuting.” Thus, the critical question for resolving a plea in bar under OCGA § 16-1-7 (b) “pertains to the prosecuting officer’s knowledge of all the charges on the date when the defendant’s guilty plea was accepted to fewer than all the crimes arising from his conduct.”

In its order granting Garlepp’s plea of former jeopardy, the trial court found that because the seat-belt citation was amended by an unknown assistant solicitor-general on June 5, 2015, the solicitor-general’s office, in its entirety, was aware of that seat-belt offense when it posited that Garlepp was not eligible for DUI Court on June 8, 2015, and certainly when it charged him, via accusation, with DUI per se (under 21) and other offenses on June 15, 2015. Butin doing so, the trial court erred in “looking not to the first proceeding, but to the later prosecution in state court, to determine the knowledge of the prosecuting officer.” Rather, the only knowledge that matters is the knowledge of the assistant solicitor-general who amended the seat-belt citation or the assistant solicitor-general, if any, who handled the disposition of that offense. But here, as previously noted, the citation for the seat-belt offense was filed separately from the citation for DUI per se (under 21), and nothing on the face of the former citation would have provided the unknown assistant solicitor-general who amended the citation with any indication that other charges were pending against Garlepp. And furthermore, the seat-belt citation was issued by the sheriff’s deputy, filed in state court, and disposed of online without the direct intervention of anyone in the solicitor-general’s office or a judge. Given these particular circumstances, Garlepp failed to sustain his burden of showing that the solicitor-general had actual knowledge of the DUI per se (under 21) and other charges at the time he disposed of his seat-belt citation. Accordingly, the trial court erred in granting Garlepp’s motion and plea in bar of former jeopardy, and we reverse that ruling.

Decided September 21, 2016

Reconsideration denied October 7, 2016

Jessica K. Moss, Solicitor-General, Benjamin Huntington, Carlton T. Hayes, June G. Sullenger, Assistant Solicitors-General, for appellant.

Flint, Connolly & Walker, John F. Connolly, for appellee.

Judgment reversed.

Peterson, J., concurs. Phipps, P. J., concurs in judgment only.

        State v. Hill, 333 Ga. App. 785, 785 (777 SE2d 265) (2015) (punctuation omitted); see also State v. Pruiett, 324 Ga. App. 789, 790 (751 SE2d 579) (2013) (same).

        Id. (punctuation omitted); see also Pruiett, 324 Ga. App. at 790 (same).

        See OCGA § 40-8-76.1 (b).

        See OCGA § 40-6-391 (k) (1).

        See Akhil Reed Amar, Double Jeopardy Law Made Simple, 106 Yale LJ 1807, 1814(11) (A) (1997) (“At common law, the double jeopardy idea encompassed two basic pleas in bar, prior acquittal and prior conviction-in law French, autrefois acquit de menie felonie and autrefois convict de menie felonie. The obvious idea here is that if a person has, on a prior occasion (autrefois) been acquitted or convicted of the exact same crime (la menie felonie) with which he is now charged, he can plead the previous judgment as a bar to the second indictment.”).

        See OCGA § 5-7-1 (a) (3) (providing that the State may appeal from an order sustaining a plea or motion in bar, when the defendant has not been put in jeopardy).

        See U.S. Const. Amend. V (“. . . nor shall any person be subject for the same offence to be twice put in jeopardy of life or limb . . . .”).

        See Ga. Const. Art. 1, § 1, ¶ XVIII (“No person shall be put in jeopardy of life or liberty more than once for the same offense except when a new trial has been granted after conviction or in case of mistrial.”).

        See Phillips v. State, 298 Ga. App. 520, 521 (1) (680 SE2d 424) (2009).

        Phillips, 298 Ga. App. at 521 (1) (citation and punctuation omitted); see also Roberts v. State, 280 Ga.App. 672, 673 (634 SE2d 790) (2006); Sword v. State, 232 Ga.App. 497, 498 (502 SE2d 334) (1998).

        Phillips, 298 Ga. App. at 521 (1) (citation and punctuation omitted); see also Prater v. State, 273 Ga. 477, 480 (4) (545 SE2d 864) (2001).

        Etienne v. State, 298 Ga.App. 149, 150 (679 SE2d 375) (2009) (citation and punctuation omitted); see also Hill, 333 Ga.App. at 787 (holding that OCGA § 16-1-7 (b) prohibits successive prosecutions for crimes arising from the same conduct); Chandler v. State, 305 Ga.App. 526, 527 (699 SE2d 840) (2010) (noting that multiple convictions and successive prosecutions for the same conduct are prohibited under OCGA § 16-1-7 (b)); Zater v. State, 197 Ga.App. 648, 648 (1) (399 SE2d 222) (1990) (same).

        Sellers v. State, 332 Ga. App. 14, 17 (1) (770 SE2d 31) (2015) (citation and punctuation omitted); see also Weaver v. State, 224 Ga. App. 243, 243 (480 SE2d 286) (1997).

        Banks v. State, 320 Ga. App. 98, 100 (739 SE2d 414) (2013) (footnote omitted); see also Wilson v. State, 229 Ga. App. 455, 456 (494 SE2d 267) (1997).

       257 Ga. 567 (361 SE2d 808) (1987).

        Id. at 569 (punctuation omitted).

        Sellers, 332 Ga.App. at 17 (1); see also Powe v. State, 257 Ga. 563, 563-65 (361 SE2d 811) (1987); Turner v. State, 238 Ga.App. 438, 438-40 (518 SE2d 923) (1999); Honea v. State, 238 Ga. App. 135, 135-137 (517 SE2d 841) (1999); Hill v. State, 234 Ga.App. 173, 175-77 (1) (507 SE2d 3) (1998).

        Hill, 333 Ga. App. at 787 (citation and punctuation omitted); see also Sanders v. State, 188 Ga. App. 774, 774 (374 SE2d 542) (1988).

        Hill, 333 Ga.App. at 787.

        See id. at 788 (holding that the only knowledge that mattered was the knowledge of the prosecutor who handled the defendant’s guilty plea to the traffic offenses in probate court and not the knowledge of the prosecutor handling the charges that were still pending in superior court); Chandler, 305 Ga.App. at 527-28 (noting that defendant bore the burden of proving that the solicitor-general had “actual knowledge of all the charges” at the time of the disposition of the following too closely charge in the recorder’s court).

        See Hill, 333 Ga. App. at 788-89 (reversing trial court’s grant of defendant’s plea in bar of double jeopardy because defendant could not establish identity of the prosecuting officer, if any, at his guilty plea in recorder’s court or that any prosecuting officer in recorder’s court was aware of the other pending charges at the time of his guilty plea to the charge of following too closely); Chandler, 305 Ga. App. at 527-28 (holding that defendant failed to sustain his burden of showing that the solicitor-general’s office had actual knowledge of the DUI at the time of the bond forfeiture in light of the fact that the traffic citation was issued by a police officer, filed in recorder’s court, and disposed of at the clerk’s office without the intervention of a prosecuting officer or a judge); see also Baker, 257 Ga. at 568-69 (holding that State could prosecute defendant for being an habitual violator, even though habitual violator offense arose out of traffic violation to which defendant entered a guilty plea previously, when defendant did not establish that assistant solicitor who handled traffic violation had actual knowledge of habitual violator offense that arose from the same conduct).


author: PHIPPS, Presiding Judge.

text:
    A16A0769, A16A0781.
    SCHINAZI et al. v. EDEN; and vice versa.
    (792 SE2d 94)
   PHIPPS, Presiding Judge.

Carol Lynn Eden, as Trustee of the 2005 Schinazi GST Grantor Trust (“the Trust”), petitioned for a declaratory judgment and sought damages against Raymond F. Schinazi and RFS & Associates, LLC (collectively, “the defendants”), claiming that the defendants had interfered with Trust assets. The trial court granted summary judgment to Eden on the declaratory judgment request, but awarded the defendants summary judgment on her damages claims.

In Case No. A16A0769, the defendants appeal the trial court’s declaratory judgment ruling. Eden cross-appeals in Case No. A16A0781, challenging the entry of summary judgment for the defendants. For reasons that follow, we affirm the declaratory judgment award in Case No. A16A0769, and we affirm in part and reverse in part the summary judgment ruling in Case No. A16A0781.

On appeal from the grant of summary judgment, we conduct “a de novo review of the evidence to determine whether there is a genuine issue of material fact and whether the undisputed facts, viewed in the light most favorable to the nonmoving party, warrant judgment as a matter of law.” So viewed, the record shows that Schina zi established the Trust on August 23, 2005, naming Eden as Trustee and his daughter as the primary beneficiary. The Trust agreement authorized Schinazi to deposit property into the Trust, and he initially funded it with a $500,000 gift. Although the Trust was irrevocable, Schinazi

expressly reserve[d] the right, exercisable in a nonfiduciary capacity without the approval or consent of any person in a fiduciary capacity, during [his] lifetime to reacquire any part or all of the property of any trust created hereunder by substituting property of equivalent value.

Two days after creating the Trust, Schinazi and RFS & Associates, LLC, a corporation in which Schinazi held a controlling interest and served as manager, formed a limited partnership known as RFS Partners, L.P. The partnership agreement named RFS & Associates as “General Partner,” designated Schinazi as “Limited Partner,” and set forth procedures for transferring partnership interests. It also provided:

NEITHER THE INTERESTS NOR ANY PART THERE OF MAY BE OFFERED FOR SALE, PLEDGED, HYPOTH-ECATED, SOLD, ASSIGNED OR TRANSFERRED AT ANY TIME EXCEPT IN COMPLIANCE WITH THE TERMS AND CONDITIONS OF . . . THIS AGREEMENT.

In addition to being a limited partner, Schinazi held a 99 percent economic interest in RFS Partners. On August 31, 2005, Schinazi assigned his partnership interest to the Trust in exchange for a $7,000,000 promissory note. To accomplish the transfer, Schinazi (separately as transferor and as manager of RFS & Associates) and Eden (as Trustee) executed a “Sale and Assignment of Interests in RFS Partners, L.P” The “Sale and Assignment” document complied with the transfer requirements in the partnership agreement.

Shortly thereafter, Schinazi made a capital contribution to RFS Partners, contributing 1,000,000 shares of Pharmasset, Inc. stock to the partnership in exchange for a new limited partnership interest. Schinazi signed a consent agreement relating to the transaction on behalf of himself, individually, and as manager of RFS & Associates, the general partner. Eden signed for the Trust, which was identified as “Limited Partner.”

Over six years later, on January 2, 2012, Schinazi sent Eden a promissory note in the amount of $58,290,000, stating that he was “exercising [his] asset substitution right [under the Trust agreement] by substituting [the] Promissory Note for the limited partnership interest owned by the Trust in RFS Partners, L.P” Schinazi asked Eden to acknowledge in writing that he was now “the sole owner of all interest formerly owned by the Trust in the Partnership.” Eden refused to sign the acknowledgment, asserting that the promissory note did not constitute a substituted asset of equivalent value, as required by the Trust agreement. Despite this refusal, Schinazi informed Eden on September 11,2012, that “the Trust’s balance sheet consists of” the $58,290,000 promissory note, rather than an interest in RFS Partners.

Eden sued Schinazi and RFS & Associates in November 2012, seeking a declaratory judgment regarding which party — the Trust or Schinazi — owned the RFS Partners interest that Schinazi sought to reacquire in January 2012. She also asserted claims for failure to tender assets of equivalent value, breach of fiduciary duty, litigation expenses under OCGA § 13-6-11, and punitive damages. Finding that the Trust still owned the partnership interest, the trial court granted summary judgment to Eden on the declaratory judgment claim, but awarded the defendants summary judgment on her remaining allegations. These appeals followed.

Case No. A16A0769

1. The defendants argue that Eden is not entitled to declaratory relief because Schinazi’s daughter, the primary Trust beneficiary, released them from liability on Eden’s claims. The record shows that, in addition to the Trust at issue here, another Trust was created in 2006 (“the 2006 Trust”) for the benefit of Schinazi’s daughter. Acting as trustee of the 2006 Trust, Schinazi petitioned his daughter for an accounting of assets in 2012, and she counterclaimed for breach of fiduciary duty. The case eventually settled, and, in 2013, Schinazi’s daughter released Schinazi

individually or in his capacity as grantor, beneficiary or trustee of any trust, or any of his agents or entities acting in any capacity with respect to the 2006 Trust and the Other Trusts, for any and all claims . . . that were asserted or capable of being asserted by [the daughter], [her husband], or their descendants.

According to the defendants, this release barred Eden from pursuing any claims on behalf of the Trust. By its terms, however, the release applied only to claims Schinazi’s daughter, her husband, and their descendants could have asserted. And generally, any cause of action belonging to a trust must be pursued by the trustee, not the trust beneficiaries. The defendants have not demonstrated that Schinazi’s daughter, son-in-law, or other heirs could have brought the declaratory judgment claim or that it falls within the release. Accordingly, the release did not preclude the trial court’s summary judgment award.

2. The trial court granted declaratory relief to Eden, finding that the Trust’s interest in RFS Partners had not been properly transferred to Schinazi and that the Trust still owned the partnership interest. The defendants challenge this ruling on appeal. They contend that, pursuant to the terms of the Trust agreement, Schinazi exercised his right on January 2, 2012, to reacquire the Trust’s partnership interest, which now belongs to him.

“In construing an express trust, we look first and foremost to the language therein and interpret that language to effectuate the intent of the settlors.” The express language of the Trust agreement clearly gave Schinazi the right to reacquire Trust property by substituting property of equivalent value. He did not need Eden’s consent to exercise this right. But the language still required him to acquire — or reacquire — the property from the Trust. The question is whether Schinazi properly did so.

The record shows that the Trust initially held only an assigned limited partnership interest in RFS Partners. As an assignee, it enjoyed no partnership rights or powers, which remained with Schinazi. Under the partnership agreement, however, the Trust qualified as a “Family Member.” And a family member that received an assigned limited partnership interest could become a limited partner “upon the written approval of the General Partner, which may be granted or withheld in the sole and absolute discretion of the General Partner.”

The trial court found that the Trust had become a limited partner by September 2005. We agree. On September 26, 2005, RFS & Associates, the Trust, and Schinazi entered into a consent agreement regarding Schinazi’s capital contribution to RFS Partners and the creation of his new limited partnership interest. The agreement referred to the Trust asa “limited partner of the Partnership” and was signed by all parties, including RFS & Associates as “GENERAL PARTNER” and the Trust as “LIMITED PARTNER.” Such language evidences RFS & Associates’ written approval of—and agreement to — the Trust’s status as a limited partner. The document also discussed the Trust’s consent to Schinazi’s new partnership interest, consent that would not have been necessary had the Trust merely been an assignee.

Given this evidence, the trial court correctly found that the Trust became a limited partner before Schinazi sought to reacquire the Trust’s partnership interest in 2012. Furthermore, because the Trust was a limited partner, any transfer of its interest was governed by Section 5 of the partnership agreement. That section outlined the procedure for transferring a limited partnership generally (Subsection 5.2 (a)) or to a “Family Member” (Subsection 5.3). It also regulated the “Form of Transfers.” Under Subsection 5.4:

A Limited Partner may transfer all or any part of such Limited Partner’s economic interest in the Partnership, subject to compliance with the other provisions of this Section 5, if the transferor and transferee Partners and, if applicable, the General Partner, execute an Assignment substantially in the form of Exhibit A or A-l, as applicable, attached hereto and incorporated herein by this reference. The General Partner’s execution of such Assignment shall signify, if applicable, the consent of the General Partner to such transfer.

Construed together, these provisions established that a limited partnership interest could be transferred only after: (1) compliance with the transfer procedures in Subsection 5.2 (a) or 5.3; and (2) execution of the appropriate transfer form. Nothing in the Trust agreement authorized Schinazi to circumvent these requirements. And Schinazi has pointed to no evidence that the parties executed the necessary transfer form. In contrast to 2005, when he transferred his original partnership interest to the Trust using the “Sales and Assignment” document referenced in the partnership agreement, Schinazi sought to complete the 2012 transaction merely by obtaining an “Acknowledgment of Transfer of Interest” from Eden. This “Acknowledgment,” which was never executed, did not meet the transfer requirements in Subsection 5.4.

Under the plain terms of the partnership agreement, the Trust’s interest in RFS Partners could not be transferred absent compliance with Section 5. Although Schinazi had the right to reacquire the interest, he failed to follow the necessary steps to complete the acquisition. The Trust, therefore, remains the owner of the limited partnership interest unless and until it is transferred pursuant to Section 5.

Case No. A16A0781

3. In her cross-appeal, Eden argues that the trial court erred in granting summary judgment to the defendants on her breach of fiduciary duty claim. We agree.

(a) The defendants contend that summary judgment was proper because, as a matter of law, Eden did not satisfy the essential elements of her claim. A claim for breach of fiduciary duty requires proof of three elements: “(1) the existence of a fiduciary duty; (2) breach of that duty; and (3) damage proximately caused by the breach.” Without question, “partners owe a fiduciary duty to one another.” RFS & Associates, Schinazi, and the Trust were partners in RFS Partners when Schinazi sought to reacquire the Trust’s interest. Schinazi was also the manager of RFS & Associates, which, as the general partner, made “[a]ll decisions relating to the business and affairs of the [partnership.” Such evidence creates an issue of fact as to duty.

Eden also offered evidence regarding breach. Although she objected to Schinazi’s reacquisition efforts, financial records from RFS Partners show that the Trust’s partnership interest was transferred — at least on the partnership books — to Schinazi in 2012. As discussed above, this transfer did not comply with the partnership agreement. Furthermore, the record raises questions about the adequacy of the promissory note Schinazi tendered in exchange for the transfer. Some evidence indicates that the value of the partnership interest increased just days after the tender, when Pharmasset — a company in which RFS Partners owned significant stock — was purchased by another entity This purchase was not finalized until January 12, 2012, but had been announced several months before Schinazi tendered the note. Material questions of fact, therefore, remain regarding breach.

We also find the evidence of damage sufficient to avoid summary judgment. The defendants claim that, even if a breach occurred, the Trust suffered no damage because the transfer has now been declared invalid. Damages, however, “compensate for injury and may be inferred from invasion of a property right.” And “[wjhere no actual damage flows from the injury, nominal damages may be awarded.”

Viewed favorably to Eden, the evidence shows that the defendants unilaterally transferred the Trust’s property interest in RFS Partners to Schinazi. Although the trial court subsequently deemed that transfer invalid, the Trust’s interest was invaded, creating a jury question as to injury and resulting damage, either actual or nominal.

(b) Despite the record evidence, the trial court awarded summary judgment to the defendants after finding that the fiduciary duty claim could not “be asserted independent of the declaratory judgment action.” It is true that a claim for damages “made dependent upon [a] prayer for declaratory judgment” cannot proceed. But separate damages claims “not . . . specifically bottomed on the declaratory judgment” may be raised in a petition seeking declaratory relief.

Although related to the declaratory judgment allegations, Eden’s fiduciary duty claim was not “specifically bottomed” on the request for declaratory relief. As trustee, Eden sought a declaration of the Trust’s interest in RFS Partners to resolve uncertainty regarding Trust assets, future distributions, and tax liabilities. The fiduciary duty claim, on the other hand, involves the defendants’ fiduciary responsibilities toward the Trust, obligations under the partnership agreement, and alleged misconduct in unilaterally transferring ownership of the Trust’s partnership interest.

The damages sought in the tort claim were not tied to Eden’s “prayer for declaratory judgment.” She did not, for example, request damages upon entry or denial of declaratory relief. And resolution of the fiduciary duty claim turns on whether an actionable breach of duty occurred, not on the validity of Schinazi’s asset reacquisition. The trial court, therefore, erred in granting summary judgment on this basis.

(c) Seeking to uphold the summary judgment ruling, the defendants argue that the settlement release executed by Schinazi’s daughter precluded the fiduciary duty claim. As discussed in Division 1, however, the tort action belongs to the Trust, not the Trust beneficiaries. Because the defendants have not demonstrated that the beneficiaries could have brought the claim, their release argument fails.

4. Eden also challenges the summary judgment ruling with respect to punitive damages and litigation expenses. The trial court concluded that, as a matter of law, Eden could not recover on these claims because uncertainty over ownership of RFS Partners led the Trust to seek declaratory relief. According to the trial court, the “bona fide controversy” over the Trust’s ownership interest and status in the partnership prevents recovery for litigation expenses and punitive damages. We disagree.

Decided October 7, 2016

(a) A jury may award litigation expenses to a plaintiff “where the defendant has acted in bad faith, has been stubbornly litigious, or has caused the plaintiff unnecessary trouble and expense.” As noted by our Supreme Court, “every intentional tort invokes a species of bad faith that entitles a person wronged to recover the expenses of litigation including attorney fees.” And generally, questions of bad faith must be resolved by the jury. Accordingly, “[bjecause the intentional tort[ ] of. .. breach of fiduciary duty .. . remain[s] for the jury’s consideration, the claim for attorney fees rooted in bad faith concerning those actions should have also been left for the jury.”

(b) Punitive damages are appropriate where the clear and convincing evidence demonstrates that a defendant acted with “willful misconduct, malice, fraud, wantonness, oppression, or that entire want of care which would raise the presumption of conscious indifference to consequences.” Eden offered evidence that the defendants wilfully violated the partnership agreement and, despite her protestations, divested the Trust of a valuable asset — its interest in RFS Partners. These circumstances raise material factual questions as to whether the defendants acted with the wilfulness or want of care necessary to support a punitive damages award. The trial court, therefore, erred in granting summary judgment on this claim.

5. The trial court also awarded summary judgment to the defendants on Eden’s claim for “failure to tender assets of equivalent value.” Eden concedes that summary judgment on this claim was proper, given the declaratory judgment ruling. Accordingly, the trial court’s ruling as to this claim is affirmed.

Judgment affirmed in Case No. A16A0769. Judgment affirmed in part and reversed in part in Case No. A16A0781.

Dillard and Peterson, JJ., concur.

L. Lin Wood,P.C., Nicole J. Wade; Bryan Cave, Luke A. Lantta, for appellants.

Gaslowitz Frankel, Craig M. Frankel, LeAnne M. Gilbert, for appellee.

       When the events underlying this appeal first began, Eden was known as “Carol Lynn Schinazi.” For ease of discussion, we will refer to her as “Eden.”

        Insight Technology v. FreightCheck, 280 Ga. App. 19, 20 (633 SE2d 373) (2006) (citation and punctuation omitted).

        See Leone Hall Price Foundation v. Baker, 276 Ga. 318 (1) (577 SE2d 779) (2003) (“Atrust can act only through its trustees.”) (citation and punctuation omitted); Skinner v. DeKalb Federal Sav. & Loan Assn., 246 Ga. 561, 563 (272 SE2d 260) (1980) (“[LJegal title is in the trustee, and the cause of action is his.”); PricewaterhouseCoopers v. Bassett, 293 Ga. App. 274, 277 (1) (666 SE2d 721) (2008) (“It is axiomatic that a trust can act only through its trustees.”) (citation omitted); Wammock v. Smith, 143 Ga. App. 186, 187 (1) (237 SE2d 668) (1977) (“It is apparent that the trust can act only through its trustees and that it has no independent legal existence apart from its trustees.”).

        See Brooks v. Gwinnett Community Bank, 311 Ga. App. 806, 808 (717 SE2d 647) (2011) (trial court properly rejected defense based on waiver and release where record contained no evidence that claim had been released).

        Wells Fargo Bank v. Cook, 332 Ga. App. 834, 843 (2) (775 SE2d 199) (2015).

       See OCGA § 14-9-702 (a) (4) (“Until the assignee of a partnership interest becomes a partner, the assignor partner continues to be a partner and to have the power to exercise any rights or powers of a partner, except to the extent those rights or powers are assigned.”).

       See OCGA §§ 14-9-702 (a) (4) (discussing rights of assignee); 14-9-301 (a) (1) (a person may acquire a partnership interest directly from the limited partnership “upon compliance with the partnership agreement or, if the partnership agreement does not so provide in writing, upon the written consent of all partners”); 14-9-704 (b) (“An assignee who has become a limited partner has, to the extent assigned, the rights and powers and is subject to the restrictions and liabilities of a limited partner under the partnership agreement and this chapter.”).

       See OCGA § 14-9-704 (a) (“An assignee of a partnership interest... may become a limited partner if and to the extent that: (1) [t]he partnership agreement so provides; or (2) [a]ll other partners consent.”).

       See OCGA § 13-2-2 (4) (when interpreting a contract, “[t]he construction which will uphold a contract in whole and in every part is to be preferred, and the whole contract should be looked to in arriving at the construction of any part”).

       In granting summary judgment, the trial court found that “[t] he Trust is not required to transfer its limited partnership interest to Schinazi.” Given Schinazi’s failure to follow the transfer requirements, this statement is true. We express no opinion on whether Schinazi can compel the Trust to participate in and execute the necessary forms to facilitate any future reacquisition effort.

        In re Estate of Hubert, 325 Ga. App. 276, 286 (5) (750 SE2d 511) (2013) (citation and punctuation omitted).

        Conner v. Hart, 252 Ga. App. 92, 94 (1) (a) (555 SE2d 783) (2001) (footnote omitted). See also OCGA § 23-2-58 (fiduciary or confidential relationship arises “where one party is so situated as to exercise a controlling influence over the will, conduct, and interest of another or where, from a similar relationship of mutual confidence, the law requires the utmost good faith, such as the relationship between partners, principal and agent, etc.”).

       See Conner, supra; OCGA § 23-2-58. See also Cushing v. Cohen, 323 Ga. App. 497, 508 (5) (746 SE2d 898) (2013) (based on evidence presented, questions of fact remained as to existence of fiduciary duty between officer of corporation and corporate investors).

       See Division 1, supra.

       See AAF-McQuay, Inc. v. Willis, 308 Ga. App. 203, 211-212 (1) (c) (707 SE2d 508) (2011) (“[T] he fiduciary duty of good faith prohibits a partner from improperly ousting another partner and appropriating for himself the assets and property of the partnership, and from withholding financial information from other partners for purposes of self-dealing.”).

        Conner, supra (footnote omitted).

       Id. (footnote omitted).

        See Moses v. Pennebaker, 312 Ga. App. 623, 631 (4) (b) (719 SE2d 521) (2011) (defendant member of limited liability corporation breached fiduciary duty to another member by managing corporation without authority and setting up a competing company; although defendant testified that competing company did not conduct business or sell products, award of nominal damages was proper).

        Gay v. Hunt, 221 Ga. 841, 846 (2) (b) (148 SE2d 310) (1966) (emphasis in original).

       Id.; see also OCGA § 9-4-3 (a) (“Further plenary relief, legal or equitable, including but not limited to damages, injunction, mandamus, or quo warranto, may be sought in a petition seeking declaratory judgment.”).

        Gay, supra (emphasis omitted).

       Compare Calvary Independent Baptist Church v. City of Rome, 208 Ga. 312, 315 (4) (66 SE2d 726) (1951) (damages could not be recovered in declaratory judgment action involving property rights where petition asserted that petitioner was entitled to damages if court denied its ownership claim); Gay, supra (mandamus relief requested in petition for declaratory judgment improper where petition first sought declaratory judgment as to liability, then requested “that mandamus absolute be granted against the party adjudged by said declaratory judgment to be liable”); Southern Heritage Ins. Co. v. Greene Ins. Agency, 249 Ga.App. 749, 750 (1) (549 SE2d 743) (2001) (in declaratory judgment action regarding insurance coverage, insurance company could not “seek [ ] indemnification from the agent in the event that the trial court declares that [the insurance company] is obligated to pay its insureds’ claims”).

       See Brooks, supra.

       Noting the derivative nature of these claims, the trial court also found summary judgment appropriate following its award of summary judgment on the breach of fiduciary duty claim. In Division 3, however, we reversed the trial court’s ruling as to breach of fiduciary duty.

       OCGA § 13-6-11.

        Tyler v. Lincoln, 272 Ga. 118, 122 (2) (527 SE2d 180) (2000) (citation and punctuation omitted).

       Id.

        Insight Technology, supra at 29 (6) (citation and punctuation omitted).

       OCGA § 51-12-5.1 (b).

       See Tyler, supra at 121 (1) (reversing grant of summary judgment on punitive damages claim where material questions of fact remained as to defendant’s wilful or wanton conduct); Insight Technology, supra at 28 (6) (same).


author: Ellington, Presiding Judge.

text:
    A16A2010.
    ANDERSON v. THE STATE.
    (792 SE2d 92)
   Ellington, Presiding Judge.

A DeKalb County jury found Jámese Anderson guilty of identity fraud, OCGA § 16-9-121 (a). Anderson appeals from the denial of his motion for a new trial, contending that the evidence was insufficient to support his conviction beyond a reasonable doubt. Finding no reversible error, we affirm the judgment of conviction.

On appeal from a criminal conviction, the evidence must be viewed in the light most favorable to the verdict, and the appellant no longer enjoys the presumption of innocence; moreover, an appellate court does not weigh the evidence or determine witness credibility but only determines whether the evidence is sufficient under the standard of Jackson v. Virginia, 443 U. S. 307 (99 SCt 2781, 61 LE2d 560) (1979). 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.

(Punctuation omitted.) Bradford v. State, 327 Ga. App. 621 (760 SE2d 630) (2014). So viewed, the record shows the following.

In late November 2012, Anderson was introduced to the victim in this case by the victim’s sister. Anderson told the victim that he had a cell phone distribution business, and he asked the victim for help organizing it and setting up Excel spreadsheets. Anderson also told the victim that he could help him get a good deal on a new cell phone. The victim’s contract with Verizon expired in December, so he accepted Anderson’s offer.

Anderson told the victim he could get him a Samsung phone with service through T-Mobile. Anderson asked for and received the victim’s personal information, including his Social Security and driver’s license numbers, so that he could apply for the victim’s new phone and service. Anderson also asked for the victim’s Verizon personal identification number (PIN) so that he could transfer the victim’s phone number to the new carrier. When his new phone failed to arrive as promised, the victim called Anderson, but Anderson did not respond.

A few days later, the victim discovered Anderson waiting outside his house for a box to be delivered. The box contained a phone, and Anderson told the victim that he needed to take the phone to swap out a SIM card so that the victim could keep his old phone number. Anderson took the phone, promising to return it later that night; however, he never delivered the phone as promised.

The victim called Verizon to find out what was happening with his account, and Verizon informed him that his account had been upgraded to a family plan and that nine new phone lines had been added. Further, the billing address on his account had been changed to an address that the victim did not recognize, an address the police later determined belonged to Anderson. Verizon informed the victim that he had outstanding charges of $4,281.39 on his account for new phones and services. The victim testified that he had not authorized any of the additions to his Verizon account; in fact, the account was supposed to have been closed.

OCGA § 16-9-121 (a) (1) provides: “A per son commits the offense of identity fraud when he or she willfully and fraudulently^] . . . [w]ithout authorization or consent, uses or possesses with intent to fraudulently use identifying information concerning a person[.]” As used in this statute, the term “identifying information” refers to any numbers (such as driver’s license, Social Security, account, and PIN numbers) or other information which can be used to access a person’s “resources.” OCGA § 16-9-120 (5). The term “resources,” includes, but is not limited to, a person’s charge accounts. OCGA § 16-9-120 (6) (C).

The evidence in this case was sufficient to allow the jury to find, beyond a reasonable doubt, that Anderson wilfully and fraudulently used the victim’s personal identifying information to obtain goods and services through the victim’s Verizon account without the victim’s authorization. Although Anderson acquired the victim’s personal information with the victim’s consent, Anderson was only authorized to use that information to obtain a new phone and to set up phone service for the victim. The evidence shows that Anderson did not comply with the victim’s request; instead he used the victim’s personal identifying information in an unauthorized manner, that is, to obtain $4,281.39 in goods and services for himself. This evidence is sufficient to support the jury’s guilty verdict beyond a reasonable doubt. See Zachery v. State, 312 Ga. App. 418, 420 (1) (718 SE2d 332) (2011) (The evidence was sufficient to show that the defendant committed identity fraud by using, without consent, the victim’s federal tax identification number as part of a credit card application to obtain temporary charge passes, which the defendant then used to purchase merchandise.).

Decided October 7, 2016.

Ruth R. McMullin, for appellant.

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

Judgment affirmed.

Branch and Mercier, JJ., concur.