text:
    A14A0540.
    YOUNG v. THE STATE.
    (761 SE2d 504)
   McFADDEN, Judge.

John Young appeals from a trial court order dismissing his motion to withdraw a guilty plea. Because the motion was filed within the same term of court as the written sentence entered on the guilty plea, it was timely; and the trial court erred in ruling that he lacked jurisdiction to consider it. We therefore reverse.

On July 15, 2013, in Bulloch County Superior Court, Young pled guilty, pursuant to North Carolina v. Alford, 400 U. S. 25 (91 SCt 160, 27 LE2d 162) (1970), to robbery, false imprisonment, possession of a firearm during the commission of a crime, and possession of a firearm by a convicted felon. At the conclusion of the plea hearing, the trial court announced that it found the state’s sentencing recommendation to be appropriate, stating: “As to Count one, twenty to serve. Count two, five concurrent. Count three, five consecutive. And Count four, five concurrent.” However, the court did not enter a final disposition or written sentence on that date. Instead, more than a month later, on August 21, 2013, the trial court signed the final disposition and sentence, which then was not filed until almost a week later on August 27, 2013. In October 2013, Young filed a pro se motion to withdraw his guilty plea, claiming ineffective assistance of counsel.

The trial court dismissed the pro se motion to withdraw the guilty plea. In its written dismissal order, the trial court quoted the Supreme Court of Georgia’s holding in Davis v. State, 274 Ga. 865 (561 SE2d 119) (2002), that “when the term of court has expired in which a defendant was sentenced pursuant to a guilty plea, the trial court lacks jurisdiction to allow the withdrawal of the plea.” (Citation and punctuation omitted; emphasis supplied.) The trial court then reasoned, “[ijnasmuch as the Defendant’s motion was filed outside the term of court in which the guilty plea was entered, this Court is without jurisdiction to entertain the motion.” (Emphasis supplied.) Young filed a timely pro se appeal from the dismissal order.

“The court terms for the Superior Court of Bulloch County begin on the first Mondays in February, May, August, and November. OCGA § 15-6-3 (30) (A).” Tremble v. Tremble, 288 Ga. 666, 668 (1), n. 3 (706 SE2d 453) (2011). So Young’s 2013 guilty plea in this case was entered during the May term of court. But as noted above, while the trial court orally announced at the plea hearing that it found the state’s recommended sentence to be appropriate, it did not actually enter the sentence at that time.

“An oral declaration as to what the sentence shall be is not the sentence of the court; the sentence signed by the judge is. [Cit.]” Curry v. State, 248 Ga. 183, 185 (4) (281 SE2d 604) (1981). See also Bell v. State, 294 Ga. 5, 8-9 (2) (749 SE2d 672) (2013) (sentence signed by the judge, not his oral declaration, is the sentence of the court). Indeed, the “criminal proceedings against appellant were [still] pending in the trial court until such time as his sentence was entered in writing and became final.” Crolley v. State, 182 Ga. App. 2, 3 (1) (354 SE2d 864) (1987) (punctuation omitted). Because the judge did not sign and enter the written sentence until the end of August 2013, Young was not sentenced pursuant to the guilty plea until the August 2013 term of court, which began on the first Monday of that month. See OCGA § 15-6-3 (30) (A).

It is well settled that a “motion to withdraw a guilty plea must be filed within the same term of court as the sentence entered on the guilty plea.” Lay v. State, 289 Ga. 210, 212 (2) (710 SE2d 141) (2011) (citation omitted). And as the trial court here noted,

when the term of court has expired in which a defendant was sentenced pursuant to a guilty plea, the trial court lacks jurisdiction to allow the withdrawal of the plea. Once the term of court in which a defendant was sentenced has expired, the only available means for an appellant to withdraw his guilty plea is through habeas corpus proceedings.

Dupree v. State, 279 Ga. 613, 614 (619 SE2d 608) (2005) (citation omitted).

However, the trial court then erred in its analysis by reasoning, not that Young had filed his motion to withdraw his guilty plea outside the term of court when he was sentenced, but that his “motion was filed outside the term of court in which the guilty plea was entered.” (Emphasis supplied.) As recounted above, although the guilty plea was entered in the May term, Young was not sentenced pursuant to the plea until the next August term. And Young then filed his pro se motion to withdraw his guilty plea in the month of October, which was also during that same August term when the sentence was entered. See OCGA § 15-6-3 (30) (A) (the next term of court did not start until the first Monday in November). Accordingly, contrary to the trial court’s dismissal order, Young’s motion to withdraw his guilty plea was timely in that it was filed during the same term of court that the sentence was entered, and the trial court therefore had jurisdiction to entertain the motion. The trial court therefore erred in dismissing Young’s pro se motion to withdraw his guilty plea on the basis that it lacked jurisdiction to rule on the motion.

Decided July 9, 2014.

John M. Young, pro se.

Richard A. Mallard, District Attorney, Michael T. Muldrew, Assistant District Attorney, for appellee.

Moreover, we note that the right to counsel obtains at proceedings on motions to withdraw a guilty plea.

In Fortson v. State, 272 Ga. 457 (532 SE2d 102) (2000), the Georgia Supreme Court held that a proceeding to withdraw a guilty plea is a critical stage of a criminal prosecution, and that the right to counsel attaches when a defendant seeks to withdraw a guilty plea, thus entitling that defendant to assistance of counsel. The court held further that the trial court has an obligation to provide counsel or to obtain a constitutionally valid waiver of counsel from the defendant who sought to withdraw his guilty plea.

Ford v. State, 312 Ga. App. 80, 81 (1) (717 SE2d 676) (2011) (citations and punctuation omitted). Here, it is not clear from the record if Young knowingly waived his right to counsel for the critical stage of seeking to withdraw his guilty plea. We therefore “reverse and remand this case to the trial court for a re-hearing on [Young’s] motion to withdraw his guilty plea to be conducted in conformity with this opinion.” Id. (citations and punctuation omitted).

Judgment reversed and case remanded with direction.

Andrews, P. J., and Ray, J., concur.


source: Caselaw Access Project

author: McFADDEN, Judge.

license: Public Domain

text:
    A14A0550.
    HARVEY v. THE STATE.
    (761 SE2d 507)
   McFADDEN, Judge.

We granted interlocutory review of the trial court’s order denying Roderick Harvey’s motion to suppress evidence of a gun found on the ground five feet away from him during an encounter between him and police officers. He argues that the police detained him in violation of the Fourth Amendment. Finding no violation, we affirm.

“On reviewing a trial court’s ruling on a motion to suppress, evidence is construed most favorably to uphold the findings and judgment and the trial court’s findings on disputed facts and credibility must be accepted unless clearly erroneous.” Wright v. State, 294 Ga. 798, 801 (2) (756 SE2d 513) (2014) (citation and punctuation omitted). This “means that we sustain all of the trial court’s findings of fact that are supported by any evidence.” Ansley v. State, 325 Ga. App. 226 (750 SE2d 484) (2013) (citation omitted). Because, at the hearing on the motion to suppress, Harvey directly challenged the credibility of the police officer who allegedly illegally detained him, “we do not apply a de novo standard of review, which applies only where the facts are undisputed.” Id. at 227 (citation and punctuation omitted). Compare State v. Underwood, 283 Ga. 498, 500-501 (661 SE2d 529) (2008) (applying de novo standard where evidence is uncontroverted and credibility is not challenged). Moreover, “in reviewing a trial court’s decision on a motion to suppress we may consider all relevant evidence of record, wherever located,” Tyre v. State, 323 Ga. App. 37, 42 (4) (a) (747 SE2d 106) (2013) (citation and punctuation omitted), which in this case includes the transcript of an earlier bond hearing. See Sanders v. State, 235 Ga. 425, 431-432 (II) (219 SE2d 768) (1975) (testimony adduced at pre-trial commitment hearing could be considered in determining whether trial court erred in ruling on motion to suppress), superseded in part by statute on other grounds as noted in State v. Dempsey, 290 Ga. 763, 765 (1) (727 SE2d 670) (2012).

Construed most favorably to uphold the judgment, the evidence showed that around 1:00 a.m. on October 16, 2012, a man called 911, identified himself, and reported that his adult son had asked him to pick him up at a gas station and to come “ready for trouble.” The caller described his son as a white man, 44 years old, six feet one inch tall, with brown hair and brown eyes. A police officer responding to the “suspicious activity” call spotted three men near the gas station, walking on the road away from the station. One of the men was a white man who appeared to be about five feet eleven inches tall. The officer activated the blue lights of her patrol car and stopped next to the three men, one of whom was Harvey. The officer testified that she stopped “because I thought I saw someone who matched the description of the son that the father had provided to the 911 call-taker.” She also testified that she believed the dispatch “said something about a group of males — or a group of people, I believe, and I didn’t know if this was part of the group.”

The officer asked the men where they had been and they responded that they had been at the gas station. She attempted to determine if they either were or were not familiar with the 911 caller’s son. She also asked for their identification. Harvey did not have identification but provided his name. The officer asked the men to sit on the curb while she checked this information in her patrol car. As she did so, another officer arrived and spotted a silver handgun on the ground in a ditch about five feet behind the men. The officers separated and handcuffed the three men.

One of the men then told the officers that he had been talking with Harvey and the other man about selling a cellular phone when Harvey pointed a silver gun at him, forced him to walk down the road with them, and demanded the phone. The other man confirmed that story. The officers arrested Harvey, and the state indicted him for kidnapping, criminal attempt to commit armed robbery, and aggravated assault.

Harvey moved to suppress evidence of the gun, arguing that its discovery was the fruit of an illegal detention in violation of the Fourth Amendment. The trial court denied the motion, and we granted Harvey’s motion for interlocutory review of this ruling.

Our Fourth Amendment jurisprudence recognizes three tiers of police-citizen encounters: (1) communication between police and citizens involving no coercion or detention and therefore without the compass of the Fourth Amendment, (2) brief seizures that must be supported by reasonable suspicion, and (3) full-scale arrests that must be supported by probable cause.

Walker v. State, 323 Ga. App. 558, 558-559 (1) (a) (747 SE2d 51) (2013) (citation omitted).

Pointing to the officer’s activation of her vehicle’s blue lights as she approached the men and her request that they sit on the curb while she checked their names, Harvey argues that the trial court erred in ruling that the encounter was first tier. Assuming without deciding that these actions by the officer escalated the encounter to second tier, however, the evidence showed a basis for the stop.

[A] temporary, investigative detention is reasonable if the officer is aware of specific and articulable facts which, taken together with rational inferences from those facts, provided a particularized and objective basis for suspecting the particular person stopped of criminal activity.

Decided July 9, 2014.

Akintunde A. Akinyele, for appellant.

Daniel J. Porter, District Attorney, Karen Seeley West, Assistant District Attorney, for appellee.

Culpepper v. State, 312 Ga. App. 115, 119 (717 SE2d 698) (2011) (citations and punctuation omitted). The officer in this case had been dispatched to investigate suspicious activity at a particular gas station involving a white man slightly over six feet tall and possibly other people. She testified that, on a road near the gas station, she saw a group of men that included a man she believed matched the description given in the suspicious activity call. Based on this evidence, the officer had a reasonable, articulable suspicion for making a second-tier, investigatory stop of the men. See Kinsey v. State, 326 Ga. App. 616, 620 (1) (a) (757 SE2d 217) (2014) (totality of circumstances gave officers reasonable, articulable suspicion to make investigative stop where car and its occupants matched description given by dispatch of suspects involved in criminal activity at nearby apartment complex at time of day where there was very little traffic on road near complex). Compare Walker, 323 Ga. App. at 561 (officer testified that he did not stop defendant based on any observation that defendant matched description of person involved in call to which officer was responding).

Judgment affirmed. Andrews,

P. J., and Ray, J., concur.


author: Dillard, Judge.

text:
    A14A0636.
    BEASLEY v. THE STATE.
    (761 SE2d 509)
   Dillard, Judge.

Following a trial by jury, Robert Beasley was convicted of trafficking cocaine. On appeal, Beasley contends that (1) the evidence is insufficient to sustain his conviction; (2) the trial court erred in denying his motion to suppress evidence; (3) the court admitted impermissible testimony; (4) the court erroneously sentenced him as a recidivist; and (5) his right to due process was violated when the trial judge failed to disclose and/or disqualify himself for an apparent conflict of interest. Because we cannot discern from the current record whether the fifth enumeration of error has been preserved for appellate review, and because the resolution of this enumeration may ultimately moot the other alleged errors, we vacate the trial court’s denial of Beasley’s motion for new trial and remand for findings of fact consistent with this opinion.

As explained more fully in Stewart v. State, 328 Ga. App. 78 (761 SE2d 497) (2014), Beasley was convicted of trafficking cocaine after drugs were discovered in a hotel room that he shared with his girlfriend, Kayla Stewart, on December 24,2011. The Honorable Jack Kirby presided over the trial conducted in the Superior Court of Coweta County, and Judge Kirby is married to the chief assistant district attorney in the Coweta Judicial Circuit District Attorney’s Office. Beasley contends that he was unaware of this fact prior to trial and that he should be granted a new trial as a result of the trial judge’s failure to disclose this information. But the trial court summarily denied Beasley’s motion for new trial, and, for the reasons set forth infra, we cannot glean from the record before us whether this enumeration of error was properly preserved for appellate review. As such, we vacate the trial court’s order denying Beasley’s motion for new trial and remand for further proceedings consistent with this opinion.

As previously noted, it is undisputed by the State that Judge Kirby is married to the chief assistant district attorney in the relevant circuit and, in fact, that he has since recused himself from handling all criminal cases following the Judicial Qualifications Commission’s (JQC) issuance of an opinion on the matter. Specifically, the JQC determined that because Judge Kirby is married to the chief assistant district attorney in his judicial circuit, he “has a direct financial interest in his spouse’s employment,” and that his spouse’s “supervisory authority in the district attorney’s office” requires recusal.

In reaching the foregoing determination, the JQC relied heavily on Canon 3 of the Code of Judicial Conduct, noting that this canon “requires judges to disqualify themselves in all criminal proceedings in a circuit where the judge presides if the judge’s spouse serves in a supervisory or managerial role in the Office of the District Attorney,” and emphasizing that “given the ongoing nature of the conflict and the strong public interest in the appearance of strict impartiality in criminal cases, . . . remittal of disqualification is not permitted because of the appearance of bias concerning a party or the lawyers in the proceeding.”

In considering the matter before us, we are cognizant that this situation is factually similar to that at issue in our Supreme Court’s opinion in Stephens v. Stephens, in which that Court held that a judge should have been disqualified when his son was employed at the law firm of an attorney participating in a case before him. And in so holding, the Supreme Court noted that the JQC had previously issued an opinion expressing that a judge should recuse himself in such a situation. However, in the case sub judice, we cannot yet determine from the record before us whether the trial court erred in denying the motion for new trial on this asserted ground.

The record reflects that Beasley was convicted on November 9, 2012, and his first motion for new trial was filed on November 28, 2012. On December 19, 2012, Judge Kirby issued a rule nisi scheduling a hearing on Beasley’s motion for new trial for February 14, 2013. Thereafter, on January 24, 2013, Beasley’s attorney filed a motion to withdraw as counsel, which was denied by Judge Kirby on February 1, 2013. The order of denial indicated that the motion hearing would still be held on February 14, 2013.

On February 8,2013, Beasley sought a continuance of the motion hearing, indicating financial difficulties in procuring the trial transcript and in formally retaining his counsel to pursue post-trial relief. On April 4, 2013, Judge William Hamrick issued a writ of habeas corpus ad prosequendum, scheduling a hearing on the motion for new trial for May 9,2013. Judge Hamrick then issued a second writ of this nature on July 2, 2013, scheduling a hearing on the motion for new trial for July 18, 2013. Finally, Judge Hamrick issued a third such writon July 18,2013, scheduling a hearing on the motionfor newtrial for August 16, 2013.

Beasley filed a brief in support of his motion for new trial on August 16, 2013. In the brief and at the hearing, Beasley argued that he was deprived of a fair trial due to a conflict of interest created by Judge Kirby’s marriage to a member of the district attorney’s office in the same judicial circuit. Beasley’s counsel contended that neither she nor her client was aware of this relationship prior to trial and that both had learned of the conflict only afterward. However, nothing in the record establishes when exactly Beasley and his counsel learned of the apparent conflict of interest.

In the recent decision of State v. Hargis, our Supreme Court held that the issue of recusal was not properly preserved for appellate review when the defendant first raised it in a motion for new trial but did not also seek disqualification of the trial judge to hear the motion for new trial. But the Supreme Court also made clear the limitations of its holding in Hargis, noting:

We decide today that raising a disqualification issue in a motion for new trial is not sufficient to preserve the issue, at least so long as the same judge — the one allegedly disqualified — is hearing the motion for new trial. If, by the time the grounds for disqualification are known, the allegedly disqualified judge no longer is presiding over the case, we suppose that it might be sufficient to raise the issue in a motion for new trial, inasmuch as a motion to recuse would serve no purpose in such a case. But this is not such a case.

And here, Beasley never filed a motion for Judge Kirby to recuse himself, instead raising the issue of disqualification for the first time in August 2013. But unlike in Hargis, the original trial judge did not preside over the motion for new trial. Indeed, it is undisputed that following issuance of the JQC opinion on May 1, 2013, the original trial judge was reassigned from hearing all criminal matters, and the record reflects no orders signed by Judge Kirby after February 2013.

Decided July 9, 2014.

Loletha D. Hale, Cheryl J. Braziel, for appellant.

Peter J. Skandalakis, District Attorney, Timothy M. Marlow, Assistant District Attorney, for appellee.

Nevertheless, based-on the current state of the record, we are unable to determine exactly when Beasley and his counsel first became aware of the grounds for disqualification—i.e., we cannot tell whether they learned of the grounds after trial but prior to filing the motion for new trial in November 2012, at a later point but prior to Judge Kirby’s reassignment, or only after Judge Kirby’s reassignment. Accordingly, because we cannot discern whether this enumeration of error has been properly preserved for appellate review as delineated in Hargis, we vacate the trial court’s order denying Beasley’s motion for new trial and remand this case to the trial court to make findings of fact as to when Beasley and his counsel first learned of the grounds for disqualification.

Judgment vacated and case remanded with direction.

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

       Beasley was tried with Kayla Stewart, whose appeal we address separately in Stewart v. State, 328 Ga. App. 78 (761 SE2d 497) (2014).

      Judicial Qualifications Commission, Op. 238 (May 1, 2013).

        Id.; see also Code of Judicial Conduct Canon 3 (C), (E), (F).

       249 Ga. 700 (292 SE2d 689) (1982).

        Id. at 701-03 (2).

        Id.; see also Judicial Qualifications Commission, Op. 20 (Nov. 2, 1977). See generally Friends of the Chattahoochee, Inc. v. Longleaf Energy Assocs., LLC, 285 Ga. 859, 861-63 (684 SE2d 632) (2009) (Nahmias, J., statement regarding recusal) (providing in-depth discussion of Stephens v. Stephens in announcing his decision to recuse from all cases involving representation by the global law firm of King & Spalding LLP, at which the justice’s wife is employed as an equity partner).

       We note that although motions for new trial may be amended any time prior to the trial court’s ruling thereon, see OCGA § 5-5-40 (b), the record does not contain an amended motion. And although a brief normally does not serve such a purpose, a trial court may implicitly allow a motion to be amended. See Horne v. State, 231 Ga. App. 864, 866 (2) (501 SE2d 47) (1998) (“[B]ecause the order in this case states the court considered [the defendant’s] brief and the citation of authority contained therein, its denial of the motion included a denial of the ineffective assistance claim argued in the brief. The court implicitly allowed an amendment of the new trial motion. The claim is reviewable.”); see also Edwards v. State, 220 Ga. App. 74, 75 (1) (467 SE2d 379) (1996). Here, the trial court’s order denying the motion for new trial notes that the motion was denied after the court “read and considered” the motion, held a hearing as to same, and “considered the arguments made.” Accordingly, this claim is at least initially reviewable.

       294 Ga. 818 (756 SE2d 529) (2014).

        Id. at 822 (1) (“Even after [the defendant] learned of the grounds for the potential disqualification of the trial judge, he apparently decided to take his chances with the same judge on his motion for new trial. That was his choice to make, but he could not do so and still preserve the disqualification issue for review in the appellate courts.”).

        Id. n.9.

       We note that at the motion-for-new trial hearing, the trial judge was dismissive of Beasley’s argument that he was previously unaware of the basis for recusal, suggesting that Judge Kirby’s marriage was common knowledge within the circuit. While the identity of a judge’s spouse may indeed be common knowledge to his colleagues or, perhaps, to some of the attorneys who regularly practice before the judge (with members of the District Attorney’s Office, of course, also being colleagues of the judge’s spouse in the case sub judice), it strains credulity to suggest that every lawyer who regularly practices in the Coweta Judicial Circuit would be apprised of such information (much less an attorney who infrequently practices in that circuit).


text:
    A14A0083.
    SHIELDS v. THE STATE.
    (761 SE2d 516)
   McFADDEN, Judge.

After a jury trial, Maurice Shields was convicted of multiple counts of aggravated battery (family violence) and aggravated assault (family violence). He appeals the convictions, arguing that the trial court erred by denying his motion in limine to prevent reference to his status as a parolee, that the trial court erred in considering a prior conviction when sentencing him as a recidivist, and that he received ineffective assistance of trial counsel. We hold that the trial court did not err by denying the motion in limine because references to Shields’ parole status were not improper, that Shields failed to meet his burden of showing the invalidity of the prior conviction used in sentencing, and that he received effective assistance of counsel. We therefore affirm the convictions.

Viewed in the light most favorable to the verdict, Morris v. State, 322 Ga. App. 682 (1) (746 SE2d 162) (2013), the evidence shows that the victim and Shields married while Shields was incarcerated. At the time of his attack on the victim, Shields had been released from prison and had been living with the victim and their daughter for five or six months. Shields and the victim were not getting along.

On the day of the incident, August 12, 2009, Shields and the victim argued. Shields became enraged, picked up the victim, threw her to the floor and threw a chair at her. The victim left the house with their daughter and went to her doctor. She then went to the parole office to inform Shields’ parole officer of what happened. The parole officer said that officers would arrest Shields that day and that the parole officer would call the victim once this was accomplished.

Eventually, the victim received word that the parole officer had given up trying to locate Shields that day and would arrest him the next morning. The victim went home, and Shields was there. Shields began accusing the victim of being unfaithful and began attacking her. He stabbed her in the chest with scissors; threw a can of corn at her; grabbed a table that the victim had been using as a shield, placed the table on the victim, and began jumping on it; threw a spare tire at her twice, breaking her wrist; and sprayed her with mace.

Shields stopped attacking the victim and tried to wash the mace from her. But then he saw from the victim’s phone that she had been speaking with his parole officer, and he became enraged again. He hit the victim in the eye with a lamp and threatened to kill her, holding a knife against her throat.

The next morning, several police officers and parole officers went to the house to arrest Shields. Shields knew they were coming, and he made the victim hide. When the officers arrived, Shields told them that the victim was not there. When the victim heard officers asking her daughter where her mommy was, she left her hiding place. The officers arrested Shields on a parole warrant. The victim was taken by ambulance to the hospital. The emergency room doctor who treated her testified about the victim’s injuries.

1. The trial court did not err by denying Shields’motion in limine.

Shields argues that the trial court erred by denying his motion in limine to prevent references to his status as a parolee because the references impermissibly placed his character in issue. Those references primarily came from two witnesses, the victim and Shields’ parole officer. The victim testified that when Shields learned that the victim had been in contact with his parole officer, Shields became enraged and assaulted her again. The victim’s testimony “was relevant to prove that [Shields] had a motive to [assault] the victim, and relevant evidence is not rendered inadmissible simply because it incidentally puts the defendant’s character in issue.” Terrell v. State, 271 Ga. 783, 787-788 (7) (523 SE2d 294) (1999). See also Dickerson v. State, 273 Ga. App. 499, 501 (2) (615 SE2d 584) (2005) (evidence that defendant was on parole at the time of arrest was admissible to show motive for giving a false name, even though the evidence might have reflected negatively on defendant’s character).

Shields’ parole officer testified that the victim had reported the first assault to her, leading the parole officer to obtain a warrant for his arrest, and about the circumstances of his arrest.

[T]he decision whether to admit evidence connected to an arrest lies within the discretion of the trial court. Further, all of the circumstances surrounding an arrest are admissible for whatever value the jury wants to place on them. Material evidence is not made inadmissible merely because it inadvertently places a defendant’s character in issue.

Solis v. State, 268 Ga. App. 493, 500 (3) (602 SE2d 166) (2004) (citations and punctuation omitted).

Shields has not shown that the trial court abused his discretion by denying the motion in limine.

2. Shields has not shown that the trial court erred by sentencing him as a recidivist.

Shields argues that the trial court erred by sentencing him as a recidivist under OCGA § 17-10-7 (c), because one of the convictions upon which the state relied was inadmissible. Specifically, Shields argues that the state failed to prove the voluntariness of the guilty plea upon which that prior conviction was entered. The state introduced a certified copy of the conviction, which reflected that Shields had pled guilty thereto and had been represented by counsel. The burden then shifted to Shields

to prove that the [plea was] not voluntary. [Shields], however, did not present any evidence on this point. Although he cites [Gadson v. State, 197 Ga. App. 315, 317-318 (4) (398 SE2d 409) (1990),] for the proposition that the state, rather than he, was required to show that the [plea was] voluntary, our decision in [Gadson] was based on the Supreme Court of Georgia’s opinion in Pope v. State[, 256 Ga. 195, 209 (17) (345 SE2d 831) (1986)]. The [c]ourt subsequently overruled Pope on the issue of the allocation of burdens of proof regarding the voluntariness of pleas in non-death penalty cases.

Mikell v. State, 309 Ga. App. 608, 610 (710 SE2d 824) (2011) (citations and footnote omitted). “Absent an affirmative showing that [Shields’] plea was not voluntary, a trial court is entitled to rely on a presumption of regularity with regard to the plea process.” Rucker v. State, 304 Ga. App. 184, 188 (2) (b) (ii) (695 SE2d 711) (2010) (citation and punctuation omitted).

3. Ineffective assistance of counsel.

Shields argues that trial counsel was ineffective in three ways: counsel failed to object to inadmissible hearsay; counsel did not properly inform Shields of the effects of recidivist punishment; and counsel failed to introduce evidence of Shields’ mental illness in mitigation of sentencing. None of these alleged errors amounts to ineffective assistance of counsel.

To prevail on his claim of ineffective assistance of counsel, Shields is required to show both deficient performance by trial counsel and actual prejudice. Strickland v. Washington, 466 U. S. 668, 687 (III) (104 SCt 2052, 80 LE2d 674) (1984); Smith v. Francis, 253 Ga. 782, 783 (1) (325 SE2d 362) (1985). If Shields “fails to meet his burden of proving either prong, then we do not need to examine the other prong.” Works v. State, 301 Ga. App. 108, 114 (7) (686 SE2d 863) (2009) (citation omitted).

(a) Hearsay.

Shields argues that trial counsel was ineffective for failing to object to two specific statements which he contends were hearsay that bolstered the victim’s credibility.

Shields argues that trial counsel was ineffective for failing to object to the victim’s testimony that during the assault, their daughter was shouting, “Leave Mommy alone.” At the motion for new trial hearing, counsel testified that he did not object because the testimony fell under two exceptions to the hearsay rule applicable at the time of trial, the res gestae exception and the excited utterance exception. We agree, see Cox v. State, 274 Ga. 204, 206 (3) (553 SE2d 152) (2001), and counsel was not ineffective for failing to object.

Shields argues that trial counsel was ineffective for failing to object to the victim’s testimony that, when she informed the parole officer of the abuse, the parole officer said she suspected Shields had been abusing the victim. Assuming that counsel’s failure to object to this testimony was error, Shields has not shown prejudice. To the extent the parole officer’s suspicion was relevant, it was relevant only to the issue of whether Shields actually committed aggravated battery and aggravated assault against the victim. Given the other evidence that Shields committed those crimes, he has not shown a reasonable probability that, had counsel objected to the victim’s testimony about the parole officer’s suspicions, the outcome of his trial likely would have been different. See Johnson v. State, 295 Ga. 421, 425 (3) (761 SE2d 13) (2014) (because there was admissible evidence on a point, the admission of hearsay evidence on that point did not in reasonable probability affect trial’s outcome so as to demonstrate that counsel rendered ineffective assistance by failing to object).

(b) Recidivist sentencing.

Shields argues that counsel was ineffective for failing to inform him correctly about recidivist sentencing. He argues that trial counsel informed him that he would be sentenced under OCGA § 17-10-6, but OCGA § 17-10-7 actually applied. He argues that trial counsel informed him that if he were convicted of both aggravated assault and aggravated battery, in the “best case scenario” he could be sentenced to 40 years, but that OCGA § 17-10-7 does not require consecutive sentences. However, Shields does not assert that these alleged deficiencies harmed him, and he has thus failed to show ineffective assistance of counsel. Cf. Davis v. State, 325 Ga. App. 572, 575 (2) (754 SE2d 151) (2014) (“Where . . . the defendant’s complaint is that he went to trial instead of pleading guilty because of counsel’s deficient representation, the proper question at the prejudice step is whether the defendant demonstrated that, but for counsel’s deficient performance, there is a reasonable probability that he would have accepted the [sjtate’s plea offer.”) (citation and punctuation omitted).

(c) Mitigation evidence.

Shields enumerates as error that counsel was ineffective for failing to introduce evidence that he had been diagnosed with major depressive disorder. Although Shields enumerates as error that counsel should have introduced this evidence as a defense and in mitigation of sentencing, the only argument he makes concerns counsel’s failure to introduce this evidence in mitigation of sentencing. Thus, the portion of the enumeration concerning the failure to introduce this evidence as a defense is deemed abandoned. See Court of Appeals Rule 25 (c) (2).

As evidence of his diagnosis, Shields points to a report prepared by a forensic psychologist from the Georgia Regional Hospital at Savannah, who evaluated Shields to determine his competency at the time he committed certain acts on August 12,2009, to determine his competency to stand trial, and to recommend a possible disposition. In her report, the forensic psychologist noted that since October 2009, Shields had been treated for major depressive disorder, which had been diagnosed while he was incarcerated for the August 12 acts. The forensic psychologist concluded that there was no evidence that on August 12, Shields was acting from a delusional compulsion that overmastered his will or that he lacked the capacity to distinguish right from wrong because of mental illness or mental defect. Finally, the forensic psychologist determined that Shields did not require inpatient psychiatric hospitalization and that he was not at imminent risk for harm to himself or others, but rather that he had symptoms of sadness. In sum, the only evidence regarding Shields’ depression was the forensic psychologist’s observation that another doctor had diagnosed Shields for depression some time before.

Decided July 10, 2014.

David M. Burns, Jr., for appellant.

As for Shields’ sentence, the court ordered that the 20-year sentence on Count 2 was to be served consecutively to the 20-year sentence on Count 1, but the 20-year sentences on the remaining four counts upon which Shields was sentenced were to be served concurrently with Count 2. In other words, instead of sentencing Shields to serve 120 years incarceration, he sentenced Shields to serve 40 years incarceration.

Shields
has pointed to no evidence ... that the proffered mitigating [evidence — an observation by a forensic psychologist that another doctor had diagnosed Shields with depression —] would have altered the trial court’s sentence. Accordingly, [Shields] has not shown that trial counsel’s failure to present this evidence in mitigation prejudiced him.

Carroll v. State, 252 Ga. App. 142, 148 (4) (c) (555 SE2d 807) (2001) (citations omitted).

Judgment affirmed.

Andrews, P. J., and Ray, J., concur.

Meg E. Heap, District Attorney, Jennifer P. Guyer, Assistant District Attorney, for appellee.

       “Under the new Evidence Code, which applies to trials beginning on or after January 1, 2013, the admissibility of this sort of ‘[ejvidence of other crimes, wrongs, or acts’ is governed by OCGA § 24-4-404 (b).” Thompson v. State, 295 Ga. 96, 102, n. 5 (757 SE2d 846) (2014).

       This is the same day as the attack at issue here, but it is not clear whether the report, which is addressed to a different judge than the judge who presided here, was prepared for this case.


author: DOYLE, Presiding Judge.

text:
    A14A0106.
    STEARNS BANK, N.A. v. DOZETOS et al.
    (761 SE2d 520)
   DOYLE, Presiding Judge.

This case arises from a 2008 action to quiet title as to approximately 14 acres of land known as 2441 Branch Road, Monroe County, Georgia, filed by Keith and Lori Dozetos. Specifically named in the action were, inter alia, Keith’s mother, Bea Nickelson; Earl C. Mitchell, Jr., d/b/a BBS Construction Company; and E-Bank, the predecessor in interest to the current appellant, Stearns Bank, N. A. (“Stearns”). In addition to the petition to quiet title, the Dozetoses alleged fraud, breach of contract, and unjust enrichment against Nickelson.

In response to the Dozetoses’ action, Nickelson filed an answer, cross-claims, and counterclaims against the Dozetoses and E-Bank, alleging that she held legal title to the property. E-Bank filed an answer, and after E-Bank was taken into receivership by the Federal Deposit Insurance Corporation and its assets assigned to Stearns, Stearns asserted various counterclaims and cross-claims against Nickelson and the Dozetoses based on its purported security interest in the property for the payment of construction funds totaling $144,000 provided by Stearns to Mitchell to build a home on the property for the Dozetoses. Stearns appeals the trial court’s sua sponte grant of summary judgment in favor of Nickelson, which awarded her title to the property and cancelled all encumbrances on the property. For the reasons that follow, we reverse and remand for further proceedings.

On appeal from the denial or grant of summary judgment the appellate court is to conduct a de novo review of the evidence to determine whether there exists 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.

The record reveals that in 1998, Keith Dozetos bought the approximately 14-acre property, but in February 2002, he used the property as collateral to borrow at least $8,000 from his mother, Nickelson. Pursuant to their verbal agreement, Dozetos issued a quitclaim deed to Nickelson, but the deed did not memorialize the full agreement and appeared on its face to be a conveyance of absolute title. Nickelson admitted that the quitclaim deed issued to her on the property was meant to constitute a security interest for repayment of the loan. Keith contended that within one-and-a-half years of the February 2002 conveyance he repaid the $8,000, which he maintained was the only loan secured by the deed, but Nickelson refused to deed the property back to him as she had agreed to do. Nickelson, on the other hand, contends that several other amounts totaling $38,000 were also included in the agreement, and the loan was never fully repaid. She also admitted that the Dozetoses maintained a trailer on the property from as early as 2002 and that many of the sums she advanced the Dozetoses were intended for them to develop the property for building their home.

Because Nickelson refused to re-deed the property to him, Keith forged a quitclaim deed purportedly from Nickelson to his wife, Lori, in 2006. In early February 2007, Lori contracted with Carter Mitchell for construction of a home on the property whereby Lori transferred the property to Mitchell via a quitclaim deed, which title Mitchell used to secure a construction loan to build the home. In early March 2007, Mitchell obtained a $100,000 construction loan from E-Bank for which Mitchell executed a deed to secure debt against the property. Construction on the home began, and later that year, in June 2007, the loan was modified to $125,000; it was modified again in August 2007 to $140,000.

Nickelson learned of the forged quitclaim deed in June 2007 — approximately two months after the document was recorded and two months before completion of the house. In February 2008, the Dozetoses filed the instant quia timet action. The trial court determined that because Keith had forged the quitclaim deed, Nickelson was the title holder of the property and Stearns’ lien could not be asserted against the property because Lori, and thus Mitchell, had no interest in the property to encumber the property as security for the loan.

Stearns contends that the trial court erred by granting summary judgment to Nickelson based on its finding that the quitclaim deed from Nickelson to Lori was a forgery.

As an initial matter, it is undisputed that the quitclaim deed purporting to transfer title of the property from Nickelson to Lori is a forgery. And “a forged deed [will] not operate to convey a good title to the grantee therein or persons holding under him; nor would the good faith of a subsequent holder suffice to make such conveyance a good transfer of title.”* * Nevertheless, Stearns argues that questions of material fact remain as to whether, prior to the forgery, Nickelson had an interest in the property because it is undisputed that Keith provided the deed to her in security of a loan. Stearns supports its argument with this proposition of law:

A deed or bill of sale, absolute on its face and accompanied with possession of the property, shall not be proved, at the instance of the parties, by parol evidence to be a mortgage only, unless fraud in its procurement shall be the issue to be tried. The converse is equally true, that a deed absolute on its face not accompanied with possession of the property may be proved by parol evidence to be a mortgage only.
Generally speaking, the intent of the parties must be determined from the deed’s text alone, and extrinsic evidence will be admitted to interpret the deed only where the deed’s text is so ambiguous that its meaning cannot be determined through application of the ordinary rules of textual construction. Absent such ambiguity, there is no question of fact to be resolved by the factfinder. . . . [If] the language of a written instrument is clear and unambiguous, the courts must enforce it as written rather than giving effect to the subjective and unexpressed intentions and understandings of one party.

That said, in this case, we have a grantor of a facially absolute quitclaim deed who remained in possession of the property. Nickelson did not dispute that this quitclaim deed was given to secure a debt on the property. Nor did she dispute the contention that the Dozetoses were in physical possession of the property after Keith conveyed the property to her.

Here, the record establishes that both Nickelson and Keith understood the quitclaim deed he issued to her to be given in security for a debt and that upon repayment of the debt, title would be returned to Keith.* Therefore, the trial court erred by failing to find that Nickelson had only a security interest in the property. The only remaining question with regard to Nickelson’s interest is what the full amount of the debt was (between $8,000 and $38,000) and whether Keith satisfied his obligation to Nickelson. It remains for the trial court to make this finding.

Decided July 10, 2014.

Tisinger Vance, Avery S. Jackson, William E. Underwood, Mann Wooldridge Kneidel, Robert B. Wooldridge, for appellant.

Leonard L. Franco, Beloin, Brown & Blum, James P. Blum, Jr., for appellees.

The trial court also determined that the nature of the quitclaim deed between Keith and Nickelson was not an issue because even if Nickelson’s interest had merely been a security interest, Stearns’ claims for an equitable lien, unjust enrichment, or quantum meruit would fail because it emanated from the forged deed giving title to Lori. But this conclusion is also erroneous. There is evidence that would support a finding that Keith knew of the loan and construction, and therefore, even if the loan was made to Mitchell and even if the construction contract was between Lori and Mitchell, those facts would not preclude Stearns’ claims against Keith, who orchestrated the entire transaction. Thus, the trial court erred by finding that Stearns’ claims were precluded on that basis and by failing to make a determination of Nickelson’s remaining security interest, if any, in the property.

Judgment reversed and case remanded for further proceedings.

Miller and Dillard, JJ., concur.

       The Dozetoses’ claims against Mitchell and various other parties are not pursued in this appeal.

       Stearns initially appealed this case to the Supreme Court of Georgia, which transferred the case in an order entered August 12, 2013, to this Court pursuant to the doctrine set forth in Graham v. Tallent, 235 Ga. 47, 49 (218 SE2d 799) (1975), holding that “[c] ases respecting title to land” constitute “actions at law... in which the plaintiff asserts a presently enforceable legal title against the possession of the defendant for the purpose of recovering the land.” See also Strickland v. McElreath, 308 Ga. App. 627, 630 (708 SE2d 580) (2011) (Smith, J., concurring fully and specially).

       (Punctuation omitted.) Holloway v. U.S. Bank Trust, N.A., 317 Ga. App. 452 (731 SE2d 763) (2012), citing Benton v. Benton, 280 Ga. 468, 470 (629 SE2d 204) (2006).

       Keith alleged that the security interest was only for two acres of the property, but the description included in the quitclaim deed matches that in his original warranty deed.

       Keith admitted he forged the deed, and in May 2008, he pleaded guilty to forgery in connection with the deed. See OCGA § 44-2-43.

       Stearns maintains that Nickelson failed to alert E-Bank (holder of the note at that time) to the forgery; however, Stearns does not point to record evidence that Nickelson was aware of E-Bank’s deed to secure debt.

       (Punctuation omitted.) Tate v. Potter, 216 Ga. 750, 752 (1) (b) (119 SE2d 547) (1961). See also Vatacs Group v. U. S. Bank N.A., 292 Ga. 483, 485 (2) (738 SE2d 83) (2013).

       (Punctuation omitted.) Haire v. Cook, 237 Ga. 639, 643 (2) (229 SE2d 436) (1976). See also OCGA § 44-14-32; Shirley v. Shirley, 209 Ga. 366 (1) (72 SE2d 719) (1952) (providing warranty deed); Davis v. Akridge, 199 Ga. 867 (1) (36 SE2d 102) (1945) (“It is a well-recognized principle of law . . . that a deed absolute in form may he shown to have been made to secure a debt, provided possession of the property involved remains in the maker.”); Southern Railway Co. v. Williams, 160 Ga. 541 (128 SE 681) (1925) (holding that in the case when the grantor executed quitclaim deed to grantee who never took possession, parol evidence was admissible to establish deed was only for security of a debt and extinguished upon repayment by grantor). Compare with Mitchell v. Fullington, 83 Ga. 301, 302-303 (9 SE 1083) (1889) (explaining that a deed absolute on its face accompanied by possession of land by the grantee prevented by statute admission of parol evidence to establish that deed was made only as security of a debt by the grantor). Accord Clements v. Weaver, 301 Ga. App. 430, 434-435 (2) (687 SE2d 602) (2009) (“Where a grantor of a quitclaim deed assigns all its right, title, interest, claim or demand in the tract of land conveyed, it is estopped from asserting any title to or interest in the property conveyed, acquired previously to the execution of the quitclaim deed. A grantor cannot engraft upon a written quitclaim deed an oral contract which would impose an additional affirmative obligation upon the grantee. Similarly, parol evidence is not admissible to place conditions upon a quitclaim deed which is absolute on its face.”) (punctuation omitted).

       (Punctuation and footnotes omitted.) Second Refuge Church of Our Lord Jesus Christ, Inc. v. Lollar, 282 Ga. 721, 724-725 (2) (653 SE2d 462) (2007). See also Clements, 301 Ga. App. at 434-435 (2).

       Georgia contract law requires a meeting of the minds of the parties, and mutuality, and in order for the contract to be valid the agreement must ordinarily be expressed plainly and explicitly enough to show what the parties agreed upon. Acontract may be enforceable even though it rests only in words as remembered by the witnesses.
      (Punctuation omitted.) Bedsole v. Action Outdoor Advertising, 325 Ga. App. 194, 198 (1) (750 SE2d 445) (2013).

       See Williams, 160 Ga. at 542; Bedsole, 325 Ga. App. at 198 (1). See also OCGA § 23-3-40 (“The proceeding quia timet is sustained in equity for the purpose of causing to be delivered and canceled any instrument which has answered the object of its creation or any forged or other iniquitous deed or other writing which, though not enforced at the time, either casts a cloud over the complainant’s title or otherwise subjects him to future liability or present annoyance, and the cancellation of which is necessary to his perfect protection.”).

       See, e.g., Northwest Carpets, Inc. v. First Nat. Bank of Chatsworth, 280 Ga. 535, 537 (1) (630 SE2d 407) (2006) (“A security deed, although conveying the legal title, does so for the purpose of security only, and, upon the satisfaction of the obligation which it is given to secure, is automatically extinguished in effect and can be cancelled of record without any reconveyance by the grantee].]”) (punctuation omitted).

       See Williams, 160 Ga. at 542.

       Although the trial court found that Keith had unclean hands on the basis of the forgery, in this case, Nickelson never had full title to the land to begin with, and may have had no remaining security interest at the time Keith forged the deed.

       See Bedsole, 325 Ga. App. at 200-201 (3). See also Hollifield v. Monte Vista Biblical Gardens, 251 Ga. App. 124, 128-130 (2) (a) & (c) (553 SE2d 662) (2001) (“Under the theory of liability for quantum meruit the essential elements are: (1) the provider performed as agent services valuable to the recipient; (2) either at the request of the recipient or knowingly accepted by the recipient; (3) the recipient’s receipt of which without compensating the provider would be unjust; and (4) provider’s expectation of compensation at the time of rendition of services.”); Reidling v. Holcomb, 225 Ga. App. 229, 232 (2) (483 SE2d 624) (1997) (“The concept of unjust enrichment in law is premised upon the principle that a party cannot induce, accept, or encourage another to furnish or render something of value to such party and avoid payment for the value received; otherwise the party has been unjustly enriched at the expense of another and, in fairness and good conscience, must reimburse the other to the extent of the value conferred.”).


author: McMlLLIAN, Judge.

text:
    A14A0121.
    PATTERSON v. THE STATE.
    (761 SE2d 524)
   McMlLLIAN, Judge.

Danny Gary Patterson appeals following the denial of his motion for new trial after a jury convicted him of one count of distribution of methamphetamine, one count of possession of hydrocodone, and one count of possession of marijuana. For the reasons set forth below, we affirm his convictions for possession of methamphetamine and marijuana, but reverse his conviction for possession of hydrocodone.

Viewed in the light most favorable to the verdict, the evidence shows that in or about January 2010, Darcy Bennett began working as a confidential informant with Agent William Patterson, who was employed by the Towns County Sheriff’s Office and attached to the Appalachian Drug Task Force. Agent Patterson and Bennett initially targeted Michael Goode, Patterson’s co-indictee, as the object of their investigation. The intent was to have Bennett make multiple controlled drug buys from Goode to confirm what she had told the agent about the variety of drugs Goode was selling. In that regard, Bennett went to Goode’s house in a Union County trailer park on February 9, 2010. Bennett was able to purchase two types of prescription pills and marijuana from him on that date.

Bennett returned to Goode’s house on February 22, 2010, to again purchase pills and marijuana, but when she got there, he did not have any marijuana. Instead, he offered to procure some methamphetamine from Patterson. He then twice called Patterson’s phone number to discuss a transaction. Although Goode’s memory was sketchy, he recalled leaving his trailer and walking to Patterson’s trailer to get the drugs. Bennett watched him walk around the trailer next door in the direction where Goode had indicated Patterson’s trailer was located. He returned with the methamphetamine. On that occasion, Bennett was able to purchase fifteen and one-half small pills of diazepam and two “little corner baggies” of methamphetamine.

Later, Bennett used Patterson’s phone number, which she had obtained from Goode, to call Patterson on two occasions in an attempt to set up a direct buy of methamphetamine from him, but her attempts were unsuccessful.

Police subsequently arrested Patterson on the methamphetamine charge and executed a search warrant on his house. During the search, police discovered a marijuana grinder, a small tray with loose marijuana and rolling papers, a pipe with the smell of burnt marijuana, and a small oval, white pill, which was sitting on his kitchen counter and which was later identified as hydrocodone. Patterson admitted at trial that he used the pipe for smoking marijuana and that he had marijuana in the house at the time of his arrest, but he testified that he had never seen the pill the police found at his house before he swept it out from under his computer desk, picked it up and put it on his counter, thinking it might belong to his mother.

Patterson’s mother testified that her doctor had prescribed Lortab for her in March 2010 when she broke her hip. During her recuperation, she stayed at Patterson’s house for a week or so in the month before he was arrested. She testified that it was possible that she dropped some of her pills because she was unsteady on her walker, although she could not state with certainty that she had done so. Although she recalled that the medication looked like little capsules and the State raised some question as to whether she even would have had those pills when she stayed with Patterson, Patterson’s sister testified that the Lortabs were oval, white pills and that her mother had those pills at Patterson’s house.

At trial, Patterson denied that Goode came to his house on February 22, 2010, because he recalled that he was working that day, although he admitted that Goode could have come to his house any day before that. He also denied that he sold any methamphetamine to Goode, or that he had ever seen the methamphetamine in the “little corner baggies” introduced at trial. However, he admitted that he previously had used methamphetamine and that he had three prior felony convictions, one of which was for possession of methamphetamine.

On appeal, Patterson asserts that (1) the trial court committed plain error when it “intimidated and threatened [Goode] with a very harsh sentence unless [Goode] testified against [the] defendant in the way the government wanted him to testify”; (2) the trial court “allowed the jury to believe that Mr. Goode was not getting a benefit for his agreement to testify against Mr. Patterson at trial”; (3) the trial court committed plain error when it failed to properly instruct the jury on the issue of possession; (4) his trial counsel was ineffective with regard to presenting the issues regarding the trial court’s alleged intimidation of Goode and with regard to the jury charges; and (5) the trial court erred when it failed to grant a new trial based on the jury foreperson’s testimony that he observed Patterson in custody during a trial recess.

1. Patterson asserts the trial court committed plain error in intimidating Goode into testifying against Patterson. Two months before Patterson’s trial, Goode pled guilty to the charges filed against him arising out of these incidents. Patterson asserts that during Goode’s plea hearing, the trial judge, who was the same judge who presided over Patterson’s trial, directly and forcefully interjected himself into the plea process by asking Goode why he should accept his plea deal and not reject it “until [Goode’s] memory gets a little better on [the events of February 22, 2010],” noting that he could sentence Goode to a maximum of 70 years.

During her cross-examination of Goode, Patterson’s defense counsel questioned him regarding specific questions asked at his plea hearing and his responses. Therefore, she presumably had a transcript of that hearing, but at no time did she raise the issue of any alleged impropriety by the trial court with regard to Goode’s testimony. In fact, during a colloquy between counsel and the trial court regarding Goode’s plea hearing, the prosecutor referenced the fact that “at some point, the Court challenged Mr. Goode during his plea and suggested the Court wouldn’t take his plea if he didn’t remember what he was guilty of,” and Patterson’s attorney responded, “I’m not going there.”

In order to raise on appeal an impropriety regarding the admissibility of evidence, the specific ground of objection must be made at the time the evidence is offered, and the failure to do so amounts to a waiver of that specific ground— Despite his waiver, [Patterson] contends that the [trial court committed] plain error. But that doctrine is currently limited to alleged error in three circumstances: the sentencing phase of a trial resulting in the death penalty, a trial judge’s expression of opinion in violation of OCGA § 17-8-57, and a jury charge affecting substantial rights of the parties as provided under OCGA § 17-8-58 (b).

(Citations omitted.) Carter v. State, 321 Ga. App. 877, 879 (1) (743 SE2d 538) (2013). Accordingly, this issue is not subject to plain error review.

And to the extent that Patterson is claiming error in the trial court’s actions in Goode’s case, and not in his own, Patterson lacks standing to assert any such error. See Waugh v. State, 263 Ga. 692, 696 (15) (437 SE2d 297) (1993) (appellant had no standing to complain that the trial court accepted his co-defendant’s guilty plea); Sims v. State, 243 Ga. 83, 85 (2) (252 SE2d 501) (1979) (“A party will not he heard to complain of the violation of another person’s constitutional rights.”); Jackson v. State, 156 Ga. App. 280 (4) (274 SE2d 674) (1980) (“Appellant has no standing to complain of the trial court’s refusal to accept his codefendant’s guilty plea.”).

2. Patterson also argues that the trial court allowed the jury to believe that Goode did not get any benefit for his testimony. Patterson asserts that Goode benefitted because his plea deal was accepted after the trial court allegedly intimidated him into remembering the events of February 22. But Patterson has failed to identify any objection or motion by counsel or any ruling by the trial court addressing this issue before or during trial. It is well settled that “this is a court for correction of errors of law committed by the trial court where proper exception is taken, because one may not abandon an issue in the trial court and on appeal raise questions or issues neither raised nor ruled on by the trial court.” (Citations omitted.) Williams v. State, 326 Ga. App. 665, 670 (4) (757 SE2d 267) (2014).

Nevertheless, we will address this issue to the extent it arises in the context of Patterson’s claim of ineffective assistance of counsel.

3. Patterson asserts that his trial counsel was deficient in failing to raise the issues regarding this alleged intimidation and the resulting benefit to Goode of having his plea accepted.

The two-prong test for determining the validity of a claim of ineffective assistance of counsel provided in Strick land v. Washington, 466 U.S. 668 (104 [SCt] 2052, 80 LE2d 674) (1984), asks whether counsel’s performance was deficient and, if so, whether this deficiency prejudiced the defense; that is, whether there is a reasonable probability that the outcome of the proceedings would have been different but for counsel’s deficiency.

(Citation omitted.) Miller v. State, 271 Ga. App. 524, 525-526 (3) (610 SE2d 156) (2005). “Since an appellant claiming ineffective assistance of counsel must show both deficient performance and actual prejudice stemming from that deficiency, an insufficient showing on either of these prongs relieves the reviewing court of the need to address the other prong.” (Citation and punctuation omitted.) Riggins v. State, 279 Ga. 407, 409 (2) (614 SE2d 70) (2005).

“To prove deficient performance, [an appellant] must show that his lawyer performed at trial in an objectively unreasonable way considering all the circumstances and in the light of prevailing professional norms.” Romer v. State, 293 Ga. 339, 344 (3) (745 SE2d 637) (2013). Moreover, we “indulge a strong presumption that counsel’s conduct falls within the wide range of reasonable professional assistance.” Strickland, 466 U.S. at 689. “Thus, a tactical decision will not form the basis for an ineffective assistance of counsel claim unless it was so patently unreasonable that no competent attorney would have chosen it.” (Citation and punctuation omitted.) Brown v. State, 288 Ga. 902, 909 (5) (708 SE2d 294) (2011).

Patterson asserts that his trial attorney erred in not addressing the trial court’s alleged intimidation of Goode at his plea hearing and in not cross-examining Goode on his denial that he received any benefit for such testimony. But it is well settled that decisions about cross-examination and how to discredit a witness are matters of trial strategy. Payne v. State, 289 Ga. 691, 697 (3) (b) (715 SE2d 104) (2011) (“[d] ecisions about what questions to ask on cross-examination are quintessential trial strategy”); Washington v. State, 276 Ga. 655, 659 (3) (a) (581 SE2d 518) (2003) (“The manner in which an attorney attacks the credibility of a witness falls within the ambit of trial tactics.”); Pickard v. State, 302 Ga. App. 483, 487 (1) (b) (i) (691 SE2d 569) (2010) (“The manner in which an attorney chooses to attack a witnesses] credibility falls within the ambit of trial tactics.”).

Here, it is apparent that Patterson’s trial attorney made a conscious decision not to address these issues as she expressly stated that she was “not going there” when the prosecutor mentioned the trial court’s role in Goode’s plea hearing. Patterson did not call his trial counsel to testify at the motion for new trial hearing, and without such testimony, the record contains no evidence as to why his trial attorney made this decision. The presumption of reasonable trial strategy is “extremely difficult to overcome when the defendant fails to call the trial attorney to testify on the motion for new trial.” (Citation and punctuation omitted.) Boykin v. State, 264 Ga. App. 836, 841 (5) (592 SE2d 426) (2003). Moreover, as previously noted, Patterson’s trial attorney attacked Goode’s credibility by questioning him about his testimony at the plea hearing that he could not remember the events of February 22, including his purchase of methamphetamine from Patterson that day; about other inconsistencies between his statements from the plea hearing and at trial; about Goode’s drug use on February 22; and about the overall reliability of his memory of that day.

Under these circumstances, we find that Patterson has failed to overcome the strong presumption that counsel’s actions fell within the range of reasonable professional services.

4. Additionally, Patterson asserts that the trial court erred in instructing the jury on the charge of possession of hydrocodone under OCGA § 16-13-30 (a). He asserts that the trial court should have instructed the jury in accordance with the law as clarified by our Supreme Court in Duvall v. State, 289 Ga. 540 (712 SE2d 850) (2011) (“Duvall II”), with regard to the intent required for that crime, and his attorney should have objected to the trial court’s improper charge.

In Duvall II, the Supreme Court granted certiorari on the issue of whether this Court erred “in construing OCGA §[ ] 16-13-30 (a)... not to require the defendant to know that the pills he possessed were a controlled substance.” 289 Ga. at 541. See also Duvall v. State, 305 Ga. App. 545 (699 SE2d 761) (2010) (“Duvall I”). In that case, police found three loose tablets of a controlled substance in Duvall’s pockets during a search incident to his arrest on misdemeanor charges. He was subsequently charged, inter alia, with felony possession of a controlled substance (Zolpidem Tartrate). Id. As more fully explained in this Court’s opinion in the case, Duvall admitted at trial that

he was drunk and that he had willingly received the pills from his aunt (for whom they were prescribed) earlier in the evening [of his arrest], with her telling him to take the pills for sleeping. He testified that he did not know the pills were a controlled substance and that he thought they were an over-the-counter medication, which testimony constituted his primary defense at trial.

Duvall I, 305 Ga. App. at 545.

On appeal, he asserted that the trial court erred in failing to give his requested charge on mistake of fact in support of his defense. Duvall I, 305 Ga. App. at 547 (2). The Supreme Court agreed with Duvall, holding:

Possession of a controlled substance is not a strict liability offense. Here, the criminal intent required by OCGA §[ ] 16-13-30 (a)... is intent to possess a drug with knowledge of the chemical identity of that drug. The actus reus in [this statute] is possession of the drug, which one knows oneself to possess, when that drug is a controlled substance .... Therefore, possessing Zolpidem Tartrate, which one knows or understands to be Zolpidem Tartrate, is a violation of OCGA § 16-13-30 (a) because Zolpidem Tartrate is a controlled substance. On the other hand, possessing Zolpidem Tartrate, which one believes or understands to be an over-the-counter medication (such as Doxylamine Succinate, sold as an over-the-counter sleep aid under the brand name Unisom), is not a crime because the requisite mens rea is not present.

(Emphasis supplied.) Duvall II, 289 Ga. at 542. The Supreme Court held that Duvall’s “knowledge of the chemical identity of the substance in his possession is purely a question of fact,” and the trial court thus erred in denying his request for an instruction on the defense of mistake of fact, reversing this Court’s opinion in Duvall I. Id.

Here, Patterson’s defense to the charge of possessing hydrocodone, as argued by his trial counsel in closing, was that he did not know that the pill found in his apartment contained hydrocodone, and because he lacked that knowledge, he could not be guilty of possessing a controlled substance in violation of the law. Thus, he was not asserting a defense of mistake of fact as in Duvall; instead, he was asserting, as his sole argument to rebut the hydrocodone charge, that he lacked the necessary intent, or mens rea, to commit the crime. But the trial court failed to charge on the intent required to prove a violation of OCGA § 16-13-30 (a).

Because Patterson’s counsel failed to request such instructions or to object to the trial court’s jury instructions as given, we review the trial court’s jury charge for plain error. State v. Kelly, 290 Ga. 29, 31 (1) (718 SE2d 232) (2011); Ogletree v. State, 322 Ga. App. 103, 109 (2) (744 SE2d 96) (2013). “In Kelly, [our Supreme Court] adopted the federal definition of plain error from United States v. Olano, 507 U.S. 725 (II) (113 [SCt] 1770, 123 LE2d 508) (1993) as well as its four-pronged test.” Guajardo v. State, 290 Ga. 172, 175-176 (4) (718 SE2d 292) (2011). That test, as set out in Kelly, provides:

First, there must be an error or defect — some sort of deviation from a legal rule—that has not been intentionally relinquished or abandoned, i.e., affirmatively waived, by the appellant. Second, the legal error must be clear or obvious, rather than subject to reasonable dispute. Third, the error must have affected the appellant’s substantial rights, which in the ordinary case means he must demonstrate that it affected the outcome of the trial court proceedings. Fourth and finally, if the above three prongs are satisfied, the appellate court has the discretion to remedy the error — discretion which ought to be exercised only if the error seriously affects the fairness, integrity or public reputation of judicial proceedings.

(Citation, punctuation and emphasis omitted.) 290 Ga. at 33 (2) (a). The Supreme Court has noted that the test can be succinctly summarized in this context as “stating that the proper inquiry is whether the instruction was erroneous, whether it was obviously so, and whether it likely affected the outcome of the proceeding.” (Citation and punctuation omitted.) Guajardo, 290 Ga. at 176 (4) (citing with approval, Wagner v. State, 311 Ga. App. 589, 593 (716 SE2d 633) (2011) (Blackwell, J., concurring specially)).

Applying this standard to the jury charge in this case, we must read and consider the jury charges as a whole in determining whether they contain plain error. Guajardo, 290 Ga. at 176 (4). The trial judge charged the jury on the presumption of innocence; the State’s burden to prove the crimes beyond a reasonable doubt; the defendant’s lack of any burden; the definition of reasonable doubt; the definition and nature of evidence, both circumstantial and direct; expert testimony; credibility; impeachment; inconsistent statements; the requirement of corroboration of an accomplice’s testimony with regard to the distribution charge; party to a crime; the required element of venue; the jury’s duties with regard to reaching verdict and selecting a foreman; the requirement of a unanimous verdict; and the trial court’s lack of intention to express any opinion on the case through its rulings or comment.

Additionally, the trial court charged the jury as to the element of intent in criminal offenses, as follows:

This defendant is charged with a crime against the laws of the state. A crime is a violation of a statute of the state in which there’s a joint operation of an act and intention.
Intent is an essential element of any crime and must be proven by the State beyond a reasonable doubt. Intent may be shown in a number of ways provided that you, the jury, believe that it existed from the proven facts before you. It may be inferred from the proven circumstances or by the act and conduct or it may in your discretion be inferred when it is a natural and necessary consequence of an act. Whether or not you draw such an inference is a matter solely for you in your discretion.
Criminal intent does not mean an intent to violate the law or a penal statute, but means simply to intend to commit an act that is prohibited by a statute.
This defendant will not be presumed to have acted with criminal intent, but you may find such intention or the absence of it upon a consideration of the words, conduct, demeanor, motive or other circumstances connected with the act for which the accused is being prosecuted.

The trial court further instructed the jury on the elements of each offense. With regard to the possession of hydrocodone, the trial court charged:

In connection with Count 6,1 instruct you that it is unlawful for any person to possess a controlled substance and I instruct you that hydrocodone is a controlled substance.

We find the trial court’s jury charge to be error in light of evidence presented at trial and the Supreme Court’s holding in Duvall II. Patterson produced at least some evidence that the pill at issue belonged to his mother and that he did not know that it contained hydrocodone. Under the charge as given, however, the jury could have convicted Patterson of possession of hydrocodone based solely on a finding that he intended to possess the pill, without making a finding regarding his knowledge that the pill contained hydrocodone. Moreover, we find this error to be “an obvious defect rather than a merely arguable defect.” Terry v. State, 291 Ga. 508, 509 (2) (731 SE2d 669) (2012). Although the holding in Duvall IIis the first clear expression that OCGA § 16-13-30 (a) requires knowledge of the chemical identity of the controlled substance, Georgia courts previously have imposed a requirement under this statute that a defendant have knowledge that he is possessing contraband. See Clewis v. State, 293 Ga. App. 412, 413 (1) (667 SE2d 158) (2008); Luke v. State, 230 Ga. App. 712, 714 (3) (497 SE2d 376) (1998), overruling on other grounds recognized, Fuller v. State, 235 Ga. App. 436, 438 (2) (509 SE2d 79) (1998); Smith v. State, 197 Ga. App. 609, 611 (398 SE2d 858) (1990).

Additionally, we conclude that this erroneous charge affected Patterson’s substantial rights and likely contributed to the outcome of the case, in that it allowed the jury to convict him under OCGA § 16-13-30 (a) without consideration of one of the essential elements of the crime. In fact, in closing argument, the prosecutor expressly argued that it did not matter whether Patterson knew the pill contained hydrocodone, stating:

You’re not going to hear the judge charge you that he had to know [the] chemical makeup [of the pill]. He’s going to tell you that he had to be knowingly in possession of hydrocodone. It’s the fact that it is hydrocodone that we have to prove [to] you, not that he knew it was hydrocodone, but that he was knowingly in possession of it.

This misstatement of the law was compounded by the judge’s failure to charge the jury on possession (i.e., that possession under OCGA § 16-13-30 (a) had to be knowing).

And because we find that the erroneous charge seriously affected the fairness of Patterson’s trial with regard to the charge of possession of hydrocodone under OCGA § 16-13-30 (a), we exercise our discretion to reverse his conviction on that charge.

5. Patterson further contends that the trial court erred in failing to grant him a new trial based on evidence that the jury foreman saw him in custody during a break in the trial. Patterson’s attorney first brought this issue to the trial court’s attention at his sentencing hearing, over one month after his trial concluded. The trial court declined to rule on the issue at that time, and Patterson reasserted the issue in his motion for new trial.

The jury foreman testified at the hearing on that motion. He stated that during a break in the proceedings, he went to the jail to he fingerprinted in connection with his application for a weapons permit. He was escorted to the fingerprint area, which he described as an open area with a glass wall separating it from another area. While he was being fingerprinted, he saw Patterson for approximately five seconds behind the glass wall, wearing “regular street clothes.” He was not handcuffed or shackled in any way. When Patterson saw the foreman, he waved. In response, the foreman immediately turned around and faced the other direction because he did not want Patterson to think he “was going to befriend him or anything like that.”

The foreman said that he did not think anything about the encounter, nor did he form any kind of opinion as to Patterson’s guilt or innocence from this encounter because he “always assumed in most cases that the defendant is automatically incarcerated.” The foreman did not mention the incident to anyone involved in the trial, nor did he bring it up in the jury room. The encounter did not color his arguments during deliberation, nor did it impact his oath as a juror to seek the truth from the evidence in the courtroom; rather, he based his decision only on the evidence he heard in the courtroom and the law given by the trial judge. Given this testimony, even Patterson’s attorney stated at the hearing on the motion for new trial that it probably does not rise “to the point of being a fundamental and significant error that reaches due process proportions,” although he thought it might considering “the total circumstances,” which he failed to define.

We find the case of Page v. State, 250 Ga. App. 494 (552 SE2d 99) (2001), to be persuasive on this point. There,

[a]fter being sentenced, Page informed the trial court that he felt his case was “tainted” because “one of the jurors in the back may have seen me come from the back[, where the holding cell was located,] with my attorney.” The trial court pointed out that the person had been a prospective juror and that Page had not been in “jail clothes” or in handcuffs. The court noted for the record that while Page may have been seen coming from the holding area, “it’s a wooden, brown door and there’s nothing about it that identifies it as a holding area.” Page admitted that neither he nor his lawyer had requested that anyone be questioned about the issue prior to the conclusion of voir dire. Page cannot now complain about what he failed to timely raise to the trial court.

Decided July 10, 2014.

Ford & Josey, Michael C. Ford, for appellant.

(Citation omitted.) Id. at 497 (4).

Similarly, in this instance, the foreman saw Patterson in street clothes, with no restraints, behind a glass wall. Although this sighting reinforced the juror’s pre-existing assumption that most defendants are incarcerated, the foreman did not discuss this sighting with any other jurors, and he testified that it did not affect his decision-making process in any way. Moreover, although Patterson was aware of this interaction during his trial, he did not bring it to the trial court’s attention until almost one month later at sentencing. We find no error in the trial court’s denial of Patterson’s motion for new trial on this ground. See Elliott v. State, 253 Ga. 417, 421-422 (5) (320 SE2d 361) (1984) (where each of the four jurors who inadvertently saw the defendant in handcuffs stated that they neither discussed the incident with any other juror nor allowed it to affect their decision, trial court did not abuse its discretion in denying mistrial); Neal v. State, 264 Ga. App. 311, 314 (3) (590 SE2d 168) (2003) (viewing of a defendant in shackles by a juror does not, in and of itself, require the trial court to declare a mistrial); Sweeder v. State, 246 Ga. App. 557, 561 (3) (541 SE2d 414) (2000) (juror’s observation of defendant in shackles and handcuffs did not warrant dismissal of juror who testified that it would not affect him); Gann v. State, 245 Ga. App. 448, 448 (1) (538 SE2d 97) (2000) (no error for trial court’s failure to act in response to jury’s observation of defendant in handcuffs where counsel failed to ask for specific relief).

Judgment affirmed in part and reversed in part.

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

W. Jeffrey Langley, District Attorney, Cathy A. Cox-Brakefield, Assistant District Attorney, for appellee.

       Although they share the same last name, William Patterson apparently is not related to the defendant in this case. To distinguish between the two, we will refer to William Patterson as “Agent Patterson” and Appellant Patterson as simply “Patterson.”

       The task force is a multi-jurisdictional law enforcement agency, overseen by the Georgia Bureau of Investigation, with the primary focus of prosecuting illegal drug activity. The counties involved are Towns, Union, Lumpkin, and White.

       The parties stipulated to the admission of the phone records from Patterson’s phone number, which show that his phone received two calls from the same number on February 22, 2010 at 11:16 a.m. and 2:25 p.m. The first call lasted approximately two minutes and the second call lasted over three minutes.

       We could locate no direct evidence in the record demonstrating that Lortabs or any of Patterson’s mother’s other prescriptions contain hydrocodone, although the Lortab prescription bottle introduced at trial read that it was for “41 Hydroco/Apap 7.500 Tab Male.”

       Although Patterson does not contest the sufficiency of the evidence to support his convictions, we find the evidence at trial, although contested, was sufficient to support his convictions beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307 (99 SCt 2781, 61 LE2d 560) (1979).

       Instead, he cites to the previously referenced colloquy between the trial court and counsel.

       By the time of the hearing on the motion for new trial, the trial judge apparently had resigned, and the motion was heard by a different judge. Although Patterson raised a claim of ineffectiveness of counsel on this ground in his hearing brief and, to some extent, in argument, the new judge did not expressly rule on that claim of ineffectiveness. Bather, the judge noted that neither side called Goode as a witness at the motion hearing, although the transcript of his plea hearing was admitted, and the judge found that “[tjhere is no evidence that the [trial judge] intimidated the witness.” Although the hearing judge may have determined that this finding obviated any need to address the ineffectiveness claim on this issue, the finding of no intimidation effectively denied that claim. And because we have found that the issue of intimidation is not directly before us, we consider the events at Goode’s plea hearing only in the context of Patterson’s claim of ineffectiveness of counsel.

       Por example, the pattern jury charges on possession provides:
      The law recognizes two kinds of possession: actual possession and constructive possession. A person who knowingly has direct physical control over a thing at a given time is in actual possession of it. A person who, though not in actual possession, knowingly has both the power and the intention at a given time to exercise authority or control over a thing is in constructive possession of it.
      (Emphasis supplied.) Suggested Pattern Jury Instructions, Vol. II: Criminal Cases (4th ed. 2013) § 2.76.10.

       We note that even prior to the implementation of the plain error test in Kelly, Georgia’s appellate courts found that trial courts committed reversible error in failing to charge on a defendant’s sole defense, even in the absence of a request for such a charge, where, as here, a question of fact is presented on that defense. See, e.g., Tarvestad v. State, 261 Ga. 605, 606 (409 SE2d 513) (1991) (failure to give charge on defendant’s sole defense of justification was reversible error); Pollard v. State, 236 Ga. 587, 589 (4) (224 SE2d 420) (1976) (failure to give charge on sole defense of alibi was reversible error even in the absence of a request for such a charge); Cadle v. State, 271 Ga. App. 595, 596 (1) (610 SE2d 574) (2005) (“It is well settled in this State that the failure to give a charge on a defendant’s sole defense in a criminal case, even without a request, constitutes reversible error if there is some evidence to support the charge.”) (citation and punctuation omitted); Bryan v. State, 157 Ga. App. 635, 636 (3) (278 SE2d 177) (1981) (reversalrequired where trial court failed to charge on specific exemption to OCGA § 16-13-30 (a) where defendant presented sufficient evidence to raise a question of fact on the issue of whether he had a prescription for the controlled substance). Even if an assertion of lack of mens rea may not technically be considered a “defense,” the trial court’s charge in this case did not allow the jury to consider Patterson’s argument that the State failed to prove its case, and thus was fundamentally unfair.

       And because we have reversed Patterson’s possession of hydrocodone conviction on the ground of plain error, we need not address his argument that his trial attorney was ineffective in failing to object to the charge as given or to request a proper charge on that count.


author: Branch, Judge.

text:
    A14A0227.
    HENDERSON et al. v. ST. PAUL BAPTIST CHURCH.
    (761 SE2d 533)
   Branch, Judge.

Georgia and Van Henderson appeal from an order of the Clinch County Superior Court granting summary judgment in favor of St. Paul Baptist Church on the Hendersons’ claims for premises liability and loss of consortium. The Hendersons contend that the trial court erred in granting summary judgment because factual questions exist as to whether St. Paul failed to keep its premises safe and failed to warn Georgia Henderson of a known, hidden hazard on its property. They further assert that a factual question exists as to whether Georgia Henderson encountered the hidden hazard when she attempted to take a shortcut to the side entrance of the church, rather than walking on the designated approach to the church’s main entrance. For reasons explained below, we agree with the Hendersons and therefore reverse the order of the trial court.

“In an appeal from the grant or denial of a motion for summary judgment, we apply a de novo standard of review, viewing the evidence, including any reasonable conclusions and inferences that it supports, in the light most favorable to the nonmovant.” SKC, Inc. v. eMag Solutions, 326 Ga. App. 798 (755 SE2d 298) (2014) (citation omitted). Viewed in the light most favorable to the Hendersons, the record shows that on January 7, 2010, the Hendersons were scheduled to conduct a revival service as visiting pastors at St. Paul at the invitation of St. Paul’s pastor, Amos Lee, Jr. The Hendersons arrived at the church shortly before the 7:30 p.m. service. There is no designated parking lot on church property, but upon their arrival, the Hendersons saw Pastor Lee, who motioned for the Hendersons to park behind his car, which he had parked on the church property next to the left side of the church building. The Hendersons then saw Lee and Lee’s wife enter the church building through a side entrance.

Van Henderson, who was driving, parked the car on the left side of the church behind Lee’s car, next to shrubbery that was planted along the side of the church building. Van Henderson was careful, however, to park the car far enough away from the shrubbery that when opened, the passenger side door would not hit the bushes. Van Henderson then exited the car and went toward the front entrance of the church to check on the arrival of musical equipment being brought from the Hendersons’ church for use at the revival service. Georgia Henderson and several passengers remained in the Hendersons’ car, but after a few minutes, Georgia exited the car planning to walk with her fellow passengers between her car and the shrubbery to the front of the church building. When she got out of the car, Mrs. Henderson was within five feet of the shrubbery, and she saw that the ground around the shrubbery was covered in pine straw. She saw no ground next to the car that was free of pine straw, and given that she had just seen Lee and his wife leave their car and walk into the church, she assumed it was safe to step on the pine straw. After she had closed the car door, Mrs. Henderson walked no more than a few steps before stepping in a hole and falling, suffering a spiral fracture of her leg.

Lee testified that the shrubbery at issue had been planted approximately one month earlier, and the hole in which Henderson fell was actually a trench that had been dug around the landscaping in an effort to keep it watered. At the time of Henderson’s fall, the trench was not visible because it was covered in pine straw and leaves, and it was not marked in any way. The Hendersons had never parked in the same place before, and Lee admitted that he did not inform Georgia Henderson about the trench and that she could not have known about the presence of the trench before she fell in it.

St. Paul moved for summary judgment, arguing that the church could not be held liable for Mrs. Henderson’s injuries as a matter of law because those injuries occurred when Georgia Henderson deviated from the designated route to the front of the church and instead attempted to take a shortcut “through [a] flower bed” to reach the side entrance of the church. The trial court granted St. Paul’s motion, and this appeal followed.

“An owner or occupier of land has a legal duty, enforceable by lawsuit, to exercise ordinary care to keep and maintain its premises and the approaches in a condition that does not pose an unreasonable risk of foreseeable harm to the invited public.” American Multi-Cinema v. Brown, 285 Ga. 442 (679 SE2d 25) (2009). See also OCGA § 51-3-1. In order to recover in a “trip and fall” or “slip and fall” claim,

[t]he plaintiff must plead and prove that: (1) the defendant had actual or constructive knowledge of the hazard; and (2) the plaintiff, despite exercising ordinary care for his or her own personal safety, lacked knowledge of the hazard due to the defendant’s actions or to conditions under the defendant’s control.

Brown, 285 Ga. at 444 (2) (footnote omitted). In Brown, the Supreme Court also explained the shifting burdens imposed on the parties in connection with a motion for summary judgment:

[T]o survive a motion for summary judgment, a plaintiff must come forward with evidence that, viewed in the most favorable light, would enable a rational trier of fact to find that the defendant had actual or constructive knowledge of the hazard. At that point, the burden of production shifts to the defendant to produce evidence that the plaintiff’s injury was caused by his or her own voluntary negligence (intentional disregard of a known risk) or causal negligence (failure to exercise ordinary care for one’s personal safety). If the defendant succeeds in doing so, the burden of production shifts back to the plaintiff to come forward with evidence that creates a genuine dispute of fact on the question of voluntary or causal negligence by the plaintiff or tends to show that any such negligence resulted from the defendant’s own actions or conditions under the defendant’s control.

Brown, 285 Ga. at 444-445 (2) (footnote omitted). Finally, in such lawsuits, it is well established that

the “routine” issues of premises liability, i.e., the negligence of the defendant and the plaintiff, and the plaintiff’s lack of ordinary care for personal safety are generally not susceptible of summary adjudication, and . . . summary judgment is granted only when the evidence is plain, palpable, and undisputed.

Dickerson v. Guest Svcs. Co. of Va., 282 Ga. 771-772 (653 SE2d 699) (2007) (citation omitted). In this case, the evidence is not plain, palpable, and undisputed and so summary judgment should not have been granted in favor of St. Paul.

(a) First, the Hendersons presented sufficient evidence to enable a rational trier of fact to conclude that St. Paul had actual or constructive knowledge of the hole in which Georgia Henderson fell, thereby satisfying their initial burden under Brown. Lee admitted that within the previous month, the church had dug a trench along the side of the bushes and that the trench was covered with pine straw. Lee himself was aware of the presence of the trench and that it was concealed by pine straw. And Georgia Henderson testified that she was injured when she stepped into a “trench-type hole.” The Hendersons therefore produced evidence that would enable a rational trier of fact to find that St. Paul had actual or constructive knowledge of the hazard. The burden of production therefore shifted to St. Paul to produce evidence that the plaintiff’s injury was caused by his or her own voluntary or causal negligence. Brown, 285 Ga. at 445 (2).

(b) St. Paul counters that Georgia Henderson’s injury was caused by her decision about how to get to the church entrance. See, e.g., Gaydos v. Grupe Real Estate Investors, 211 Ga. App. 811, 813 (440 SE2d 545) (1994) (“The reasonable selection of a route of travel is a part of the invitee’s duty to exercise ordinary care for her own safety.”). St. Paul contends the evidence shows that there was approximately five feet of ground between the Hendersons’ vehicle and the “flower bed” that Georgia Henderson could have used to get to the church entrance but that, after taking a few steps toward the entrance of the church, she “deviated from the permitted path” by deciding “to step into the pine straw covered flower bed.” St. Paul presented evidence to show that the Hendersons parked far enough away from the bushes so that an open car door would not touch them, as well as some photographs suggesting that the pine straw did not extend much beyond the edge of the bushes themselves. Thus, St. Paul presented evidence supporting the theory that Georgia Henderson’s injury was caused by her own negligence. See, e.g., Chamblee v. Grayco, Inc., 266 Ga. App. 154, 156 (596 SE2d 683) (2004) (voluntary departure rule precluded the plaintiff’s recovery as a matter of law where plaintiff voluntarily stepped from the sidewalk, which was the route designated by the owner/occupier, onto a partially exposed drainage pipe, fell and was injured). Accordingly the burden shifted back to the Hendersons to produce evidence sufficient to raise an issue of fact as to Georgia Henderson’s negligence or to show that her negligence resulted from the defendant’s actions or conditions under the defendant’s control. Brown, 285 Ga. at 444-445 (2).

(c) When construed in her favor, however, Georgia Henderson’s testimony shows that at the time of her fall the entire area between her car and the bushes was covered with pine straw, leaving her with no choice of whether to walk on the pine straw to get to the church entrance from the parking spot. Accordingly, the Hendersons raised an issue of fact for the jury as to whether Georgia Henderson chose to step onto the pine straw rather than remain on a safer path in her attempt to proceed to the church.

Decided July 10, 2014.

Farrar, Hennesy & Tanner, Kirk Farrar, for appellants.

St. Paul also appears to argue that the decision by the Hendersons to park next to the church rather than across the street as they had always done in the past when visiting St. Paul amounted to a deviation from the known safe path to the entrance to the church. But the Hendersons presented evidence that Pastor Lee, who had invited the Hendersons to the church and was aware of the trench and the fact that it was hidden, directed the Hendersons to park along the bushes behind his car yet failed to warn them of the hazard. Thus, there is also a question of fact as to whether any negligence by Georgia Henderson resulted from St. Paul’s own actions. See Brown, 285 Ga. at 444-445 (2) (plaintiff may create issue of fact regarding her own negligence by presenting evidence that “tends to show that any such negligence resulted from the defendant’s own actions or conditions under the defendant’s control”).

The case of Mac Intl.-Savannah Hotel v. Hallman, 265 Ga. App. 727 (595 SE2d 577) (2004), supports our decision. In Hallman, a hotel guest returning from dinner in the dark chose to use uneven hotel stairs in a “shadowy area” without holding the handrail, which stairs actually led to a door marked “Exit only. Do not Enter,” thereby enticing the guest to climb the uneven stairs to read the sign and having to descend the same stairs, where she fell and was injured. Id. at 727. This Court held that the plaintiff did not “voluntarily depart from the route designated and maintained by the owner/occupier for the invitee’s safety and convenience” because “the hotel set the stage for the injury by failing to illuminate the doorway, by posting a sign that could not be read from the sidewalk, and by maintaining uneven steps that could not be seen clearly, paired with overgrown handrails that were too low.” Id. at 729-730 (3) (punctuation omitted). Similarly, in this case there is some evidence that St. Paul set the stage for this accident when Lee directed the Hendersons to park next to the hazardous trench which was covered with pine straw. Id.

For the above reasons, we reverse.

Judgment reversed.

Barnes, P. J., and Boggs, J., concur.

Young, Thagard, Hoffman, Smith, Lawrence & Shenton, J. Holder Smith, Jr., for appellee.

       It was dark at the time of the Hendersons’ arrival at the church.

       OCGA § 51-3-1 provides as follows: “Where an owner or occupier of land, by express or implied invitation, induces or leads others to come upon his premises for any lawful purpose, he is liable in damages to such persons for injuries caused by his failure to exercise ordinary care in keeping the premises and approaches safe.”