author: BARNES, Presiding Judge.

text:
    A15A2103.
    SPARRA v. DEUTSCHE BANK NATIONAL TRUST COMPANY et al.
    (785 SE2d 78)
   BARNES, Presiding Judge.

Robert Sparra filed this action in Gwinnett County Superior Court against Deutsche Bank National Trust Company, Select Portfolio Servicing, Inc., and Rubin Lublin, LLC (defendants) asserting claims for wrongful foreclosure, promissory estoppel, Fair Debt Collection Practices Act (FDCPA) violations, and declaratory relief, and seeking a temporary restraining order and/or preliminary and permanent injunction, punitive damages, and attorney fees. The trial court granted the defendants’ motion to dismiss for failure to state a claim upon which relief can be granted. Sparra now appeals the dismissal of his complaint. For the following reasons, we affirm.

“We review de novo a trial court’s determination that a pleading fails to state a claim upon which relief can be granted, construing the pleadings in the light most favorable to the plaintiff and with any doubts resolved in the plaintiff’s favor.” (Citation and punctuation omitted.) Babalola v. HSBC Bank, USA, 324 Ga. App. 750 (751 SE2d 545) (2013).

So viewed, Sparra’s complaint alleges that in 2006, Sparra refinanced his home with a loan from Thornburg Mortgage Home Loans, Inc. (Lender) and secured the loan with a security deed that conveyed the property to “Lender and Lender’s successors, and assigns, with power of sale.” The security deed was assigned to Deutsche Bank National Trust Company (Deutsche) in 2012, while Select Portfolio Services, Inc. (SPS) acted as the loan servicer for Deutsche. In 2013, Sparra approached SPS to modify his loan and was told that he would qualify for a loan modification if he missed his monthly payments and filed for a hardship loan modification. Sparra missed the payments, and SPS placed him on a trial payment period for three months during which he was required to make the same monthly payments.

Sparra further alleged in the complaint that after the trial period, SPS told Sparra that if he wanted a fixed-rate, 30-year mortgage modification, he would need to miss two more payments and reapply for the modification. In October 2013, a representative from SPS informed Sparra that she expected the government to deny his hardship loan modification application. Sparra withdrew this application, and instead applied for an in-house modification with SPS. In November 2013, Sparra received a call from another SPS representative, who told Sparra that his house would be foreclosed on in the first week of December 2013. Afew days later, Sparra asserted, another representative confirmed with Sparra that he would need to pay the mortgage arrears and foreclosure fees within the week to halt the foreclosure sale.

On November 26, 2013, Sparra sent a letter to Rubin Lublin, LLC, the defendants’ servicing law firm, to inform them of his intent to pursue a claim against the defendants for wrongful foreclosure. On December 2, 2013, Lublin replied to Sparra that the foreclosure sale was cancelled. Sparra filed the complaint against the defendants on February 4, 2014. Concurrently, the trial court granted Sparra a temporary restraining order against the defendants, prohibiting foreclosure sale of the property during the pendency of the litigation.

On March 7,2014, the defendants removed the case to the United States District Court for the Northern District of Georgia, based on the federal question arising from Sparra’s claim that the defendants violated the FDCPA. On March 12, 2014, the defendants moved to dismiss the complaint for failure to state a claim upon which relief can be granted. Sparra did not respond to the motion until February 3, 2015, after the federal magistrate issued a Report and Recommendation recommending that the defendants’ motions should be granted. Sparra filed an objection to the magistrate’s recommendation.

On February 23, 2015, the district court dismissed the FDCPA claim because it found that the defendants were not debt collectors and remanded the state law claims to the trial court. The defendants filed another motion to dismiss for failure to state a claim upon which relief can be granted under OCGA § 9-11-12 (b) (6) onMarch 11,2015. On March 25, 2015, the trial court granted the defendants’ motion to dismiss, and Sparra then filed a timely appeal.

1. Sparra contends that the trial court erred by dismissing his complaint for failure to state a claim. We disagree.

A motion to dismiss for failure to state a claim should not be sustained unless (1) the allegations of the complaint disclose with certainty that the claimant would not be entitled to relief under any state of provable facts asserted in support thereof; and (2) the movant establishes that the claimant could not possibly introduce evidence within the framework of the complaint sufficient to warrant a grant of the relief sought.

(Citation omitted.) Stewart v. SunTrust Mtg., 331 Ga. App. 635, 636 (770 SE2d 892) (2015). To determine if the trial court erred in its ruling, we must look at each claim Sparra alleged in his complaint.

(a) Wrongful foreclosure. “In Georgia, a plaintiff asserting a claim of wrongful foreclosure must establish a legal duty owed to it by the foreclosing party, a breach of that duty, a causal connection between the breach of that duty and the injury it sustained, and damages.” (Punctuation and footnote omitted.) Gregorakos v. Wells Fargo Nat. Assn., 285 Ga. App. 744, 747-748 (2) (647 SE2d 289) (2007). However, as a matter of law, a plaintiff cannot state a claim for wrongful foreclosure when no foreclosure sale has taken place. See Patel v. JP Morgan Chase Bank, 327 Ga.App. 321, 326 (2) (757 SE2d 460) (2014); Jenkins v. McCalla Raymer, LLC, 492 Fed. Appx. 968, 972 (11th Cir. 2012) (concluding that “Georgia law requires a plaintiff seeking damages for wrongful foreclosure to establish that the property at issue was actually sold at foreclosure”).

Sparra’s home was never actually foreclosed upon, which bars him from recovering damages for a wrongful foreclosure. The defendants cancelled the initial foreclosure sale, and the trial court entered an ex parte temporary restraining order enjoining the foreclosure sale on the day Sparra filed his complaint. Accordingly, the trial court was correct in dismissing this claim because as a matter of law Sparra was not entitled to any damages for wrongful foreclosure.

(b) Injunctive relief. Sparra seeks injunctive relief because he alleges the defendants lured him into a false default. Under Georgia law, it is established that “a borrower who has executed a deed to secure debt is not entitled to an injunction against a sale of the property under a power in the deed, unless he first pays or tenders to the creditor the amount admittedly due.” Brevard Fed. Sav. & Loan Assn. v. Ford Mountain Investments, 261 Ga. 619, 620-621 (2) (409 SE2d 36) (1991). To seek injunctive relief, Sparra must tender the amount past due under the loan. See Stewart, 331 Ga. App. at 640 (6) (affirming a dismissal of claim for injunctive relief because the plaintiff did not tender debt, even though he asserted that the failure resulted from the defendant inducing him to refrain from taking steps to prevent foreclosure).

Sparra argues on appeal that he did tender the amount owed, but did not complete the payment after tendering at the direction of the defendants. However, he does not allege tendering or completing the payments in the complaint but admits to missing the monthly payments, and “he who would have equity must do equity, and give effect to all equitable rights in the other party.” (Citation and punctuation omitted.) Wright v. Intercounty Properties, 238 Ga. 492, 494 (233 SE2d 160) (1977). Furthermore, the defendants told Sparra that in order to halt the foreclosure proceeding he needed to pay mortgage arrears, and Sparra refused to do so. Accordingly, Sparra is not entitled to injunctive relief.

(c) Attempted wrongful foreclosure. Sparra did not expressly plead an attempted wrongful foreclosure claim in his complaint, but he asked the court to liberally construe his complaint as having such a claim. An attempted wrongful foreclosure claim exists when, in the course of a foreclosure action that was not completed, a defendant makes “a knowing and intentional publication of untrue and derogatory information concerning the debtor’s financial condition, and ... damages were sustained as a direct result of the publication.” Aetna Finance Co. v. Culpepper, 171 Ga. App. 315, 319 (1) (320 SE2d 228) (1984).

To successfully plead a claim for attempted wrongful foreclosure, Sparra would need to allege that the defendants published information about his financial condition that was untrue, but he admits in his complaint that he missed some of his regular mortgage payments. Sparra also does not allege any damages as a result of the foreclosure publication for which he could recover, rendering this claim without merit.

(d) Promissory estoppel. Sparra contends that he is entitled to relief under the doctrine of promissory estoppel and that he relied to his detriment on the defendants’ promises.

To prevail on a promissory estoppel claim, plaintiffs must show that (1) defendant made certain promises, (2) defendant should have expected that plaintiffs would rely on such promises, (3) the plaintiffs did in fact rely on such promises to their detriment, and (4) injustice can be avoided only by enforcement of the promise.

Canterbury Forest Assn. v. Collins, 243 Ga. App. 425, 428 (2) (532 SE2d 736) (2000).

The first element of promissory estoppel is the defendants’ alleged promise. Mooney v. Mooney, 245 Ga. App. 780, 783 (538 SE2d 864) (2000). Promissory estoppel does not apply to vague promises and “while the promise need not meet the formal requirements of a contract, it must, nonetheless, have been communicated with sufficient particularity to enforce the commitment.” Id.

Here, Sparra alleges that SPS promised to permanently modify his loan and to forego foreclosure if he missed his monthly mortgage payments while the modification was being processed, but then failed to do so. However, SPS never made a promise that they would forgo the foreclosure process if Sparra missed the payments, but told him instead that he would qualify for a loan modification if he missed his payments and withdrew his hardship application. Sparra admits in his complaint that he was “under the implied understanding that his home could not be dual-tracked and in the modification process while also being actively foreclosed,” indicating that any promise was only implied. Sparra also admits that two SPS representatives informed him of the foreclosure proceeding while his loan modification application was pending, indicating that the defendants did not expect Sparra to rely on any implication.

Furthermore, the representative’s statement to Sparra cannot be construed as a promise because she told Sparra that “if he wanted a fixed rate 30 year mortgage modification that he would have to miss two more payments and then reapply for the modification.” This statement cannot be seen as an enforceable promise but instead a promise to consider granting the loan modification, which is too vague and indefinite to be enforceable. Ga. Investments Intl. v. Branch Banking & Trust Co., 305 Ga. App. 673, 675-676 (1) (700 SE2d 662) (2010). Therefore, Sparra cannot recover under the theory of promissory estoppel.

(e) Declaratory judgment. Sparra asks the court to grant a declaratory judgment that “defendants ha[ve] no legal or equitable rights in .the Security Deed or the Property . . . and that said defendant has no legal standing to institute or maintain a nonjudicial foreclosure.”

A declaratory judgment is authorized when there are circumstances showing a necessity for a determination of the dispute to guide and protect the plaintiff from uncertainty and insecurity with regard to the propriety of some future act or conduct, which is properly incident to his alleged rights and which if taken without direction might reasonably jeopardize his interest.

(Footnote omitted.) Airport Auth. of City of St. Marys v. City of St. Marys, 297 Ga. App. 645, 647-648 (678 SE2d 103) (2009).

The pleadings make clear that Sparra is not entitled to the declaration that he seeks. As assignor of the security deed from the original lender, the defendants have a right in the security deed and attached property, and the standing to institute a nonjudicial foreclosure sale. See You v. JP Morgan Chase Bank, 293 Ga. 67, 71-74 (1) (743 SE2d 428) (2013).

(f) Punitive damages and attorney fees. Sparra also asks for both punitive damages and attorney fees under OCGA § 13-6-11. However, Sparra is not entitled to either because he has failed to state a claim upon which relief could be granted with respect to his substantive claims for relief. Martin v. Martin, 267 Ga. App. 596, 598 (2) (600 SE2d 682) (2004) (“damages cannot be awarded in the absence of any finding of compensatory damages”); Davis v. Johnson, 280 Ga. App. 318, 320 (634 SE2d 108) (2006) (“Attorney’s fees and expenses of litigation under OCGA § 13-6-11 . . . are ancillary and recoverable only where other elements of damage are recoverable on the underlying claim.”).

2. Sparra also contends that the trial court erred in issuing the order granting the defendants’ motion to dismiss without allowing Sparra 30 days to respond pursuant to Uniform Superior Court Rule (USCR) 6.2. USCR 6.2 requires a party opposing a motion to file its response within 30 days. Defendants filed their motion to dismiss on March 11, 2015, and the trial court issued the order granting the motion to dismiss 16 days later on March 27, 2015.

“[Wjhere evidence is not required, a court has the discretion to rule on a motion to dismiss before the 30 days anticipated by USCR 6.2 for a response to be filed expires.” Phillips v. McCroskey, 234 Ga. App. 87, 88 (2) (506 SE2d 388) (1998). See Charles H. Wesley Ed. Foundation v. State Election Bd., 282 Ga. 707, 708 (1) (654 SE2d 127) (2007) (finding that dismissal of the complaint before 30 days passed “was nevertheless proper if it failed to state a claim upon which relief could be granted, as evidence was not required for the trial court to make that alternative determination”).

Sparra cites Considine v. Murphy, 320 Ga. App. 316, 318 (739 SE2d 777) (2013), where we concluded that “[gjiven the record in this case, the trial court erred in ruling on the motion to dismiss less than 30 days after it was filed without giving [the nonmovant] notice and an opportunity to be heard.” However in Considine, the trial court considered matters outside of the pleadings and dismissed the complaint two days after the motion was filed. Id. at 317. Because the trial court essentially converted the motion to dismiss into a motion for summary judgment, it erred by not giving the nonmovant an opportunity to respond. Considine, 320 Ga. App. at 318 (concluding that when ruling on a motion for summary judgment the nonmovant must have 30 days to present evidence showing the existence of a genuine issue of material fact).

Here, the trial court looked strictly at the complaint and dismissed for failure to state a claim upon which relief could be granted, without considering matters outside the pleadings. Accordingly, we find this enumeration of error to be without merit.

Judgment affirmed.

Ray, J., concurs. McMillian, J., concurs in Divisions 1 (a), (b), (c), (e), (f), and 2 and in judgment only as to Division 1 (d).

Decided March 25, 2016.

Stevens, Stevens & Oliver, Jackson E. Oliver, for appellant.

Locke Lord, Elizabeth J. Campbell, Alexandra M. Dishun; Rubin Lublin, Peter L. Lublin, Bret J. Chaness, for appellees.


source: Caselaw Access Project

author: PHIPPS, Presiding Judge.

license: Public Domain

text:
    A15A2172.
    ATLANTA INDEPENDENT SCHOOL SYSTEM v. WARDLOW.
    (784 SE2d 799)
   PHIPPS, Presiding Judge.

The Atlanta Independent School System (“AISS”) decided not to renew Hezekiah Wardlow’s employment contract. The Atlanta Board of Education upheld the nonrenewal following a hearing, and Ward-low appealed to the State Board of Education, which sustained that determination. Wardlow appealed the State Board’s decision to the Superior Court of Fulton County. The superior court reversed the State Board, and we granted AISS’s application for discretionary review. For reasons that follow, we reverse.

In reviewing a local school board’s termination decision, we — like the State Board and the superior court — construe the record favorably to the local board’s ruling and affirm if any evidence supports it. Neither this court nor the superior court may substitute its judgment for that of the school board unless the school board’s judgment violates the law. And we must presume that the school board’s actions are reasonable, rather than arbitrary or capricious, unless clear evidence demonstrates otherwise. Appellate review is deferential because

states and local authorities have a compelling, legitimate interest and broad discretion in the management of school affairs. Moreover, teachers and principals are considered professionals whose services are affected with the public interest. It follows that state and local authorities have a legitimate interest in securing the employ only of those fit to serve the public interest.

So viewed, the record shows that in the spring of 2009, Wardlow was employed by AISS as the testing coordinator for the annual Criterion Referenced Competency Test (“CRCT”) and other standardized tests at Toomer Elementary School (“Toomer”). The CRCT is a Georgia-mandated test that evaluates student progress. As testing coordinator, Wardlow oversaw test security, assigned proctors, and coordinated inspection of all completed tests before delivering them to the school system’s overall test coordinator.

Following the 2009 CRCT, the Governor’s Office of Student Achievement (“GOSA”) noticed anomalies in the Toomer test results, including a high number of wrong-to-right erasures on the test papers. A statistical expert analyzed the data, concluding that, given the number of “highly unusual wrong to right erasures,” cheating had occurred at Toomer. GOSA subsequently issued a report, and based on the report’s findings, AISS placed Wardlow on paid administrative leave. On May 21, 2012, the Georgia Professional Standards Commission (“PSC”) notified Wardlow that it had probable cause to believe that he had been involved in testing irregularities at Toomer, in violation of the Code of Ethics for Georgia educators. It thus recommended that his teaching certificate be revoked. Two weeks later, on June 5, 2012, AISS informed Wardlow that his employment contract would not be renewed.

A termination hearing was held before an AISS tribunal pursuant to the Fair Dismissal Act. The tribunal determined that a preponderance of the evidence supported nonrenewal. Specifically, it found that the recommended revocation of Wardlow’s teaching certificate, as well as his implication in cheating allegations, had caused the school superintendent to lose confidence in his ability to be an AISS educator. It further concluded that these circumstances constituted “Other Good and Sufficient Cause [under the Fair Dismissal Act] so as to justify non-renewal.” The Atlanta Board of Education adopted the tribunal’s findings and affirmed.

Wardlow appealed to the State Board of Education, which found that the evidence supported the loss-of-confidence determination. The State Board explained that, in previous cases, it had upheld terminations where a local board lost confidence in an educator based on a PSC recommendation. And in this case, statistical data indicated that cheating had occurred on a test that Wardlow oversaw. It thus sustained the local board’s decision. On further appeal, the superior court reversed. It found that the State Board had acted arbitrarily and capriciously in relying on the PSC recommendation, which it categorized as hearsay, and the GOSAinvestigation, which offered no admissible evidence that Wardlow had acted improperly. The superior court also concluded that the State Board’s decision was “not based upon any competent or probative evidence.”

We disagree. Pursuant to the Fair Dismissal Act, an educator may be terminated for seven specified grounds, as well as “[a]ny other good and sufficient cause.” The phrase “other good and sufficient cause” has not been specifically defined by our courts or the legislature. Under these circumstances, the interpretation given by the State Board — the governmental agency charged with enforcing the Act — is entitled to great weight. As we have explained:

Where statutory provisions are ambiguous, courts should give great weight to the interpretation adopted by the administrative agency charged with enforcing the statute. Although the appellate court is not bound to blindly follow an agency’s interpretation, we defer to an agency’s interpretation when it reflects the meaning of the statute and comports with legislative intent.

On appeal, Wardlow argues that “good and sufficient cause” arises only when there is proof that the educator actually engaged in intentional or wilful misconduct. He cites several prior decisions of the State Board to support his position. In this case and on other occasions, however, the State Board has interpreted “good and sufficient cause” as permitting nonrenewal when a superintendent loses confidence in an educator’s ability to perform following a PSC revocation recommendation. This interpretation is not unreasonable or arbitrary. Nothing in the statutory language precludes it, and it comports with the legitimate interest state and local authorities have in employing educators who are fit to serve the public interest.

Moreover, the evidence supports a loss-of-confidence finding here. Statistical analysis of wrong-to-right erasures at Toomer showed that significant cheating took place on a test supervised by Wardlow. According to the AISS Deputy Superintendent for Curriculum and Instruction, when AISS learned that the PSC had recommended revocation of Wardlow’s teaching certificate, the school district became concerned that retaining him would raise issues of trust and integrity with other employees, as well as parents and students in the community. Ultimately, the PSC recommendation, as well as the cheating allegations that developed during GOSA’s investigation, caused the district to lose “all confidence” in Wardlow’s ability to serve as an AISS testing coordinator and educator.

The superior court dismissed evidence of the PSC recommendation and GOSA investigative analysis, concluding that this evidence contained unproven, hearsay allegations that should not have been considered by the tribunal or the local board. The evidence, however, was not admitted at the hearing to prove that Wardlow actually engaged in testing irregularities at Toomer. In fact, the hearing officer instructed the tribunal that, other than certain statistical data, the allegations and statements in the analysis and PSC recommendation should not be considered or taken as fact.

Instead, the information was admitted — and relied upon by AISS — as evidence that the cheating allegations and PSC revocation recommendation existed, causing the school district to lose confidence in Wardlow’s ability to function as a testing coordinator. The evidence explained why AISS took the action it did. Namely, when the cheating allegations arose and the PSC recommended revocation of Wardlow’s teaching certificate, it determined that his ability to work in the district as an educator had been undermined. The evidence was not hearsay.

Decided March 25, 2016

Nelson Mullins Riley & Scarborough, Neeru Gupta, MarquettaJ. Bryan, for appellant.

Torin D. Togut, for appellee.

“[T]he superior court should not interfere with a local board’s administration of its schools unless the board has grossly abused its discretion or acted arbitrarily or contrary to law.” The evidence shows that AISS decided not to renew Wardlow’s teaching contract because the district lost confidence in his ability as an educator — and particularly as a testing coordinator — after the Toomer cheating allegations came to light and the PSC sought to revoke his teaching certificate. Interpreting the Fair Dismissal Act, the State Board concluded that such loss of confidence provided good and sufficient cause for his termination. Neither this determination, nor the local board’s nonrenewal decision, was arbitrary or constituted a gross abuse of discretion. Accordingly, the trial court erred in reversing the State Board’s decision affirming the local board.

Judgment reversed.

Doyle, C. J., and Boggs, J., concur.

       Throughout the record, the Atlanta Independent School System is also referred to as Atlanta Public Schools.

       See King v. Worth County Bd. of Ed., 324 Ga. App. 208 (749 SE2d 791) (2013); Chattooga County Bd. of Ed. v. Searels, 302 Ga. App. 731, 732 (691 SE2d 629) (2010).

        King, supra.

       Id.

       Id. (citation and punctuation omitted).

       See OCGA § 20-2-940 (e); see also Moulder v. Bartow County Bd. of Ed., 267 Ga.App. 339, 340 (599 SE2d 495) (2004) (“OCGA § 20-2-940 is referred to as Georgia’s Fair Dismissal Act.”) (footnote omitted).

       OCGA § 20-2-940 (a) (8). The seven specified grounds are: (1) incompetency; (2) insubordination; (3) wilful neglect of duties; (4) immorality; (5) inciting, encouraging, or counseling students to violate a law, ordinance, policy, or rule; (6) to reduce staff due to loss of students or program cancellation; and (7) failure to secure and maintain necessary educational training. OCGA § 20-2-940 (a).

       See Chattooga County, supra at 734 (b).

        Moulder, supra.

       Id. at 341 (punctuation and footnote omitted).

       See OCGA § 20-2-940 (a).

       See King, supra. See also Dukes-Walton v. Atlanta Independent School System, 336 Ga. App. 175 (1) (784 SE2d 37) (2016) (finding that State Board’s interpretation of “good and sufficient” cause was authorized).

       Wardlow did not object to admission of the statistical data.

       See Club Southern Burlesque v. City of Carrollton, 265 Ga. 528, 530 (2) (457 SE2d 816) (1995) (evidence of studies relied upon by city in crafting adult entertainment ordinance was not hearsay; the evidence was admitted to show that the city relied upon outside studies, not to prove the “veracity and competency of the studies themselves or their authors”); Avery v. Colonial Pipeline Co., 213 Ga. App. 388, 391 (2) (444 SE2d 363) (1994) (“Where evidence is offered to establish the fact that something was said, not the veracity of its content, it is admissible to explain conduct and ascertain motives, not as hearsay, but as original evidence.”) (citation and punctuation omitted). See also Walker v. State, 308 Ga. App. 176, 183 (3) (707 SE2d 122) (2011) (“An out-of-court statement is original evidence, not hearsay, when used as proof that such a statement was made and not offered as evidence to prove the truth of the matter asserted.”) (footnote and emphasis omitted); MARTA v. Allen, 188 Ga. App. 902, 905 (2) (374 SE2d 761) (1988) (incident reports of prior robberies in MARTAparking lot not hearsay where reports were offered to show incidents had been reported to MARTA, not to prove that robberies occurred).

        Clinch County Bd. of Ed. v. Hinson, 247 Ga. App. 33, 36 (1) (543 SE2d 91) (2000) (footnote omitted).

       See Chattooga County, supra at 734 (b) (because competent evidence supported local board’s “good and sufficient cause” determination, superior court overstepped its bounds by reversing board’s decision); Moulder, supra at 346-347 (superior court erred in reversing State Board’s authorized interpretation of Fair Dismissal Act).


author: Rickman, Judge. McFADDEN, Judge,

text:
    A15A1637.
    BROWN v. THE STATE.
    (785 SE2d 84)
   Rickman, Judge.

Following a jury trial, Michael Brown was convicted of two counts of aggravated child molestation, aggravated sexual battery, and three counts of child molestation. He argues on appeal that the evidence was insufficient to support the jury’s verdict; the trial court erred by allowing the State to elicit, prior to the victim testifying, testimony from the investigating detective related to statements made to the detective by the child victim; and his trial counsel rendered ineffective assistance by failing to object to the admission of prior consistent statements made by the victim and testified to by several other State witnesses. We find no reversible error and affirm.

On appeal from a criminal conviction, we view the evidence in the light most favorable to the verdict and the defendant no longer enjoys a presumption of innocence. We neither weigh the evidence nor judge the credibility of witnesses, but determine only whether the evidence was sufficient for a rational trier of fact to find the defendant guilty of the charged offense beyond a reasonable doubt. Jackson v. Virginia, 443 U. S. 307 (99 SCt 2781, 61 LE2d 560) (1979).

(Citation omitted.) Mullis v. State, 292 Ga. App. 218 (664 SE2d 271) (2008).

So construed, the evidence adduced at trial showed that Brown and his wife lived next door to the child victim and the victim’s mother, who was a severe alcoholic. In 2008, during the summer between the victim’s fifth and sixth grade school year, the victim and her mother moved in with Brown after being evicted from their home. Shortly thereafter, Brown began sexually molesting the victim. The first episode occurred when Brown took the victim with him to a friend’s house for whom he was dog sitting and, after tending to the dogs, Brown approached the victim from behind and fondled her vagina.

Over the course of the next two years, the victim and her mother lived with Brown and his wife in three different houses, and Brown’s sexual abuse of the victim continued. The abuse included Brown fondling the victim’s vagina and breasts, performing oral sex on the victim and forcing her to do the same to him, and penetrating the victim’s vagina with his fingers. At some point, Brown’s wife and the victim’s mother began traveling with the state fair, leaving Brown and the victim living alone together for months at a time. At that point, Brown began regularly having sexual intercourse with her.

In May 2010, when the victim was 13 years old, she was invited to spend the night at a friend’s house. The friend’s mother, Kimberly Coll, noted that the victim had poor hygiene and severe head lice. The victim’s overnight stay turned into two and, as it became apparent that she did not want to return home, into the entire summer, the following school year and, indeed, became permanent. Brown would occasionally see the victim while she lived at Coil’s house and at one point purchased her a cellular phone. He threatened the victim that he would take away the phone if she failed to call and/or spend time with him.

During the summer of 2011, the victim disclosed to a friend that Brown had “raped” her. She later made a similar outcry to Coil’s daughter. Both friends encouraged the victim to tell Coll, who was already suspicious of the relationship and had previously questioned the victim about it, but the victim refused to do so.

On October 21, 2012, two days before her 16th birthday, the victim finally disclosed Brown’s abuse to Coll. Coll engaged law enforcement and during the ensuing investigation, a detective conducted a recorded interview of the victim. The victim also gave a statement to and received a physical examination from a registered sexual assault nurse examiner.

Brown was subsequently arrested and during the resultant trial, the parties agreed to allow the detective to testify first in order to accommodate her travel schedule. Over Brown’s hearsay objection, the detective testified as to the victim’s allegations against Brown made during her interview. The detective’s testimony was followed by testimony from each of the additional witnesses to whom the victim had disclosed the abuse, and the State closed its case with testimony from the victim herself.

Brown’s defense strategy was to paint the victim as a liar who was motivated but of spite. He contended specifically that she was angered because, in the days preceding her outcry to Coll, he had sent her an e-mail wishing her a happy birthday on the wrong date and several months prior to that, he had taken back the cellular phone that he had given to her.

The jury found Brown guilty on all counts, and Brown was convicted. Brown filed a motion for new trial, which the trial court denied. This appeal follows.

1. The above evidence was sufficient to authorize any rational trier of fact to find Brown guilty beyond a reasonable doubt of the crimes charged. See OCGA § 16-6-4 (a) (1) (“A person commits the offense of child molestation when such person ... [d]oes any immoral or indecent act to or in the presence of or with any child under the age of 16 years with the intent to arouse or satisfy the sexual desires of either the child or the person[.]”); OCGA § 16-6-4 (c) (“A person commits the offense of aggravated child molestation when such person commits an offense of child molestation which act physically injures the child or involves an act of sodomy.”); OCGA § 16-6-22.2 (b) (“A person commits the offense of aggravated sexual battery when he or she intentionally penetrates with a foreign object the sexual organ or anus of another person without the consent of that person.”); see also OCGA § 24-14-8 (“The testimony of a single witness is generally sufficient to establish a fact....”); Prudhomme v. State, 285 Ga. App. 662, 664-65 (1) (647 SE2d 343) (2007).

2. Brown argues that the trial court erred in allowing the investigating detective to testify over his objection as to the content of the victim’s forensic interview. Although he asserts on appeal that the testimony was an erroneously admitted prior consistent statement by the victim that improperly bolstered her testimony, Brown did not object on that ground during the trial. Rather, he made a hearsay objection. “Where an entirely different objection or basis for appeal is argued in the brief which was not presented at trial[,] we will not consider that basis as we are limited to those grounds presented to and ruled upon by the trial court.” (Citation and punctuation omitted.) Paul v. State, 331 Ga. App. 560, 562 (2) (769 SE2d 396) (2015). And specifically, “where a party objects to evidence only on grounds of hearsay, an objection on the ground of improper bolstering has been waived.” Moore v. State, 280 Ga. App. 894, 897 (635 SE2d 253) (2006).

3. Brown further contends that his trial counsel was ineffective for failing to object to the testimony of the other State witnesses — namely, the victim’s friend to whom she first told she had been victimized, Coil’s daughter, Coll, and the sexual assault nurse examiner — each of whom relayed statements made to them by the victim describing Brown’s abuse. The underlying premise of Brown’s argument in each instance is that the witnesses’ testimony consisted of prior consistent statements of the victim that should have been excluded.

“To prevail on his claim of ineffective assistance of counsel, [Brown] must show both that his counsel was deficient and that there was a reasonable probability that the outcome of the trial would have been different but for his counsel’s deficiency.” (Citations omitted.) Flewelling v. State, 300 Ga. App. 505, 513-514 (4) (685 SE2d 758) (2009). The failure to make either showing is fatal to his claim. See id. at 514 (4). Moreover, “[t]here is a strong presumption that counsel was effective, and we will uphold the trial court’s determination that trial counsel was effective unless that determination was clearly erroneous.” (Citations omitted.) Id.

(a) Brown contends that his trial counsel should have objected to the testimony of the victim’s friend to whom she first reported that Brown had “raped” her, to the testimony of Coil’s daughter who relayed a similar outcry, and to the testimony of Coll herself, who described the conversation in which the victim finally disclosed the abuse. The victim’s undisputed testimony illustrates, however, that each of these conversations transpired before the victim turned 16 years old. Consequently, the statements were admissible under the Child Hearsay Statute, and any objection by counsel would not have been sustained. See OCGA § 24-8-820 (“A statement made by a child younger than 16 years of age describing any act of sexual contact... performed with or on such child by another ... shall be admissible in evidence by the testimony of the person to whom made if the proponent of such statement provides notice to the adverse party prior to trial of the intention to use such out-of-court statement and such child testifies at the trial, . . . and, at the time of the testimony regarding the out-of-court statements, the person to whom the child made such statement is subject to cross-examination regarding the out-of-court statements.”); see also Darden v. State, 206 Ga. App. 400, 401 (1) (425 SE2d 409) (1992) (noting that the determining factor as to whether a child’s statements are admissible under the Child Hearsay Statute is the child’s age at the time the statements were made, not the child’s age at the time of trial). A trial attorney’s failure to make a futile or meritless objection cannot amount to ineffective assistance. See Towry v. State, 304 Ga. App. 139, 144 (2) (a) (695 SE2d 683) (2010) (“The failure to pursue a futile objection does not constitute deficient performance.”); Robbins v. State, 290 Ga. App. 323, 331 (4) (d) (659 SE2d 628) (2008) (same).

(b) Brown further asserts that his trial counsel was deficient in that he failed to object to the nurse examiner’s testimony regarding statements made by the victim during the sexual assault examination.

It is well settled that the credibility of a witness is to be determined by the jury, and the credibility of a victim may not be bolstered by the testimony of another witness; nonetheless, the law does not mandate that trial counsel object when the prosecutor poses a question that allegedly violates that rule. The decision of whether to interpose certain objections is a matter of trial strategy and tactics.

(Citation and punctuation omitted.) Evans v. State, 288 Ga. App. 103, 109 (3) (c) (653 SE2d 520) (2007).

During the motion for new trial hearing, Brown’s trial attorney testified that after already having made an unsuccessful objection during the testimony of the investigating detective, he chose not to object to the nurse’s testimony because he did not think the objection would succeed, and he did not “want to alienate the jury.” The record supports the trial court’s determination that this was a reasonable strategic decision and affords no basis for a finding of ineffective assistance of counsel. See generally Abernathy v. State, 299 Ga. App. 897, 905 (3) (e) (685 SE2d 734) (2009); Evans, 288 Ga. App. at 109 (3) (c).

Judgment affirmed.

Ellington, P. J., concurs. McFadden, J., concurs specially.

McFADDEN, Judge,

concurring specially.

I concur in all of the majority opinion except for the finding in Division 2 that Brown did not object to the detective’s testimony on the ground that it constituted inadmissible hearsay evidence of a prior consistent statement of the victim, and that he therefore waived the issue on appeal. I believe that Brown properly raised such an objection, that the trial court rejected it, and that the issue therefore was not waived. However, even if the trial court erred in overruling the objection, any error in admitting the testimony was harmless. I thus agree with the majority’s affirmance of the judgment of the trial court.

At trial, when the detective began to testify about the statement made by the victim concerning the sexual abuse allegations, defense counsel raised the following objection:

I’m going to object. I mean, I appreciate trying to get [the detective] up first, but [the victim] is going to testify, to my understanding. She can testify to all of this herself. At this point this is hearsay. I have agreed to a procedure whereby anything that [the victim] said can be used at a later time, if necessary, if it in fact becomes relevant. But at this point it is not. And I don’t really think this detective gets to describe everything that [the victim] says unless and until [her] credibility is placed into question. It may very well be. I have agreed if that happens to allow the interview of [the victim] to be placed into evidence. But I see no reason for [the detective] to be allowed to testify as to what [the victim] said. At this time[,] at the time of the interview [, the victim] was 16 and as such, she is not an exception by virtue of her being under the age of 16 when she was interviewed.

At that point, the prosecuting attorney argued that the victim’s credibility had been placed “in issue and prior consistent statements are admissible.” The trial court then overruled the objection.

In my view, Brown clearly objected on the ground that the victim’s credibility had not yet been placed in issue and thus the detective could not give hearsay testimony about her prior statements; and conversely, the state argued that the victim’s prior consistent statements were admissible because her credibility had been placed in issue. The issue therefore was raised and ruled on by the trial court. Moreover, the state has conceded in its brief that Brown objected to the detective’s testimony on this precise ground. Under these circumstances, I believe that the issue was not waived and we should “consider [the] enumeration of error on appeal to have been properly raised.” Neuman v. State, 297 Ga. 501, 503, n. 4 (773 SE2d 716) (2015).

Assuming, without deciding, that the trial court erred in allowing the detective to give hearsay testimony about the victim’s prior consistent statements, any such error was harmless.

[E]ven if a trial court erroneously admits a witness’s prior consistent statement that is hearsay, the error is reversible only if it appears likely that the hearsay contributed to the guilty verdict. In making this determination, we may not rely on the fact that [the victim] gave testimony at trial that was consistent with the prior statement that should not have been introduced, as the very nature of the error in admitting the prior consistent statement is that it is repetitive of that to which the witness has already testified.

Arnold v. State, 305 Ga. App. 45, 50 (3) (699 SE2d 77) (2010) (citations and punctuation omitted).

Here, the admission of the detective’s testimony about the victim’s statements was not reversible error because the state presented “unchallenged testimony[,] by witnesses other than [the victim,] conveying... the content of [her] prior statements].” Arnold, 305 Ga. App. at 50 (3). As Brown has acknowledged in his brief, a sexual assault nurse, two friends of the victim, and the victim’s foster mother all testified, without objection, about the victim’s prior consistent statements. “In light of this unchallenged cumulative evidence, we find that it is highly probable that any error did not contribute to the jury’s guilty verdict.” Kiser v. State, 327 Ga.App. 17, 22 (4) (755 SE2d 505) (2014) (citations and punctuation omitted). Because any error was harmless, although I disagree with the majority’s analysis in Division 2,1 concur in the judgment affirming the trial court.

Decided March 28, 2016.

Sharon L. Hopkins, for appellant.

Daniel J. Porter, District Attorney, Christopher M. Quinn, Courtney R. Spicer, Assistant District Attorneys, for appellee.

       Coll eventually became the victim’s legal guardian.

       At the time that Brown retrieved the phone, the victim had given it to a friend and no longer used it because Coll had purchased her a different one.

       We note that we are liberally construing the argument made in the appellate brief in favor of Brown.


author: Rickman, Judge.

text:
    A15A1655.
    DELPHI COMMUNICATIONS, INC. et al. v. ADVANCED COMPUTING TECHNOLOGIES, INC.
    (784 SE2d 802)
   Rickman, Judge.

Brent Seyler and Sergey Alexandrov left their employment with Advanced Computing Technologies, Inc. (“ACT”), a software design company. They began working at Delphi Communications, Inc., a company that Seyler incorporated upon his resignation from ACT. Subsequently, ACT filed a complaint against Seyler, Alexandrov, and Delphi, alleging multiple claims for recovery of damages. In essence, ACT alleged that Appellants improperly solicited and stole away ACT customers, and copied ACT software products without authority or consent. Finding spoliation of evidence, the trial court struck the answer filed by Seyler, Alexandrov, and Delphi, and entered a default judgment as to one of ACT’s claims •— computer theft/computer trespass — and a jury trial proceeded regarding damages to be awarded on that claim. The jury awarded ACT nominal damages and attorney fees pursuant to OCGA § 13-6-11.

On appeal, Seyler, Alexandrov, and Delphi challenge the trial court’s ruling striking their answer to ACT’s complaint on the ground that spoliation of evidence occurred. Seyler, Alexandrov, and Delphi also contend that the trial court erred by denying their motion for a partial directed verdict and/or motion for partial judgment notwithstanding the verdict because ACT failed to present evidence from which a jury could determine what portion of the total amount of attorney time and litigation expenses incurred in this litigation was attributable to the particular claim upon which ACT had prevailed. For the reasons that follow, we affirm the trial court’s judgment striking Appellants’ answer, and we reverse the judgment denying their motion for a partial directed verdict and/or motion for partial judgment notwithstanding the verdict.

1. Appellants Seyler, Alexandrov, and Delphi challenge the trial court’s ruling striking their answer to ACT’s complaint on the ground that spoliation of evidence occurred by their failure to preserve the hard drives of their computers in the state of existence as of the filing of the complaint in this case. Appellants argue that the trial court erred in finding that spoliation occurred because: (a) Appellants had no affirmative duty to preserve the images of their hard drives as of the filing of the complaint; (b) mirror images of the hard drives never existed, and it was not within Appellants’ power or reach to create mirror images of the hard drives; and (c) ACT was not harmed by the absence of the hard drive evidence. Appellants also contend that the trial court abused its discretion by failing to tailor the sanction imposed.

“In matters involving discovery disputes, trial judges have broad discretion in controlling discovery, including the imposition of sanctions, and this Court will not reverse a trial court’s decision on such matters unless there has been a clear abuse of discretion.” (Punctuation and footnote omitted.) Mincey v. Ga. Dept. of Community Affairs, 308 Ga. App. 740, 747 (2) (708 SE2d 644) (2011). “[A] trial court has wide discretion in adjudicating spoliation issues, and such discretion will not be disturbed absent abuse.” (Citation omitted.) Phillips v. Harmon, 297 Ga. 386, 397 (II) (774 SE2d 596) (2015).

(a) Appellants contend that the trial court erred in finding that spoliation occurred because they had no affirmative duty to preserve the images of their hard drives as of the filing of the complaint. Specifically, Appellants assert that none of the court orders or discovery requests placed on them an affirmative duty to make mirror images of their computer hard drives as of the filing of the complaint.

“The term ‘spoliation’ is used to refer to the destruction or failure to preserve evidence that is relevant to contemplated or pending litigation. Such conduct may give rise to the rebuttable presumption that the evidence would have been harmful to the spoliator.” (Citations, punctuation and footnote omitted; emphasis supplied.) Phillips, 297 Ga. at 393-394 (II); see Baxley v. Hakiel Industries, Inc., 282 Ga. 312, 313 (647 SE2d 29) (2007); OCGA § 24-14-22. “However, in order for the injured party to pursue a remedy for spoliation, the spoliating party must have been under a duty to preserve the evidence at issue.” (Citation omitted.) Phillips, 297 Ga. at 394 (II). “As to the . . . defendant, the duty arises when it knows or reasonably should know that the injured party, the plaintiff, is in fact contemplating litigation, which the cases often refer to in terms of‘notice’to the defendant.” (Citations and punctuation omitted.) Phillips, 297 Ga. at 396 (II).

In this case, Appellants knew that they had an affirmative duty to preserve the images of their hard drives as of the filing of the complaint. Appellants were experienced in computer software design, and within one day after ACT filed suit, Appellants were aware of the litigation. The litigation included allegations that they copied and stole computer software products from their former employer, and that the relief ACT prayed for was, inter alia, that “all hard drives belonging to the Defendants be imaged immediately, and that said images be held by [a] Special Master for examination^]” Notwithstanding Appellants’ knowledge of the allegations of the complaint and of the foregoing prayer for relief, they failed to preserve a copy of their hard drives to show the existence or nonexistence of any copying of software around the time of the filing of the complaint in this case.

And contrary to Appellants’ assertions, the temporary restraining order (“TRO”) that the trial court entered the same day the complaint was filed was sufficient to put them on notice that the state of existence of their hard drives as of the filing of the complaint was at issue. The TRO expressly prohibited Appellants from “destroying, deleting or removing from any computers any data or software before the hard drives of each computer are imaged for inspection and analysis by a special master[.]” Additionally, in discovery requests ACT propounded to Appellants in April 2011, ACT sought “[a] mirror image copy of any electronic storage device, either personal or business, including but not limited to hard drives, solid state drives, and USB drives from each computer, either personal or business.” Therefore, there is no merit to Appellants’ claim that they did not know they had an affirmative duty to preserve the images of their hard drives as of the filing of the complaint. See generally Baxley, 282 Ga. at 314 (in dram shop lawsuit, “because [tavern’s] manager was aware of the potential for litigation and failed to preserve whatever videotaped evidence may have been captured as to whether [the customer] would soon be driving, a rebuttable presumption arose against [the tavern]”); The Kroger Co. v. Walters, 319 Ga. App. 52-56 (1) (a), (b) (735 SE2d 99) (2012) (in slip-and-fall case, where patron was limping after he fell down, told co-manager of store within two weeks of the fall that he had an appointment with a doctor, and days later told the co-manager that he was having back and leg problems since the fall and needed help with his medical bills, trial court’s finding that store had destroyed a video recording from the date and time of the incident by not preserving it was affirmed); Sentry Select Ins. Co. v. Treadwell, 318 Ga. App. 844-846 (1), 847 (2) (b) (734 SE2d 818) (2012) (in personal injury case, where evidence showed that shortly after the collision occurred the defendants were aware of contemplated litigation based on a letter from the plaintiffs’ attorney, their own investigation, and their knowledge that all collisions of the kind which occurred resulted in claims, trial court’s finding of spoliation of evidence was affirmed; testimony showed that dispatch records generated from an electronic, satellite-based system and maintained in a computer database were purged from the system).

(b) Appellants fail to support their blanket assertions that mirror images of their hard drives never existed, and that it was not within their power or reach to create mirror images of their hard drives. Instead, they offer mere speculation that the third-party provider from which Delphi had leased virtual server space may have had a policy that made it difficult to copy the mirror image of a hard drive. The special master who was appointed to establish whether any copying had taken place between the two companies testified as to how Appellants could have copied a mirror image of their “virtual hard drive[s].” Compare Sentry Select Ins. Co., 318 Ga. App. at 847-848 (2) (c) (where plaintiff cited no evidence showing that the allegedly destroyed material information was ever available, and defendants provided expert testimony showing that such data had never existed, the trial court erred in finding that defendants destroyed the information).

(c) We find no merit in Appellants’ contention that the trial court erred in finding that spoliation occurred because ACT was not harmed by the absence of the hard drive evidence.

The special master testified that ACT provided him with a hard drive and a “complete copy of the server” from the time frame of the filing of the complaint, in April 2011, and Appellants provided “raw information on [a] CD.” The special master testified that it was hard to establish the time frame from which the information on the CD was derived, but that it appeared as though the information was generated in February 2012. The special master testified that to compare the hard drive and server ACT provided to the CDs Appellants provided would be like comparing “apples and oranges,” and that he could not make a meaningful comparison of the computers given that the information each side provided did not come “from the same time frame.”

A meaningful link between ACT’s computer theft/computer trespass claim against Appellants and the spoliation existed, as a mirror image of Appellants’ hard drives from the time frame of the filing of the complaint could have revealed evidence relevant to the critical issue of whether the software on Appellants’ computers was copied from ACT’s computers. See generally Baxley, 282 Ga. at 313-314.

Appellants also argue that the trial court erred in finding that ACT was harmed, given that the alleged theft occurred in April 2010 — soon after Seyler stopped working for ACT and incorporated Delphi — and it is “undisputed in this matter that there are no mirror images of any data, hard drives or servers from April 2010 from either party to the litigation.” But even assuming that neither party made mirror images of data, hard drives or servers from April 2010, Appellants failed to point to any evidence demonstrating that the state of existence of the hard drives in April 2011 was not relevant to ACT’s computer theft/computer trespass claim. Appellant’s argument also ignores the very nature of digital evidence and computer data.

(d) Appellants contend that the trial court abused its discretion by failing to tailor the sanction imposed.

Appellants reiterate their prior arguments as to why they contend no spoliation occurred. For the same reasons we rejected Appellants’ arguments above, we reject them here. They also assert that the trial court made “no finding . . . that there was any willful misconduct” on their part in this matter. But the trial court clearly made a finding that Appellants’ failure to “preserve the hard drives of their computers as of April 2011” was “wilful.”

Appellants further assert that the trial court abused its discretion in striking their answers in their entirety, without undertaking any analysis as to the impact of the alleged spoliation upon the various claim(s) alleged in the complaint. Given that most of the claims, including the claim for computer theft/computer trespass upon which ACT proceeded to trial, shared as a basis allegations of Appellants’ unauthorized copying of ACT’s software, there is no merit to this argument. Appellants failed to preserve evidence that was clearly relevant to pending litigation, and the trial court did not abuse its discretion in adjudicating the spoliation issue in this case and in striking the Appellants’ answer. See generally The Kroger Co., 319 Ga. App. at 52 (1), 55-57 (1) (a), (b).

2. Appellants contend that the trial court erred by denying their motion for a partial directed verdict and/or motion for partial judgment notwithstanding the verdict because ACT failed to present evidence from which a jury could determine what portion of the total amount of attorney time and litigation expenses incurred in this litigation was attributable to the particular claim upon which ACT had prevailed. We agree.

“The standard of review applicable to an award of OCGA § 13-6-11 attorney fees, like that governing the grant or denial of a motion for a directed verdict, is the any evidence test.” (Citation omitted.) Robert E. Canty Bldg. Contractors, Inc. v. Garrett Machine & Constr., Inc., 270 Ga. App. 871, 874 (2) (608 SE2d 280) (2004). This same standard of appellate review is to be applied in the situation of the denial of a motion for a judgment notwithstanding the verdict. See PattersonFowlkes v. Chancey, 291 Ga. 601, 602 (732 SE2d 252) (2012).

ACT alleged in its complaint (and amended complaint) multiple theories of recovery including, inter alia, computer theft/computer trespass, breach of fiduciary duty, misappropriation of trade secrets, tortious interference with business relations, tortious interference with contractual relations, and violation of the Uniform Deceptive Trade Practices Act. Appellants filed a motion for partial summary judgment and a brief in support thereof, and ACT submitted a response brief; supplemental summary judgment briefs were submitted by the parties.

In the interim, ACT moved to strike Appellants’ answer due to spoliation of evidence; the trial court granted the motion. Subsequently, ACT moved for a default judgment on all claims; the trial court denied the motion for default judgment except as to the computer theft/computer trespass claim. Four months later, on the morning Appellants’ summary judgment motion was scheduled for argument, ACT voluntarily dismissed the claims set forth above, except the computer theft/computer trespass claim. Thereafter, ACT proceeded to a jury trial seeking to recover damages and attorney fees regarding only the computer theft/computer trespass claim. Prior to trial, the court cautioned ACT, “there is only one count that survives at this point, that any attorneys’ fee claim would have to do with that one count.” ACT’s counsel replied, “I would agree. I am fine with that, Your Honor.”

“It is well-settled that an award of attorney fees is to be determined upon evidence of the reasonable value of the professional services which underlie the claim for attorney fees.” (Citation and footnote omitted.) Patton v. Turnage, 260 Ga. App. 744, 748 (2) (580 SE2d 604) (2003); Southern Cellular Telecom v. Banks, 209 Ga. App. 401, 403 (1) (433 SE2d 606) (1993) (same); see D. G. Jenkins Homes, Inc. v. Wood, 261 Ga. App. 322, 326 (3) (582 SE2d 478) (2003) (“attorney fees should be... limited to work on the... prevailing... claims”); Cherokee Ins. Co. v. Lewis, 204 Ga. App. 152, 154 (2) (418 SE2d 616) (1992) (personal injury claimant “is entitled to recover attorney fees only for that portion of the fees which are allocable to the attorney’s efforts to prosecute the cause of action, against [insurer of claimant’s employer], on which the prayer for attorney fees is based”).

Decided March 28, 2016.

Haigh & Associates, Lindsay M. Haigh, for appellants.

Robert W. Hughes, Jr., for appellee.

Notwithstanding that ACT’s counsel expressly acknowledged that attorney fees could be awarded regarding work performed on only the computer theft/computer trespass claim, ACT “proved the lump amount of fees and expenses incurred to work on all... counts of the complaintf.]” United Cos. Lending Corp. v. Peacock, 267 Ga. 145, 147 (2) (475 SE2d 601) (1996). ACT’s attorney introduced at trial a “slip listing,” i.e., a printout from his billing program for all the time his firm had invested in the case. Counsel testified that from the total cost shown on the slip listing, only fees for appellate work and for work on summary judgment responses should be subtracted. But on the slip listing there were several other entries, including entries reflecting research conducted on other claims, for which ACT was unable to show that the expenses were incurred in prosecuting solely the computer theft/computer trespass claim. Indeed, ACT’s counsel testified that his firm did not itemize its bills by claim; he explained that “we just try to give the client enough information that they understood what they are being billed for.”

The evidence presented was insufficient to permit a trier of fact to determine what portion of the total amount of attorney time and litigation expenses incurred in this litigation was attributable to only the computer theft/computer trespass claim against Appellants. “Because [ACT] did not prove the amount of attorney fees attributable solely to the claim in which they prevailed, wé hereby reverse the award.” United Cos. Lending Corp., 267 Ga. at 147 (2); see Cherokee Ins. Co., 204 Ga. App. at 154-155 (2).

Judgment affirmed in part and reversed in part.

Andrews, P. J., and Branch, J., concur.

       The trial court ordered that it would reserve ruling on a claim for permanent injunctive relief, a claim for accounting would be addressed through discovery, and a claim for punitive damages would be reserved for the trier of fact.

       See Ga. Dept. of Corrections v. Couch, 295 Ga. 469, 475 (2) (a) (759 SE2d 804) (2014) (“OCGA § 13-6-11 expressly makes its litigation expenses ‘part of the damages’ to be awarded by the jury’); OCGA § 13-6-11 (“The expenses of litigation generally shall not be allowed as a part of the damages; but where the plaintiff has specially pleaded and has made prayer therefor and where the defendant has acted in bad faith, has been stubbornly litigious, or has caused the plaintiff unnecessary trouble and expense, the jury may allow them.”).


author: Boggs, Judge.

text:
    A15A1973.
    WILLIAMS v. THE STATE.
    (784 SE2d 808)
   Boggs, Judge.

After a fundamentally flawed bench trial which began in the former Recorder’s Court of DeKalb County, Kevin Andre Williams was convicted of “driving without a drivers license,” assessed a substantial fine, and sentenced to jail and a lengthy term of probation. In the course of this trial, Williams was not adequately informed of the consequences of proceeding with a bench trial or of representing himself without an attorney, nor was he adequately informed of the charges against him — which changed mid-trial at the instigation of the prosecutor. Finally, despite all these errors on the part of the trial court and the State which worked to Williams’ disadvantage, the State still failed to present sufficient evidence to support the conviction. We therefore reverse.

Construed to support the verdict, the record shows that Williams initially was stopped by a DeKalb County police officer for speeding. The officer did not cite him for speeding, however, but simply gave him a warning. During the traffic stop, Williams presented a valid Florida driver’s license to the officer. But the officer testified that “upon running him” he discovered that Williams’ “privilege in Georgia was not valid . . . and he was written a citation for . . . not having a license.” The officer testified that he explained to Williams that even though his Florida license was valid, he could not drive in Georgia “per ... the Department of Driver Services.” No further explanation was offered as to the reason for the purported invalidity. The officer testified that Williams told him he “did live in Georgia” and had “for awhile”; prompted by the prosecutor, the officer agreed that Williams had “been living in Georgia for more than 30 days.” The officer told Williams that “he could’ve went to jail” and instructed him that he needed to “get a Georgia license.”

Williams testified that he “wasn’t aware” that there was any problem with his driver’s license. He added that he went the same day to the Georgia driver’s license office as instructed by the police officer and obtained a Georgia license “without any issues” and without paying any costs. On cross-examination, he insisted that he “wasn’t living as a resident” in Georgia. The prosecutor then asked if he did not become a resident when he obtained a Georgia driver’s license using an address in Georgia, and he responded that he did so, but only because the police officer told him that he had to get a Georgia license, and added that it was only a temporary address.

Williams was found guilty of “no license” by the judge “under 40-5-20,” without specifying whether he was found guilty because his driving privileges in Georgia had been suspended, or because he was a permanent resident of Georgia for more than 30 days without obtaining a Georgia driver’s license. At the hearing on Williams’ motion for new trial, the trial court asserted that he was found guilty of both. He was sentenced to a jail term and a fine, as well as 12 months’ probation. His motion for new trial was denied, and he appeals.

1. As a preliminary matter, the State argues that most of Williams’ claims, including his sufficiency claim, cannot be considered because the electronic audio recording of Williams’ bench trial is not a “transcript” within the meaning of OCGA § 5-6-41. But we do not consider that argument, because the State has waived this contention by failing to interpose a timely objection.

Appellee shall be deemed to have waived any failure of the appellant to comply with the provisions of the Appellate Practice Act relating to the filing of the transcript of the evidence and proceedings or transmittal of the record to this Court, unless objection thereto was made and ruled upon in the trial court prior to transmittal and such order is appealed as provided by law.

Court of Appeals Rule 20; see also Bowden v. State, 304 Ga. App. 896, 898, n. 1 (698 SE2d 372) (2010) (arguments not raised by the State in the trial court will not be considered for the first time on appeal). The State waived any objection not only below, but also in this court, when it failed to object either to Williams’ motion to supplement the record with the recording, or to Williams’ request for oral argument, in which he again indicated his intention to rely on the recording.

2. Williams argues that the trial court failed to apprise him of the risks of proceeding without the representation of an attorney, and that he was also not advised at his arraignment, before a different judge, oftherisks ofproceeding without a jury trial. He contends from this that his waivers of his right to counsel and a jury trial therefore were not made knowingly or intelligently. We agree.

(a) The question of whether Williams knowingly and intelligently waived his right to counsel is controlled by our recent decision in Banks v. State, 332 Ga. App. 259 (772 SE2d 57) (2015), which is directly on point. There, we observed that

[u]nder Georgia law, whether a charge is a felony or a misdemeanor, an accused facing a term of imprisonment is constitutionally guaranteed the right to counsel and must waive that right. Such a waiver of counsel is valid only if it is made with an understanding of (1) the nature of the charges, (2) any statutory lesser included offenses, (3) the range of allowable punishments for the charges, (4) possible defenses to the charges, (5) circumstances in mitigation thereof, and (6) all other facts essential to a broad understanding of the matter. When the record is silent, waiver is never presumed, and the burden is on the State to present evidence of a valid waiver. The State may carry its burden by showing a valid waiver through either a trial transcript or other extrinsic evidence, including an appropriate pretrial waiver form. However, in order for the State to use a pretrial waiver form to show that a defendant has intelligently elected to represent himself at trial after being advised of his right to counsel and the “dangers” of waiver, the form should outline those pertinent dangers: such as (1) the possibility of a jail sentence; (2) the rules of evidence will be enforced; (3) strategic decisions with regard to voir dire and the striking of jurors must be made by defendant; (4) strategic decisions as to the calling of witnesses and/or the right to testify must be made by defendant; and (5) issues must be properly preserved and transcribed in order to raise them on appeal. In other words, a proper waiver form should contain the warnings, themselves, not just conclusions.

(Citations and punctuation omitted.) Id. at 259-260 (1). Here, Williams initialed and signed a form entitled “Record of Defendant Entering a Plea of Not Guilty and Faretta Warning.” It informed him that he could receive a maximum fine of $5,000 and up to 12 months in jail, but it did not describe the nature of the charges against him. Instead, it merely recited that an attorney could explain some but not all of the factors listed in Banks, quoting them but never explaining what they were. It further recited that Williams had been informed that he was entitled to an attorney, that “[a]ll litigation can be complex,” that “an attorney can assist me in making strategic decisions” such as those listed in Banks, and that an attorney could “preserve [his] case for appeal.” In other words, it “contained only conclusory statements concerning [his] rights rather than an explanation of the dangers of proceeding to trial pro se. [Cit.]” Id. at 260 (1). The waiver form, standing alone, thus did not show that Williams’ waiver was “made with an understanding” of those factors, as required by Georgia law. Id. at 259 (1).

An insufficient pretrial waiver form may be supplemented by showing that a defendant has been advised individually and in detail of the dangers of proceeding pro se:

We believe that the best way to ensure that a defendant fully appreciates the right he has chosen to relinquish, and that trial judges fully understand their duty in this process, is for the trial court to address each factor, individually, and on the record. By so doing, a trial court can likely avoid the time and expense of another trial.

(Citations and punctuation omitted.) Cook v. State, 297 Ga. App. 701, 703 (678 SE2d 160) (2009). While the State maintains that this was the case, it has misstated what occurred below. At the hearing on Williams’ motion for new trial, the trial court recited at length its customary practice in informing defendants of their rights as support for its decision. Nevertheless, the audio recording of the trial demonstrates that the trial court did not follow its stated practice. When Williams’ case was called, the trial court recited that Williams had waived his right to a jury trial and to an attorney via the form, asked him to identify his signature and initials on the form, and asked him if he was under the influence of alcohol or drugs. But the sum total of the trial court’s individual colloquy with Williams on the issue of waiver was: “And you want to go forward today with this bench trial, is that correct?” to which he responded that he did, followed by: “And did you want an attorney?” to which he responded that he did not. In other words, “the record is devoid of a knowing and intelligent waiver of [Williams’] right to counsel.” Banks, supra, 332 Ga. App. at 259 (1).

The State in its brief relies primarily upon its unsuccessful contention that the audio recording of the trial should not be considered by this court. Essentially, its position is that it is not responsible for Williams’ “bad decisions” even though his decisions were made in the context of the trial court’s failure to explain the dangers associated with proceeding to a bench trial pro se. Although the State makes a perfunctory argument in its brief that Williams’ waiver was knowing and intelligent, at oral argument the solicitor-general acknowledged that the pretrial waiver form alone was insufficient to establish a waiver.

Had Williams been represented by counsel, his attorney most likely would have obj ected to the hearsay testimony introduced by the State, challenged the citation or the failure of the evidence to support the offense charged, and moved for a directed verdict, which should have been granted. “Accordingly, we cannot say that the error did not contribute to the judgment.” (Citation omitted.) Tucci v. State, 255 Ga. App. 474, 477 (2) (565 SE2d 831) (2002).

(b) Likewise, the State has not demonstrated that Williams was advised of the risks of waiving his right to a jury trial when he signed a preprinted form at his arraignment.

A defendant’s right to trial by a jury is a fundamental constitutional right that the defendant must personally, knowingly, voluntarily, and intelligently choose to waive. A defendant’s consent to a trial without a jury need not be in any particular, ritualistic form; the trial court need only conduct an inquiry of the accused on the record so as to ensure that the waiver is knowing, voluntary and intelligent ____[T]he trial court should ask the defendant sufficient questions on the record to ensure that the defendant’s waiver is knowing, voluntary, and intelligent.
When a defendant challenges his purported waiver of the right to a jury trial, the State bears the burden of showing that the waiver was made both knowingly and intelligently, either (1) by showing on the record that the defendant was cognizant of the right being waived; or (2) by filling a silent or incomplete record through the use of extrinsic evidence which affirmatively shows that the waiver was knowingly and voluntarily made. Such extrinsic evidence may include testimony by or an affidavit from trial counsel about his specific recollections; routine or standard practices; and evidence regarding the defendant’s intelligence and cognitive ability.

(Citations and punctuation omitted.) Green v. State, 323 Ga. App. 832, 834-835 (2) (748 SE2d 479) (2013). Here, as in Green, “the record does not contain a colloquy showing that the trial court asked [Williams] sufficient questions on the record to ensure that his waiver of his right to a jury trial was knowing, voluntary, and intelligent.” Id. at 835 (2).

At the hearing on the motion for new trial, the trial court asserted with respect to the initial arraignment form that it “would have a hard time believing that a judge would sign off saying that the Court finds the defendant has knowingly and voluntarily waived his or her rights . . . without having any type of conversation.” But the burden is on the State to demonstrate, whether by the record or extrinsic evidence, that such a conversation or colloquy took place, and the trial court’s mere belief is no cure for the entire failure of the State to meet its burden.

3. Williams asserts that the vague and general wording of the traffic citation charging him with “no license in violation of code section 40-5-20” failed to give him adequate notice of the charges against him. But, as the State correctly points out, he

waiv[ed] any objection to the form of the accusation by signing the charging document and entering a not guilty plea at the beginning of trial. The right to be tried upon an accusation that is perfect in form and in substance is waived when a defendant fails to timely and properly challenge the accusation. Because [Williams] failed to challenge the accusation by way of special demurrer or by filing a motion to quash before entering [his] ... plea, [he] waived the right to a perfect accusation.

(Citations, punctuation and footnote omitted.) Sevostiyanova v. State, 313 Ga. App. 729, 741 (18) (722 SE2d 333) (2012). But this does not dispose of the more important question of the failure of the evidence to prove the charge in the citation, as discussed in Division 4, below.

4. Finally, we consider Williams’ contention that the evidence produced at trial was insufficient as a matter of law to support his conviction. Here, as with other enumerations of error, the State makes no attempt to address the merits of Williams’ argument, relying wholly on its erroneous assertion that the trial court proceedings may not be considered. But a review of the bench trial demonstrates that the State, despite changing its theory of the alleged offense mid-trial, still failed to prove that Williams was in violation of the law.

(a) We first consider the State’s initial attempt to prove that Williams violated the law by driving while his driving privileges were suspended in Georgia. As noted above, this offense is governed not by OCGA § 40-5-20, the Code section under which Williams was charged, but by OCGA § 40-5-121. Therefore, even if the State had shown that Williams’ Georgia driving privileges were suspended, the fatal variation between the accusation and the proof at trial would have rendered the evidence insufficient. See, e.g., Younger v. State, 293 Ga. App. 20, 21-22 (666 SE2d 460) (2008) (evidence insufficient due to fatal variance: appellant charged with operating vehicle without license plate, but evidence showed only no license plate on towed trailer).

In any event, the only evidence in support of this charge is the police officer’s testimony that “upon running him,” which appears to mean entering his driver’s license information into a computer database, the officer found that Williams’ Georgia driving privilege was “not valid.” No documentary evidence was presented to support the officer’s claim, and no testimony was adduced regarding how or for what reason Williams’ privileges purportedly were suspended. Williams testified at trial that he knew of no problem with his license. When he went to get a Georgia license as instructed by the police officer, he obtained a license the same day “without any issues” and at no cost, because he is a veteran.

The new Evidence Code, OCGA § 24-9-924 (a), governs the “admissibility of records of Department of Driver Services” and “computer transmitted records,” and permits the introduction of “information otherwise admissible . . . obtained from any terminal lawfully connected to the Georgia Crime Information Center without the need for additional certification of such records.” But no evidence was presented of the contents of a “record” or that it was derived from a lawfully connected terminal. Moreover, OCGA § 24-8-803 provides for a “public records” exception to the hearsay rule, but subsection (8) (B) excludes “against the accused in criminal proceedings, matters observed by police officers and other law enforcement personnel in connection with an investigation.”

Under the new Evidence Code, hearsay if unobjected to is admissible. OCGA § 24-8-802. But even if the officer’s testimony were deemed admissible, our Supreme Court has held that a report of a state or national crime information center record, while it may be reliable enough to establish probable cause for an arrest, “would not be sufficient to authorize conviction.” (Emphasis in original.) Harvey v. State, 266 Ga. 671, 673 (469 SE2d 176) (1996) (radio check reported outstanding bench warrant). In Harvey and the cases cited therein, the report proved to be inaccurate. Id. Here, the State failed to present any written record at trial or at the hearing on the motion for new trial showing that Williams’ driving privileges had in fact been suspended. And, in addition to his trial testimony, Williams presented documentary evidence at the hearing on his motion for new trial that no such suspension existed and that his Florida license was valid in Georgia. The officer’s conclusory testimony at trial that Williams’ record showed a suspension, based solely on his verbal report that upon “running him” he found his “privilege in Georgia was not valid,” is therefore insufficient to support a conviction.

(b) When it became apparent that the officer’s testimony with regard to a supposed suspension of driving privileges in Georgia was somewhat tenuous, the State pivoted from the allegation that Williams was driving while his Georgia driving privileges were suspended, to an allegation that he was driving with a Florida license after having been a resident of Georgia for more than thirty days. OCGA § 40-5-20 (a).

Williams testified at trial that he “wasn’t living as a resident” of Georgia. At the hearing on Williams’ motion for new trial, additional evidence was presented that Williams, a Marine Corps veteran and former Florida law enforcement officer, was temporarily on assignment in Georgia as part of his duties while training for a position as a federal corrections officer. While he had lived in Georgia on three different occasions in connection with this training, he always returned to his home in central Florida, which he owned. At the time of the events giving rise to this prosecution, in December 2014, his stay in Georgia had begun in the fall, and he had stayed with friends, in a hotel, and in an apartment.

The Georgia Code governing drivers’ licenses defines “resident” as “a person who has a permanent home or abode in Georgia to which, whenever such person is absent, he or she has the intention of returning.” OCGA § 40-5-1 (15). This subsection also creates a rebut-table presumption that a person is a resident when that person “accepts employment or engages in any trade, profession, or occupation in Georgia,” places children in school in Georgia, or “except for infrequent, brief absences, has been present in the state for 30 or more days.” OCGA § 40-5-1 (15) (A), (B). But “as a matter of constitutional due process, statutory presumptions cannot be conclusive on the factfinder or shift the burden of proof to the defendant in criminal cases. [Cits.]” Castillo-Solis v. State, 292 Ga. 755, 759 (2), n. 8 (740 SE2d 583) (2013) (driver may defend against charge of driving without license “by offering other evidence, tangible or testimonial, that he had a valid license, from Georgia or another jurisdiction, at the time he was stopped, to rebut the presumption”).

In Castillo-Solis, our Supreme Court also noted that

OCGA § 40-5-21 exempts 13 categories of drivers from the licensing requirement, including . . . drivers with a temporary or limited connection to Georgia or in situations not involving regular use of the roads. In particular, OCGA § 40-5-21 (a) (2) exempts any nonresident of Georgia who could receive a Georgia driver’s license if he or she were a Georgia resident and who has in his or her immediate possession a valid driver’s license issued to him or her in his or her home state or country.

(Punctuation omitted.) Id. at 757 (2), n. 4. And this court has construed OCGA §§ 40-5-1 (15) and 40-5-20 (a) together to conclude that “the intention of the General Assembly was... to permit visitors, with no intention of becoming residents, to drive here without obtaining a Georgia license.” (Emphasis supplied.) Diaz v. State, 245 Ga. App. 380, 383 (4) (537 SE2d 784) (2000).

The State argued at trial that the Georgia license and “permanent” address that Williams obtained after the traffic stop proved that he was a resident. But, as Williams observes, “this tautological reasoning borders on entrapment.” Williams testified that he obtained that license only because he was instructed to do so by the police officer, and that the address he used to obtain it was only temporary. Other than attempting to obtain an admission from Williams that he was a resident, an admission that he refused to give, the State produced no evidence to show that Williams had a “permanent home or abode in Georgia.” The State in questioning Williams repeatedly used the term “living” rather than “residing,” and made no attempt to elicit information tending to show his residence, such as voter registration, permanent mailing address, or other contacts with Georgia. See generally Cohen v. Cohen, 300 Ga. App. 7, 9 (2) (684 SE2d 94) (2009) (listing indicia of residence for purposes of jurisdiction). Moreover, Williams repeatedly testified at trial that he “wasn’t living as a resident” and that the apartment that he rented was “a temporary address” or “temporary residence.” And he successfully grasped the central difficulty with the State’s case: that he was “issued a citation for not having a license, not for changing over.” Construing the entire record in favor of the verdict, we conclude that Williams’ testimony at trial rebutted the presumption created by OCGA § 40-5-1 (15) (B).

As a result of the State’s conduct, Williams was convicted of a crime with which he was not charged, jailed, fined over $600, and sentenced to a year of probation. Moreover, his conviction and sentence carry numerous collateral consequences, including jeopardizing Williams’ current job and future prospects in his chosen career of law enforcement. As noted by this Court at oral argument, the State and the trial court had any number of opportunities to terminate this meritless prosecution, including when Williams presented a valid Florida license, when the allegations regarding Williams’ residence were called into question, when the State failed to introduce sufficient evidence to prove its case at trial, when Williams produced additional evidence at the hearing on the motion for new trial, or when this appeal was briefed. Yet the State pressed on, forcing Williams to expend substantial time and money to clear his name and wasting the State’s scarce resources in a failed prosecution. Even in this court, the State has attempted to avoid the consequences of this miscarriage of justice by relying not upon the merits of its case or the applicable law, but upon a baseless assertion that Williams failed to perfect the record.

Decided March 28, 2016.

Elizabeth V. Rogan, for appellant.

Sherry Boston, Solicitor-General, Wystan B. Getz, Rachel M. South, Assistant Solicitors-General, for appellee.

“The State has the power to take liberty, but commensurate with that power is the duty to do justice.” Wesley v. State, 225 Ga. 22, 24 (2) (165 SE2d 719) (1969). Justice was denied to Williams in this case, and accordingly, the judgment of conviction is reversed.

Judgment reversed.

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

       The Recorder’s Court of DeKalb County was abolished as of March 3, 2015, and the Traffic Division of DeKalb State Court was created to replace it. Ga. L. 2015, p. 3501 et seq. Williams’ prosecution spanned the transition to the new court.

       The process in which Williams found himself enmeshed was particularly troubling. After waiving his right to counsel and to a jury trial, Williams was at the mercy of the State, which showed no mercy. His attempts to comply with the instructions of the police officer, who then testified against him, were used by the State to win a conviction for a crime other than that with which he originally was charged, with the acquiescence if not the assistance of the trial court.

       The citation was written for “No license in violation of code section 40-5-20.” In a “remarks” section, the officer noted, “Has FL LIC #[number] which valid but GA priv not valid. Advised to get GA lie.”

       At trial, as we note in Division 4, below, the State produced no evidence to show that Williams’ “privilege in Georgia was not valid.” At oral argument, Williams’ counsel speculated that a long-ago Georgia traffic ticket might have been the source, but noted that there was no evidence on this point.

       At oral argument, the State erroneously asserted that Williams never raised this issue at trial.

       As Williams’ counsel pointed out at oral argument, driving with a suspended license or suspended privilege to operate a motor vehicle in Georgia is governed by OCGA § 40-5-121. OCGA § 40-5-20 (a) by its terms does not apply “to a person driving with a suspended license or license that has been revoked.”

       The audio recording of the trial was transmitted to this court on a USB flash drive. Compare Banks v. State, 332 Ga. App. 259, 260 (1), n. 1 (772 SE2d 57) (2015), in which the parties submitted a “purported audio recording,” but the compact disc contained no accessible file. We observe in passing that such a recording appears to be analogous to other recordings officially made in the course of litigation, such as video depositions or recorded statements, and may form part of the record transmitted to this court under OCGA § 5-6-43. The flash drive was submitted to this court as a supplemental record, not a transcript. But we need not reach that issue.

        Faretta v. California, 422 U. S. 806 (95 SCt 2525, 45 LE2d 562) (1975).

       At the hearing on his motion for new trial, Williams testified that he did not understand the meaning of some of these terms. He also noted that he believed the process would be “just a traffic hearing” where the officer and he made their cases and the judge made a ruling.

       We agree with Williams that, given the trial court’s failure to properly inform him of his right to counsel, it is hardly surprising that a pro se defendant would be unaware of the necessity of a pretrial demurrer.

       Williams also produced documentary evidence at the hearing on the motion for new trial that his driver’s license was valid and his driving record contained no suspensions. He believed that the officer’s assertion was simply “a case of misidentity.”

       The State argued at the hearing on the motion for new trial that in order for Williams to obtain a Georgia license, he “would have had to fix that suspension on the Florida license” before attempting to exchange it for a Georgia license. But this stands the presumption of innocence, as well as the burden of proof, on its head. The State asserts, without any evidence of record, that Williams “would have had to” pay a fine or purge himself of contempt in order to obtain a Georgia driver’s license on the same day he was stopped by the officer. The State made this assertion despite Williams’ uncontradicted testimony that he simply surrendered his Florida license and obtained a Georgia license at the Georgia DDS without incident and without any payment.

       We note that the trial court allowed the State to introduce hearsay testimony without comment. In contrast, while Williams was attempting to testify in his own defense, after the State interposed one hearsay objection to Williams’ account of his telephone conversation with the Department of Driver Services, which was sustained, the trial court sua sponte interrupted Williams continually to tell him that he could not introduce hearsay testimony, to instruct him that he could not argue his case during his testimony, to chastise him for not answering “yes or no” to the prosecutor’s question as to whether he was a resident of Georgia, and on one occasion to reprimand him because the court erroneously believed that Williams was conducting cross-examination rather than testifying.