text:
    A15A2272.
    CONE v. DICKENSON.
    (783 SE2d 358)
   PHIPPS, Presiding Judge.

Tameka Cone sued Xavier Dickenson for damages arising out of an automobile collision. The parties subsequently filed cross-motions to enforce a settlement agreement. The trial court granted Dicken-son’s motion and denied Cone’s cross-motion. Cone now appeals. Because we find that a jury issue remains as to the terms of the settlement, we affirm the denial of Cone’s motion to enforce and reverse the grant of Dickenson’s motion.

“We apply a de novo standard of review to a trial court’s order on a motion to enforce a settlement agreement.” To prevail on such a motion, “a party must show the court that the documents, affidavits, depositions and other evidence in the record reveal that there is no evidence sufficient to create a jury issue on at least one essential element of the appellant’s case.” “[T]he issues raised are analogous to those in a motion for summary judgment.” “[T]he opposing party should be given the benefit of all reasonable doubt, and the court should construe the evidence and all inferences and conclusions therefrom most favorably toward the party opposing the motion.”

Cone filed suit against Dickenson, alleging that his car negligently struck her vehicle, causing her severe physical injuries, as well as mental and emotional distress. Cone demanded judgment “in an undetermined amount greater than $30,000.00”

During the discovery period, the parties discussed settlement. Dickenson subsequently filed a motion to enforce a settlement agreement, alleging that counsel for the parties orally reached a settlement on November 6, 2014. According to Dickenson’s motion and his attorney’s supporting affidavit, Dickenson agreed to pay Cone $25,000, for which Cone would execute a full general release and dismissal with prejudice. Dickenson’s attorney testified that she sent Cone’s attorney an e-mail confirming the oral agreement that same day. Twelve days later, she also forwarded to opposing counsel a settlement draft, full general release, and dismissal with prejudice. Dick-enson filed the motion to enforce after Cone refused to sign the full general release or execute the dismissal with prejudice and instead drafted and signed a limited liability release and brought her Uninsured Motorist (“UM”) Carrier into the case.

Dickenson attached to the affidavit a copy of an e-mail dated November 6, 2014, from his attorney to Cone’s counsel with the subject line “Cone, T. vs. Dickenson, X. . . . Confirmation of Settlement.” The e-mail states:

This shall confirm settlement of the above-referenced case for payment of my client’s Twenty-five Thousand Dollar ($25,000.00) policy limit in exchange for execution by Plaintiff of a full release, including indemnity and hold harmless language, and filing of a dismissal with prejudice. I will have the settlement drafts issued and will prepare the necessary documents to have the case concluded.

Cone objected to Dickenson’s motion and filed a cross-motion to enforce settlement with a supporting affidavit from her attorney. Cone agreed that a settlement agreement was reached in the November 6,2014 conversation, but claimed that she only agreed to a limited liability release. Cone’s counsel testified that when he later received the general release and dismissal with prejudice, he “immediately” called Dickenson’s attorney to inform her that she had made a mistake and left “numerous messages” to that effect. However, Dickenson’s attorney never returned any of Cone’s attorney’s phone calls.

Although Cone contended in her objection and cross-motion that her attorney never saw any e-mail from Dickenson’s attorney regarding the settlement, her attorney’s affidavit does not address this issue. Finally, several months after the settlement conversation, Cone’s attorney drafted and sent to Dickenson’s attorney a limited liability release via certified mail. While Dickenson acknowledged in his motion that Cone generated a limited liability release, Cone did not make this release or any cover letter or proof of mailing part of the record.

The trial court granted Dickenson’s motion to enforce settlement and denied Cone’s cross-motion, thereby finding that the parties had entered into an agreement to settle for $25,000, in exchange for a general release. In so concluding, the trial court determined that the parties reached a settlement agreement on November 6, 2014, and that this agreement was memorialized in the e-mail between counsel the same date. The court noted that Cone’s attorney did not object to the e-mail confirmation but instead waited until he received the actual settlement documents to object that the agreement was supposed to be for a limited release. The trial court further reasoned that even if there was a dispute on the form of the release, under Georgia law, such dispute was not material to the settlement and would not invalidate the agreement to settle the claims for payment of $25,000.

On appeal, Cone contends the trial court erred by finding that she agreed to execute a general release and to dismiss her case with prejudice. She further argues that the trial court failed to consider her cross-motion to enforce and evidence that the parties instead agreed to settle with a limited liability release, which would have allowed her to proceed against her UM Carrier.

“[A] settlement agreement must meet the same requirements of formation and enforceability as other contracts. Only when a meeting of the minds exists will an agreement be formed.” An “offer must be accepted unequivocally and without variance of any sort,” or the response will be construed as a counter-offer, rather than an acceptance.

But the law also favors compromise, and when parties have entered into a definite, certain, and unambiguous agreement to settle, it should be enforced. If a settlement agreement is disputed, it must be in writing to be enforceable. Ideally, a writing satisfying this requirement consists of a formal, written agreement signed by both parties. But letters prepared by the parties’ attorneys may suffice if they memorialize the terms of the agreement.

However, “[w]hile letters or documents from one party’s attorney ‘will suffice’to establish written evidence of a settlement, such letters do not require entry of summary judgment in that party’s favor in every case.” “The presumption arising from a failure to answer a letter is not a presumption of law, but one of fact, and subject to explanation.” “An oral compromise, where denied by one of the parties, creates an issue of fact, and it will not be adopted by the court unless it appears that the terms were understood and agreed to by those concerned.”

1. In this case, the parties do not dispute that their attorneys reached an oral agreement on November 6, 2014, to settle Cone’s personal injury claims for $25,000. Instead, Cone contends that they agreed to a limited liability release, while Dickenson argues that they agreed to a general release. Viewing the evidence in the light most favorable to Cone on Dickenson’s motion, we conclude that Cone’s attorney’s statement in his affidavit that the parties agreed only to a limited release on November 6, 2014, constitutes evidence sufficient to create a jury issue on an essential element of their agreement to settle.

Dickenson’s reliance on our recent decision in Tillman v. Mejabi is misplaced. In that case, the plaintiff’s offer demanded the policy limits of $25,000 “in full and final settlement of this matter” and made no mention of a release. The insurance carrier sent a check for $25,000 with a letter that the payment was “in full and final settlement” and enclosed a general release for the plaintiff to sign. The plaintiff returned the check and stated that he never agreed to a general release and would only sign a limited liability release. We held that the parties had reached a meeting of the minds, as reflected in the plaintiff’s written offer and the insurance carrier’s letter and payment in response, and that “[t]he trial court properly ordered [the plaintiff] to execute a release of claims to accomplish the parties’ agreement to a full and final settlement of the matter.”

It was only in this context that we stated, “[i]t is well settled that the mere inclusion of a release form unacceptable to the plaintiff does not alter the fact that a meeting of the minds had occurred with regard to the terms of the settlement.” The parties’ writings reflected that they had agreed to “a full and final settlement,” and the plaintiff’s offer was not conditioned on any particular form of release.

Decided February 25, 2016.

Hillman J. Toombs & Associates, Hillman J. Toombs, for appellant.

In this case, although Dickenson contends that his offer “was accepted without modification,” Cone’s attorney’s affidavit is evidence sufficient to create a jury issue on whether the parties agreed during the November 6, 2014 settlement conversation to a limited release or a general release, which would preclude any potential recovery against Cone’s UM Carrier. While the e-mail confirmation sent by Dickenson’s attorney may suffice to establish written evidence of the settlement, it does not require a judgment in his favor. The trial court, therefore, erred in granting Dickenson’s motion to enforce.

2. We find no error, however, in the denial of Cone’s cross-motion to enforce. As discussed above, the evidence is in conflict regarding whether the parties agreed to a general release or a limited release. Accordingly, although we reverse the grant of Dickenson’s motion to enforce settlement, we affirm the trial court’s denial of Cone’s cross-motion.

Judgment affirmed in part and reversed in part.

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

Worsham, Corsi, Scott & Knighten, Karolynn J. Harris, for appellee.

        DeRossett Enterprises v. Gen. Elec. Capital Corp., 275 Ga. App. 728 (621 SE2d 755) (2005).

        Anderson v. Benton, 295 Ga. App. 851, 852 (673 SE2d 338) (2009) (punctuation and footnote omitted).

        Tillman v. Mejabi, 331 Ga. App. 415 (771 SE2d 110) (2015).

        Clark v. Ferino, 235 Ga. App. 444, 447 (2) (509 SE2d 707) (1998) (citations and punctuation omitted).

        Vildibill v. Palmer Johnson Savannah, 244 Ga. App. 747, 748-749 (1) (536 SE2d 779) (2000); see also OCGA § 13-3-2 (“The consent of the parties being essential to a contract, until each has assented to all the terms, there is no binding contract;. ..”).

        Torres v. Elkin, 317 Ga. App. 135, 141 (730 SE2d 518) (2012) (punctuation and footnote omitted).

        Vildibill, supra at 748-749 (1) (citations omitted).

        City of Albany v. Freeney, 313 Ga. App. 24, 28 (1) (720 SE2d 349) (2011) (emphasis in original).

       Id. (citation and punctuation omitted).

        Cross v. Cook, 147 Ga. App. 695 (2) (250 SE2d 28) (1978).

        Albany, supra at 28 (1); see also Superior Ins. Co. v. Dawkins, 229 Ga. App. 45, 49 (1) (494 SE2d 208) (1997) (discussing the significance of a general release and the impact on the plaintiff and her UM Carrier).

       331 Ga. App. 415 (771 SE2d 110) (2015).

       Id. at 416.

       Id. at 416-417.

       Id. at 417.

       Id. at 418.

       Id. (punctuation and footnote omitted).

       Id. at 416-418; see Hansen v. Doan, 320 Ga. App. 609, 613-614 (1) (740 SE2d 338) (2013) (agreeing with the trial court’s findings that an insurance carrier unequivocally accepted the plaintiff’s offer for a limited release with no indemnity language and where the carrier subsequently sent a release form with indemnity language, the evidence demonstrated that the carrier instructed the plaintiff to tailor the release to fit the plaintiff’s demand); Turner v. Williamson, 321 Ga. App. 209, 213 (2) (738 SE2d 712) (2013) (“The [insurance] claims handler’s written and oral communications in response [to the plaintiffs’ offer to execute a limited liability release in exchange for the policy limits] demonstrate an unequivocal acceptance of both of these terms, and they contained no language conditioning acceptance upon execution of the particular release form she provided with her second letter. While the release provided may have included additional terms not acceptable to the [plaintiffs], it is well settled that the mere inclusion of a release form unacceptable to the plaintiff does not alter the fact that a meeting of the minds had occurred with regard to the terms of the settlement.”) (citations and footnote omitted).

       See Dawkins, supra at 46-47 (discussing the significance of a general release, as opposed to a limited release under OCGA § 33-24-41.1).

        Albany, supra at 28 (1).


source: Caselaw Access Project

author: DOYLE, Chief Judge.

license: Public Domain

text:
    A14A0724.
    CITY OF HAPEVILLE et al. v. GRADY MEMORIAL HOSPITAL CORPORATION.
    (783 SE2d 372)
   DOYLE, Chief Judge.

In City of Hapeville v. Grady Mem. Hosp. Corp., this Court considered whether OCGA § 42-5-2 constituted a statutory waiver of municipal immunity in cases in which a health care provider seeks compensation from a municipality for medical services rendered by the provider to an inmate in the municipality’s custody at the time of service.

As we explained in that opinion,

[this] Court in Macon-Bibb County [Hosp. Auth. v. Houston County, ] determined that the Legislature’s enactment of OCGA § 42-5-2 containing the requirement that a county or the Department of Corrections reimburse a medical provider created a right to a money judgment on behalf of the. medical provider, thereby waiving sovereign immunity. []... [And] while there seems to be some distinction made by the Legislature in its treatment of municipal jailers and county jailers, OCGA § 42-5-2 (b) specifically covers inmates to whom OCGA § 42-4-1 et seq. applies, thereby including inmates held by municipal corporations.

Based on our analysis of the statutory scheme, we determined

that the waiver of sovereign immunity as to medical providers alleging claims against county or State jailers as stated in Macon-Bibb County also applie[d] to municipal jailers, and therefore, we affirm [ed] the trial court’s denial of summary judgment based on our determination that the Legislature included municipal corporations in its waiver of sovereign immunity pursuant to OCGA § 42-5-2.

Decided February 26, 2016.

Daley, Koster & Lavallee, Paul R. Koster, Gregory V. Reybold, for appellants.

Samuel C. Harvey, for appellee.

Thereafter, the City of Hapeville filed a petition for certiorari with the Supreme Court of Georgia, which that Court granted. In the meantime, the Supreme Court issued its opinion in City of Atlanta v. Mitcham. In Mitcham, the Supreme Court addressed municipal immunity from suit under OCGA § 36-33-1 (b) in cases involving inmates’ alleged claims of failure to provide adequate medical care. In reversing this Court’s opinion holding that the municipality had waived sovereign immunity, the Supreme Court explained that this Court had applied the incorrect analysis and instead should have determined whether the duty to provide medical care to inmates was a governmental function or a ministerial function.

After Mitcham, the Supreme Court remanded this case for consideration in light of its decision. We note that in this case, neither the parties nor the trial court addressed the City’s defense of immunity under the rubric of OCGA § 36-33-1. Accordingly, we vacate our opinion in City of Hapeville I, and we remand the case to the trial court for further proceedings in light of Mitcham.

Judgment vacated and case remanded.

Miller, P. J., and Dillard, J., concur.

       328 Ga. App. 332 (761 SE2d 871) (2014) (physical precedent only) (“City of Hapeville I”).

       207 Ga. App. 530 (428 SE2d 374) (1993).

        City of Hapeville I, 328 Ga. App. at 335 (1).

       Id. at 336 (2).

       Id. at 336-337 (2).

       See City of Hapeville v. Grady Mem. Hosp. Corp. (Case No. S14C1764; decided Feb. 16, 2015).

       296 Ga. 576 (769 SE2d 320) (2015).

       See City of Atlanta v. Mitcham, 325 Ga. App. 481 (751 SE2d 598) (2013) (physical precedent only), rev’d by Mitcham, 296 Ga. at 576.

       See Mitcham, 296 Ga. at 579-582 (2).


author: BARNES, Presiding Judge.

text:
    A15A1980.
    WILLIAMS v. THE STATE.
    (783 SE2d 362)
   BARNES, Presiding Judge.

A jury convicted Moerise Williams of three counts of aggravated assault and possession of a firearm during the commission of a felony. Following the denial of his motion for new trial, he appeals on several grounds, arguing among other things that the trial court erred regarding evidentiary issues and contending that his trial counsel was ineffective. For the reasons that follow, we affirm.

Viewed in the light most favorable to the verdict, the evidence showed that shortly after midnight on September 26, 2007, Dantavious Walker drove to a neighborhood convenience store with two friends, Willie Wilson and Greg Hunt. Walker went into the store, Wilson got out to talk to some women, and Hunt dozed in the car. Shortly after Walker got back into the car, a passenger van pulled up in front of the car, and Hunt “had a vibe.” As he urged Walker to drive off, Hunt saw a rifle barrel come out of the van, followed by a man who looked into the car and “went to shooting the car up” with an assault rifle. A second man got out of the van and began firing a handgun at the car. Wilson ran from the scene. Hunt dove to the floorboard, and Walker drove out of the parking lot in reverse, crossed the street, crashed through a wrought-iron fence, crossed a back yard and another street, and finally crashed into the side of a church building.

Walker was shot in the arm multiple times, but the other two victims escaped injury. During an interview with a detective at Grady Memorial Hospital, Walker identified his assailants as Williams and Prentice McNeil, and the van driver as Marco Moses. The police collected twenty-one shells from three different weapons in the parking lot, and the State introduced photographs of the victims’ bullet-ridden car. A ballistics expert testified that nine cartridges found in the parking lot were fired by a Ruger M14 found in McNeil’s house. The other casings from the parking lot were fired from two other assault weapons found in McNeil’s house.

Williams, McNeil, and Moses were indicted for aggravated assault against the three victims, but McNeil’s trial was severed. Williams and Moses were tried together and convicted, and this court affirmed Moses’ convictions in Moses v. State, 328 Ga. App. 625 (760 SE2d 217) (2014).

1. Williams argues that the trial court erred in denying his motion for directed verdict on the aggravated assault charge involving Willie Wilson, who had been standing outside of the car when the shooting occurred. The indictment charged Williams with committing an assault on Wilson “by shooting at, towards and in the direction of Willie Wilson with a firearm,” but Williams argues that the State failed to introduce any evidence showing exactly where Wilson was located when the shooting began or that anyone pointed a weapon at him. But Hunt testified that the green van pulled up and “blocked us in,” that Wilson was at the back of the car looking toward the front, and that he ran when the shooting began. This evidence was sufficient to authorize a rational trier of fact to find Williams guilty beyond a reasonable doubt of aggravated assault against Wilson. Jackson v. Virginia, 443 U. S. 307 (99 SCt 2781, 61 LE2d 560) (1979).

2. Williams argues that his trial counsel was ineffective for failing to object to unspecified “threat evidence.”

To establish ineffective assistance of counsel, a defendant must show that his counsel’s performance was professionally deficient and that but for such deficient performance there is a reasonable probability that the result of the trial would have been different. Strickland v. Washington, 466 U. S. 668, 695 (104 SCt 2052, 80 LE2d 674) (1984). To prove deficient performance, one must show that his attorney performed at trial in an objectively unreasonable way considering all the circumstances and in the light of prevailing professional norms. Courts reviewing ineffectiveness claims must apply a strong presumption that counsel’s conduct fell within the wide range of reasonable professional performance. Thus, decisions regarding trial tactics and strategy may form the basis for an ineffectiveness claim only if they were so patently unreasonable that no competent attorney would have followed such a course. If the defendant fails to satisfy either the “deficient performance” or the “prejudice” prong of the Strickland test, this Court is not required to examine the other.

(Citations and punctuation omitted.) Redding v. State, 297 Ga. 845, 850-851 (5) (778 SE2d 774) (2015).

While Williams does not identify the evidence to which he contends his trial counsel should have objected, it is obvious that evidence about perceived threats ran throughout the trial. For example, when Williams asked Walker during cross-examination whether he was nervous about being there, Walker replied that he was nervous because he could see in the courtroom “lots of faces I ain’t never seen before and I got my family down here with me. I ain’t scared. It’s just I don’t want nothing to happen to my family at the end.” In describing his concern that Walker had named the shooters, Hunt testified, “I was still out there, you know, I wasn’t trying to make nothing happen to me.” Wilson testified he did not want to be there at the trial because he “did not want to put [his] folks in this type of position.” Wilson also admitted that if someone in jail cooperated with the police, “[anything bound to happen. Get killed, anything.”

Threat evidence is admissible to explain a witness’s conduct on the stand, even if it is not tied to a defendant. Coleman v. State, 278 Ga. 486, 488 (3) (604 SE2d 151) (2004). In this case, such evidence was particularly relevant, because on the stand, Walker completely disavowed his identification to the detective of Williams and Moses as two of the three shooters. He testified that when he told the detective that he had seen both Williams and Moses shooting at him, he had merely been repeating what he had heard from others rather than something he had actually seen. In fact, Walker even signed an affidavit prepared by Moses’ previous trial counsel, in which Walker stated that his prior identification of Moses had been mistaken.

Absent Williams’ identification of the particular evidence to which he contends his trial counsel should have objected, and in light of the facts as outlined above, we conclude that the trial court did not err in admitting the witnesses’ testimony we have identified above. See Lindsey v. State, 295 Ga. 343, 348 (3) (760 SE2d 170) (2014) (no error in permitting witness to testify regarding threatening phone calls despite fact that there was no direct evidence linking defendant with calls); Coleman, 278 Ga. at 487-488 (3) (evidence of anonymous threat admissible to explain witness’s evasive conduct on the stand). “Because this evidence was admissible, counsel’s failure to object thereto does not constitute deficient performance.” Redding, 297 Ga. at 851-852 (5) (a).

3. Williams argues that the State violated his Sixth Amendment right to counsel in its opening statement when it said:

There’s one more thing that this case is about. Because, when their mission failed, a team of assassins the facts and evidence will show had to cover it up, and they did their best to cover it up in more than one way. One way was very sophisticated. And they hired lawyers, which they’re entitled to do under our constitution.

Williams contends that this statement “belittles” his constitutional rights, because hiring a lawyer is neither sophisticated nor a coverup, and further contends that his trial counsel was ineffective for failing to object to it.

The context of this part of the State’s opening statement — that the defendants tried to “cover up” their failed mission — becomes apparent from the next few sentences.

But they approached the very victims that they tried to kill, and through their lawyers they had one of the victims sign affidavits saying, you know what, it wasn’t them when that victim had already made a statement to law enforcement officials identifying this Marco Moses and the defendant Moerise Williams as two of the assassins who shot at him on September... 26 of 2007. They — he came in to their offices months later and signed affidavits saying I recant my statement. That’s part of the cover-up that they tried to do.

Williams also contends that various portions of the State’s closing argument violated his right to a fair trial, and that his trial counsel was ineffective for failing to object to them.

Williams did not obj ect to any of the assertedly improper portions of the State’s opening statement or closing argument, which would have afforded the trial court the opportunity to take remedial action, and thus this court is precluded from considering the merits of his contentions regarding those statements. Dixon v. State, 298 Ga. 200, 203 (3) (779 SE2d 290) (2015).

Further, as to his contention that his trial counsel was ineffective in failing to object at this point in his opening statement, Williams simply argues that the opening statement improperly impugned his Sixth Amendment right to counsel and that the failure to object to portions of the closing argument constituted ineffective assistance of counsel. He does not address trial counsel’s testimony in the motion for new trial hearing regarding why counsel might have abstained from objecting. Absent any analysis from Williams about whether the failures to object constituted deficient performance or whether such deficiencies prejudiced Williams, we find no merit in this enumeration. See Moses, 328 Ga. App. at 635 (5) (b) (iii).

4. Over objection, the trial court allowed the State to question a detective about the victim Walker’s initial statement identifying Williams and his co-defendant as assailants, and to admit a recording of that statement into evidence. Williams argues that the trial court erred in admitting this evidence because the State failed to establish the foundation required by former OCGA § 24-9-83 for the introduction of prior contradictory statements for impeachment purposes. That Code section set forth the following procedure:

A witness may be impeached by contradictory statements previously made by him as to matters relevant to his testimony and to the case. Before contradictory statements may be proved against him,... the time, place, person, and circumstances attending the former statements shall be called to his mind with as much certainty as possible. If the contradictory statements are in writing and in existence, they shall be shown to him or read in his hearing. . . .

Former OCGA § 24-9-83.

“The purpose of laying such a foundation is to give the witness the opportunity to explain or deny the prior contradictory statement.” (Citation omitted.) Meschino v. State, 259 Ga. 611, 614 (2) (b) (385 SE2d 281) (1989). Here, the State established the required foundation under former OCGA § 24-9-83. At trial, Walker denied seeing Moses at the scene of the shooting. In response to the State’s questions, however, Walker testified that he recalled making a statement to a certain detective while at the hospital awaiting treatment shortly after the shooting. Through this testimony, Walker demonstrated that the State sufficiently called to his mind the time, place, person, and circumstances of the statement such that he could explain or deny the statement. See Meschino, 259 Ga. at 615 (2) (c) (finding requirements of former OCGA § 24-9-83 were met where witness “acknowledged making some kind of statement”). Compare Daniely v. State, 309 Ga. App. 123, 125-126 (2) (709 SE2d 274) (2011) (finding requirements of former OCGA § 24-9-83 were not met where “prior statement was not mentioned during [witness’s] testimony and she was not asked any questions concerning the time, place, person, or circumstances attending it”). And here, in fact, Walker did explain the statement.

Although Walker initially testified that he did not recall telling the detective that Williams shot at him, he later admitted that he did identify Williams to the detective in his statement, explaining that he had just been repeating what other people had been telling him rather than stating what he himself had seen. Walker’s admission that he made the inconsistent statement to the detective did not render the statement inadmissible. Our Supreme Court has “rejected the assertion that a prior inconsistent statement is admissible only if the witness denies making the prior statement, but not if he simply disputes the truth of the earlier statement. There is no such denial requirement under [former] OCGA § 24-9-83.” (Citation and punctuation omitted.) Johnson v. State, 289 Ga. 106, 108 (3) (709 SE2d 768) (2011).

Williams also contends that allowing the detective to testify about Walker’s inconsistent testimonial statement constituted a violation of his right to confront witnesses against him under Crawford v. Washington, 541 U. S. 36 (124 SCt 1354, 158 LE2d 177) (2004). This argument is misplaced, however, because the prohibition in Crawford applies to the admission of testimonial statements by unavailable witnesses, not the admission of statements by available witnesses for impeachment purposes. Walker was not unavailable, but had already testified and was subject to being recalled. “Therefore, contrary to [Williams’] contentions, Crawford is not applicable to this case.” McKnight v. State, 283 Ga. 56, 58 (2) (i) (656 SE2d 830) (2008).

5. Finally, Williams contends that his co-defendant’s trial counsel and the lead detective held a lengthy colloquy on Williams’ post-arrest silence, and that his trial counsel was ineffective for failing to object. The State responds first that questions about Williams’ post-arrest silence came from co-defendant’s counsel, not from the State, and that co-defendant’s counsel was attacking the credibility of a key witness for the State.

In its order denying Williams’ motion for new trial, the trial court extensively quoted the exchange and found that “the questions were in the context of an attempt to eviscerate the investigator’s credibility because the detective’s testimony was different from what he wrote in his original report.” The court concluded that, taken in context, the cross-examination of the detective by the co-defendant’s counsel helped Williams, and thus it was reasonable for Williams’ trial counsel not to object.

Williams argues that “there is no evidence in the record that trial counsel’s decision to not object and move for a mistrial . . . was strategic [, and that w]ithout such evidence, the court must conclude, therefore, that counsel’s performance was deficient.” But in the cases cited as support for that proposition, the trial counsel either testified that they had no strategic reason for failing to object (Arellano v. State, 304 Ga. App. 838, 841 (698 SE2d 362) (2010); Johnson v. State, 293 Ga. App. 728, 730 (2) (a) (667 SE2d 637) (2008)), or we found that the failure to object was based on counsel’s objectively unreasonable misinterpretation of the testimony (Hines v. State, 277 Ga. App. 404, 407-408 (2) (626 SE2d 601) (2006)).

In this case, Williams did not ask trial counsel during the motion for new trial hearing whether he had strategic reasons not to object to this line of questioning. Thus, the record contains no evidence that trial counsel’s decisions were not strategic. “The trial court’s finding that trial counsel was not ineffective is supported by the presumption that, in the absence of contrary evidence, counsel’s actions are presumed strategic in nature.” Mitchell v. State, 242 Ga. App. 177, 182 (4) (b) (529 SE2d 169) (2000).

Judgment affirmed.

Ray and McMillian, JJ., concur.

Decided February 26, 2016.

Dwight L. Thomas, for appellant.

Paul L. Howard, Jr., District Attorney, Joshua D. Morrison, Assistant District Attorney, for appellee.

       This assault was preceded a week before by the murder of an associate of Hunt’s. McNeil was also indicted for that murder, along with Matthew Mitchell, whose conviction was affirmed in Mitchell v. State, 293 Ga. 1 (742 SE2d 454) (2013).

       The current Evidence Code addresses the introduction of a witness’s prior inconsistent statement at OCGA § 24-6-613 (b).


author: Barnes, Presiding Judge.

text:
    A15A2157.
    In the Interest of J. H., a child.
    (783 SE2d 367)
   Barnes, Presiding Judge.

The sole issue in this case involves the juvenile court’s interpretation of OCGA § 15-11-523, which governs the amendment of a juvenile delinquency petition. After a delinquency hearing had commenced, the juvenile court permitted the prosecuting attorney to orally amend the petition to prosecute one of the charges — Criminal Gang Activity — as a Designated Felony. This court granted the juvenile’s application for interlocutory appeal, and for the reasons that follow, we reverse the trial court’s order allowing the amendment.

The State filed a petition seeking an adjudication of delinquency against 15-year-old J. H., alleging that he had committed four offenses that would have constituted crimes if he had been an adult: burglary, reckless driving, fleeing or attempting to elude a police officer, and criminal gang activity. After the adjudication hearing began on April 28, 2015, J. H. entered admissions to the first three offenses of burglary, reckless driving, and fleeing or attempting to elude, but denied the charge of gang activity. After advising J. H. of his rights and asking the prosecutor what the evidence would show regarding those charges, the juvenile court found a factual basis for the admissions and accepted them. The court then instructed the prosecuting attorney to call the first witness on the offense of gang activity.

At that point in the adjudication hearing, the parties and the court held a discussion regarding the fact that the delinquency petition did not indicate that the fourth count was a Designated Felony, which was required under the revised Juvenile Code. The prosecuting attorney orally moved to amend the delinquency petition to state that the offense was being prosecuted under the Designated Felony provisions of Title 15. J. H. objected, asserting that jeopardy had already attached and that such an amendment was barred by statute.

The trial court granted the prosecutor’s motion to amend, reasoning that the prosecutor was not adding a new charge of delinquency, but was merely amending the petition to correct the pleading defect of having omitted the label of “Designated Felony.” At that point the court continued the hearing on the delinquency petition to give J. H. an opportunity to file a petition for a certificate of immediate review, although it committed J. H. to two years in custody based on a previous petition during which J. H. had been adjudicated delinquent based on three counts of terroristic threats.

J. H. argues on appeal that the trial court erred in allowing the prosecutor to amend the petition after jeopardy had attached.

Under Georgia’s rules of statutory construction, this court is charged with looking “diligently for the intention of the General Assembly, keeping in view at all times the old law, the evil, and the remedy.” OCGA § 1-3-1 (a). A fundamental principle of statutory construction is “that we must endeavor to give each part of the statute meaning and avoid a construction that makes some language mere surplusage.” (Citation and punctuation omitted.) In the Interest of C. M. B., 335 Ga. App. 456, 460 (781 SE2d 570) (2016).

Further, “all statutés relating to the same subject-matter, briefly called statutes ‘in pari materia,’ are construed together, and harmonized wherever possible, so as to ascertain the legislative intendment and give effect thereto.” (Citation and punctuation omitted.) In the Interest of H. E. B., 303 Ga. App. 895, 896 (695 SE2d 332) (2010).

The Georgia legislature revised the Juvenile Code effective January 1, 2014. Both the previous code and the current code direct that the delinquency petition “shall set forth plainly and with particularity’ certain information, such as the facts that brought the child within the court’s jurisdiction, the name and address of the child and his parents, guardians, or custodians if known, and details of the child’s detention, if any. OCGA § 15-11-522 (2015); former OCGA § 15-11-38.1. In the new code effective January 2014, the legislature added a requirement that the petition include whether “[the] child is being charged with a class A designated felony act or class B designated felony act.” OCGA § 15-11-522 (5).

Whether a juvenile is adjudicated for committing a Designated Felony or simply a delinquent act significantly alters the length of the commitment available. The maximum length of commitment for a delinquent act is 24 months, with the possibility of a 24-month extension. OCGA § 15-11-607 (a). In contrast, an adjudication of delinquency for a Class A Designated Felony may result in restrictive custody with the Department of Juvenile Justice (DJJ) for as long as 60 months, and for a Class B Felony, in DJJ custody for 36 months, with a maximum of 18 months in restrictive custody. See OCGA § 15-11-602 (a) (2), (c) (1), (d) (1).

Before the enactment of the current Juvenile Code, the State was allowed to amend a delinquency petition to add charges at any time before adjudication. The statute was silent on the issue, but the Uniform Rules of Juvenile Court, Rule 6.6 provided: “A petition may be amended at any time prior to adjudication, provided that the court shall grant the parties additional time to prepare as may be required to ensure a full and fair hearing.” Further, if the amendment added additional charges, the amended petition had to be served in accordance with former OCGA §§ 15-11-39 and 15-11-39.1, which directed that the petition and a summons be served on the child and his or her parents, guardians, or legal custodians at least 24 hours before the hearing. See In the Interest of D. W., 232 Ga. App. 777, 779 (1) (a) (503 SE2d 647) (1998) (reversing delinquency conviction when court allowed State to amend a delinquency petition mid-hearing to revise misdemeanor battery charge to designated felony charge of battery against school official, absent service and notice).

The revised Juvenile Code includes a completely new provision that addresses the timing of delinquency petition amendments. OCGA § 15-11-523 provides:

(a) A prosecuting attorney may amend a petition alleging delinquency at any time prior to the commencement of the adjudication hearing. However, if an amendment is made, a child may request a continuance of his or her adjudication hearing. A continuance may be granted by the court for such period as required in the interest of justice.
(b) When a petition alleging delinquency is amended to include material changes to the allegations or new charges of delinquency for adjudication, the petition shall be served in accordance with Code Sections 15-11-530 and 15-11-531. []
(c) After jeopardy attaches, a petition alleging delinquency shall not be amended to include new charges of delinquency.

OCGA § 15-11-480 (b) specifically provides that jeopardy attaches when the juvenile court accepts a child’s admission to a petition alleging delinquency, and the State concedes that jeopardy had attached in this case before the juvenile court granted the oral motion to amend the petition. See In the Interest of K. L., 303 Ga. App. 679, 681 (2) (694 SE2d 372) (2010); In the Interest of J. B. W., 230 Ga. App. 673, 675 (497 SE2d 1) (1998).

In its written order granting the prosecution’s motion to amend the delinquency petition in this case, the juvenile court stated that it “interpret[ed] OCGA § 15-11-523toallowtheprosecutingattorneyto amend the petition to prosecute the Criminal Gang Activity charge under the Designated Felony Act even after the adjudication hearing ha[d] commenced and the Court ha[d] accepted the child’s admission to three other charges on the same petition.”

The State argues that “the sole, express purpose” of OCGA § 15-11-522 (5), requiring that the petition state whether the child is being charged with a Class A or a Class B Designated Felony, is to give the juvenile advance notice of any Designated Felony charges, and here, J. H. had ample advance notice of the charges. But when “the language of a statute is plain and unambiguous, judicial construction is not only unnecessary but forbidden.” (Citation and punctuation omitted.) In the Interest of M. D. H., 334 Ga. App. 394, 396 (2) (779 SE2d 433) (2015). We cannot engraft upon this statute a proviso excepting a case from its requirements when certain factual issues are present, absent statutory language allowing such an exception.

The State’s amendment to the petition in this case did not add a new charge of delinquency, an action plainly prohibited by OCGA § 15-11-523 (c). The State had already charged J. H. with the offense of “Participation in Criminal Street Gang Activity” by committing burglary while associated with a criminal street gang, along with the three charges to which the juvenile court accepted J. H.’s admissions. Nor does subsection (a) of OCGA § 15-11-523 apply here, which allows the prosecuting attorney to amend the petition as of right before the hearing begins and the court to continue the hearing “for such period as required in the interest of justice” if requested by the juvenile, because the hearing had already begun.

Subsection (b) of OCGA § 15-11-523, however, provides that if the prosecuting attorney amends a delinquency petition to effect “material changes to the allegations ..., the petition shall be served in accordance with Code Sections 15-11-530 and 15-11-531,” (emphasis supplied) that is, served upon the child and his parent, guardian, or legal custodian at least 72 hours before the hearing. Alleging that the juvenile committed a Designated Felony materially changes the petition by allowing the juvenile court to impose a much lengthier sentence. Interpreting OCGA § 15-11-523 only to prohibit adding new charges to a delinquency petition after jeopardy attaches would render the mandatory service requirements of subsection (b) meaningless surplusage.

Decided February 26, 2016.

Jacqueline C. Cauble, Kristen H. Abramowicz, for appellant.

Peter J. Skandalakis, District Attorney, Rod R. Skiff, Assistant District Attorney, for appellee.

Construing OCGA § 15-11-522 (5), which requires a delinquency petition to state whether any charges are Designated Felonies, with OCGA § 15-11-523 (b), which requires that a material amendment to the petition be served upon the child and certain designated persons at least 72 hours before the hearing, we conclude that the legislature intended to prohibit the State from materially amending a delinquency petition after the hearing had commenced and after jeopardy attached. Accordingly, because the State sought to make a material amendment to the petition absent proper notice and service, the trial court erred in allowing the amendment.

Judgment reversed.

Ray and McMillian, JJ., concur.

       “This Act shall become effective on January 1,2014, and shall apply to all offenses which occur and juvenile proceedings commenced on and after such date.” Ga. L. 2013, p. 294, § 5-1/HB 242.

       OCGA § 15-11-530 (a) directs that the summons and petition be served on the child and his or her parent, guardian, or legal custodian, and OCGA § 15-11-531 (a) requires the summons he served at least 72 hours before the hearing rather than the previous 24-hour minimum.


text:
    A15A2343.
    MALLORY v. THE STATE.
    (783 SE2d 370)
   BARNES, Presiding Judge.

Acting pro se, Quentin Mallory appeals the trial court’s denial of his motion to remove a provision of his probation banishing him from Bartow and Gordon Counties. For the reasons that follow, we affirm the trial court’s ruling.

A Bartow County jury convicted Mallory of robbery by force, false imprisonment, and simple battery, and in October 2007, the trial court sentenced him to serve ten years in confinement, followed by fifteen years on probation. The terms of his probation directed that he have no contact with the victim or her place of work and banished him from Bartow and Gordon Counties, which comprise the Cherokee Judicial Circuit.

In June 2015, Mallory filed a pro se motion to modify the terms of his probation. In his motion, he said that he had previously been released from confinement under this sentence and had been placed on probation. He further stated that,

[bjecause of [his] inability to rely upon his only possible family support system which is exclusively present in Bar-tow County, he again committed crimes while on parole in Hall County. The Hall County sentence of twelve years, with six to serve, is being served concurrently with the sentence in this case.

Mallory alleged in his motion that the Board of Pardons and Paroles had notified him that he was required to complete a work release program before he could be released on parole. Due to his banishment from Bartow County, he asserts, the Department of Corrections had advised him that he is ineligible for assignment to a transition center to complete the work release program because his “only possible parole addresses are with his family in Bartow County.” He acknowledged that prohibiting contact with the victim was a reasonable requirement, but argued that he had no prior history with the victim that would justify banning him from the area completely. The trial court denied the motion to modify the term of probation, and Mallory appeals.

Still acting pro se, Mallory asserts on appeal that the trial court abused its discretion by imposing the banishment provision “without a rational basis” for doing so, and in denying his motion to modify his sentence without considering either that he had no relationship with the victim or the impact of the provision on his rehabilitation. He argues that the purpose of allowing a defendant to serve part or all of a criminal sentence on probation is to permit the court to exercise supervisory control over the rehabilitation of an individual who has committed criminal acts, and that banishing him from Bartow County guarantees that he cannot succeed because he needs a family support system “due to his intellectual and psychological disabilities.”

Our Constitution provides that “banishment beyond the limits of the state . . . shall [not] be allowed as a punishment for crime.” Ga. Const, of 1983, Art. I, Sec. I, Par. XXI. That provision “was first added in the 1877 version of the state constitution and has been carried through verbatim in the present constitution.” Jason S. Alloy, “ ‘158-County Banishment’ in Georgia: Constitutional Implications under the State Constitution and the Federal Right to Travel,” 36 Ga. L. Rev. 1083, 1093 (2002). In 1974, our Supreme Court considered whether the original “drafters of this constitutional provision intended to prohibit banishment ‘beyond the limits of the state’ but not to prohibit banishment from specified areas within the state,” and concluded that they did not intend to prohibit banishment from areas within the state. State v. Collett, 232 Ga. 668 (208 SE2d 472) (1974).

The legislature has also established that a sentencing court may require a probationer to remain within a specified location during his period of probation, but in 2006, it amended that provision to require that banishment to a particular area must “consist of at least one entire judicial circuit as described by Code Section 15-6-1” and cannot be an area where “any service or program in which the probationer must participate as a condition of probation is not available.” OCGA § 42-8-35 (a) (6) (A), (B).

Further, while “[t]he trial court has broad discretion in fashioning probation conditions [,...] banishment conditions are not unlimited: such conditions must not be unreasonable or otherwise fail to bear a logical relationship to the rehabilitative scheme of the sentence pronounced.” (Citation and punctuation omitted.) Terry v. Hamrick, 284 Ga. 24, 26-27 (3) (663 SE2d 256) (2008). And although the sentencing court retains jurisdiction over a probationer and may revoke, rescind, or modify the probation terms, OCGA § 42-8-34 (g), Mallory “bears the burden of demonstrating that his sentence of banishment is unreasonable.” Shook v. State, 300 Ga. App. 59, 61 (3) (684 SE2d 129) (2009).

Our appellate courts have not considered whether the proscriptions of OCGA § 42-8-35 (a) (6) apply when a trial court imposes a condition of probation that banishes a defendant from a particular location rather than confines him to a location, although logically if one is banished from 158 counties, for example, one is therefore confined to the remaining county. Our Supreme Court in Terry, 284 Ga. at 26 (3), n. 2, noted that the 2006 amendment to OCGA § 42-8-35 (a) (6) limiting a trial court’s ability to confine a probationer to a particular area did not apply to the 1995 sentence at issue in that case, which banished the defendant from all but one Georgia county, and we have found no case specifically addressing this issue.

Here, Mallory has not met his burden of proving on the record that the condition of probation banishing him from Bartow and Gordon Counties is unreasonable. He was indicted for and convicted of (1) taking money from the victim by force, (2) confining and detaining the victim without legal authority, and (3) making physical contact of an insulting and provoking nature to the victim’s person. As a condition of probation, Mallory would be required to avoid contact with the victim and her place of work in addition to being banished from Bartow and Gordon Counties. The record contains no evidence supporting Mallory’s contentions regarding the restrictions on his ability to obtain release from confinement and begin serving the remainder of his sentence under probation.

Decided February 26, 2016.

Quentin A. Mallory, pro se.

Rosemary M. Greene, District Attorney, Suzanne Z. Brookshire, Assistant District Attorney, for appellee.

Considering the absence of evidence to support Mallory’s contention that the terms of his probation are unreasonable, we cannot say the trial court abused its discretion by denying Mallory’s motion to modify his sentence.

Judgment affirmed.

Ray and McMillian, JJ., concur.

       OCGA § 15-6-1 (9).


author: Peterson, Judge.

text:
    A15A1905.
    MOORE v. McKINNEY.
    (783 SE2d 373)
   Peterson, Judge.

The trial court granted Anthony Moore’s petition for modification of the child custody and support terms that had been established by a divorce decree. Moore, proceeding pro se, appeals and generally challenges the trial court’s determinations regarding Janeene McKinney’s child support obligations and other amounts owed to Moore. Because we conclude that the trial court made several errors in this respect, we vacate and remand for further proceedings.

The record shows that Moore and McKinney were divorced in 2002, when their children M. M. and D. M. were eight and four years old, respectively. McKinney was granted primary physical custody of the children, and Moore was ordered to pay child support until each child turned 18 years old or until the child finished secondary school, whichever came later, but in any case ending when the child turned 20 years of age. McKinney was required to provide health insurance coverage for the children, and the parties agreed to share the uninsured medical expenses for the children.

In January 2014, after McKinney physically abused the children, the children moved out of their mother’s house, filed and obtained temporary protective orders, and moved in with Moore. Both children signed affidavits of election indicating their desire to live with Moore on a full-time basis. In February 2014, Moore petitioned to modify physical custody and child support.

Thereafter, the parties entered into a temporary consent order, giving Moore primary custody of D. M. Pursuant to the consent order, the parties agreed that McKinney was required to provide and pay for medical, vision, and dental insurance for the children; to continue equally to share uninsured medical expenses; to take the children to a therapist or psychologist; and to split the out-of-pocket costs and expenses for the children’s therapy until each child graduated from high school. The trial court terminated Moore’s child support obligations effective January 31, 2014, and reserved the issues of McKinney’s child support liability starting February 1, 2014.

Moore subsequently incurred several health care expenses for the children while they were living with him. Moore provided McKinney with copies of the receipts and requested that she pay her share of the expenses. McKinney refused to reimburse Moore, and he filed a motion for contempt against McKinney for failing to comply with the consent order.

Following a two-day hearing, the trial court issued a final order holding McKinney in contempt and awarding physical custody of D. M. to Moore. The trial court ordered McKinney to provide health insurance and pay $117 a month in child support for D. M. until he reached 18 years of age, pay $1,287 in back child support, and pay $15,396.50 in attorney fees. This appeal followed.

1. Moore argues that the trial court erred in failing to order McKinney to reimburse him for his child support payment in January 2014 because the children started living with him in that month. We find that the trial court erred, but not for the reasons suggested by Moore.

The February 18, 2014 temporary consent order provided that Moore’s obligations to pay child support “terminated retroactively to January 31, 2014.” It is well settled that a child support judgment is enforceable until modified, vacated, or set aside. Jarrett v. Jarrett, 259 Ga. 560, 561 (1) (385 SE2d 279) (1989). Although a permanent judgment of child support can be temporarily modified pending a final order in a modification action, OCGA § 19-6-19(c), a child support judgment cannot be modified retroactively. Jarrett, 259 Ga. at 561 (1). “A child support obligation may be modified on a prospective basis only[.]” Rose v. Thorpe, 240 Ga. App. 834, 835 (525 SE2d 381) (1999).

The temporary consent order, entered on February 18, 2014, could modify child support obligations only on a prospective basis. See Rose, 240 Ga. App. at 835. The trial court could not order McKinney to reimburse Moore for the January 2014 child support payment because this would effectively be a retroactive modification of McKinney’s child support obligations. Similarly, the trial court could not order Moore to stop making child support payments “retroactive to January 31, 2014,” and the trial court erred by making this retroactive modification. Furthermore, because the trial court could not retroactively change Moore’s child support obligations to January 31, 2014, it necessarily miscalculated the number of months that had passed in determining the amount of back child support owed by McKinney.

2. We also find that the trial court erred, as Moore alleges, in failing to require the parties to share uninsured medical expenses for D. M.

OCGA § 19-6-15(h)(3)(A) provides:

The child’s uninsured health care expenses shall be the financial responsibility of both parents. The final child support order shall include provisions for payment of the uninsured health care expenses', provided, however, that the uninsured health care expenses shall not be used for the purpose of calculating the amount of child support. The parents shall divide the uninsured health care expenses pro rata, unless otherwise specifically ordered by the court.

(emphasis added). The statute makes clear that both parents are responsible for a child’s uninsured health care expenses and requires the trial court to include provisions for payment of these expenses. The trial court erred by failing to include these provisions in its final order.

In light of the above errors, we must vacate the trial court’s order regarding the parties’ child support obligations. We need not consider Moore’s other enumerations of error, because these arguments may be considered on remand, and “[t]he cardinal principle of judicial restraint — if it is not necessary to decide more, it is necessary not to decide more — counsels us to go no further.” PDK Labs. Inc. v. U.S. Drug Enforcement Admin., 362 F. 3d 786, 799 (D.C. Cir. 2004) (Roberts, J., concurring); see also Gowins v. Gary, 288 Ga. App. 409, 414 (2) (654 SE2d 162) (2007) (after vacating child support award on one ground, declining to address other enumerations of error). Accordingly, we vacate and remand for further proceedings.

Decided February 29, 2016.

Anthony B. Moore, pro se.

Janeene McKinney, pro se.

Judgment vacated and case remanded.

Ray and McMillian, JJ., concur.

       McKinney did not file a responsive brief in this appeal; therefore, she is deemed to have admitted the statement of facts as set out by Moore in his brief, to the extent that the statement of facts is supported hy the record. See, e.g., Pay less Car Rental System, Inc. v. Elkik, 306 Ga. App. 389, 390, n. 4 (702 SE2d 697) (2010); see also Court of Appeals Rule 25(b)(1).

       At this time, M. M. was 19 years old, but was still in high school.

       We note that, following entry of the final order, Moore filed a motion for reconsideration raising many of the same arguments he raises on appeal. While the trial court was precluded from ruling on the motion once Moore filed his notice of appeal, see Fortson v. Hotard, 299 Ga. App. 800, 804 (3) (684 SE2d 18) (2009), nothing precludes the trial court from considering those arguments on remand.


author: Rickman, Judge.

text:
    A15A1638.
    REBUFFI v. THE STATE.
    (783 SE2d 376)
   Rickman, Judge.

After a bench trial, Matteo Rebuffi was convicted of driving under the influence of alcohol to the extent he was a less safe driver. See OCGA § 40-6-391 (a) (1). He appeals from the denial of his motion for new trial, contending that the trial court erred in denying his motion to suppress evidence allegedly unlawfully obtained. We affirm.

When an appellate court reviews a trial court’s order concerning a motion to suppress evidence, the appellate court should be guided by three principles with regard to the interpretation of the trial court’s j udgment of the facts. First, when a motion to suppress is heard by the trial judge, that judge sits as the trier of facts. The trial judge hears the evidence, and his findings based upon conflicting evidence are analogous to the verdict of a jury and should not be disturbed by a reviewing court if there is any evidence to support it. Second, the trial court’s decision with regard to questions of fact and credibility must be accepted unless clearly erroneous. Third, the reviewing court must construe the evidence most favorably to the upholding of the trial court’s findings and judgment.

(Citations and punctuation omitted.) Tate v. State, 264 Ga. 53, 54 (1) (440 SE2d 646) (1994).

Construed in favor of the trial court’s findings and judgment, the evidence showed the following. A police officer working a foot patrol as a courtesy officer at the apartment complex at which he lived testified that on October 26, 2012, he heard the engine of a vehicle “revving very loudly,” and he observed the vehicle traveling at a high rate of speed inside the apartment complex. The officer followed the vehicle and heard the tires squealing as it turned right through a roundabout. The officer approached the vehicle, which was parked in the roadway. He observed several people exiting the vehicle and running into an apartment building, and he made contact with the driver before the driver entered the apartment building. The officer identified Rebuffi in court as the driver of the vehicle.

The officer asked Rebuffi why he was speeding; as Rebuffi spoke, the officer smelled an odor of alcohol emanating from Rebuffi’s mouth. Rebuffi admitted to the officer that he had been driving, and that he had consumed three alcoholic beverages that evening. The officer observed that Rebuffi’s eyes were “glassy and slightly bloodshot.” The officer suspected that Rebuffi had been driving under the influence of alcohol, and he called the county dispatch and asked for a zone officer to respond to the scene. The officer instructed Rebuffi to sit on the curb outside; Miranda warnings were not read to Rebuffi.

The record reflects that approximately 23 minutes later, a DUI task force officer arrived at the apartment complex. That officer testified that as he spoke with Rebuffi, he detected a strong odor of an alcoholic beverage emanating from Rebuffi’s breath, and that Rebuffi’s speech was slurred. The officer testified that he asked Rebuffi about the odor of alcohol, and that Rebuffi replied that he had consumed three alcoholic beverages; Rebuffi’s eyes were bloodshot and glassy; an alco-sensor test showed that alcohol was present on Rebuffi’s breath; and field sobriety evaluations revealed that Rebuffi’s ability to drive was impaired. The officer observed six out of six possible clues of impairment on the HGN evaluation; and three out of four possible clues of impairment on the one leg stand evaluation. The officer formed the opinion that Rebuffi was under the influence of alcohol to the extent that he was less safe to drive, and he placed Rebuffi under arrest.

The DUI task force officer then read the implied consent warning and requested that Rebuffi submit to a breath test. Rebuffi refused to submit to the test. The DUI task force officer captured video/audio recording from the time of his arrival on the scene of his investigation into the incident. That recording was admitted in evidence, without objection.

Rebuffi contends that the trial court erred in denying his motion to suppress his statements to law enforcement officers, the results of the field sobriety tests, and his refusal to submit to the state’s breath test because he was arrested but was not informed of his Miranda rights when: (1) the security officer, in a “loud, screaming voice,” ordered Rebuffi out of his apartment and began questioning him; and (2) 23 minutes elapsed from the time he was detained and instructed to sit on the curb and the time the DUI task force officer arrived on the scene.

1. Rebuffi contends that the trial court erred in denying his motion to suppress his statements to law enforcement officers, the results of the field sobriety tests, and his refusal to submit to the state’s breath test because he was arrested but was not informed of his Miranda rights when the security officer, in a “loud, screaming voice,” ordered Rebuffi out of his apartment and began questioning him.

(a) We first address Rebuffi’s assertion that the security officer ordered him out of the apartment. The security officer testified that he made contact with Rebuffi after Rebuffi had parked and exited the vehicle but before he could enter the apartment building. Rebuffi called to the stand two witnesses who testified that Rebuffi had entered the apartment; one of the witnesses further testified that as she stood on the patio, the security officer approached and began yelling at her, demanding the owner of the apartment to go outside.

Pointing out conflicts and inconsistencies in the testimony of the witnesses who testified on behalf of Rebuffi, the trial court found that the security officer made contact with Rebuffi before he could enter his apartment because it found the security officer to be more credible on this issue than Rebuffi’s witnesses. In its order denying Rebuffi’s motion for new trial, the trial court ruled:

The Defense witnesses were found to not be credible on th[e] issue [of whether the security officer had stopped Rebuffi before he could enter his apartment or whether Rebuffi had already entered his apartment and was ordered out by the security officer]. Therefore, any suppression claims based on the allegation of [Rebuffi] being removed from his apartment must necessarily fail.

“The trial court, as the trier of fact, had the sole province of determining the credibility of witnesses and resolving any conflicts or inconsistencies in the evidence.” (Citation omitted.) Acree v. State, 319 Ga. App. 854, 855 (737 SE2d 103) (2013).

The security officer’s testimony, the trial judge’s specific references to the contradictory testimony of Rebuffi’s witnesses, and the trial judge’s opportunity to observe the demeanor of the witnesses were sufficient to support the judge’s conclusions, and this Court will not disturb those findings. “[T]he trial court’s determinations with regard to facts and especially with regard to credibility are supported by the evidence and we must accept them as they are not clearly erroneous.” (Citation omitted.) Tate, 264 Ga. at 57 (3).

(b) Next, we address Rebuffi’s claim that police questioning violated his Miranda rights. “Miranda warnings are required only if the detention has ripened into a custodial arrest.” (Citations omitted; emphasis in original.) Abrahamson v. State, 276 Ga. App. 584, 585 (623 SE2d 764) (2005). “[A]n officer’s approach to a stopped vehicle and inquiry into the situation is not a ‘stop’ or ‘seizure’ but rather clearly falls within the realm of the first type of police-citizen encounter.” (Punctuation and footnote omitted.) Bacallao v. State, 307 Ga. App. 539, 541 (705 SE2d 307) (2011).

A first-tier encounter never intrudes upon any constitutionally protected interest, since the purpose of the Fourth Amendment is not to eliminate all contact between police and citizens, but simply to prevent arbitrary and oppressive police interference with the privacy and personal security of individual citizens.

(Footnote omitted.) Id.

Accordingly, in this case, the security officer was authorized to approach Rebuffi’s stopped vehicle and ask him why he was driving in the manner that he was, and no unlawful seizure of Rebuffi occurred, which would have required that he be given Miranda warnings.

2. Rebuffi contends that the trial court erred in denying his motion to suppress his statements to law enforcement officers, the results of the field sobriety tests, and his refusal to submit to the state’s breath test because he was arrested but was not informed of his Miranda rights when 23 minutes elapsed from the time he was detained and instructed to sit on the curb and the time the DUI task force officer arrived on the scene.

Once the officer smelled alcohol on Rebuffi’s breath, he had the required articulable suspicion to investigate further and conduct a second-tier investigatory detention. See Bacallao, 307 Ga. App. at 541-542; Blankenship v. State, 301 Ga. App. 602, 604 (2) (a) (688 SE2d 395) (2009). The record reflects that Rebuffi was detained for approximately 23 minutes; this Court has previously held that a wait of more than twice this length of time from the time of a traffic stop to the commencement of an investigative search of a car did not convert the investigation into a custodial situation. See Harper v. State, 243 Ga. App. 705, 706 (1) (534 SE2d 157) (2000), citing Aldridge v. State, 237 Ga. App. 209, 213 (3) (515 SE2d 397) (1999). Moreover, there was evidence that Rebuffi was permitted to sit or stand as the security officer waited for a DUI task force officer to arrive at the scene; Rebuffi was not told that he was under arrest; and Rebuffi was not handcuffed.

Decided March 1, 2016.

The Merchant Law Firm, Ashleigh B. Merchant, for appellant.

Barry E. Morgan, Solicitor-General, Mimi A. Scaljon, Melissa Tatum, Assistant Solicitors-General, for appellee.

Given these circumstances, “a reasonable person could conclude that [Rebuffi’s] freedom of action was only temporarily curtailed and that a final determination of [his] status was simply delayed.” Abrahamson, 276 Ga. App. at 586-587. We conclude that the lapse of time between Rebuffi’s detention and the DUI task force officer’s arrival on the scene did not cause Rebuffi’s detention to ripen into a custodial arrest which would have required that Miranda warnings be given. See id.

Judgment affirmed.

Barnes, P. J., and McMillian, J., concur.

       Rebuffi was acquitted of reckless driving.


author: ELLINGTON, Presiding Judge.

text:
    A15A1818.
    FERGUSON v. THE STATE.
    (783 SE2d 380)
   ELLINGTON, Presiding Judge.

A DeKalb County jury found Erik Ferguson guilty beyond a reasonable doubt of trafficking a person for sexual servitude, OCGA § 16-5-46 (c), and two counts of attempting to commit that offense, OCGA § 16-4-l;pimpingforapersonlessthanl8yearsofage, OCGA §§ 16-6-11 (5); 16-6-13 (b), and two counts of conspiring to commit that offense, OCGA § 16-4-8; enticing a child under the age of 16 years for indecent purposes, OCGA § 16-6-5 (a); and nine counts of conspiring to commit sexual exploitation of a child, OCGA §§ 16-4-8; 16-12-100 (a) (4) (D), (b) (8). Following the denial of his motion for a new trial, Ferguson appeals, contending that the evidence was insufficient to support his convictions, that the trial court erred in denying his motion to dismiss the indictment and failing to instruct the jury on corroboration of an accomplice’s testimony, and that his trial attorney was ineffective in failing to request that jury instruction. Finding no reversible error, we affirm.

1. Ferguson contends that the evidence was insufficient to support his convictions.

On appeal from a criminal conviction, the appellate court

view[s] the evidence in the light most favorable to the verdict[,] and an appellant no longer enjoys the presumption of innocence. [The appellate court] determines whether the evidence is sufficient under the standard of Jackson v. Virginia, 443 U. S. 307 (99 SCt 2781, 61 LE2d 560) (1979), and does not weigh the evidence or determine witness credibility. Any conflicts or inconsistencies in the evidence are for the jury to resolve. As long as there is some competent evidence, even though contradicted, to support each fact necessary to make out the State’s case, [the appellate court] must uphold the jury’s verdict.

(Citations omitted.) Rankin v. State, 278 Ga. 704, 705 (606 SE2d 269) (2004).

(a) Count 1 of the indictment charged Ferguson with committing the offense of trafficking a person for sexual servitude during the period October 15,2007, to January 31,2008. Ferguson contends that the evidence established that he was incarcerated during that period. In addition, he contends that the alleged victim, A. G., was his accomplice as to that offense and that her testimony was not corroborated, rendering the evidence insufficient under former OCGA § 24-4-8.

A. G. testified that she met Ferguson in January 2007, about a month before she turned 17; she immediately moved in with him. Within a year, she had Ferguson’s child. Just after she turned 17, A. G. first became involved in sex work when, at Ferguson’s direction, she accompanied another young woman to meet a customer of an escort service. Ferguson operated an escort service called “Addicted Pleasure Models.” A. G. worked for Ferguson as a prostitute, having sex for money, danced at adult entertainment clubs and “stripper parties,” and gave erotic massages. Ferguson acted as her pimp, and she gave all the money she earned to him. If she failed to turn over the money, he would beat her. To promote the escort services, A. G. regularly passed out business cards and fliers, and multiple times per day she posted ads on Craigslist in the “escort services” section. A. G. helped recruit other girls to work for Ferguson’s escort service; he generally had about five at any given time.

A. G. testified that on January 9, 2009, she, Ferguson, and three of Ferguson’s other girls were headed downtown to meet customers at a hotel, and they passed out Addicted Pleasure Models business cards around a bus stop on Candler Road. A. G. explained that their purpose in passing out the cards was to solicit customers for prostitution services. Police officers stopped the girls to question them and detained them when they discovered that two girls, who had just started working for Ferguson, were runaways. A. G. was carrying a camera that included numerous images that Ferguson had taken of A. G. and the other girls to use in Craigslist ads. Nine of the images, introduced at trial as State’s Exhibits 71 through 79, depict girls other than A. G., displaying their genitals to the viewer.

A. G. was arrested. While she was in jail, in recorded telephone calls with Ferguson, the two discussed the operations of the prostitution business. He told her that one of the other girls had made $50 the previous night, and he “had the money in [his] pocket.” He said that the girl was going to walk the streets, passing out flyers to get some more business. He told her he had taken a girl away from another man and that the new girl was inexperienced in demanding a higher price from customers, rather than agreeing to the price first offered. They discussed having enough girls working for them, and Ferguson said that adding some “white hoes” to their operation would “take [them] all the way to the tip-top,” and he remarked that those girls tended to be more “loyal to their man.” Ferguson asked A. G. for the password for her Craigslist account so he could delete the ads and photographs she had posted, some of which included photographs of underaged girls, and she coached him through that process.

As noted above, Ferguson contends that the alleged victim, A. G., was his accomplice as to the offense charged in Count 1 of the indictment, trafficking a person for sexual servitude, and that her testimony was not corroborated, rendering the evidence insufficient under former OCGA § 24-4-8. Ferguson does not identify any legal authority for the underlying premise that a person can be an accomplice in his or her own sexual servitude. See Lemery v. State, 330 Ga. App. 623, 623-628 (1) (768 SE2d 800) (2015) (explaining the elements of coercion and deception in the context of sexual servitude); OCGA § 16-3-6 (providing that a person is not criminally responsible for sexual crimes where the person was being trafficked for sexual servitude and was either less than 18 years of age or was under coercion or deception).

Pretermitting whether corroboration was required, the evidence authorized the jury to find that A. G.’s testimony was corroborated, by a variety of evidence. For example, Ferguson’s telephone conversations with A. G. while she was in jail, regarding the day-to-day operation of the ongoing prostitution enterprise, and the need to remove ads from the Craigslist website that included photographs of underage girls, connected Ferguson to the Addicted Pleasure Models escort service promoted in those postings and therefore to the prostitution enterprise. Lemery v. State, 330 Ga. App. at 626-627 (1); Lewis v. State, 278 Ga. App. 160, 161 (1) (628 SE2d 239) (2006).

In contending that the evidence established an alibi of incarceration, Ferguson points only to his own testimony that he was incarcerated during the period specified in Count 1 of the complaint, October 15, 2007 to January 1, 2008. Even if the jury accepted Ferguson’s self-serving testimony that he was in jail during that period, the evidence authorized the jury to find that A. G. prostituted herself for Ferguson’s benefit multiple times a day nearly every day from approximately February 2007 through January 2009 (and beyond) and continued to prostitute herself for him regardless whether he was physically present on any given day.

(b) Counts 2 and 3 charged Ferguson with attempting to commit trafficking a person for sexual servitude. The indictment alleged that on January 9,2009, Ferguson had two girls, sixteen-year-old K. P. and fifteen-year-old K. L., distribute business cards for Addicted Pleasure Models in order to solicit men to buy sexual services from the girls. In Counts 6 and 7, the indictment charged Ferguson with conspiring to commit pimping for the same two girls, on the same date, again by having the girls distribute business cards for Addicted Pleasure Models in order to solicit men to buy sexual services from them. In Count 8, the indictment charged Ferguson with enticing a child under the age of 16 for indecent purposes, through taking K. L. to 2004 Candler Road on the same date, for the purpose of prostitution. Ferguson argues that K. P. was the only witness who testified who was in a position to corroborate A. G.’s testimony that Ferguson directed the girls in escort service activities and that K. P.’s testimony did not corroborate A. G.’s. He contends that he cannot be convicted on A. G.’s uncorroborated testimony. He also contends that there was no evidence that K. L. was younger than 16 years old.

K. P. testified that in early January 2009, she met Ferguson and A. G. in a bar; she was sixteen years old and a runaway. She testified that K. L. was also there that night. K. P. and K. L. were friends and had lived on the same street growing up. K. P. and K. L. left the bar with Ferguson and A. G. and stayed at their house. Ferguson talked to K. P. about “what would happen and how [she] would be there and what [she] would do there.” He asked if she would be “comfortable doing prostitution,” and she said she would. K. P. testified that, on January 9, 2009, a few days after she met Ferguson, she was with him, A. G., K. L., and another girl at a bus stop on Candler Road. K. P. testified that they were on their way to go shopping, and that she and K. L. gave an Addicted Pleasure Models business card to a man in a car. As Ferguson contends, K. P. testified that they did not solicit sex from anyone that day.

Two police officers testified that there was an unusual amount of activity at that bus stop that day and that four girls (including A. G., K. P., and K. L.) were handing out adult entertainment business cards to men. Officers determined that, after initially giving false dates of birth, K. P. and K. L. provided the correct dates; K. P. was 16 years old and K. L. was 15 years old. An officer dialed the telephone number on the business card, and A. G.’s cell phone rang. The officers found nude photographs of the younger girls on A. G.’s camera. A. G. was charged with enticing minors; the minors were charged with giving false information.

Turning to Ferguson’s argument that A. G.’s testimony that the girls were engaged in prostitution at Ferguson’s direction on January 9, 2009, was uncorroborated, we conclude that the jury could find corroboration in K. P.’s testimony that, a few days earlier, Ferguson took her and K. L., two teenaged runaways, home from a bar and Ferguson asked her if she would be comfortable doing prostitution in his household. In addition, the jury could find corroboration in the evidence that A. G. possessed State’s Exhibits 71 through 79, that K. P. and K. L. gave a business card for the escort service to a man in a car, and that Addicted Pleasure Models posted ads for prostitution on Craigslist.

As to K. L.’s age, although K. P. testified that she was not sure of K. L.’s exact age, she testified that they had been in the same grade in school together. More specifically, K. L. gave her date of birth to investigators, providing evidence that she was less than 16 years of age on January 9, 2009.

(c) Counts 9 through 17 charged Ferguson with conspiring to commit sexual exploitation of a child through possessing photographs depicting the lewd exhibition of the child’s genitals. The photographs, State’s Exhibits 71 through 79, depict 16-year-old K. P, 15-year-old K. L., or both. He contends that he did not take the photographs or direct that they be taken and that he did not possess the photographs, which were found on A. G.’s camera on January 9, 2009. He contends that A. G. was his alleged co-conspirator and that her testimony was not corroborated, rendering the evidence insufficient under former OCGA § 24-4-8. We conclude, however, that A. G.’s testimony authorized the jury to find that he conspired with A. G. to generate State’s Exhibits 71 through 79 for use in the escort business’s Craigslist ads and that K. P.’s testimony about the taking of the photographs at Ferguson’s and A. G.’s house corroborated A. G.’s testimony.

For the foregoing reasons, Ferguson’s sufficiency arguments fail. Pepe-Frazier v. State, 331 Ga. App. 263, 264, n. 2 (770 SE2d 654) (2015); Lemery v. State, 330 Ga. App. at 628 (1).

2. Ferguson contends that the trial court erred in denying his motion to dismiss the indictment.

First, Ferguson contends that the indictment failed to allege specific dates and deprived him of a potential alibi defense. This argument can only go to Counts 1 and 5 of the indictment, which charged Ferguson with committing offenses during the period October 15, 2007, to January 31, 2008, as the remaining counts all specified an offense date of January 9, 2009.

Generally, an indictment which fails to allege a specific date on which the crime was committed is not perfect in form and is subject to a timely special demurrer. However, where the State can show that the evidence does not permit it to allege a specific date on which the offense occurred, the State is permitted to allege that the crime occurred between two particular dates. In such a situation, though, the range of dates alleged in the indictment should not be unreasonably broad.

(Citations and punctuation omitted.) Blanton v. State, 324 Ga. App. 610, 614-615 (2) (751 SE2d 431) (2013). Moreover,

the true test of the sufficiency of an indictment or accusation to withstand a special demurrer is not whether it could have been made more definite and certain, but whether it sufficiently apprises the defendant of what he must be prepared to meet, and, in case any other proceedings are taken against him for a similar offense, whether the record shows with accuracy to what extent he may plead a former acquittal or conviction.

(Citations and punctuation omitted.) State v. Leatherwood, 326 Ga. App. 730, 732-733 (757 SE2d 434) (2014). As noted above, the evidence authorized the jury to find that A. G. prostituted herself for Ferguson’s benefit multiple times a day nearly every day from approximately February 2007 through at least January 2009. The indictment’s allegation of a range of dates within that even longer range of time for the continuing offense of trafficking A. G. for sexual servitude certainly put him on notice of what he should be prepared to meet at trial. Blanton v. State, 324 Ga. App. at 617 (2) (a).

Next, he argues that Counts 1, 2, and 3 failed to allege facts of sexually explicit conduct, as required for trafficking a person for sexual servitude, and Counts 6 and 7 failed to allege facts that K. P. or K. L. engaged in any acts of prostitution. These arguments lack merit. By virtue of the statutory definition of trafficking another person for sexual servitude, an indictment that alleges a violation of OCGA § 16-5-46 (c) necessarily incorporates an allegation that the trafficking conduct by the accused involved sexually explicit conduct by the victim. See OCGA § 16-5-46 (a) (6). In addition, Counts 6 and 7 alleged that Ferguson engaged in conspiracy to commit the offense of pimping by having K. P. and K. L. distribute business cards in order to solicit men to buy sexual services from them. These counts included facts showing that Ferguson, in concert with others, aided and abetted K. P. and K. L. in acts of prostitution, which offense comprises not only performing sexual acts for money, but offering or consenting to perform sexual acts for money. See OCGA § 16-6-9 (“A person commits the offense of prostitution when he or she performs or offers or consents to perform a sexual act, including but not limited to sexual intercourse or sodomy, for money or other items of value.”).

Finally, he contends that Counts 9 through 16 of the indictment were flawed in alleging in one indictment both a conspiracy (to commit sexual exploitation of children) and, as the substantive step taken in furtherance of the conspiracy, the underlying substantive act (sexual exploitation of children by possessing photographs depicting the lewd exhibition of children’s genitals). Although a conviction for conspiring to commit an offense merges into a conviction for the completed offense for sentencing, Ferguson has not identified any authority for his position that an indictment is void if it alleges a conspiracy that achieved its object. Indeed, the Criminal Code provides:

A person may be convicted of the offense of conspiracy to commit a crime ... even if the crime which was the objective of the conspiracy was actually committed or completed in pursuance of the conspiracy, but such person may not be convicted of both conspiracy to commit a crime and the completed crime.

OCGA § 16-4-8.1.

The trial court did not err in denying Ferguson’s motion to dismiss the indictment.

3. Ferguson contends that the trial court erred in failing to instruct the jury sua sponte on the requirement that the testimony of an accomplice be corroborated. He acknowledges that he did not request such a jury instruction. Because he did not submit a written request, an oral request during the charge conference for such an instruction, or an objection to the court’s failure to give such an instruction, this Court’s review is limited to a determination of whether the trial court’s instruction constituted “plain error.” See OCGA § 17-8-58; State v. Kelly, 290 Ga. 29, 33 (2) (a) (718 SE2d 232) (2011). Under the applicable test for plain error under OCGA § 17-8-58 (b),

[f]irst, 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 and punctuation omitted; emphasis in original.) McLean v. State, 291 Ga. 873, 876-877 (4) (738 SE2d 267) (2012). Pretermitting whether the omission was error in this case, see Division 4, infra, we conclude that there is no likelihood that it affected the outcome of the trial in light of the content of Ferguson’s telephone conversations with A. G. while she was in jail and the other evidence discussed in Division 1, supra. Tremblay v. State, 329 Ga. App. 139, 143 (2) (764 SE2d 163) (2014). Accordingly, the failure to give the charge sua sponte was not plain error.

4. Ferguson contends that his trial attorney was ineffective in failing to request a jury instruction on corroboration of an accomplice’s testimony.

In order to prevail on a claim of ineffective assistance of counsel, a criminal defendant must show that counsel’s performance was deficient and that the deficient performance so prejudiced the client that there is a reasonable likelihood that, but for counsel’s errors, the outcome of the trial would have been different. Strickland v. Washington, 466 U. S. 668 (104 SCt 2052, 80 LE2d 674) (1984) [.] The criminal defendant must overcome the strong presumption that trial counsel’s conduct falls within the broad range of reasonable professional conduct.

(Citations and punctuation omitted.) Robinson v. State, 277 Ga. 75, 75-76 (586 SE2d 313) (2003).

In denying Ferguson’s motion for a new trial on the basis of ineffective assistance of counsel, the trial court ruled that Ferguson’s trial counsel was not deficient for failing to request a charge on accomplice corroboration because, “where an accomplice witness’ testimony is independently corroborated, a jury instruction on corroboration is not required, whether or not the charge was requested by counself,]” citing Jackson cv. State, 294 Ga. 34, 36-37 (2) (751 SE2d 63) (2013), and Hall v. State, 241 Ga. 252, 257-258 (7) (244 SE2d 833) (1978). Although the Supreme Court of Georgia has since reversed these two cases, and others holding likewise, Georgia law as it existed at the time of Ferguson’s trial in January 2012 indeed provided that “there is no error in declining to give an instruction on accomplice corroboration, even if such a charge is requested, where the accomplice’s testimony is in fact corroborated by independent evidence.” (Citation omitted.) Hamm v. State, 294 Ga. 791, 795 (756 SE2d 507) (2014) (discussing the holdings in Hall v. State and its progeny). Failing to request an inapplicable jury instruction does not constitute deficient performance. McLean v. State, 291 Ga. at 877-878 (5) (a). Because the reasonableness of counsel’s conduct is examined from counsel’s perspective at the time of trial, and not with the benefit of hindsight, there was no “general duty” on the part of Ferguson’s defense counsel to “argue beyond existing precedent” on the subject in anticipation that there would be changes in the law before the case was reviewed on appeal. (Citations and punctuation omitted.) Perera v. State, 295 Ga. 880, 885-886 (3) (d) (763 SE2d 687) (2014), cert. denied, Perera v. Georgia, _ U. S. _ (136 SCt 123, 193 LE2d 96) (2015).

Moreover, at the hearing on Ferguson’s motion for a new trial, his trial counsel testified that, as a matter of trial strategy, he decided not to request a jury instruction on corroboration because such an instruction would have essentially conceded that Ferguson and A. G. were working together. His counsel testified that he believed it would be more effective to attack A. G.’s credibility directly and try to distance Ferguson from her prostitution activities.

As a general rule, matters of reasonable tactics and strategy, whether wise or unwise, do not amount to ineffective assistance of counsel. Matters of trial tactics, even if they appear in hindsight to be questionable, are grounds to find counsel ineffective only if the tactical decision is so patently unreasonable that no competent attorney would have chosen it.

(Citations and punctuation omitted.) Dyer v. State, 295 Ga. App. 495, 498 (1) (672 SE2d 462) (2009). The trial court did not err in denying Ferguson’s motion for a new trial.

Decided March 1, 2016.

Robinson & Associates, Thomas S. Robinson III, for appellant.

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

Judgment affirmed.

Dillard and McFadden, JJ., concur.

       Ferguson’s trial took place in January 2012, before the effective date of Georgia’s new Evidence Code, which applies to any motion, hearing or trial commenced on or after January 1, 2013. Ga. L. 2011, p. 99, §§ 2, 101. This rule of evidence is now codified at OCGA § 24-14-8 (2013).

       Former OCGA § 24-4-8, applicable at the time of [Ferguson’s] trial, did require corroborating circumstances in a felony prosecution in which the only witness was an accomplice. [In such a case, the State has] to present the testimony of at least one other witness or evidence of such corroborating circumstances; however, the required additional evidence could be circumstantial, slight, and in and of itself, insufficient to warrant a conviction of the charged crime. But, such independent evidence has to either directly connect the defendant with the crime or justify an inference that the defendant is guilty; it must corroborate the identity of the defendant and that the defendant participated in the crime. (Citation and footnotes omitted.) Lindsey v. State, 295 Ga. 343, 347 (3) (760 SE2d 170) (2014). See OCGA § 16-2-20 (a) (“Every person concerned in the commission of a crime is a party thereto and may be charged with and convicted of commission of the crime.”), (b) (“A person is concerned in the commission of a crime only if he: (1) Directly commits the crime; (2) Intentionally causes some other person to commit the crime under such circumstances that the other person is not guilty of any crime either in fact or because of legal incapacity; (3) Intentionally aids or abets in the commission of the crime; or (4) Intentionally advises, encourages, hires, counsels, or procures another to commit the crime.”).

       “A person commits the offense of trafficking a person for sexual servitude when that person knowingly subjects another person to or maintains another person in sexual servitude or knowingly recruits, entices, harbors, transports, provides, or obtains by any means another person for the purpose of sexual servitude.” OCGA § 16-5-46 (c). “Sexual servitude” means:
      (A) Any sexually explicit conduct or performance involving sexually explicit conduct for which anything of value is directly or indirectly given, promised to, or received by any person, which conduct is induced or obtained by coercion or deception or which conduct is induced or obtained from a person under the age of 18 years; or
      (B) Any sexually explicit conduct or performance involving sexually explicit conduct which is performed or provided by any person, which conduct is induced or obtained by coercion or deception or which conduct is induced or obtained from a person under the age of 18 years.
      OCGA § 16-5-46 (a) (6). “ ‘Sexually explicit conduct’ shall have the same meaning as set forth in Code Section 16-12-100.” OCGA § 16-5-46 (a) (5). The acts at issue in this case — offering to perform sexual acts for money — are included within the definition of sexually explicit conduct. See OCGA § 16-12-100 (a) (4).

       We note that, in Count 5, the indictment charged Ferguson with committing the offense of pimping for a person less than 18 years of age, also against A. G. during the same period as alleged in Count 1. In his brief, however, Ferguson did not assert the same insufficiency arguments as to Count 5.

       “A person commits the offense of pimping when he or she... [a]ids or abets, counsels, or commands another in the commission of prostitution[.]” OCGA § 16-6-11 (5).

       “A person commits the offense of enticing a child for indecent purposes when he or she solicits, entices, or takes any child under the age of 16 years to any place whatsoever for the purpose of child molestation or indecent acts.” OCGA § 16-6-5 (a).

       “It is unlawful for any person knowingly to possess or control any material which depicts a minor or a portion of a minor’s body engaged in any sexually explicit conduct.” OCGA § 16-12-100 (b) (8). “Minor” means “any person under the age of 18 years.” OCGA§ 16-12-100 (a) (1). “Sexually explicit conduct” means “actual or simulated ... [l]ewd exhibition of the genitals or pubic area of any person[.]” OCGA § 16-12-100 (a) (4) (D).

        Crosby v. State, 232 Ga. 599, 602 (3) (207 SE2d 515) (1974); Raftis v. State, 175 Ga. App. 893, 895 (2) (334 SE2d 857) (1985).

       See Scott v. State, 229 Ga. 541, 544 (1) (192 SE2d 367) (1972) (“[C]onspiracy itself [is] a separate crime only in cases where the crime conspired to be committed [has] not in fact been committed, that is, where the conspiracy [has] been, so to speak, ‘nipped in the bud.’ ”); Rowe v. State, 166 Ga. App. 836, 837-838 (1) (305 SE2d 624) (1983) (Where conspiracy was not included in an indictment of multiple defendants for drug possession, the defendant could not be found guilty of conspiring to possess the contraband, because a person cannot be convicted of a crime not charged and because conspiracy is a separate crime only when the crime conspired to be committed has not been committed.).

       See Hamm v. State, 294 Ga. 791, 793-798 (2) (756 SE2d 507) (2014). In that case, the Supreme Court of Georgia explained:
      [T]he sufficiency of the evidence corroborating an accomplice’s testimony, including whether the State has presented other witnesses to the same material facts as the accomplice, is an inquiry entirely distinct from whether a jury charge on the principle of accomplice corroboration is warranted [I]t is well-established that requested jury instructions must be given whenever there is “slight evidence” to support them. Where . . . there is slight evidence supporting a finding that a witness was an accomplice, the jury should be given proper guidance not only on how to decide whether the witness was in fact an accomplice but also on the extent to which it can rely on that witness’ testimony by itself to support a conviction.... [T]he mere fact that there is other evidence which could serve as corroboration does not dispense with the need for the requested charge because the jury, as the exclusive judges of credibility, could have rejected the other evidence and convicted solely on the accomplice’s testimony. A trial court’s failure to give the instruction where the State relies in part on the testimony of a possible accomplice thus leaves open the possibility of a conviction in violation of [former] OCGA § 24-4-8.
      (Citations and punctuation omitted.) Id. at 796 (2).

       Ferguson testified on his own behalf and essentially claimed that he was an innocent bystander to A. G.’s prostitution trade and that she lied to shift the blame to him to catch what his attorney called “the deal of the century” from the State.