text:
    A12A2192.
    WARE v. VANDERBILT MORTGAGE & FINANCE, INC.
    (740 SE2d 691)
   Branch, Judge.

On this pro se appeal from the trial court’s grant of a writ of possession as to defendant John Ware’s mobile home to plaintiff Vanderbilt Mortgage & Finance, Inc., Ware argues that the trial court erred when it granted the writ as part of a final judgment without taking account of his previous payments to Vanderbilt and when it dismissed his counterclaims. Although we conclude that the trial court did not necessarily err when it granted the writ of possession, we vacate the trial court’s final judgment and remand because Ware was notprovided with the proceedings mandated by OCGA § 44-14-233 (c).

The record shows that on June 27, 2001, Ware and Leigh Ann Ellington entered into a retail installment contract under which they made a down payment on a mobile home and granted the seller a secured interest in the amount of $40,374.

In March 2011, after Ware had defaulted, Vanderbilt, which had acquired the original seller’s rights in the contract in 2005, began foreclosure proceedings on the mobile home under OCGA § 44-14-230 et seq. and filed a petition for a writ of possession. Ware answered the petition pro se and asserted counterclaims for racketeering, harassment, and breach of contract. Vanderbilt filed motions to strike the answer and to dismiss the counterclaims. Ware then moved to hold Vanderbilt’s agents and counsel in contempt.

A noticed hearing on all pending motions was held on December 15,2011. Vanderbilt first argued that Ware’s answer should be struck as nonresponsive to the allegations in the petition. Ware responded, inter alia, that he had made all required payments, amounting to $34,670.88, and that he was not in default. After conceding that its motion to strike the answer was untimely, Vanderbilt asked the trial court to consider it nonetheless. After hearing testimony, the trial court orally denied Ware’s motions for contempt. Vanderbilt then argued that Ware’s counterclaims should be dismissed because Ware had failed to allege the predicate act required by both Georgia and federal RICO and because his breach of contract claim lacked merit. Under questioning by the trial court, Ware reasserted his allegation that Vanderbilt had not made a proper accounting of payments he had made. Vanderbilt then noted that Ware had failed to deposit any of the payments due between April 2011 (when he was served with the petition) and December 2011 into the court registry, as required by OCGA § 44-14-234. After Ware conceded that he had not made all of the required payments between April 2011 and December 2011, the trial court concluded the hearing.

Five days after the hearing, the trial court issued a written order granting Vanderbilt’s motion to dismiss Ware’s counterclaims and reaffirmed its earlier denial of Ware’s motions for contempt. In the same order, the trial court noted Ware’s concession at the hearing that he had not made some of the installment payments that had accrued since Vanderbilt filed its petition and ruled that all such overdue payments should be deposited in the court registry no later than December 29, 2011. The trial court also noted that if Ware failed to make such a deposit, he would “be subject to having his answer struck and the writ of possession... granted.” On December 27,2011, Vanderbilt reminded Ware that he must deposit the amount of $2,684 by December 29, 2011. On December 29,2011, Ware filed a motion for reconsideration arguing that he should not be forced to make what he called “accelerated payments” of amounts properly withheld or not yet due. The trial court denied Ware’s motion the following day.

On January 9,2012, Ware filed an amended answer alleging that he was current in his payments, which had amounted to more than $38,000 over the life of the loan. Vanderbilt then moved to strike the amended answer on the ground that Ware had not deposited in the court registry the amount required by the trial court. In late January, Ware filed another counterclaim for breach of contract and harassment, which Vanderbilt moved to strike as repetitive and redundant.

On April 3, 2012, and without any other hearing on the merits, the trial court issued a “final judgment” noting that Ware’s “numerous filings” contained “absolutely no discernable factual allegations, let alone raise [d] any cognizable basis to otherwise oppose the relief requested” by Vanderbilt. Although the trial court did not specifically strike Ware’s answer, it nonetheless concluded that Ware’s asserted defenses had no merit. The trial court also noted that Ware had failed to comply with the December 2011 order requiring him to deposit sums due in the court registry, “which further solidifie[d] that the relief requested by [Vanderbilt] is proper.” The trial court then granted Vanderbilt a writ of possession in the mobile home, ruled that it was subject to levy, and assessed costs and fees against Ware.

Ware argues that the trial court erred when it granted the writ of possession and dismissed his counterclaims. We agree in part.

OCGA § 44-14-230 et seq. entitles the holder of a security interest in personal property, including the mobile home at issue here, “to foreclose the security interest” by obtaining an execution commanding “the sale of the secured property to satisfy the amount due from the debtor, together with the costs of the proceedings to foreclose the security interest,” as well as “an order directing the defendant or the party in possession to turn over . . . the property sought to be foreclosed upon ...” OCGA § 44-14-230 (a). After the secured party files and serves a petition for a writ of possession, the defendant “may answer either in writing or orally,” in which case “a trial of the issues shall be had in accordance with the procedure prescribed for civil actions in courts of record.” (Emphasis supplied.) OCGA § 44-14-233 (c). A defendant “shall be allowed to remain in possession of the secured property pending the final outcome of the litigation, provided that the defendant complies with Code Section 44-14-234.” Id. (emphasis supplied).

A defendant to a personal property foreclosure action may be required to pay a sum of money into the court registry in advance of a trial on the merits of a writ of possession under the interlocutory procedure set out in OCGA § 44-14-234:

(1) Where the issue of the right of possession cannot be finally determined within two weeks from the date of service of the copy of the summons, the defendant shall be required to pay into the registry of the trial court: (A) [a]ll past due amounts which are admitted to be due and for which there are no allegations of defenses or claims which, if proven, would offset said amounts alleged past due; and (B) [a]ll amounts of unaccelerated payments which become due after the issuance of the summons... .In the event that the amount of the payments actually due or to become due is in controversy, the court shall determine the amount to be paid into the court in the same manner as provided in paragraph (2) of this Code section;
(2) If the plaintiff and the defendant disagree as to the amounts actually due or to become due, the court shall set a hearing date to determine the amount to be paid into the court. At the hearing, the parties may submit to the court any evidence of the amounts actually due or to become due, including any security agreement and evidence of any claims or defenses arising out of the same transaction, for the purpose of establishing the actual amount of the payments to be paid into the registry of the court;
(4) If the defendant fails to comply with any provision of this Code section to the detriment of the plaintiff, the court shall issue a writ of possession. The issuance of a writ of possession shall not affect the merits of the case but shall only affect the right to possession pending a final decision on the merits-, and
(5) The court shall order the clerk of the court to pay to the plaintiff the amounts paid into the registry of the court as the payments are made; provided, however, that, if the defendant claims that he is entitled to all or a part of the funds and such claim is an issue of controversy in the litigation, the court shall order the clerk to pay to the plaintiff without delay only that portion of the funds to which the defendant has made no claim in the proceedings. That part of the funds which is a matter of controversy in the litigation shall remain in the registry of the court until a final determination of the issues.

(Emphasis supplied.)

Because proceedings held under OCGA § 44-14-234 (2) are interlocutory in character, the merits of the matter will remain pending with the trial court. See Foskey v. Bank of Alapaha, 147 Ga. App. 541, 542 (249 SE2d 346) (1978) (the issuance of a writ of possession “was not dispositive of the case” because the merits remained pending below). The proper subject matter of the interlocutory proceeding concerning the amount to be paid into the court registry is “past due amounts . . . admitted to be due” or “[a]ll amounts of unaccelerated payments which become due after the issuance of the summons,” whether the latter are disputed or not. OCGA § 44-14-234 (1) (A) and (B), (2); Foskey, supra at 542; Candler 1-20 Properties v. Inn Keepers Supply Co., 137 Ga. App. 94, 97 (2) (222 SE2d 881) (1975).

OCGA § 44-14-234 (4) provides that even if a trial court issues an interlocutory writ of possession, its ruling “shall not affect the merits of the case but shall only affect the right to possession pending a final decision on the merits.” Thus in Ward v. Charles D. Hardwick Co., 156 Ga. App. 96 (274 SE2d 20) (1980), this Court reversed a trial court’s final judgment including the grant of a writ of possession to a foreclosing plaintiff because the court erroneously “determined the right to immediate possession under writ[ ] by weighing the merits of the foreclosure claim.” Id. at 99. As we pointed out,

the merits of the foreclosure itself and particularly the defenses and counterclaims thereto have no actual relevancy to this question. Clearly, the defendant is entitled to his trial on the defenses to the foreclosure and his counterclaims whether he retains possession [to the personal property] or whether he perforce gives it up.

(Citations omitted; emphasis supplied.) Id. at 98-99. Even when a defendant appeared to accede to the issuance of the writ of possession at the interlocutory hearing, “he was nevertheless entitled to the jury trial he had requested of the issues he had raised by defense and counterclaim,” and the defendant could not be held to have waived such a trial absent a transcript showing that he had done so. Id. at 99.

OCGA § 44-14-233 requires only that a defendant file an answer in order to obtain a trial on the merits. It is plain from the notices and transcript of the December 15, 2011 hearing — the only one held in this case —• that its subject matter was the six pending motions, and not the final merits of Vanderbilt’s petition for a writ of possession, which should have been reserved for a “trial of the issues [conducted] in accordance with the procedure prescribed for civil actions in courts of record.” OCGA § 44-14-233 (c). It is equally plain that the same hearing did not amount to a trial, since it was neither noticed nor understood as such by the parties or the trial court, which issued a ruling only on the interlocutory matter of the registry payments at its conclusion. Nonetheless, and without holding another hearing, the trial court’s final judgment ruled on the merits of Ware’s answer — an action not authorized by OCGA § 44-14-234 (4) as a sanction for a defendant’s failure to make such a payment — and issued a writ of possession. Because the trial court issued this final judgment without affording Ware the procedures accorded him by OCGA § 44-14-233 (c), we vacate that judgment, including its grant of Vanderbilt’s motion to dismiss Ware’s counterclaims, and remand for a trial on the merits.

Decided March 22, 2013.

John Ware, pro se.

McCalla Raymer, Jimmy T. Howell, Jr., Brett C. Giordano, for appellee.

This does not mean that the trial court was powerless to issue an interlocutory writ of possession after the December 15 hearing. On the contrary, it was empowered to do so under OCGA §§ 44-14-233 (c) and 44-14-234 (4) given the evidence presented at that hearing that Ware had not made some of the payments accruing after the summons and that he had paid nothing into the court registry. Likewise, OCGA § 44-14-235 authorizes a debtor seeking an appeal to retain possession of the personal property at issue only if he “complies with all of the provisions of [OCGA §] 44-14-234 until the issue has been finally determined on appeal.” Because the trial court had some evidence to support its conclusion that Ware had failed to deposit some part of the sum mandated by OCGA § 44-14-234 (1) into the court registry, the trial court’s grant of an interlocutory writ of possession to Vanderbilt shall remain in effect pending the outcome of the remand. See Ward, supra at 98 (merits of foreclosure, defenses and counterclaims “have no actual relevancy” to question “[a]s to who shall have possession pending a trial”); Deere Park & Assoc, v. CH Furniture Source, 296 Ga. App. 382, 386 (1) (674 SE2d 635) (2009) (reversing trial court’s denial of interlocutory writ of possession “pending a final decision on the merits”).

Judgment vacated and case remanded with direction.

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

       See OCGA § 9-11-12 (f) (a trial court may strike a pleading upon motion within 30 days of service on party or at any time on its own initiative).

       “Except for mobile homes permanently attached to realty, mobile homes are personal property, not real property, and are governed by . . . the Motor Vehicle Certificate of Title Act and... the Uniform Commercial Code.” (Citations omitted.) Griswell v. Columbus Finance Co., 220 Ga. App. 803-804 (1) (470 SE2d 256) (1996).


source: Caselaw Access Project

author: Branch, Judge.

license: Public Domain

text:
    A12A2218.
    AGUILERA v. THE STATE.
    (740 SE2d 644)
   Branch, Judge.

Anselmo Duarte Aguilera was tried by a Gwinnett County jury and convicted of trafficking in cocaine. He now appeals from the denial of his motion for a new trial, asserting that the trial court erred in admitting certain hearsay evidence and that the evidence is insufficient to sustain his conviction. We find no error and affirm.

On appeal from a criminal conviction, the defendant is no longer entitled to a presumption of innocence, and we therefore construe the evidence in the light most favorable to the jury’s guilty verdict. Martinez v. State, 306 Ga. App. 512, 514 (702 SE2d 747) (2010). So viewed, the record shows that in 2008 and 2009 a joint task force, made up of both federal and state law enforcement authorities, was conducting an investigation into a large drug trafficking organization operating in the metropolitan Atlanta area. A major target of the investigation was Soccoro Hernandez-Rodriguez, known as “Soco,” a high-level member of the organization.

The task force was able to obtain a warrant to tap Soco’s cell phone; all calls coming to and being made from that number were monitored and, if the call pertained to drug-related activity, the conversation was recorded and transcribed. On October 16 or 17, 2009, the task force received information indicating that Soco was expecting a large shipment of drugs. In response to this information, agents set up surveillance in the area of Indian Trail and Dickens Roads in Gwinnett County on October 17, the location being chosen based upon the GPS coordinates of Soco’s cell phone and the fact that one of his “stash houses” was located in that area. Shortly before 2:00 p.m., the task force intercepted a phone call to Soco from another drug trafficker, known only as Titin. A transcript of that call was introduced at trial and read for the jury During the call, the men negotiated Titin’s purchase of two kilograms of cocaine from Soco. Titin indicated that he would have a runner pick up the drugs, and Soco told him that the runner should meet Soco at a Shell gas station located at the intersection of Indian Trail Road and 1-85. The men also agreed that the drugs would be exchanged via a vehicle swap, meaning that after Titin’s runner arrived at the designated location, Soco would trade cars with him, leave, and return with drugs in the runner’s car. The men would then swap vehicles a second time, and Titin’s runner would leave with the drugs, without ever actually having handled them. Soco and Titin further agreed that Titin would pay Soco for the drugs at a later time.

After hearing this call, the task force immediately placed surveillance teams in the area of the Shell station. Task force agents observed a green Honda Element parked at the gas station and occupied by two Hispanic males, neither of whom exited the car for a period of approximately 25 minutes. Aguilera was later identified as the driver of the Honda, and his co-defendant was identified as the passenger.

At 2:01 p.m., agents intercepted a call that Titin placed to Soco, informing him that “[t]he guy will be there in ten short minutes.” Approximately 15 minutes later, Titin called Soco again and told him “[t]he guy is there. Write down the number .. Titin then provided Soco with a telephone number. A little more than half an hour after that call, Soco received a phone call from an unidentified male who informed Soco that he was at the Shell station and asking Soco where he should go from there; Soco responded that the man should wait for him at the gas station. A short time later, agents observed a black Toyota Célica, in which Soco was riding as a passenger, pull into the parking lot of the Shell station. At about this same time, the task force intercepted a phone call from Soco to the telephone number used by the unidentified male, during which Soco identified his car and told the male that he should follow Soco’s car. Agents at the scene observed the Toyota wait as Aguilera pulled the Honda out of its parking space to follow the Toyota. Both cars then proceeded onto Indian Trail Road, with the Honda following behind the Toyota.

The two cars drove a short distance to a small shopping center that was located less than a mile from Soco’s Dickens Road stash house. Both cars parked at the shopping center and the drivers and passengers all exited their vehicles. Agents then observed Soco and Aguilera in a “face-to-face” conversation, with Aguilera’s co-defendant standing next to him. Soco and his driver then entered the Honda and drove it away from the shopping center. After waiting a few minutes, Aguilera drove the Toyota to the back of one of the shopping center’s businesses. Approximately nine minutes later, Soco and his driver returned with the Honda. The men then switched cars for a second time; Aguilera and his co-defendant left in the Honda, and Soco and his driver left in the Toyota.

When the Honda left the shopping center, task force agents followed it as it entered onto 1-85. After traveling several miles, Aguilera and his co-defendant apparently began to suspect they were being tailed, as Aguilera exited 1-85 and began to drive the car erratically, in an apparent attempt to evade the agents. Aguilera eventually drove the car into the parking lot of a fast food restaurant, where he and his co-defendant abandoned it and ran into a nearby bowling alley. Officers located both men in the bowling alley, and after they returned Aguilera and his co-defendant to the Honda, two drug dogs performed a free air sniff around the car. The dogs indicated that narcotics were present in the back of the car, behind the driver’s seat. Agents then opened the car and found a grocery bag on the floor behind the driver’s seat that contained a cereal box. Inside the box were two packages of cocaine, each weighing approximately one kilogram.

Following the discovery of the cocaine, Aguilera and his co-defendant were arrested. During a search of his person incident to arrest, agents discovered that the co-defendant was carrying a cell phone that was assigned the phone number from which the previously unidentified male had called Soco. In the phone’s contact list, agents found stored the phone numbers of both Soco and Titin. During their search of Aguilera, agents found the keys to the Honda and a cell phone. The phone number assigned to Aguilera’s cell phone was the same number that Titin had given to Soco as the contact number for Titin’s “guy” waiting at the gas station. Stored in the phone’s contact list was Titin’s phone number.

During an interview following his arrest, Aguilera denied any knowledge of the cocaine and told police that he had been instructed to pick up the Honda from a business on Indian Trail Road and drive it to a Mexican restaurant on Roswell Road, near 1-285. Aguilera, however, could not explain to police how he had gotten to Indian Trail Road to pick up the Honda, could not say who had sent him to retrieve the Honda, and claimed not to know the name of his passenger.

Two days after Aguilera’s arrest, the task force concluded its investigation by arresting approximately 45 individuals associated with this particular drug trafficking operation, including Soco. At the time of his arrest, Soco had in his possession the cell phone from which the intercepted calls were made and received. Stored in the contacts of Soco’s cell phone was Aguilera’s phone number, under the name Gua D Titin. A DEA agent testified that the word “gua” was Spanish, the literal translation of which was “guy” or “dude.” He further explained that drug traffickers used this word to refer to an individual who served as a runner for or otherwise worked for another member of their organization. Thus, the name Gua D Titin would translate into worker or runner of Titin.

After his conviction, Aguilera filed a motion for a new trial, which was denied. This appeal followed.

1. Aguilera argues that the trial court erred when it admitted the transcripts of phone calls between Soco and Titin and between Soco and Aguilera’s co-defendant, because such evidence constituted hearsay. We find no error, because these statements fall within an exception to the hearsay rule.

Former OCGA § 24-3-5 provided: “After the fact of conspiracy is proved, the declarations by any one of the conspirators during the pendency of the criminal project shall be admissible against all.” Aguilera argues that no conspiracy existed because the transaction at issue was a “buy-sell transaction,” in which Soco sought to sell and Titin sought to purchase drugs. Under Georgia law, “the mere agreement of one person to buy contraband which another agrees to sell does not establish that the two acted in concert so as to support a finding of conspiracy[,]” because the buyer and seller “are not acting together to commit the same crime. In such circumstance, the buyer’s purpose is to buy; the seller’s purpose is to sell. There is no joint objective.” (Punctuation and footnotes omitted.) Pruitt v. State, 264 Ga. App. 44, 47 (2) (589 SE2d 864) (2003). Citing this principle, Aguilera asserts there was no conspiracy and that the transcripts of the intercepted conversations were therefore inadmissible.

As a threshold matter, we note that “[t]he question of the existence of a conspiracy is ultimately for the jury to determine.” (Citation and punctuation omitted.) Aguilera v. State, 293 Ga. App. 523, 526 (2) (667 SE2d 378) (2008). And here the trial court properly instructed the jury that it must determine whether a conspiracy existed; that if the existence of a conspiracy was proved beyond a reasonable doubt by evidence other than the declarations of the co-conspirators, the jury could consider the statements made by any co-conspirator; and that if the jury found that either of the defendants was not a part of the conspiracy, then they were to disregard any co-conspirator statements made out of the presence of that defendant. Thus, the question for us to determine is whether the trial court erred in finding that the evidence would support a finding of conspiracy, such that the statements at issue should be admitted for consideration by the jury. We find no such error.

Evidence will support a finding of conspiracy with respect to a buy-sell transaction involving drugs where the seller “fronts” the drugs to the buyer, i.e., supplies the drugs without first receiving payment, with the expectation that the buyer then will re-sell the drugs and pay the original seller from the proceeds. Melesa v. State, 314 Ga. App. 306, 308 (724 SE2d 30) (2012). Under such circumstances, the original seller “retains a sufficient interest in the subsequent sale to establish that he acted in concert with the recipient to distribute the contraband.” (Citation and punctuation omitted.) Id. Here the evidence showed that Soco had fronted the drugs to Titin, in that he had provided the drugs to him on the promise of future payment. Furthermore, following the arrest of Aguilera and his co-defendant, the task force intercepted conversations between Titin and Soco in which the men discussed who should bear the financial loss resulting from the seizure of the cocaine. This evidence showed that even after he provided the cocaine to Titin, Soco retained a sufficient interest in the contraband and its subsequent sale to support a finding that he was acting in concert with Titin to distribute the same. See id. at 309; Peacock v. State, 301 Ga. App. 873, 875 (2) (689 SE2d 853) (2010). The evidence also supported the inference that Aguilera and his co-defendant were part of this conspiracy, i.e., that they were acting in concert with Soco and Titin to facilitate the sale, purchase, possession, and transportation of a large quantity of cocaine. See Mosley v. State, 296 Ga. App. 746, 751-752 (4) (675 SE2d 607) (2009). And the statements made by Soco, Titin, and Aguilera’s co-defendant over the telephone were made in furtherance of that conspiracy. Accordingly, these statements did not constitute hearsay, and the trial court did not err in admitting them.

2. Aguilera also claims that the evidence was insufficient to sustain his conviction. With respect to this claim of error,

the relevant question is whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt. In determining that question, we consider the inferences that can be logically derived from the evidence presented at trial. As long as there is some competent evidence, even though contradicted, to support each fact necessary to make out the State’s case, the jury’s verdict will be upheld.

(Citation and footnote omitted.) Wade v. State, 305 Ga. App. 819, 821 (701 SE2d 214) (2010).

Decided March 22, 2013.

Mickey G. Roberts, for appellant.

Daniel J. Porter, District Attorney, Michael D. Morrison, Assistant District Attorney, for appellee.

To convict Aguilera of trafficking in cocaine, the State was required to prove that he knowingly possessed 28 grams or more of cocaine. OCGA § 16-13-31 (a) (1). Aguilera argues that the State failed to prove that he knowingly possessed the cocaine. We disagree.

Where contraband is found in a vehicle being driven by the defendant “the State is generally entitled to an evidentiary presumption that the [defendant, as the] driver of the automobile is in constructive possession of the contraband.” (Citation, punctuation and footnote omitted.) Feliciano v. State, 302 Ga. App. 328, 331 (690 SE2d 680) (2010). And “[w]hether the evidence presented at trial supported or rebutted that presumption [is] a question for the jury.” (Citation omitted.) Navarro v. State, 293 Ga. App. 329, 331 (667 SE2d 125) (2008).

With respect to Aguilera’s knowledge of the cocaine in the back seat of his car, “[i]t has long been the law that knowledge may be proved by facts and circumstances from which a jury could reasonably infer that a defendant knowingly possessed contraband.” (Citations and punctuation omitted.) Richardson v. State, 305 Ga. App. 363, 365 (1) (699 SE2d 595) (2010). Here, the jury could infer Aguilera’s knowledge from the evidence showing that he had been sent by Titin to obtain the drugs from Soco and ferry them back to Titin; that Aguilera attempted to evade the police; and that when interviewed by the police Aguilera professed to be unable to give them any information to support his claim that he had been instructed to pick up the Honda at one location and drive it to another. See Feliciano, supra at 331 (defendant’s knowledge of contraband found in hidden compartment of car he was driving supported by fact that he and passenger gave conflicting stories to police about ownership of vehicle); Arellano v. State, 289 Ga. App. 148, 150 (1) (a) (656 SE2d 264) (2008) (fact that defendant attempted to evade police served to demonstrate that he had knowledge of contraband in car he was driving). Accordingly, the evidence sufficed to sustain Aguilera’s conviction for trafficking in cocaine.

Judgment affirmed.

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

       OCGA § 16-13-31 (a) (1).

       Testimony at trial established that a stash house was either a residence or a commercial building used by drug traffickers to store their drugs and their cash. The task force had identified several stash houses used by Soco, and had identified the house on Dickens Road as a “transaction house,” meaning that it was a location used to facilitate the actual sale of narcotics.

       The men negotiated the transaction using certain code words commonly utilized by drug traffickers to refer to narcotics (“material” or “product”), kilograms (“keys” or “kids”), and money (“tickets”). Testimony identifying and explaining those code words was introduced at trial.

       Testimony at trial showed that runners are the members of a drug trafficking organization who facilitate drug transactions by ferrying the money and/or drugs necessary for those transactions.

       A DEA agent testified that vehicle swapping was a common method used by drug traffickers to facilitate the clandestine exchange of drugs and/or money.

       OCGA § 24-3-5 was in effect at the time of Aguilera’s trial. Effective January 1,2013, this Code provision was replaced by OCGA § 24-8-801 (d) (2) (E) which provides, in relevant part, that the following evidence shall not be excluded under the hearsay rule: “[a] statement by a coconspirator of a party during the course and in furtherance of the conspiracy. .. .”


author: BARNES, Presiding Judge.

text:
    A12A2237.
    GRAHAM v. THE STATE.
    (740 SE2d 649)
   BARNES, Presiding Judge.

Erica Lashae Graham was indicted for four counts of felony murder, two counts of cruelty to children, aggravated assault, aggravated battery, and making false statements to the police after her three-month-old baby died while in her care. A jury convicted her of four counts of voluntary manslaughter instead of felony murder and of all the remaining charges. The trial court merged the violent offenses into one voluntary manslaughter conviction and sentenced Graham to serve twenty years in prison, followed by five years in prison on the charge of making false statements. She appeals, contending that the evidence was insufficient to sustain the convictions. For the reasons that follow, we agree that the evidence was insufficient to sustain the voluntary manslaughter convictions and therefore reverse them. We conclude, however, that the evidence was sufficient to affirm the convictions for aggravated assault, aggravated battery, cruelty to children, and making false statements. Accordingly, we affirm in part, reverse in part, vacate the sentence, and remand for resentencing in accordance with this opinion.

Viewed in the light most favorable to the verdict, the evidence established that on January 6, 2009, police and emergency medical technicians found Graham’s three-month-old baby dead shortly after Graham called 911 at 9:44 p.m. Graham gave conflicting accounts of the events preceding the baby’s death, first telling police that she lived alone with the baby and her other daughter at their apartment, that she had picked up the baby from the baby’s father earlier that evening at a gas station, that she had no contact information for the father, and that she had put the baby to sleep in her playpen when she came home. However, Graham actually lived with the baby’s father, whom she initially misidentified to the police. The father had put the baby to bed around 5:30 p.m. and left the apartment around 7:00 p.m. that evening, leaving Graham alone with the baby and the couple’s two-year-old daughter.

Graham’s neighbor testified that she heard a knock at her door around 9:30 the night the baby died, but no one was there when she answered it. She heard crying in Graham’s apartment and knocked on her door. Graham opened the door and asked if she could use the neighbor’s cell phone because “her baby had died.” The neighbor retrieved her cell phone from her own apartment, gave it to Graham, and followed her upstairs to the baby’s room. Graham called someone and asked if he or she had seen “Mitchell,” who was later identified as the baby’s father, and the neighbor “let her know” she needed to end that conversation and call 911.

Graham then called 911 at 9:42 p.m. and gave the phone to the neighbor to speak to the dispatcher, who advised the neighbor to perform CPR on the baby. The neighbor testified that she felt no pulse and that the baby was cold, so she did not try to resuscitate her. Later that evening, the neighbor saw an unsent message in her cell phone’s outbox to an unfamiliar number. The message read, “If they asked, Justin was the father.”

A police officer who was dispatched to the scene with the paramedics testified that the baby was lying face up on the floor in an upstairs bedroom when they arrived at 9:48 p.m. She had no apparent injuries, and because the death appeared to be from natural causes, the officer covered her with a blanket and began interviewing Graham in anticipation of completing a standard deceased person report. Graham told the officer that she had picked up the baby from the baby’s father, “Justin Wallace,” at a gas station at 5:15 p.m. that day, although she later admitted that she lied about the father’s name. The child had been born prematurely and because her breathing was loud and labored, Graham told the officer that she knew the baby was alive when she picked her up from the father and put her to bed at 5:30 p.m., even though she was asleep. She also heard the baby breathing when she checked on her at 7:00 p.m., but when she checked again around 9:30 p.m., she heard nothing, and the baby was cold.

After a paramedic confirmed that the baby had passed away, the officer testified, Graham seemed upset for the first time and told the officer she did not know what the baby and father had been doing during the day. Graham could not provide the officer with contact information for the baby’s father. A forensic investigator from the Gwinnett County Medical Examiner’s office responded to the scene and also interviewed Graham. Graham again lied and said the child’s father was “Justin Wallace” and that he had kept the child at his apartment in Lawrenceville that day. She said she did not know his address because he had just moved, and he did not have a telephone. She told the investigator that she picked up the child from the father at a gas station and took her home, then recounted the rest of the evening as she had to the police officer.

The medical examiner performed an autopsy the next day. She testified that, although the only external sign of injury was a small hemorrhage in the baby’s left eye, an internal examination revealed multiple lateral and posterior rib fractures, some as old as three weeks and others closer in time to her death. These fractures were not accidental, but were caused by someone squeezing the baby’s chest. The baby’s femur had been broken from trauma such as grabbing or pulling the leg, also around the time she died. Further examination revealed swelling in her brain, retinal hemorrhages in both eyes, and subdural hematomas and clotted blood under her skull, which were markers for the type of injury she had suffered. In the examiner’s opinion, the brain injury was caused by a significant rotational force from either an impact or a shaking, and the baby died “within minutes to hours” of receiving the trauma that caused her death.

Graham’s mother called the medical examiner’s investigator the day of the autopsy and correctly identified the child’s father as Mitchell Siegler, not Justin Wallace, as Graham said the night the baby died. Graham’s mother told the investigator that Graham and the father had moved into the apartment together five days before the baby died, and that the father had been present earlier that evening. She also called the detective assigned to the case “to clear up the whole story,” and told him that Graham had lied about the father’s identity because the father was on probation and she did not want him to get in trouble. She testified that the Department of Family and Children Services had become involved with the family when the baby was born prematurely with marijuana in her system, and that the baby had issues with her underdeveloped lungs. After two months in the hospital, the baby was released on December 12, 2008, to live with Graham and Graham’s mother. Graham was supposed to “get herself together, get off drugs,” and she and the baby’s father traded off taking care of the baby and her sister.

Both grandmothers testified that they had seen red spots in the whites of the baby’s eyes at the end of December 2008 and had encouraged Graham and the father to take the child to a doctor. The father’s mother, who worked at a daycare facility, testified that she had seen the balay twice the day she died. At lunch she had been alert and later that afternoon she was asleep in the car. She knew the baby was alive then because she could hear her loud, raspy breathing.

The father testified that he and Graham had two children, and that he had taken care of the baby all day. After he dropped off Graham at work, he took the children by a friend’s house, as he often did, and visited for a while. The friend testified that nothing stood out about the children, except that the baby “used to breathe kind of funny.” The father took the older child to daycare, where his mother worked, then brought lunch to the child and to Graham at work, did errands, went home and fed the baby, picked up the older child, and then picked up Graham from work. They all went home, and the father put the sleeping baby to bed and turned on the baby monitor to listen for her while the parents were downstairs. He and Graham then had a “heated conversation” about who would cook dinner and about him leaving the house that evening, which he did around 7:00. He visited two different friends, both of whom testified about his visit, and around 10:00 that evening his brother called the second friend to inform the father of the baby’s death.

The day after the baby died, a DFCS caseworker located the baby’s sister and took her into custody. At a hearing the next day, Graham tested positive for marijuana. In contrast to her initial statements to the medical examiner investigator and the detective, Graham told the caseworker that the father had put the baby to bed around 5:30 p.m. and then left the apartment on the night she died. In a phone call from jail after her arrest, Graham said to the father, “The bitch labeled this shit a homicide the very next day,” and said she “wasn’t expecting anyone to get locked up until the autopsy was done.” After the autopsy, when the detective told her the extent of the baby’s injuries, Graham showed no shock or surprise, and when the detective commented on her response, she became a little combative for the first time and said she did not like the way he was coming at her.

A pediatrician testified as an expert for Graham and disagreed about the timing of the injury that caused the baby’s death. In his opinion, the baby died from trauma that occurred 24 to 48 hours earlier during “at least two periods of time when somebody angrily grabbed the chest of this baby.” The pressure from squeezing the baby’s chest abruptly increased the baby’s central venous pressure, which caused her brain to swell slowly and led to the brain damage that caused her death.

After hearing the conflicting testimony, the jury found Graham guilty of four counts of voluntary manslaughter instead of felony murder, two counts of cruelty to children, and one count each of aggravated assault, aggravated battery, and making false statements to the police. Graham moved for a new trial, the trial court denied the motion, and this appeal followed.

1. Graham contends that the evidence did not support her voluntary manslaughter conviction. A person commits voluntary manslaughter by causing “the death of another human being under circumstances which would otherwise be murder and if [she] acts solely as the result of a sudden, violent, and irresistible passion resulting from serious provocation sufficient to excite such passion in a reasonable person.” OCGA § 16-5-2 (a). Graham argues that a three-month-old baby could hardly commit the “serious provocation” necessary to excite such passion, and that not even slight evidence supported the jury charge on voluntary manslaughter requested by the State.

In reviewing the evidence necessary to sustain a conviction, appellate courts apply the standard of review set out in Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560) (1979), and determine “ ‘whether, after reviewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt.’ ” State v. Clay, 249 Ga. 250 (1) (290 SE2d 84) (1982). When a defendant is indicted for murder and convicted of voluntary manslaughter, “if the [S]tate’s evidence fails to prove the crime charged in the indictment or a lesser included offense, the conviction must be reversed.” Id. at 251. A voluntary manslaughter conviction may be affirmed if the defendant was indicted for murder, the evidence “absolutely demanded” a verdict of murder, and “some little evidence” sufficiently authorized a charge and conviction of voluntary manslaughter. Robinson v. State, 109 Ga. 506 (34 SE 1017) (1900); Varnum v. State, 125 Ga. App. 57, 62-63 (186 SE2d 485) (1971). Later cases have held that if the evidence was sufficient to sustain the indicted offense of murder and the State introduced at least slight evidence of provocation, the voluntary manslaughter conviction may be affirmed. Id.; Goins v. State, 164 Ga. App. 37, 38 (1) (296 SE2d 229) (1982). Regardless of which standard is used, here, there was no evidence of sudden provocation by the baby to support a voluntary manslaughter conviction. See Holmes v. State, 162 Ga. App. 717, 718 (293 SE2d 16) (1982) (absent evidence of provocation, voluntary manslaughter conviction reversed). “In this case, involving a three-[month] -old victim, there was no evidence of any ‘serious provocation’ sufficient to excite ‘sudden, violent, and irresistible passion in a reasonable person.’ ” Arnett v. State, 245 Ga. 470, 472 (1) (265 SE2d 771) (1980). See also Paul v. State, 274 Ga. 601, 605 (3) (b) (555 SE2d 716) (2001) (ten-year-old victim’s “backtalk” while being struck was insufficient provocation to justify voluntary manslaughter charge).

The State argues, however, that sufficient evidence supports the voluntary manslaughter conviction for the homicide of the baby as an unintended victim, based on the concept of “transferred intent,” such as when a defendant shoots at someone as a result of serious provocation but misses and kills a bystander. See McLendon v. State, 172 Ga. 267 (4) (157 SE 475) (1931); Coker v. State, 209 Ga. App. 142, 143 (433 SE2d 637) (1993); but see Foster v. State, 264 Ga. 369, n. 2 (444 SE2d 296) (1994) (questioning whether concept of transferred intent from intended victim to third party is still valid under current felony murder statute).

The State’s theory at trial was that Graham’s anger at the father was transferred to the baby and “manifested itself in grabbing and shaking the baby too hard[,] causing the injuries that resulted in the baby’s death.”

Regardless of whether the concept of transferred intent is still valid, however, in this case the only evidence arguably involving provocation of any kind was the father’s testimony that he and Graham had a “heated conversation” before he left on the evening the baby died. When asked if he and Graham had an argument or fight before he left that night, the father responded, “It wasn’t an argument, but we did have — we had a heated conversation. It wasn’t an argument.” The father testified that when Graham asked him why he had to go out, he asked if she wanted to pack up the kids and come with him, and she replied, “No, no, no, that’s okay. You just go, just go,” and so he left.

We have held that “ ‘a heated conversation’ or argument” following a car accident was sufficient provocation to affirm a voluntary manslaughter conviction when the defendant claimed he acted in self-defense. Asbury v. State, 175 Ga. App. 335, 336 (1) (333 SE2d 194) (1985). But even if we were to conclude that this evidence was sufficient to establish that Graham was angry with the father for leaving her alone with the children after she had worked a full day, there is no evidence to support the inference that Graham was so angry at the father that she acted out of an irresistible passion and killed the baby, or that she committed murder that was mitigated by provocation. The jury was simply left to speculate on this issue.

Because the State presented no evidence of provocation, we must reverse Graham’s voluntary manslaughter convictions.

2. Graham also contends that the evidence was insufficient to sustain her convictions of cruelty to children, aggravated assault, and aggravated battery, arguing that the circumstantial evidence did not rule out the reasonable hypothesis that the baby’s injuries were caused by the father. The indictment charged her with committing aggravated assault by using her hands against the baby offensively and causing trauma to her brain, committing aggravated battery by rendering her brain useless, and committing cruelty to children by maliciously and with criminal negligence causing her excessive physical pain.

“To warrant a conviction on circumstantial evidence, the proved facts shall not only be consistent with the hypothesis of guilt, but shall exclude every other reasonable hypothesis save that of the guilt of the accused.” Former OCGA § 24-4-6. When it meets this test, circumstantial evidence is as probative as direct evidence. Christmas v. State, 171 Ga. App. 4, 7 (2) (318 SE2d 682) (1984).

To sustain the judgment of conviction, the evidence need not exclude every inference or hypothesis except guilt of the accused, but only reasonable inferences or hypotheses, so as to justify the inference, beyond reasonable doubt, of guilt. Questions as to reasonableness generally are to be decided by the jury which heard the evidence and where the jury is authorized to find that the evidence, though circumstantial, was sufficient to exclude every reasonable hypothesis save that of guilt, the appellate court will not disturb that finding, unless the verdict of guilt is unsupportable as a matter of law.

(Citations and punctuation omitted.) Fitz v. State, 201 Ga. App. 83, 85-86 (410 SE2d 186) (1991).

The State presented evidence that Graham lied about living with the father, about the father’s name, and about where the baby had been that day. Several witnesses testified that the baby’s breathing was loud, and the father said he turned the baby monitor on when he put the baby to bed, but Graham said she did not know anything was wrong until she checked on the baby about two hours later and she was cold. She knocked on a neighbor’s door but did not wait for her to answer, then when the neighbor came over with a phone, Graham did not call 911 right away, but called someone else first. She did not seem surprised when the detective told her that the autopsy had uncovered extensive internal injuries to the baby, and said in a phone call from jail that she had not expected anyone to be locked up until after the autopsy. The baby had been in her care for more than two hours when she died, and in the medical examiner’s opinion, the baby would have died “within minutes or hours” after she suffered the brain injury.

The issue in circumstantial evidence cases is not whether someone else might have committed the crimes in question. Daugherty v. State, 283 Ga. App. 664, 667 (1) (a) (642 SE2d 345) (2007). The issue is whether the circumstantial evidence presented was sufficient to authorize the jury to conclude that the only reasonable hypothesis was that Graham was guilty. Smith v. State, 257 Ga. 381, 382 (359 SE2d 662) (1987).

The mere possibility that an individual other than the defendant committed the crime is not such a “reasonable hypothesis” that must be excluded for circumstantial evidence to authorize a guilty verdict. Whether or not in a given case circumstances are sufficient to exclude every reasonable hypothesis save the guilt of the accused is primarily a question for determination by the jury.

Decided March 22, 2013.

Brown & Gill, Angela B. Dillon, for appellant.

Daniel J. Porter, District Attorney, John A. Warr, Assistant District Attorney, for appellee.

(Citation and punctuation omitted.) McCombs v. State, 306 Ga. App. 64, 66 (2) (701 SE2d 496) (2010). “Because the factfinder has heard the witnesses and observed them testify, it is considered more capable of determining the reasonableness of the hypothesis produced by the evidence or lack thereof than is an appellate court.” McClain v. State, 301 Ga. App. 844, 847 (1) (689 SE2d 126) (2010).

In this case, based on the evidence presented, the jury was authorized to conclude that the circumstantial evidence excluded any reasonable hypothesis except Graham’s guilt of aggravated assault, aggravated battery, and cruelty to children, and therefore we affirm those convictions.

Accordingly, the judgment is affirmed in part and reversed in part, the sentence is vacated, and the case is remanded to the trial court for further proceedings consistent with this opinion.

Judgment affirmed in part and reversed in part, sentence vacated, and case remanded for resentencing.

McFadden J., concurs. McMillian, J., concurs in judgment only.

       Graham has not challenged the sufficiency of the evidence regarding her conviction for making a false statement.


author: PHIPPS, Presiding Judge.

text:
    A12A2250.
    TEMPLE v. THE STATE.
    (740 SE2d 669)
   PHIPPS, Presiding Judge.

After a jury trial, Horace Temple was convicted of two counts of armed robbery and one count of criminal trespass. He was sentenced as a recidivist to confinement for life without parole. On appeal, Temple contends that his convictions should be reversed because (1) the trial court erred in denying his motion for new trial on the ground that his trial counsel was ineffective for failing to communicate to him information pertaining to a plea offer; and (2) the sentence of life without parole constituted cruel and unusual punishment. We affirm.

1. Temple contends that his trial counsel was ineffective for failing to communicate to him information pertaining to a plea offer. Specifically, he asserts that he “was not properly advised that, due to the nature of the charge [s] and his prior conviction, he was facing, if convicted, a mandatory sentence of life in prison without the possibility of parole.” Thus, he contends, he “could not make an informed decision about whether to accept or reject the [s] fate’s plea offer.” Temple asserts that, by the record, “it [was] apparent that [he] did not grasp the implications of the recidivist law in his case.”

Under the controlling Strickland v. Washington,[] in order for [Temple] to succeed on his claim of the ineffective assistance of trial counsel, he has to show both that trial counsel was deficient and that he was prejudiced by the deficiency. In that regard, there is the rebuttable presumption that counsel exercised reasonable professional judgment, and counsel’s decisions are to be assessed in the context of the circumstances existing at the time of trial rather than in hindsight. In this Court’s review we are to accept the trial court’s factual findings and credibility determinations unless they are clearly erroneous, but we independently apply the legal principles to the facts. In the context of a plea offer, trial counsel can be found to have rendered less than reasonably professional assistance if counsel has not informed his client that such a plea offer has been made and advised the client of the consequences of the choices confronting him. This is so because prior to trial an accused is entitled to rely upon his counsel to independently examine the facts, circumstances, pleadings and laws involved in the case and then to offer an informed opinion about what plea should be entered; the plea bargaining process is a critical stage of the criminal proceedings, so counsel’s involvement is crucial.

The record showed that the state’s plea offer of 20 years to serve in confinement (with the state waiving recidivist treatment) was presented to Temple at various times, and rejected. At the hearing on Temple’s motion for new trial, Temple’s trial attorney testified that he had met with Temple “easily a dozen” times, and reviewed the case with him. When asked to tell the court about his conversations with Temple with regard to plea negotiations and his possible sentence following a trial, the attorney testified:

I can’t tell you how many times he and I spoke about that. He knew that if he went to trial and he was convicted of armed robbery based on his prior record that he was going to get a life sentence. I think we’re on record numerous times discussing that issue before the trial, during trial, but it’s all on the record as we spoke about that, and then he and I above and beyond what’s on the record, had numerous discussions about what would happen if he’s convicted as charged.

The attorney testified that, in his opinion, Temple “certainly knew what was going on, he’s certainly competent,” and that he encouraged Temple to accept the state’s plea offer.

Indeed, as trial counsel testified, the trial record showed that the state’s offer was conveyed to Temple, and he was informed that if he went to trial and was found guilty, he would receive a sentence of life without the possibility of parole. When asked before trial whether he wanted to accept the state’s plea offer or proceed to trial, Temple responded to the court, “I heard you about the penalty,” and “I’ll take the trial.” During voir dire, Temple was given another opportunity to accept the state’s offer, but he stated: “I’m not afraid of a jury trial. I’d rather go to trial, because I know it’s my right.” Temple stated: “I decided to go forward, because I’m innocent.”

At the hearing on the motion for new trial, Temple was asked what he had understood prior to trial regarding his status and his choices:

Q. Did you understand when you went to trial that you were a recidivist, that you had a prior conviction, is that correct?
A. Yes, sir. . . .
Q. Did you understand the ramifications of going to trial? You received a life sentence without parole, is that correct?
A. Yes, sir.
Q. Did you know when you went to trial that if you were convicted, you’d receive a sentence of life without parole?
A. Yes, ’cause they said my second time.

Temple further testified that he was aware of the state’s plea offer of 20 years to serve in confinement.

Decided March 22, 2013.

Richard M. Darden, for appellant.

Larry Chisolm, District Attorney, Frank M. Pennington II, Meg E. Heap, Assistant District Attorneys, for appellee.

Thus, the record showed that Temple was informed about the consequences of the choices confronting him. What is more, although Temple asserts that the prejudice prong of Strickland v. Washington was satisfied because there was a reasonable likelihood that he would have accepted the state’s offer had trial counsel informed him that he was facing, if convicted, a mandatory sentence of life in prison without the possibility of parole, the record supported the opposite conclusion. The record suggested that Temple was not interested in accepting the state’s plea offer, and elected to go to trial.

Therefore, contrary to his contention, Temple did not receive ineffective assistance of counsel regarding the plea offer, and the trial court did not err in denying his motion for new trial on that basis.

2. Temple contends that his conviction should be reversed because his sentence of life without parole constitutes cruel and unusual punishment. Because Temple has failed to present any argument or citation of authority to support his contention, we deem this enumerated error abandoned. In any event, this issue previously has been decided against him.

Judgment affirmed.

Ellington, C. J., and Dillard, J., concur.

       466 U. S. 668 (104 SC 2052, 80 LE2d 674) (1984).

        Brown v. State, 291 Ga. 892, 898 (4) (734 SE2d 23) (2012) (citations and punctuation omitted); see Whitehead v. State, 211 Ga. App. 121, 122-123 (438 SE2d 128) (1993) (objective professional standards dictate that, absent extenuating circumstances, a defendant is entitled to be told that an offer to plead guilty has been made and to be advised of the consequences of the choices confronting him; for counsel to do otherwise amounts to less than reasonably professional assistance).

       See Brown, supra at 898-899 (4); Pickard v. State, 257 Ga. App. 642, 644 (3) (572 SE2d 660) (2002).

       Supra.

       See Brown, supra at 899 (4).

       See Chastain v. State, 260 Ga. 789, 790 (2) (400 SE2d 329) (1991); Smith v. State, 278 Ga. App. 315, 323 (9) (628 SE2d 722) (2006); Court of Appeals Rule 25 (c) (2).

       See Redden v. State, 294 Ga. App. 879, 881 (3) (670 SE2d 552) (2008).


author: McMillian, Judge.

text:
    A12A1851.
    ALBERTI v. ALBERTI.
    (741 SE2d 179)
   McMillian, Judge.

At issue is whether the trial court erred in failing to dismiss the complaint of Andre J. Alberti (the Father) for change of custody because his action was an impermissible response to the habeas corpus petition of Ashley R. Alberti (the Mother). We conclude that the Father’s complaint was not barred by OCGA § 19-9-23 (c) (1) and therefore affirm the trial court’s order awarding primary physical custody of the children to the Father.

The record shows that the Father and the Mother, both residents of Columbia County, are the divorced parents of two minor children. The divorce decree designated the Mother as the custodial parent of the son as of June 2, 2010. The daughter was born after the divorce, and the superior court ordered the Father to pay child support to the Mother on account of the daughter.

On September 15, 2011, the Mother filed a petition for writ of habeas corpus in the Superior Court of Columbia County alleging that the Father was illegally detaining, restraining, and withholding custody of their minor children under pretext of a void order of the Juvenile Court of Columbia County. At the conclusion of the habeas hearing on September 26, 2011, the habeas court announced that it was going to grant the habeas petition and place the children with the Mother. The Father filed a complaint for change of custody and other relief in the Superior Court of Columbia County on September 29, 2011. The habeas court entered its writ of habeas corpus on October 5, 2011, finding that the parties’ rights to their son were governed by the divorce decree and that the Father had no custodial rights to their daughter, and accordingly ordered the children’s immediate return to the Mother.

The Mother answered the Father’s complaint for change of custody and asserted as an affirmative defense that the complaint was barred by reason of OCGA § 19-9-23 (c) (1). The trial court held a “thirty day conference” on the Father’s complaint, at which time the trial court heard argument on and overruled the Mother’s affirmative defense. Following a bench trial, the trial court entered its final judgment finding, among other things, that following the entry of the final divorce decree there had been a significant change of circumstances, and it awarded primary physical custody of the children to the Father.

On appeal, the Mother argues that the trial court erred in overruling her affirmative defense because the Georgia Child Custody Intrastate Jurisdiction Act, OCGA § 19-9-20 et seq., prohibited the Father’s complaint for change of custody inasmuch as his complaint was filed in response to her petition for writ of habeas corpus. In resolving this issue, the parties agree that the controlling statute is OCGA § 19-9-23. The interpretation of this statute is a question of law, which we review de novo. See American Gen. Life & Accident Ins. Co. v. Vance, 297 Ga. App. 677 (678 SE2d 135) (2009).

OCGA § 19-9-23 provides:

(a) Except as otherwise provided in this Code section, after a court has determined who is to be the legal custodian of a child, any complaint seeking to obtain a change of legal custody of the child shall be brought as a separate action in the county of residence of the legal custodian of the child.
(b) A complaint by the legal custodian seeking a change of legal custody or visitation rights shall be brought as a separate action in compliance with Article VI, Section II, Paragraph VI of the Constitution of this state. []
(c) No complaint specified in subsection (a) or (b) of this Code section shall be made: (l)As a counterclaim or in any other manner in response to a petition for a writ of habeas corpus seeking to enforce a child custody order, or (2) In response to any other action or motion seeking to enforce a child custody order.
(d) The use of a complaint in the nature of habeas corpus seeking a change of child custody is prohibited.

(Emphasis supplied.)

The Mother argues that OCGA § 19-9-23 (c)(1) places an unequivocal restriction on the filing of a complaint — in any manner — in response to a petition for a writ of habeas corpus seeking to enforce a child custody order. We have previously said, however, that OCGA § 19-9-23, as a whole,

contemplates that “a complaint seeking to obtain a change of legal custody” theoretically could be filed as a formal complaint in a separate action or as a counterclaim. Subsection (a) requires such a complaint to be filed in a separate action in the legal custodian’s county of residence. Subsection (c) then prohibits filing such a complaint as a counterclaim under certain circumstances. Subsection (c) has meaning because it clarifies that counterclaims which may be compulsory under OCGA § 9-11-13 (a), are prohibited.

(Punctuation omitted.) Wilson v. Baldwin, 239 Ga. App. 327, 328 (519 SE2d 251) (1999). Accord Terry v. Garibaldi, 274 Ga. App. 405 (618 SE2d 6) (2005) (citing Wilson for the proposition that OCGA § 19-9-23 (c) equates “complaint” with “counterclaim” for purposes of the statute). Under this analysis, the Father did what was required. He did not file a counterclaim in response to the Mother’s habeas corpus petition. Rather, he filed a separate action in the Mother’s county of residence, which happened to be in the same county in which the petition for habeas corpus was filed.

The conclusion that the Father complied with OCGA § 19-9-23 is reinforced by decisions of our Supreme Court. In Douglas v. Douglas, 285 Ga. 548 (678 SE2d 904) (2009), the parties’ final divorce decree awarded custody of their son to the appellant father. The juvenile court transferred custody of the child to the mother, and the father later filed a petition for habeas corpus, which the habeas court denied. Id. On appeal, the Supreme Court reversed and, among other things, agreed with the father that the mother could not maintain an action to change custody based on changed circumstances and that the “habeas action” could not be decided under a standard of changed circumstances. Id. at 550-551 (2). However, citing Hutto v. Hutto, 250 Ga. 116, 118 (296 SE2d 549) (1982), the Supreme Court noted “that the mother is not without recourse as she may file the proper complaint seeking a change in custody of the child in the county of residence of the legal custodian.” (Punctuation omitted.) Douglas, 285 Ga. at 551 (2). The Mother suggests that this proposition is only dicta. Whether the Supreme Court’s directive to the appellees in Douglas and Hutto is binding authority or only persuasive, we find it applies here. It necessarily follows that the Mother’s habeas action did not preclude the Father from filing a separate complaint against the Mother for change of custody.

Admittedly, OCGA § 19-9-23 (c) (1) prohibits more than express counterclaims in “response” to a habeas petition seeking to enforce a child custody order. For example, neither Hutto nor Douglas involved the habeas court’s consideration of a counterclaim. Rather, in Hutto, the habeas court dismissed the counterclaim to the habeas petition but erred in “allow[ing] the physical custodian to present evidence and essentially maintain an action against the legal custodian even though he was withholding custody of the child[.]” Hutto, 250 Ga. at 117. And the Court in Douglas adopted the reasoning of Hutto as “consistent with [the] statutory prohibition against a change of custody claim being raised in response to a habeas action brought to enforce a child custody order.” Douglas, 285 Ga. at 550 (2). Here, however, the question presented is not whether the habeas court erroneously allowed the Father to pursue a change of custody claim, whether by counterclaim or otherwise, within the habeas action itself, but whether the Father could maintain a separate action for change of custody in the Mother’s county of residence. To reiterate, both Hutto and Douglas indicate that such a separate action was the Father’s proper recourse.

Given the foregoing, even if it can be said that the Father’s decision to file a petition for change of custody was predicated on the Mother’s successful petition for habeas corpus, the Father’s petition was not a forbidden “response” to the Mother’s petition for purposes of OCGA § 19-9-23 (c) (1). Although the Father announced his intention to file a change of custody action at the habeas hearing after it became clear that the habeas court would rule in favor of the Mother and the trial court later acknowledged that the Father had announced that intent, those facts do not, in our view, make the Father’s complaint for change of custody a “response” to the habeas petition under OCGA § 19-9-23 (c) (1). Otherwise, the Father could have been precluded from ever filing a complaint for change of custody after the Mother’s habeas petition.

The Mother also shows that the Father filed his complaint for change of custody six days before the habeas court entered its writ of habeas corpus. However, by its express provisions, the Father’s complaint acknowledges that his custody of the children pursuant to the order of the juvenile court was overturned by the superior court in the Mother’s action for habeas corpus. Thus, if a few days premature, the Father’s action is accurately premised on the success of the Mother in the habeas action and was adjudicated on that basis, and the Mother does not show any fatal defect in the Father’s complaint. Rather, the Father’s separate action for change of custody was permissible under the reasoning of Hutto and Douglas. Accordingly, we conclude that the trial court did not err in overruling the Mother’s affirmative defense.

Judgment affirmed.

Barnes, P. J., and McFadden, J., concur.

Decided March 25, 2013.

Barry N. Middleton, for appellant.

Shawn P. Hammond, John R. Taylor, for appellee.

       The Mother filed this appeal in our Supreme Court, which transferred her appeal to this Court because, among other reasons, “this child custody case is a separate case from the previous habeas corpus case between the parties,” and so did not come within the Supreme Court’s jurisdiction over habeas corpus cases.

       Article VI, Section II, Paragraph. VI of the Georgia Constitution of 1983 states:
      All other civil cases, except juvenile court cases as may otherwise be provided by the Juvenile Court Code of Georgia, shall be tried in the county where the defendant resides; venue as to corporations, foreign and domestic, shall be as provided by law; and all criminal cases shall be tried in the county where the crime was committed, except cases in the superior courts where the judge is satisfied that an impartial jury cannot be obtained in such county.

       We must note that although we consider the Father’s complaint to be valid under these circumstances, we are not thereby concluding that a separate action for change of custody must always be allowed during the pendency of a habeas action to enforce a custody order. See OCGA § 19-9-24 (a) (“[a] physical custodian shall not be allowed to maintain against the legal custodian any action for... child custody... so long as custody of the child is withheld from the legal custodian in violation of the custody order”).


author: MILLER, Presiding Judge.

text:
    A12A2036.
    ELLICOTT v. THE STATE.
    (740 SE2d 716)
   MILLER, Presiding Judge.

Following his conviction by a jury of five counts of aggravated battery (OCGA § 16-5-24 (a)), four counts of aggravated assault (OCGA § 16-5-21 (a) (2)), rape (OCGA § 16-6-1 (a) (1)), two counts of aggravated sodomy (OCGA § 16-6-2 (a) (2)), and one count of false imprisonment (OCGA § 16-5-41 (a)), Michael Ellicott appeals from the denial of his motion for new trial. Ellicott contends that the trial court erred (1) in failing to excuse a biased juror for cause; (2) in preventing him from presenting evidence of his reputation for nonviolence; (3) in failing to create a record of its in camera review of potential Brady material; and (4) by acting in a coercive manner toward the jury during their deliberations. Ellicott also contends that (5) the trial court was biased against Ellicott, thereby violating his right to a fair trial, and (6) trial counsel was ineffective for failing to impeach the victim with her prior sworn testimony. For the reasons that follow, we affirm Ellicott’s convictions.

On appeal from a criminal conviction, a defendant no longer enjoys the presumption of innocence, and the evidence is viewed in the light most favorable to the guilty verdict. . . . [W]e neither weigh the evidence nor assess the credibility of witnesses, but merely ascertain that the evidence is sufficient to prove each element of the crime beyond a reasonable doubt. Moreover, conflicts in the testimony of the witnesses are a matter of credibility 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 [S]tate’s case, the jury’s verdict will be upheld.

(Punctuation and footnotes omitted.) Goss v. State, 305 Ga. App. 497, 497-498 (1) (699 SE2d 819) (2010).

So viewed, the evidence shows that Ellicott and the victim were married, and lived in Fayette County. Ellicott physically abused the victim for more than a year prior to January 2009. Ellicott’s physical abuse included slapping the victim’s head, punching her in the arm with closed fists, forcing her to have intercourse, holding her underwater, and beating her. On one occasion in late October 2008, Ellicott told the victim to stick her anus on his penis, he forced the victim to climb on top of him facing backward, and his penis came in contact with the victim’s anus (Count 15). On other occasions, Ellicott forced the victim’s head down on his penis and held her there until she gagged. Ellicott repeatedly threatened to hunt her down, torture her and kill her if she ever tried to leave him, or told anyone about the physical abuse. Ellicott also forced the victim to write down that any injuries she had were self-inflicted.

In early January 2009, Ellicott broke the victim’s right wrist, while he was beating her with his fists and a drumstick (Count 14). The victim put her arm up to block a blow to her head and heard her arm crack. A week or so later, Ellicott put his hand around the victim’s throat, threw her off the bed onto her back, put his other hand around the victim’s mouth and nose so that she could not breathe, and sat on the victim (Count 12). Ellicott then beat and punched the victim (Count 11), and forced her head down onto his penis until she threw up (Count 13). The next day, Ellicott beat the victim again, and he forcibly raped her (Count 9). On one of those occasions, Ellicott also broke the victim’s left wrist while beating her (Count 10).

On January 20, 2009, Ellicott came home early from a trip and took the victim down to the soundproof home theater in their basement. Ellicott told the victim to drop to her knees and began beating her with a drumstick. Ellicott noticed that the victim had on extra clothing, so he made the victim strip from the waist down, he pushed her back on her knees and continued beating her with the drumstick on her buttocks, legs, back and arms (Count 5), and he kicked the victim with his shoe-clad foot (Count 1). When the victim pleaded with Ellicott to stop, he made her stand up, and he punched and beat her in the chest area (Count 7). Ellicott then told the victim to get cleaned up and left the home theater.

The victim went to the basement bathroom, changed out of her bloody shirt, hid the shirt in the basement bedroom under some covers and ran upstairs to the office on the third floor. While the victim was upstairs in the office, Ellicott punched her in the head with his fists, kicked her in the buttocks, and kicked and kneed her in the groin and vaginal area (Count 6). Ellicott went downstairs to eat, then called the victim to come down to the family area. Ellicott then hit the victim in the head again, told her to stand up and kicked and kneed her in the same places as before.

Ellicott then took the victim back down to the basement theater, pushed her down on her knees, and beat her savagely with the drumstick on her buttocks, legs, back and arms. Ellicott made the victim stand up and lift up her shirt, he twisted and punched her nipples, making them bleed (Count 2), and he hit her across the breasts, head and stomach with the drumstick. Ellicott then told the victim to run upstairs and get some ice for her head which had started to bleed. After she put some ice in a shopping bag, Ellicott made the victim return back downstairs where he beat her again from head to toe (Count 3).

When Ellicott got a phone call, he told the victim to go into the downstairs bedroom, where she sat on the bed and realized that Ellicott was going to kill her that night if she did not leave immediately. While Ellicott was in the theater on the phone, the victim left the bedroom, ran to the downstairs playroom, grabbed a cordless phone, and ran upstairs where she showed her daughter some of the bruising and told her daughter that they had to go. The victim and her daughter then ran downstairs, out the front door, and to the next door neighbor’s house, where the victim called 911.

The victim was taken to the hospital where the emergency trauma team evaluated her, using X-rays and CT scans, and an orthopaedic surgeon operated on the victim’s right wrist. After the victim was released from the hospital, she underwent outpatient wound care, including a debriding process on her buttocks which involved removing dead skin to see how deep her wounds were. The victim also had surgery on her buttocks, which left her unable to lie down on her back, and made it painful to sit and walk.

Ellicott was charged with seven counts of aggravated battery, six counts of aggravated assault, rape, and aggravated sodomy. Following a jury trial, Ellicott was convicted on all of these counts, except for one aggravated battery charge, and one aggravated assault charge. The trial court denied Ellicott’s motion for new trial.

1. Ellicott contends that the trial court erred in failing to excuse a biased juror for cause. We do not agree. (Citations and punctuation omitted.) Wolfe v. State, 273 Ga. 670, 672 (2) (544 SE2d 148) (2001). “In order to disqualify a juror for cause, it must be established that the juror’s opinion was so fixed and definite that it would not be changed by the evidence or the charge of the court upon the evidence.” (Citations and punctuation omitted.) Nobles v. State, 201 Ga. App. 483, 487 (7) (411 SE2d 294) (1991). Moreover, where a qualified juror indicates that he can and will evaluate the evidence fairly, the party who wishes to eliminate him must use a peremptory strike. See Watts v. State, 200 Ga. App. 54, 55 (2) (406 SE2d 562) (1991).

Whether to strike a juror for cause is within the sound discretion of the trial court. And inasmuch as the trial court’s conclusion on bias is based on findings of demeanor and credibility, which are peculiarly within the trial court’s province, those findings are to be given deference.

During initial voir dire, all of the potential jurors affirmatively indicated that they had not formed or expressed an opinion with regard to Ellicott’s guilt or innocence, were not biased or prejudiced either for or against Ellicott, and were perfectly impartial between the State and Ellicott. See OCGA § 15-12-164 (setting forth the questions jurors shall be asked on voir dire examination in a felony trial). On individual voir dire, the potential juror in question stated that she read a newspaper article describing the worst abuse case in the State of Georgia. She also stated that she read a second article containing facts about the allegations in the case, and that she heard the accused could not get out on bond. She stated, however, that she did not know the judge or whether the judge had made any findings, and she again affirmatively stated that she had not formed an opinion in the case. Based on the juror’s voir dire statements, the trial court denied Ellicott’s motion to excuse the potential juror for cause.

Ellicott has failed to show that the potential juror’s opinion was so fixed and definite that it would not be changed by the evidence or the trial court’s evidentiary charge. See Nobles, supra, 201 Ga. App. at 487-488 (7) (holding that the trial court did not abuse its discretion in refusing to strike for cause two potential jurors who had heard and/or read about the case, but indicated that they could render a fair and impartial verdict based on the evidence presented). Accordingly, the trial court did not abuse its discretion in refusing to excuse the potential juror for cause.

2. Ellicott contends that the trial court erred in preventing him from presenting evidence of his reputation for nonviolence, arguing that the testimony did not relate to specific acts and had a direct bearing on his sole defense. We disagree.

We apply an abuse of discretion standard when reviewing a trial court’s ruling on evidentiary matters. See McIntosh v. State, 247 Ga. App. 640, 641 (2) (545 SE2d 61) (2001). A defendant may offer proof of his general reputation in the community for a specific trait through the testimony of character witnesses. See Walker v. State, 264 Ga. 676, 677 (2) (449 SE2d 845) (1994); Jones v. State, 257 Ga. 753, 758 (1) (363 SE2d 529) (1988). Evidence of specific acts, however, is not admissible to show a defendant’s good character. See Brooks v. State, 236 Ga. App. 604, 605 (1) (512 SE2d 693) (1999).

Ellicott presented the testimony of two defense witnesses who had worked with Ellicott for three to four years. Trial counsel asked the first defense witness whether Ellicott had a reputation in the community for nonviolence. The State objected on the ground that the question involved specific acts, and the trial court sustained the State’s objection.

Pretermitting whether the trial court’s reason for sustaining the State’s objection was correct, Ellicott cannot show that the trial court excluded admissible character evidence. Neither witness was familiar with Ellicott’s reputation in the community in which he resided with the victim, and character testimony is not admissible unless it relies on the defendant’s general reputation in the community. See Thomas v. State, 282 Ga. 894, 896 (2) (a) (655 SE2d 599) (2008). Nevertheless, we note that both witnesses testified that Ellicott had a good reputation in their work community, he was a law-abiding person, and they would believe him under oath. The first witness also viewed photographs of the victim’s injuries and testified that nothing about his prior dealings with Ellicott suggested that he would have caused those injuries. Thus, contrary to Ellicott’s contention, the trial court allowed the first witness to give testimony directly related to Ellicott’s sole defense that he did not cause the victim’s injuries.

3. Ellicott contends the trial court erred in failing to create a record of its in camera review of potential Brady material. We discern no error.

The appellant has the burden of showing he was denied material exculpatory information such that he was denied a fair trial. If the trial court performs an in camera inspection and denies the defendant access to certain information, on appeal the appellant has the burden of showing both the materiality and the favorable nature of the evidence sought. Mere speculation that the items the appellant wishes to review possibly contain exculpatory information does not satisfy this burden. If the appellant desires to have this inspection reviewed by this [Cjourt, [he] must point out what material [he] believes to have been suppressed and show how [he] has been prejudiced.

(Citations and punctuation omitted.) Williams v. State, 251 Ga. 749, 789 (312 SE2d 40) (1983). Following an in camera inspection, the trial judge’s discretionary ruling that the State’s file contains no exculpatory evidence satisfies the Brady requirement, absent a counter-showing. See Barnes v. State, 157 Ga. App. 582, 586 (2) (277 SE2d 916) (1981).

Relying on McNeal v. State, 263 Ga. 397, 398-399 (4) (435 SE2d 47) (1993), Ellicott argues that this case should be remanded to the trial court with direction to conduct a post-trial in camera inspection of the records from the victim’s therapist for potential Brady material, and to create a record of its findings. In McNeal, the Supreme Court of Georgia remanded the case to the trial court for a post-trial examination of the State’s file because the defendant requested an in camera review of the State’s file and the record did not show that the trial court held the requested review. See id. at 398-399 (4).

Here, the record shows, and Ellicott acknowledges, that the trial court held an in camera review of the records in question during the trial. The record further reflects that Ellicott received at least a “snippet or two” of the therapist’s confidential records following the trial court’s review. Although Ellicott criticizes the trial court’s failure to preserve the therapist’s records and to make a record of the material it turned over to trial counsel for appellate review, Ellicott did not object to the manner in which the trial court carried out the in camera inspection prior to his motion for new trial. Furthermore, Ellicott failed to point out what material he believes to have been suppressed or how he was prejudiced thereby. There is no logical basis to presume that the trial judge failed to do his duty by turning over only a snippet of the therapist’s records following the in camera inspection. See Barnes, supra, 157 Ga. App. at 586 (2). Moreover, the trial court’s discretionary ruling on the lack of additional exculpatory evidence in those records was established as a fact, because Ellicott did not show that the suppressed documents were material. See id.; see also Pollard v. State, 260 Ga. App. 540, 544 (4) (580 SE2d 337) (2003). Accordingly, this enumeration of error is without merit.

4. Ellicott contends that the trial court’s comments during the sentencing phase of his trial violated Canon 3 (E) (1) of the Georgia Code of Judicial Conduct, and deprived Ellicott of his right to a fair trial. We do not agree.

“There is no duty for a trial judge to sua sponte recuse himself absent a violation of a specific standard of OCGA § 15-1-8 or Canon 3 (E) (1) (a) through (c) of the Code of Judicial Conduct, which is not waived by a party after disclosure.” (Punctuation and footnote omitted.) Hargrove v. State, 299 Ga. App. 27, 31 (2) (681 SE2d 707) (2009).

Canon 3 (E) (1) states that judges shall disqualify themselves in any proceeding where their impartiality might reasonably be questioned. The phrase “impartiality might reasonably be questioned” has been interpreted to mean the existence of a reasonable perception of lack of impartiality by the judge, held by a fair minded and impartial person based upon objective fact or reasonable inference; it is not based upon the perception of either interested parties or their lawyer-advocates. A trial judge’s failure to sua sponte recuse himself will warrant reversal only where the conduct or remark of the judge constitutes an egregious violation of a specific ethical standard, and it must support the inescapable conclusion that a reasonable person would consider the judge to harbor a bias that affects his ability to be impartial.

(Punctuation and footnote omitted.) Id. at 31-32 (2). Moreover, “[t]o merit recusal, any alleged bias must be of such a nature and intensity to prevent the defendant from obtaining a trial uninfluenced by the court’s prejudgment.” (Citation and punctuation omitted.) Lemming v. State, 292 Ga. App. 138, 141 (1) (663 SE2d 375) (2008). Ellicott failed to point to any conduct or remark by the trial court during the trial that would meet this standard, and we have found no such conduct in our examination of the record. See Hargrove, supra, 299 Ga. App. at 32 (2).

Nevertheless, Ellicott argues that the trial court’s comments during his sentencing provide clear evidence of the trial judge’s substantial bias against him. During the sentencing hearing, prior to pronouncing sentence, the trial judge commented on the evidence and Ellicott’s demeanor during the trial. The trial court compared Ellicott’s conviction to the “death of a monster,” and commented that, given his family’s history, Ellicott should have committed suicide. The trial court also stated that he was imposing a sentence that would ensure that Ellicott would spend his life confined to a small cell where he would spend every day thinking about the freedom that he once had.

When sentencing, a trial court may consider any evidence that was properly admitted during the guilt-innocence phase of the trial, and may also consider the conduct and attitude of the defendant during trial. A trial court should not, however, take into account when sentencing any considerations that are not clearly shown by the evidence of record.

(Punctuation and footnote omitted.) Blake v. State, 273 Ga. 447, 450 (4) (542 SE2d 492) (2001); see also Valentine v. State, 289 Ga. App. 60, 63-64 (3) (656 SE2d 208) (2007). Pretermitting whether the trial court’s comments took into account any considerations that were not clearly shown by the evidence of record, we conclude that the comments did not result in any prejudice to Ellicott, because his sentences were well within applicable statutory limits.

5. Ellicott contends that the trial court erred by acting in a coercive manner toward the jury during their deliberations. We disagree.

After the jury has had a case under consideration for some time, the trial court may inquire how the jury stands numerically. See Wilson v. State, 145 Ga. App. 315, 320 (4) (b) (244 SE2d 355) (1978). It is not error for the trial court to inquire how the jury stands if the trial court does not intimate or express an opinion on the facts or attempt to induce the jury to make a verdict. See id. at 319 (4) (b). Moreover, “giving an Allen charge after inquiring into the numerical division of the jury where there is no announcement of which way the vote is split, is not coercive as it does not place undue pressure on the jurors to abandon their convictions.” (Citation and punctuation omitted.) Lowery v. State, 282 Ga. 68, 71-72 (4) (a) (646 SE2d 67) (2007).

Here, after nearly a full day of jury deliberations, the following colloquy took place between the trial court and the jury foreperson:

THE COURT:... I’m looking for something like how you are
divided, not as to one way or the other, just a number. Can you tell me —
JURY FOREPERSON: You just want a number?
THE COURT: I do.
JURY FOREPERSON: Eleven/one.
THE COURT: Eleven/one?
JURY FOREPERSON: Yes.
THE COURT: Is that on most counts or —
JURY FOREPERSON: Yes.
THE COURT: — that you’ve examined?
JURY FOREPERSON: Yes, sir.
THE COURT: Okay. But you feel like you’re making progT6SS?
JURY FOREPERSON: Yes, sir.
THE COURT: Okay. Well, thank you. That’s all I wanted to check on. All right. You can retire to the jury room. Thank you.

Trial counsel objected to this colloquy, and asked the trial court to give an Allen charge. The trial court declined to give an Allen charge at that time. Thereafter, the jury deliberated for another hour before sending the trial court a note stating that the jury had reached a verdict on two counts and they were split 11-1 on the remaining thirteen counts. The trial court confirmed that the jury was still making progress and sent the jury back for further deliberations. Approximately one and one-half hours later, the jury sent a note informing the trial court that they were deadlocked 11-1 on the remaining thirteen counts. At that time, the trial court gave the jury an Allen charge. The jury returned their verdict approximately one and one-half hours later.

Here, the trial court inquired into the jury’s numerical division after nearly a full day of deliberations. The trial court did not seek information as to how the jurors had voted, the trial court did not intimate or express an opinion on the facts or attempt to induce the jury to make a verdict, and the jury foreperson only divulged the numerical split without any reference to whether the number was for guilt or innocence. See Wilson, supra, 145 Ga. App. at 319 (4) (b). Moreover, the trial court’s subsequent Allen charge after inquiring into the jury’s numerical division was not coercive and did not place undue pressure on the jurors to abandon their convictions. See Lowery, supra, 282 Ga. at 72 (4) (a). Accordingly, Ellicott has failed to show that the trial court erred.

6. Ellicott contends that trial counsel was ineffective for failing to impeach the victim with her prior sworn testimony that directly contradicted the physical evidence in the case. Again, we disagree.

To prevail on a claim of ineffective assistance of counsel, a defendant must show that counsel’s performance was deficient and that the deficient performance so prejudiced the defendant that there is a reasonable likelihood that, but for counsel’s errors, the outcome of the trial would have been different. [See] Strickland v. Washington, 466 U. S. 668, 687 (104 SC 2052, 80 LE2d 674) (1984). If an appellant fails to meet his or her burden of proving either prong of the Strickland test, the reviewing court does not have to examine the other prong. In reviewing the trial court’s decision, we accept the trial court’s factual findings and credibility determinations unless clearly erroneous, but we independently apply the legal principles to the facts. Furthermore, there is a strong presumption that the performance of counsel was within the wide range of reasonable professional lawyering, and we cannot reach a contrary conclusion unless defendant successfully rebuts the presumption by clear and convincing evidence. Judicial scrutiny of counsel’s performance must be highly deferential.

(Citation and punctuation omitted.) Davenport v. State, 316 Ga. App. 234, 239 (3) (729 SE2d 442) (2012).

Ellicott argues that trial counsel should have impeached the victim with her prior sworn testimony in a 2006 deposition in which the victim stated that following surgery in 2004 to repair a difficult episiotomy, she was unable to have intercourse without experiencing pain, tearing and bleeding. At the hearing on Ellicott’s motion for new trial, trial counsel testified that he could not recall a strategic reason for not cross-examining the victim regarding her prior testimony concerning the episiotomy procedure and the tearing and pain she experienced during intercourse. Trial counsel testified, however, that he read the deposition with Ellicott prior to trial, and that the victim’s prior testimony was not relevant to the specific facts of this case. In fact, trial counsel stated that portions of the deposition testimony might have hurt Ellicott’s defense. Trial counsel testified that Ellicott’s defense theory focused on his assertion that he loved his wife, he would not have done anything to hurt her, he did not commit the crimes and the victim’s wounds were self-inflicted. Trial counsel testified that introducing evidence that Ellicott continued to have regular sexual intercourse with the victim that caused her great pain could have helped the prosecution and undermined the defense theory that Ellicott was a caring husband. Finally, counsel agreed that the victim’s testimony and the photographs of her injuries were very powerful evidence, and the jury rejected the theory that the victim’s wounds were self-inflicted.

“Whether to impeach prosecution witnesses and how to do so are tactical decisions.” (Citation and punctuation omitted.) McMichael v. State, 305 Ga. App. 876, 878 (700 SE2d 879) (2010). “This Court will not, with benefit of hindsight, second-guess defense trial strategies therein. Absent a strong showing that counsel’s actions were not reasonable, we will presume that these strategies were not deficient.” (Citation and punctuation omitted.) Raymond v. State, 298 Ga. App. 549, 550-551 (1) (a) (680 SE2d 598) (2009). In light of trial counsel’s testimony that portions of the deposition testimony might have hurt the defense, Ellicott did not show that trial counsel’s failure to impeach the victim with her deposition testimony was unreasonable. Moreover, given the overwhelming evidence, Ellicott failed to show that the outcome of his trial would have differed if trial counsel had impeached the victim with her prior sworn testimony. See Allen v. State, 286 Ga. 392, 398 (5) (a) (687 SE2d 799) (2010). Accordingly, the trial court did not err when it found that Ellicott failed to carry his burden of showing ineffective assistance of counsel.

Decided March 25, 2013

Bernard S. Brody, for appellant.

Scott L. Ballard, District Attorney, Robert W. Smith, Jr., Assistant District Attorney, for appellee.

Judgment affirmed.

Ray and Branch, JJ., concur.

       Ellicott was charged with, and acquitted of, a sixth aggravated battery charge, and a fifth aggravated assault charge.

       OCGA § 16-6-1 (b) authorized Ellicott’s life sentence for rape. Ellicott’s consecutive life sentences for the two counts of aggravated sodomy were also authorized. See OCGA § 16-6-2 (b) (2). OCGA § 16-5-24 (b) authorized Ellicott’s consecutive 20-year sentence on the first aggravated battery count. Finally, Ellicott’s twenty-year concurrent sentences on the remaining counts of aggravated battery and aggravated assault, as well as his ten-year concurrent sentence for false imprisonment were also authorized. See OCGA § 16-5-24 (b) (aggravated battery), OCGA § 16-5-21 (b) (aggravated assault), OCGA § 16-5-41 (b) (false imprisonment).