author: Ray, Judge.

text:
    A13A1832.
    FAVORS v. THE STATE.
    (756 SE2d 612)
   Ray, Judge.

Following a jury trial, Doniel Favors was convicted on three counts of aggravated cruelty to animals (OCGA § 16-12-4 (c)) and four counts of cruelty to animals (OCGA § 16-12-4 (b)). He appeals from the denial of his motion for new trial, contending that the evidence was insufficient to support his convictions and that the trial court erred in denying his request to strike a juror for cause. He also contends that he had ineffective assistance of counsel. Finding no reversible error, we affirm.

1. Favors argues that the evidence presented at trial was insufficient to support his convictions. We disagree.

On appeal from a criminal conviction, the evidence is viewed in a light most favorable to the verdict. We do not weigh the evidence or determine witness credibility but only determine whether the evidence is sufficient under the standard of Jackson v. Virginia[, 443 U. S. 307 (99 SCt 2781, 61 LE2d 560) (1979)]. This same standard applies to our review of the trial court’s denial of [Favors’] motion for new trial. The verdict must be upheld if any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt.

(Footnotes omitted.) Stephens v. State, 247 Ga. App. 719, 719 (545 SE2d 325) (2001).

So viewed, the record shows that the Smyrna Police Department received a complaint from Cobb County Animal Control about possible dogfighting activities occurring at Favors’ residence. Agent Andrew Grubb, a police officer assigned to the Marietta/Cobb/Smyrna Organized Crime Unit, and another agent went to the reported location and began surveillance of Favors’ residence. While there, the agents observed Favors drive down his driveway, exit his vehicle, unlock a gate, drive his vehicle through, close the gate, and drive away. The agents then followed Favors, and Agent Grubb was able to observe a large plastic animal container in the cargo area of Favors’ vehicle.

The agents later entered upon the property adjacent to Favors’ residence, with the adjacent property owner’s consent, to continue their surveillance. While they were there, the agents were able to observe dogs (pit bulls) that were restrained with heavy logging chains in Favors’ yard. Based on their observations, Agent Grubb sought and obtained a search warrant for Favors’ residence.

In executing the search warrant, agents found five dogs on Favors’ property. The dogs were separated from each other and restrained with heavy logging chains, preventing any contact or interaction between the dogs. The areas around the dogs were worn and had no vegetation, indicating that the dogs were chained for long periods of time. Some of the dogs had inadequate access to water. All of the dogs were very skinny, and most of the dogs had bite wounds and various signs of scarring on their bodies. The dogs that had open wounds did not appear to be receiving any medical treatment. Agent Grubb, who was qualified as an expert in dogfighting, testified that the conditions under which the dogs were kept were consistent with a dogfighting operation.

Inside the basement of the house, agents found a dogfighting pit with several tables, chairs, and couches set up around it. There was blood on the walls and carpet around the dogfighting pit, as well as bloody animal prints on the concrete floor. A cross-section of wood from one of the walls was sent for testing, and samples taken from this wood tested positive for the presence of dog blood. In the master bedroom of the house, agents found various documents relating to the dogs, including breeding documents, lineage records, and registration certificates. One pedigree certificate, from the American Dog Breeders Association, listed Favors as the owner of an American pit bull terrier. The agents also found photographs of Favors holding various pit bulls.

OCGA § 16-12-4 (b) provides that “[a] person commits the offense of cruelty to animals when he or she causes death or unjustifiable physical pain or suffering to any animal by an act, an omission, or willful neglect.” Subsection (c) of this statute provides that “[a] person commits the offense of aggravated cruelty to animals when he or she knowingly and maliciously causes death or physical harm to an animal by rendering a part of such animal’s body useless or by seriously disfiguring such animal.”

On appeal, Favors does not challenge whether the dogs had been caused pain, suffering, and serious disfigurement. Rather, he argues that the evidence was insufficient to support his convictions because the State failed to establish that the dogs were actually his and that the State failed to prove that he had any connection to dogfighting. These arguments lack merit.

Ownership of the animal is not a required element of these offenses. See OCGA § 16-12-4 (b) and (c). Furthermore, the evidence shows that Favors lived at the residence where the dogs were found, that the dogs were restrained with heavy chains, that the dogs were not cared for properly, that the dogs had suffered seriously disfiguring injuries consistent with dogfighting, that Favors had a dogfighting pit in his residence, and that dog blood was found in and around the dogfighting pit. At a minimum, circumstantial evidence exists that Favors was connected to dogfighting.

Accordingly, we find that the evidence was sufficient to support his convictions. Stephens, supra at 720-721 (1).

2. Favors contends that his trial counsel was ineffective for failing to object to State’s Exhibit 8, which included a girl’s book report on pit bulls. We find no reversible error.

During Agent Grubb’s testimony, the State asked him to describe the paperwork that the agents found in the master bedroom of Favors’ residence. In response, he testified that the agents found several documents, papers, and breeding certificates related to the dogs. The prosecuting attorney then offered all of the papers and documents, collectively, as State’s Exhibit 8. Without examining its contents, defense counsel stated that he had no objection to State’s Exhibit 8 being tendered into evidence. However, the book report on pit bulls was also among the papers and documents contained in this exhibit.

During closing argument, the prosecuting attorney, over Favors’ objection, read the following excerpt from the book report: “in the end I would like to say that, if you treat your puppy as if it were one of you, example, your best friend, sister or brother, you love the pit bull and it will love you too.” The prosecuting attorney then argued, in reference to the condition of the dogs in this case:

This is not how you treat a sister, brother or a friend. You don’t chain them up outside in the heat and not water them. You don’t not feed them to the point their ribs are showing. You don’t put them in a pit to fight for your amusement and put chairs and tables around there so you can entertain other guests while you’re doing it. The daughter had it right. The defendant clearly had it wrong.

Favors argues that trial counsel was ineffective because he failed to inspect the papers and documents contained in State’s Exhibit 8 and to object to the inclusion of the book report. His argument fails. In order to prevail on a claim for ineffective assistance, Favors

must show counsel’s performance was deficient and that the deficient performance prejudiced him to the point that a reasonable probability exists that, but for counsel’s errors, the outcome of the trial would have been different.

(Citation and punctuation omitted.) Pruitt v. State, 282 Ga. 30, 34 (4) (644 SE2d 837) (2007). If a defendant fails to meet his burden on one prong of the two-prong test, then the other prong need not be reviewed by this Court. Wright v. State, 291 Ga. 869, 870 (2) (734 SE2d 876) (2012). Furthermore, in reviewing the trial court’s decision on an ineffective assistance claim, “we accept the trial court’s factual findings and credibility determinations unless clearly erroneous, but we independently apply the legal principles to the facts.” (Citation and punctuation omitted.) Id.

Even if trial counsel rendered ineffective assistance by failing to inspect the contents of State’s Exhibit 8, the excerpt from the book report had no direct bearing on Favors’ guilt or innocence of the crimes for which he was charged. Rather, it was merely a recitation of a commonly held belief in our society—i.e., that if you love and care for a dog, it will love you back. We find it highly unlikely that the excerpt provided any insight regarding the ethical treatment of animals that the jury did not already have during the presentation of this case. Thus, even if the book report had been excluded from evidence, there is no reasonable probability that the result of the trial would have been different.

Accordingly, we conclude that Favors has failed to carry his burden to establish the prejudice necessary to prevail on his ineffectiveness claim. See Pruitt, supra; Wright, supra.

3. Favors contends that the trial court erred in failing to excuse a juror for cause. We disagree.

“The decision [whether] to strike a potential juror for cause lies within the sound discretion of the trial court and will not be set aside absent some manifest abuse of that discretion.” (Citation omitted.) Abdullah v. State, 284 Ga. 399, 400 (2) (667 SE2d 584) (2008). With regard to a decision not to strike a juror, there is no manifest abuse of discretion

unless it is shown that the juror’s opinion is so fixed and definite that he or she will be unable to set the opinion aside and decide the case based upon the evidence and the trial court’s instructions. Neither a prospective juror’s doubts as to his ability to be impartial nor his statement that he will “try” to set aside any preconceived notions mandate as a matter of law that the juror be excused for cause.

(Punctuation andfootnotes omitted.) Miller v. State, 275 Ga. 730, 736 (5) (571 SE2d 788) (2002).

During individual voir dire, prospective juror Duckett initially stated that he did not think that he would be able to be an impartial juror because he had a “bad feeling” about the nature of the case. Duckett later stated that he understood that the indictment contained only allegations and that the State had the burden of proving its case. When asked if he could listen to the evidence before determining Favors’ culpability, he responded “I mean, sure.” He acknowledged that his decision on whether the State met its burden of proof should be based upon the evidence and the trial court’s instructions, and he further acknowledged that he had not formed an opinion as to Favors’ guilt or innocence. Lastly, Duckett confirmed that any bias he may have as to the type of crime, the type of activity, or the defendant would only come into play “[i]f he actually did it.”

The transcript of voir dire establishes that Duckett did not have an opinion regarding Favors’ guilt or innocence that was “so fixed and definite that he . . . [would] be unable to set the opinion aside and decide the case based upon the evidence and the trial court’s instructions.” (Punctuation and footnote omitted.) Miller, supra at 736 (5). Accordingly, the trial court did not abuse its discretion in denying Favors’ motion to strike the juror for cause.

Decided March 20, 2014.

Lawrence W. Daniel, for appellant.

D. Victor Reynolds, District Attorney, Amelia G. Pray, Assistant District Attorney, for appellee.

Judgment affirmed.

Barnes, P. J., and Miller, J., concur.

       Favors had also been charged with two counts of dogfighting (OCGA § 16-12-37), and additional counts of aggravated cruelty to animals and cruelty to animals, hut the jury deadlocked on those counts. The parties agreed to accept the verdict as to the counts on which the jury was able to reach a unanimous decision, and the trial court declared a mistrial as to the counts that were deadlocked. The State then filed a nolle prosequi on the deadlocked counts.

       Also, Agent Grubb testified to seeing Favors with an animal transport container in his vehicle.

       Although the girl was not identified, the prosecuting attorney stated that he assumed it was Favors’ daughter.


source: Caselaw Access Project

author: ANDREWS, Presiding Judge.

license: Public Domain

text:
    A13A1885, A14A0017.
    MORRIS v. MORRIS et al.; and vice versa.
    (756 SE2d 616)
   ANDREWS, Presiding Judge.

Martha L. Morris, a resident of Georgia, is the sole surviving trustee of the Derek Morris Irrevocable Trust (the "Trust”). The Trust was created in Georgia by Martha’s son Derek Morris as settlor in 1998 and has been located and managed in Georgia since that time. Derek funded the Trust with the proceeds of the settlement he received as a result of the litigation that ensued following a 1995 automobile collision in which he and other family members were seriously injured. Derek’s 11-year-old sister lost her life.

Derek married his wife, appellee Sarah Morris, in 2004. The couple had one daughter, Iza Lily Morris, who was born while they were living in Atlanta. The couple moved to North Carolina in 2005. At the time of Derek’s death, he and Sarah were estranged, and Sarah was living with her family in Georgia, but traveling back and forth to North Carolina. Unable to reach Iza Lily or her husband by telephone, Sarah returned to North Carolina. That afternoon she found Derek and Iza Lily in Iza Lily’s bedroom in the couple’s home. Both were dead from gunshot wounds fired by Derek first shooting Iza Lily then himself. Sarah was appointed the administrator of her decedent daughter’s estate. In that capacity, she filed a wrongful death action against the estate of Derek Morris which resulted in a default judgment in favor of the daughter’s estate in an amount not of record.

In Case No. A13A1885, Martha as trustee of the Trust, appeals from the trial court’s order upon her verified petition for a declaratory judgment (the “Petition”). Therein Martha sought the trial court’s guidance as to whether she should distribute the property of the Trust to Sarah as the administrator of Iza Lily’s estate or to Martha’s children (Derek’s siblings), as beneficiaries pursuant to the terms of the Trust. On cross-motions for summary judgment, the trial court granted judgment to Sarah, declaring that North Carolina law required that the trust property be distributed to her as administrator of Iza Lily’s estate and not to Derek’s siblings. This was contrary to the terms of the Trust which, among other things, provided that the “Trust shall be governed by the laws of the State of Georgia[.]”

In Case No. A14A0017, Sarah appeals contending that the trial court erred by (i) allowing the trustee to secure its judgment by a trustee’s bond rather than a supersedeas bond, and (ii) taxing Iza Lily’s estate as the beneficiary of the Trust with the expenses of a supersedeas bond.

The Trust as created inter vivos and its property as outside the estate of Derek Morris and not subject to Sarah as a creditor in her capacity as administrator of Iza Lily’s estate, we reverse in Case No. A13A1885. Given the foregoing, Sarah’s motion to dismiss in Case No. A13A1885 is denied, and Case No. A14A0017 is dismissed as moot.

In addition to selecting Georgia law as governing its interpretation, the Trust provides that upon Derek’s death, the Trust property shall be distributed to any beneficiary Derek shall have appointed by his will. In the event of Derek’s death intestate, the Trust provides that its property shall be distributed to Derek’s living lineal descendants, if any. Absent any living lineal descendant, the Trust requires that its property be distributed equally to Derek’s living siblings as named in the Trust, “with an equal share, per stirpes, for the living lineal descendants of any of them not then in life.”

After Derek’s death, the trustee determined that the Trust assets should be distributed to Derek’s living siblings because Derek died intestate, and his only lineal descendant, Iza Lily, predeceased him. Subsequently, however, the trustee received a demand letter from counsel for Sarah opposing any distribution of the assets of the Trust until it could be confirmed that Derek had, in fact, died intestate not having exercised his power to appoint Sarah, his descendants or others as a beneficiary. The letter also informed Martha that “a cause of action for wrongful death would arise on behalf of [Sarah]...,” the Trust as “an asset of [Derek’s] estate. . . .” Following its hearing on cross-motions for summary judgment, the trial court entered judgment for Sarah, declaring that

Derek Morris shot and killed his only lineal descendant, Iza Lily Morris, then six years of age before shooting and killing himself. The killing took place in the [S]tate of North Carolina where Derek Morris, Sarah Morris and Iza Lily Morris had resided for over five years. Per the law in North Carolina (N.C.G.S.A. § 28A-24-5),[] where . . . Derek Morris and Iza Lily Morris died, Iza Lily Morris did in fact survive her killer, Derek Morris [,] and as such was a surviving lineal descendant at the time of Derek Morris’ death. As such, Iza Lily Morris is the beneficiary of the Trust. Since the child is deceased, her estate is entitled to the proceeds of the Trust..., not[ing] that while Georgia law certainly governs the interpretation and administration of the Trust, North Carolina probate law governs who predeceased who within its jurisdiction.

The trustee contends that the trial court erred in denying her motion for summary judgment on the Petition and in granting Sarah’s motion for summary judgment on Count 2 of her counterclaim insofar as it asserted that Iza Lily was properly the beneficiary of the Trust as Derek’s sole lineal descendant under North Carolina law. The grant of summary judgment was error.

Summary judgment is proper when there is no genuine issue of material fact and the movant is entitled to judgment as a matter of law. A de novo standard of review applies to an appeal from a grant or denial of summary judgment, and we view the evidence, and all reasonable conclusions and inferences drawn from it, in the light most favorable to the nonmovant.

(Citation and punctuation omitted.) Layer v. Clipper Petroleum, 319 Ga. App. 410, 411 (735 SE2d 65) (2012).

The law governing the meaning and effect of trust provisions is set out in OCGA § 53-12-5. In relevant part, it provides that the law designated in a trust agreement shall determine the meaning and effect of the provisions thereof “unless the effect of the designation is contrary to the public policy of the jurisdiction having the most significant relationship to the matter at issue.” OCGA § 53-12-5 (1). We conclude that the Trust bears the most significant relationship to the State of Georgia. Pertinently, the Trust was executed in Georgia. At the time the Trust was signed and delivered, all the parties to the Trust lived in Georgia. Since that time, the Trust has always been kept in and managed in Georgia. The Trust specifically selects Georgia law as governing its provisions. And the law designated in the Trust is not contrary to Georgia public policy, Georgia having declined to enact a statute akin to NCGSA § 28A-24-5 notwithstanding this Court’s decision in Keith v. Johnson, 211 Ga. App. 678 (440 SE2d 230) (1993). In Keith, we held that while former OCGA § 53-4-6 deprives a murderer and his heirs of any property or interest in property held by the victim, it neither makes the victim the heir of the murderer, nor by its terms is it applicable to trust property passing inter vivos. Id. at 681 (1) (b).

Sarah argues that North Carolina has the most significant relationship to the Trust because the crime by which Derek took Iza Lily’s life took place in North Carolina; North Carolina law enforcement investigated that crime; the murder-suicide involved residents of North Carolina; and the estates of Iza Lily and Derek are being administered under North Carolina law. We are not persuaded.

Sarah’s argument relies heavily on North Carolina’s probate law reversing the order of death to permit the victim to inherit from his or her slayer. As was first evidenced in her demand letter to the Trustee, and, upon citing Thomas v. Morrisett, 76 Ga. 384 (1886), on summary judgment and on appeal, Sarah erroneously presumes that the Trust property passed to Derek’s estate upon his death as a North Carolina domiciliary — thus making that property subject to North Carolina probate law enforceable in Georgia. In Thomas, the Supreme Court of Georgia permitted the enforcement in Georgia of a will that had been admitted to probate in Alabama because “the personal property of a deceased person passes and is to be administered according to the law of his domicile.” Id. One’s status as a domiciliary, therefore, is a significant relationship in the context of a conflict of laws question regarding the enforcement of a will admitted to probate in another state.

However, the jurisdiction having the most significant relationship to a will in the context of probate law, whether that of North Carolina or Georgia, does not arise where, as here, the settlor has transferred legal title to property to a trust’s trustee. See OCGA § 53-12-25 (a) (“Transfer of property to a trust shall require a transfer of legal title to the trustee.”). Because legal title to the property in the Trust transferred to Martha as Trustee, such property passed outside the settlor’s probate estate. See OCGA §§ 53-1-2 (17) (“ Will’ means the legal declaration of an individual’s testamentary intention regarding that individual’s property .. . .”) and 53-7-30 (“[T]he personal representative shall prepare an inventory of all the property of the decedent.”); See also 1 Ga. Wills & Administration, § 2:4 E (“Because the settlor no longer holds title to [the trust’s] property, the property does not become part of the settlor’s probate estate.”).

Sarah also argues North Carolina’s relationship to the Trust as the most significant in the context of a state’s “interest in wrongs committed within its boundaries.” Dowis v. Mud Slingers, 279 Ga. 808, 812 (621 SE2d 413) (2005). She points to evidence showing that Iza Lily was murdered in North Carolina; that the murder was investigated in North Carolina by North Carolina law enforcement for the proposition; and argues that North Carolina has the most significant relationship to the interpretation of the Trust. We are satisfied, however, that the judgment entered in Sarah’s favor in the wrongful death action she brought against Derek’s estate was suffident to vindicate North Carolina’s relationship interest in Iza Lily’s murder.

In King v. King, 218 Ga. 534 (129 SE2d 147) (1962), the Supreme Court of Georgia held that “a trust of moveables created by an instrument inter vivos is administered by the trustee according to the law of the state where the instrument creating the trust locates the administration of the trust.” (Citation and punctuation omitted.) Id. at 537. This is such a case. The Trust was not a part of Derek’s probate estate, and it was executed in Georgia where all the parties (including the trustor, trustee, and beneficiaries lived), and where the trust res has always been kept and managed. It follows, that Georgia’s relationship to the Trust is more significant than that of North Carolina, and that, consistent with Georgia public policy, Georgia law governs the meaning and effect of the provisions of the Trust. Summary judgment for Sarah in her capacity as administrator of Iza Lily’s estate and against the Trustee as to Derek’s siblings as the proper beneficiaries of the Trust, was error on such account.

In the alternative, however, Sarah contends that the grant of summary judgment for her should be affirmed, arguing that OCGA § 53-12-82 (2) enacted in 2010, rendered the spendthrift clause in the Trust invalid against her as a judgment creditor of the settlor — this in light of the judgment she obtained in the wrongful death action she filed against Derek’s estate, as administrator of Iza Lily’s estate. This argument is without merit.

As to irrevocable trusts, whether containing a spendthrift provision or not, OCGA § 53-12-82 (2) pertinently authorizes “creditors or assignees of the settlor [to] reach the maximum amount. . . that could have been distributed to or for the settlor’s benefit immediately prior to the settlor’s death.” Given the foregoing, it is necessary to determine whether Sarah as a judgment creditor in tort, as above, may be deemed a creditor within the meaning of the statute. There is no claim that Sarah was Derek’s assignee.

At common law and prior to the enactment of the 2010 Revised Georgia Trust Code, spendthrift provisions were valid to protect trust assets from creditors where, as here, the settlor and income beneficiary was not the trustee and did not retain a general power of appointment. See, e.g., Avera v. Avera, 253 Ga. 16, 17 (1) (315 SE2d 883) (1984); Phillips v. Moore, 286 Ga. 619, 619-620 (690 SE2d 620) (2010). Thus, the statute Sarah cites regarding the validity of spendthrift provisions is in derogation of common law and, as such, must be strictly construed. See Couch v. Red Roof Inns, 291 Ga. 359, 364 (729 SE2d 378) (2012) (“The actual canon of statutory construction is that statutes in derogation of the common law must be limited strictly to the meaning of the language employed, and not extended beyond the plain and explicit terms of the statute.”) (citations and punctuation omitted).

OCGA § 53-12-82 (2) refers specifically to “creditors or assignees of the settlor. . . .” The Trust terminated “[u]pon the death of the [Settlor]” and was to be distributed to the remaindermen at that time. Because Sarah did not have a judgment against Derek at the time of his death, she was not then his “creditor” pursuant to the statute strictly construed.

Further, and given its plain and ordinary meaning in Georgia law, the term “creditor” denotes “the holder of an obligation arising ex contractu” and not in tort. Howard v. Long, 142 Ga. 789, 793 (83 SE 852) (1914); see also McVeigh v. Harrison, 185 Ga. 121, 129-130 (194 SE 208) (1937) (“One having a claim for damages against another by reason of the commission of a tort by the latter is not in a general sense a ‘creditor.’ ”). More specifically in terms of trusts and estates, the term “creditor” has been used only as to those holding a claim in contract. Notably, OCGA § 9-3-93 provides for an extension of the statute of limitation for creditors of an estate until a personal representative is appointed. Apparently realizing that “creditor” as used in the foregoing Code section does not include individuals with tort claims, the General Assembly enacted OCGA § 9-3-98 to make clear that “ [t] his article shall apply to tort actions as well as actions on contracts.” See, e.g., Jefferson Pilot Fire & Cas. Co. v. Burger, 176 Ga. App. 471, 474 (336 SE2d 591) (1985). Sarah also fails to address those Georgia cases holding that a person with a tort claim is “not in a general sense a creditor.” See, e.g., McVeigh, supra, 185 Ga. at 130; Banks v. McCandless, 119 Ga. 793, 798 (47 SE 332) (1904); McElhaney v. Crawford, 96 Ga. 174, 176 (22 SE 895) (1895); and Hodge v. Howes, 260 Ga.App. 107, 110 (3) (578 SE2d 904) (2003). Moreover and also illustrative, Sarah fails to address the fact that the General Assembly does not consider the term “creditor” as encompassing tort claimants in fraudulent conveyance cases. See Rolleston v. Cherry, 237 Ga. App. 733, 735 (521 SE2d 1) (1999) (“By its specific terms, [former OCGA § 18-2-22] applies to ‘creditors and others.’ These ‘others’ include plaintiffs with claims against debtors ‘liable as tortfeasors, or otherwise for an unascertained damage to person or property, so far as fraudulent conveyances are concerned.’ ”) (citation and punctuation omitted).

Decided March 20, 2014

Bryan Cave, Nicole J. Wade, Luke A. Lantta, Lindsay J. Sklar, for appellant.

Roy E. Barnes, John F. Salter, Jr., Wood, Hernacki & Evans, L. Lin Wood, Jr., Jonathan D. Grunberg, for appellees.

We conclude that the term “creditors” as used in OCGA §53-12-82 (2), strictly construed, as above, is not a construction so restrictive as to ignore the relevant statutory language. See Speed v. Speed, 263 Ga. 166, 167 (1) (430 SE2d 348) (1993) (“[F]or this Court to simply ignore that provision in determining the effect of the particular statutory language would be contrary to the generally accepted principles for construing statutes.”) (citations and punctuation omitted). Sarah, therefore, may not reach the assets of the Trust upon the wrongful death judgment she obtained against Derek’s estate.

Given the foregoing, the order of the trial court in Case No. A13A1885 must be and is reversed. Case No. A14A0017, therefore, is dismissed as moot.

Judgment reversed in Case No. A13A1885. Appeal dismissed as moot in Case No. A14A0017.

Dillard and McMillian, JJ., concur.

       Co-trustee, Stephen B. Morris, is deceased.

       Sarah’s reliance upon First Nat. Bank v. Yancey, 207 Ga. 437 (62 SE2d 179) (1950), and its progeny for the proposition that the instant appeal should he dismissed for lack of standing to complain is inapposite and inconsistent with the trustee’s duty to prudently administer the Trust in accordance with its terms and purposes. See OCGA § 53-12-241. Specifically and citing Yancey, the motion to dismiss asserts that the Petition sought a declaratory judgment to determine the rights of the interested parties “under the terms of the Trust” and “a declaration of rights under a will (or trust).” However, the trustee never sought a construction of the terms of the Trust, as in Yancey. See Yancey, 207 Ga. at 438 (noting that the executors “got what they prayed for, a construction of the will.”). To the contrary, the trustee asked only for enforcement of the plain terms of the Trust and a declaration regarding Sarah’s third-party claim to the proceeds thereof as administrator of Iza Lily’s estate. Also, unlike Yancey and as evidenced hy Sarah’s post-judgment complaint against the trustee for damages and an accounting, compliance with the trial court’s order would obviously have been insufficient to protect the trustee from potential liability for breach of fiduciary duty. See id. at 437 (“[A] party is aggrieved by a judgment or decree when it operates on his rights of property, or bears directly upon his interest.”) (citations and punctuation omitted).

       As set out in the Trust, Derek’s living siblings are appellees Conan Morris, Ingrid Morris, Gabriel Morris, Michelle L. Morris, and Ethan Morris.

       NCGSA § 28A-24-5 provides:
      Notwithstanding any other provisions of this Article, solely for the purpose of determining whether a victim is entitled to any right or benefit that depends on surviving the death of a slayer under G.S. 31A-3, the slayer is deemed to have predeceased the victim and the victim is deemed to have survived the slayer by at least 120 hours (or any greater survival period required of the victim under the slayer’s will or other governing instrument) unless it is established by clear and convincing evidence that the slayer survived the victim by at least 120 hours.

       Otherwise, the trial court granted the trustee’s motion for summary judgment as to Counts 1 and 3 of the Petition and denied Sarah’s motion for summary judgment thereon. The trial court ruled that Count 4 of Sarah’s counterclaim was moot given its ruling in her favor as to the distribution of the Trust funds, but in light of the potential for an appeal of the case enjoined any such distribution “to any party other than Sarah Morris as the Administrator for the Estate of Iza Lily Morris.”

       Derek funded the Trust in the amount of $300,000.

       Although King pre-dates the current Georgia Trust Code, it nevertheless remains applicable to the extent that it does not conflict with current law. See OCGA § 53-12-3 (“Except to the extent that the principles of common law and equity governing trusts are modified by this chapter or another provision of law, those principles remain the law of this state.”).

       The power of appointment in the Trust was plainly limited as follows:
      6. Upon the death of the [Settlor], the Trustee shall distribute all of the Trust Estate then remaining to or for the benefit of the [Settlor’s] spouse, the [Settlor’s] lineal descendants, the spouses of the [Settlor’s] lineal descendants, the [Settlor’s] siblings, the spouses of the [Settlor’s] siblings, and the lineal descendants of the [Settlor’s] siblings, in such manner, in trust or otherwise, as the [Settlor] shall appoint by a provision in his Last Will and Testament which refers to and specifically exercises this power.

       A general power of appointment was viewed as objectionable because, in effect, it made the settlor the sole beneficiary of his trust’s assets, allowing the settlor to avoid his creditors and, upon his death, return them to his estate by his will. See Avera v. Avera, 253 Ga. 16, 17 (1) (315 SE2d 883) (1984); Phillips v. Moore, 286 Ga. 619, 619-620 (690 SE2d 620) (2010).


author: McFADDEN, Judge.

text:
    A13A2320.
    BRYANT v. THE STATE.
    (756 SE2d 621)
   McFADDEN, Judge.

Cedric Demetrius Bryant was convicted of cocaine trafficking and obstructing an officer. He appeals the denial of his motion to suppress evidence, arguing that a police officer unlawfully detained him after an initial traffic stop had ended. We find that Bryant waived this argument by failing to raise it below. Even if Bryant had not waived this argument, the evidence supports the conclusion that the officer was still in the process of writing a warning citation when the driver consented to a search of the car. For these reasons, we affirm the trial court’s denial of Bryant’s motion to suppress and affirm his convictions.

Just before trial, the court conducted a hearing on the motion to suppress. The trial court orally denied the motion to suppress, but there is no written order in the record.

Nonetheless, a trial judge is not required to make findings of fact after a hearing on a motion to suppress. When reviewing a trial court’s decision on a motion to suppress, this court’s responsibility is to ensure that there was a substantial basis for the decision. The evidence is construed most favorably to uphold the findings and judgment, and the trial court’s findings on disputed facts and credibility are adopted unless they are clearly erroneous. Further, since the trial court sits as the trier of fact, its findings are analogous to a jury verdict and will not be disturbed if there is any evidence to support them. Although we are without specific findings in this case, in reviewing the denial of a motion to suppress, this [c]ourt may consider both the transcript of the motion hearing and the trial transcript.

Barnes v. State, 228 Ga. App. 44 (491 SE2d 116) (1997) (citations and punctuation omitted).

Viewed with these principles in mind, the evidence shows that Deputy Timothy Charles Scott with the Douglas County Sheriff’s Office stopped the Buick in which Bryant was a passenger because the car’s dealer drive-out tag did not display all the required information. Scott noticed three cell phones in the car, even though there were only two occupants — Bryant and the driver. The driver handed Scott all the documents Scott requested: his driver’s license, proof of insurance, and a bill of sale. Scott then returned to his patrol car to run the information on the computer and to verify the paperwork.

Scott returned to the Buick and asked the driver to step out. Scott and the driver walked to the area between the Buick and the patrol car, and Scott informed the driver that he had decided to issue a warning citation for the dealer drive-out tag violation, which would not cost the driver anything and would not go on his record. In Scott’s 18 years as a law enforcement officer, it had been his experience that once he informs drivers that they will receive only a warning, they are relieved. But this driver seemed worried, as evidenced by his short answers and his eyes. While Scott was writing the citation, he conversed with the driver. He asked the driver what took him to Birmingham, and the driver said he was going to see a friend. Scott asked the driver if he had to take off the day from work, and the driver said that he is out of work and disabled. Scott was suspicious, given that the driver had three cell phones and a new car.

The driver put his hands in his pocket, so Scott asked if he could check him for weapons. The driver responded affirmatively, so Scott patted him down. Scott felt a large amount of folded money in the driver’s pocket. The driver said it was $300 or $400. Scott thought this, too, was suspicious, given the driver’s claim that he was out of work on disability.

Scott needed the vehicle identification number to complete the warning citation. He walked back to the Buick and asked Bryant to read him the vehicle identification number from one of the documents because he had forgotten to write it down. Scott began talking to Bryant. Bryant did not know where they were going, did not know the name of the friend they were visiting, did not know how long he was going to be away, and did not have an overnight bag. Bryant was so nervous that Scott thought he must have a warrant out for his arrest.

Scott walked back to the driver and asked him the year of the car. He asked the driver if he had anything illegal in the car, and the driver responded no. Scott asked the driver for consent to search the car. The driver consented. Scott then asked the driver to sign the citation and confirmed that he had consent to search.

Scott called for backup. While Scott talked with the driver, the backup officer was interacting with Bryant. Suddenly, Bryant fled into the woods, and the backup officer gave chase. Scott secured the driver of the Buick in the police car, and then ran into the woods to assist the backup officer. When Scott came upon the backup officer and Bryant, they were fighting. Bryant ignored the officers’ commands to stop resisting. As Scott held Bryant in a bear hold, Bryant reached into his pants, removed a duct-taped package and threw it down. The package contained 499.88 grams of cocaine that was 61.7 percent pure.

Deputy Scott’s dashboard camera recorded the stop, and the recording was played for the judge when he ruled on the motion to suppress and for the jury at trial.

Bryant argues on appeal that Scott unlawfully detained him after the initial traffic stop had ended when Scott said that he would only issue a warning citation. But Bryant did not raise this argument in his motion to suppress or at the hearing on the motion. He therefore has waived the argument. Locher v. State, 293 Ga. App. 67, 68-69 (1) (666 SE2d 468) (2008). At the hearing on the motion, Bryant joined his co-defendant’s argument that Scott impermissibly exceeded the scope of the stop by asking several questions unrelated to the stop. Even in response to the state’s position that Scott had not finished writing the warning citation when he obtained the driver’s consent to search, counsel did not argue that the stop ended when Scott said he would issue a warning citation. “In challenging a trial court’s denial of a motion to suppress, a defendant may not argue on appeal grounds that he did not argue (and obtain a ruling on) below. Notwithstanding his waiver, however, [Bryant’s] argument is unavailing.” Bryant v. State, 288 Ga. 876, 894 (13) (b) (708 SE2d 362) (2011) (citations and punctuation omitted).

Our Supreme Court addressed consents to search elicited during traffic stops in Salmeron v. State, 280 Ga. 735 (1) (632 SE2d 645) (2006), ruling that

the Fourth Amendment is not violated when, during the course of a valid traffic stop, an officer requests of the driver consent to conduct a search. If a driver is questioned and gives consent while [he] is being lawfully detained during a traffic stop, there is no Fourth Amendment violation.

Blitch v. State, 281 Ga. 125, 125-126 (1) (636 SE2d 545) (2006) (citation and punctuation omitted). “However, a seizure that is justified solely by the interest in issuing a warning ticket to the driver can become unlawful if it is prolonged beyond the time reasonably required to complete that mission.” Salmeron, supra, 280 Ga. at 736 (1) (punctuation omitted), quoting Illinois v. Caballes, 543 U. S. 405, 407 (125 SCt 834, 160 LE2d 842) (2005).

Bryant argues that the police illegally detained him after the traffic stop had ended. See, e.g., Gonzales v. State, 255 Ga. App. 149, 150 (564 SE2d 552) (2002) (“Once a routine traffic stop has ended, an officer must have either valid consent or reasonable suspicion of criminal conduct before conducting additional questioning and searching a vehicle.”) (citation omitted). But the evidence supports the conclusion that the purpose of the traffic stop had not ended when the driver granted consent to search the car.

The officer’s purpose in an ordinary traffic stop is to enforce the laws of the roadway, and ordinarily to investigate the manner of driving with the intent to issue a citation or warning. Once the purpose of that stop has been fulfilled, the continued detention of the car and the occupants amounts to a second detention.

Salmeron, 280 Ga. at 736 (1) (citations and punctuation omitted).

Decided March 20, 2014.

Drummond & Swindle, Jason W. Swindle, Sr., for appellant.

David McDade, District Attorney, Emily K. Richardson, James A. Dooley, Assistant District Attorneys, for appellee.

Bryant argues that the traffic stop ended when Scott explained to the driver that he had “decided to issue him a written warning, it [would] not cost him any money and it [would not] go on his record and after [he had] complete [d] it, that he’[d] basically be on his way.” But the video recording from Scott’s dashboard camera establishes that at the point he asked for consent to search, Scott had not finished writing out the citation. Consequently, the trial court did not err in denying the motion to suppress. See Sims v. State, 313 Ga. App. 544, 546 (722 SE2d 145) (2012) (denial of motion to suppress affirmed where defendant first gave consent to search as he was signing completed citation and gave consent again shortly thereafter). Cf. Weems v. State, 318 Ga. App. 749, 752 (1) (734 SE2d 749) (2012) (after officer had already written a warning citation, further detention of defendant was unlawful where the only basis for officer’s actions was the nervousness of defendant and the conflicting stories of defendant and passenger).

Judgment affirmed.

Doyle, P. J., and Boggs, J., concur.


author: McFadden, Judge.

text:
    A13A2348.
    FLETCHER v. THE STATE.
    (756 SE2d 625)
   McFadden, Judge.

Christopher Fletcher appeals his convictions of robbery by intimidation, aggravated sodomy, and aggravated assault. He also undertakes to appeal his conviction of possession of a knife during the commission of a felony (armed robbery). But the sentencing sheet shows that Fletcher was not convicted of possession of a knife during the commission of a felony and instead was granted a directed verdict on that count. His arguments relating to that charge are therefore moot.

As for the robbery by intimidation, aggravated sodomy, and aggravated assault convictions, Fletcher argues that trial counsel was ineffective. But trial counsel’s decision to concede certain facts was reasonable. Fletcher argues that the trial court erred by delaying its ruling on Fletcher’s directed verdict motion until the close of the evidence and that the assistant district attorney improperly commented on the victim’s veracity during the closing argument. Fletcher waived these arguments, however, because he failed to object at trial. Fletcher argues that the trial court should have granted directed verdicts on three counts of the indictment, but we find that the trial court did not err as to two of them, and, as noted, a directed verdict was granted on the possession of a knife during an armed robbery count. We also find that the evidence is sufficient to support the robbery by intimidation, aggravated sodomy, and aggravated assault convictions. We therefore affirm the convictions.

1. Sufficiency of the evidence.

On appeal from a criminal conviction,

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

Cordy v. State, 315 Ga. App. 849 (1) (729 SE2d 13) (2012) (citation omitted).

Viewed in this light, the evidence showed that Shoko Williams worked at Ocha’s Beauty Supply. On March 13, 2007, Williams was the only person working at the store. A man, whom Williams identified at trial as Fletcher, twice entered the store and asked to use the telephone. After Fletcher used the telephone the second time, he pulled a knife from his pocket and threatened to kill Williams if she did not do what he said. He told Williams that he had not had a woman in a long time and demanded that she remove her pants. Williams refused and grabbed the knife from Fletcher. Williams and Fletcher struggled over the knife, and Williams broke off the blade and threw it behind a chair. Fletcher then began choking Williams, still demanding that she remove her pants. Fletcher succeeded in removing Williams’ pants and demanded that she open her legs. She refused and continued fighting. Fletcher then demanded that Williams perform oral sex on him. Williams agreed because she thought she had no other way out of the situation. Afterward, Fletcher threatened to kill Williams if she told anyone about what happened. He also demanded money, jewelry and other merchandise from the store, as well as the video recording from the security camera. Fletcher was arrested a short time later, and he had in his possession merchandise from the beauty supply store. Fletcher testified at trial and admitted putting Williams in a head lock and demanding money, jewelry and merchandise, but he claimed that the oral sex was consensual. This evidence was sufficient to support Fletcher’s convictions of robbery by intimidation, aggravated sodomy, and aggravated assault, and those convictions are affirmed.

2. Trial counsel was not ineffective.

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

Fletcher argues that trial counsel was ineffective because he admitted in his opening statement and in his closing argument that the incident happened. Counsel conceded that the evidence would show that Fletcher put Williams in a head lock and demanded money and merchandise. But, he argued, whether the acts that occurred constituted the crimes as charged was a question for the jury. He argued in his closing argument that the evidence showed robbery by intimidation, not armed robbery.

Defense counsel testified at the motion for new trial hearing that he made these arguments because the evidence was strong: Williams identified Fletcher in a photographic lineup; Fletcher was arrested within hours of the incident and had the store’s merchandise in his possession; and Fletcher gave a statement to police admitting his involvement. Moreover, Fletcher himself testified at trial that he robbed Williams by putting her in a head lock. Counsel testified that by making certain concessions, he believed he would develop credibility with the jury and that he hoped to remove the “armed” element of the robbery charge from the jury’s consideration. Fletcher has not shown that this amounted to a deficient performance. See Franks v. State, 278 Ga. 246, 255 (2) (B) (1) (599 SE2d 134) (2004) (counsel’s strategy of conceding commission of acts but not the requisite mental state was not unreasonable, given overwhelming evidence); Paul v. State, 257 Ga.App. 86, 87 (570 SE2d 399) (2002) (given overwhelming evidence of theft, trial counsel’s strategy of showing state could prove robbery but not armed robbery was reasonable); see also Mallon v. State, 266 Ga. App. 394, 396 (2) (597 SE2d 497) (2004) (bench trial strategy of showing that evidence established lesser charged offense but not greater charged offense was reasonable). Consequently, Fletcher’s ineffective assistance of counsel claim fails.

3. The delay in ruling on Fletcher’s directed verdict motion.

Fletcher argues that the trial court erred by deferring its ruling on his motion for directed verdict. But Fletcher did not object at trial to the court’s decision to defer its ruling, and he has therefore waived any error. See Mathis v. State, 204 Ga. App. 896, 899 (3) (420 SE2d 788) (1992). In any event, “[w]e are unaware of any authority which does not permit the court to reserve ruling on a motion for a directed verdict of acquittal and rule upon it [before the case goes to the jury].” Ballentine v. State, 194 Ga. App. 560, 561 (4) (390 SE2d 887) (1990).

4. The trial court did not err by denying the motion for directed verdict on the armed robbery and aggravated assault counts of the indictment.

(a) Armed robbery.

Fletcher argues that the trial court should have granted a directed verdict on the armed robbery charge because Williams had broken and discarded the knife before Fletcher took any property. Because Fletcher was acquitted of the armed robbery charge and instead convicted of the lesser included offense of robbery by intimidation, the issue of whether the trial court erred in failing to direct a verdict of acquittal on the armed robbery charge is moot. Thomas v. State, 253 Ga. App. 58, 63 (4) (557 SE2d 483) (2001).

Fletcher also argues that the trial court should have granted a directed verdict on the armed robbery charge because the indictment listed the victim as Ok Cha while the evidence showed the victim was actually Ocha Mobley’s Beauty Supply. We find, however, that he waived this argument because

a claim that an indictment improperly identifies the victim is a challenge to the form of the indictment, and it has long been held that if the charging instrument is void for any reason, the challenge should have been raised by demurrer before pleading to the merits, or by motion in arrest of judgment after conviction. This was not done. It follows that [Fletcher] has not preserved this issue for review.

Strozier v. State, 277 Ga. 78, 80 (3) (586 SE2d 309) (2003) (citations and punctuation omitted).

(b) Aggravated assault.

Fletcher argues that the trial court should have granted his motion for a directed verdict on the aggravated assault count because there was a fatal variance between the indictment, which charged that he used his hands to choke the victim, and the proof, which showed that he used his arms to choke her.

The general rule that allegations and proof must correspond is based upon the obvious requirements (1) that the accused shall be definitely informed as to the charges against him, so that he may be enabled to present his defense and not be taken by surprise by the evidence offered at the trial; and (2) that he may be protected against another prosecution for the same offense.

Decided March 20, 2014.

Earle J. Duncan III, for appellant.

De Palma v. State, 225 Ga. 465, 469-470 (3) (169 SE2d 801) (1969) (citation omitted). The variance here did not subject Fletcher to either of these dangers.

We do not “employ an overly technical application of the fatal variance rule, focusing instead on materiality. . . . Although the evidence differed somewhat from the allegation in the indictment, we find no material difference.” Kay v. State, 306 Ga. App. 666, 669 (3) (703 SE2d 108) (2010) (citations omitted). See also Lawson v. State, 278 Ga. App. 852, 853-854 (2) (630 SE2d 131) (2006) (variance between indictment which charged defendant with aggravated assault with the use of a knife, and proof, which showed he used a box cutter, was not fatal).

5. Fletcher did not object to the state’s closing argument.

Fletcher argues that the assistant district attorney improperly commented on Williams’ veracity during his closing argument. But “[Fletcher] did not object, and he has therefore waived this argument. Moreover, [he] cites no authority supporting the application of plain error review in this context.” Johnson v. State, 288 Ga. 803, 807-808 (5) (708 SE2d 331) (2011) (citation omitted). Indeed, he does not even argue for plain error review.

6. Mootness.

Fletcher’s challenges to his conviction of possession of a knife during the commission of a felony (armed robbery) are moot. The sentencing sheet shows that Fletcher was not convicted of possession of a knife during the commission of a felony and instead was granted a directed verdict on that count. See Brown v. State, 243 Ga. App. 632, 634 (4) (534 SE2d 98) (2000). We observe that the trial court orally denied Fletcher’s motion for a directed verdict on that count and orally pronounced a five-year, consecutive, probated sentence on that count. But “[i]t is the sentence signed by the judge, not his oral declaration, that is the sentence of the court.” Bell v. State, 294 Ga. 5, 8-9 (2) (749 SE2d 672) (2013). Therefore, Fletcher was granted a directed verdict on the possession of a knife count, and his challenges to that count are moot.

Judgment affirmed.

Doyle, P. J., and Boggs, J., concur.

Tom Durden, District Attorney, Megan A. Lane, Melissa L. Poole, Assistant District Attorneys, for appellee.


text:
    A13A2421.
    FUTCH v. THE STATE.
    (756 SE2d 629)
   Ray, Judge.

Following a jury trial, Reuben Amory Futch III was convicted of two counts each of aggravated child molestation (OCGA § 16-6-4 (c)) and child molestation (OCGA § 16-6-4 (a) (1)), and one count of enticing a child for indecent purposes (OCGA § 16-6-5). Futch does not challenge the sufficiency of the evidence supporting his convictions. On appeal, he contends that the trial court erred in denying his motions to strike certain prospective jurors for cause, in ruling on certain motions in limine, and in allowing the statement that he had made to police to be admitted into evidence. Finding no reversible error, we affirm.

1. Futch first contends that the trial court abused its discretion in denying his motions to excuse three prospective jurors for cause. We disagree.

“The decision [whether] to strike a potential juror for cause lies within the sound discretion of the trial court and will not be set aside absent some manifest abuse of that discretion.” (Citation omitted.) Abdullah v. State, 284 Ga. 399, 400 (2) (667 SE2d 584) (2008).

Unless the juror holds an opinion regarding the guilt or innocence of the defendant that is so fixed and definite that the juror will be unable to set the opinion aside and decide the case based on the evidence and court instructions, a court need not excuse the juror for cause. A potential juror’s doubts as to his or her own impartiality or reservations about his or her ability to set aside personal experiences do not necessarily require the court to strike the juror, as the judge is uniquely positioned to observe the juror’s demeanor and thereby to evaluate his or her capacity to render an impartial verdict.

(Citation omitted.) Beaudoin v. State, 311 Ga. App. 91, 92-93 (2) (714 SE2d 624) (2011).

(a) During voir dire, Juror No. 28 indicated that he had some personal experience with child sexual abuse. Juror No. 28 was later questioned individually, and he explained that his grandfather had molested other members of his family and that he had investigated several child molestation cases while he was in the military. Based on the foregoing, Juror No. 28 stated that he would be uncomfortable hearing this type of case. However, when asked if he could listen to the evidence in this case and apply the law to the facts before forming an opinion as to Futch’s guilt or innocence, Juror No. 28 acknowledged that he could.

Here, it is clear that Juror No. 28’s bias was against the nature of the crime of child molestation, not against Futch. As Juror No. 28 acknowledged that he could determine the issues impartially based on the evidence, the trial court did not abuse its discretion in refusing to strike him. Beaudoin, supra at 93 (2).

(b) During voir dire, Juror No. 42 indicated that she knew Futch. In response to further questioning, Juror No. 42 stated that Futch had worked for her cousins and that she had graduated from high school with Futch’s sister. She further indicated that she was a teacher at the school where the victim was a student and that she knew the school teachers who were potential witnesses in the case. Despite her acquaintance with the families and potential witnesses involved, Juror No. 42 had never discussed the facts of this case with anyone, and she felt that she could be a fair and impartial juror in the case. Although Juror No. 42 acknowledged that the case may be difficult for her, she had not formed an opinion as to Futch’s guilt or innocence. When asked if her acquaintances would make her “lean” one way or the other, Juror No. 42 initially responded “[p]robably” and then later responded “[n]ot necessarily.” Futch’s counsel did not question Juror No. 42 any further, nor did he request to do so.

At the conclusion of voir dire, Futch moved to strike Juror No. 42 for cause based on her acquaintance with the families and potential witnesses. In denying the motion to strike, the trial court noted Juror No. 42’s demeanor and credibility, and found that she did not have a fixed opinion as to Futch’s guilt or innocence. The trial court further found that there was nothing to indicate that Juror No. 42 could not listen to the evidence and follow the court’s instructions.

Citing Harper v. Barge Air Conditioning, 313 Ga. App. 474 (722 SE2d 84) (2011), Futch contends that the trial court had an affirmative duty to conduct further voir dire of Juror No. 42, either through its own questioning or by allowing questions by counsel, to evaluate her fairness and impartiality before ruling on the motion to strike her for cause. However, the record shows that both parties were able to question Juror No. 42 regarding any potential bias.

In Harper, the prospective jurors at issue explicitly expressed bias toward one of the parties. Id. at 476-477 (1). Here, Juror No. 42 acknowledged that she was acquainted with both families and some potential witnesses involved in the case, but she expressed no bias toward either party. See Berry v. State, 302 Ga. App. 31, 32-35 (1) (690 SE2d 428) (2010) (holding that court would not imply bias when juror admitted to having a friendship and business relationship with district attorney but also stated that she was not biased); Remillard v. Longstreet Clinic, 267 Ga. App. 230, 232 (1) (599 SE2d 198) (2004) (holding that court would not presume prejudice when six jurors stated that they or their family members had continuing patient relationships with doctors employed by defendant, but also testified that the relationships “would not affect their ability to render a fair verdict in the case”); Smith v. Folger, 237 Ga. App. 888, 889 (2) (517 SE2d 360) (1999) (holding that potential juror, whose wife was being represented by the same defense counsel in an unrelated case, was not disqualified when the potential juror expressed no bias).

In this case, Juror No. 42 indicated that she thought she could be a fair and impartial juror. After observing her demeanor and assessing her credibility, the trial court agreed.

Atrial court has broad discretion in deciding whether to strike a prospective juror for cause because we have only a cold record from which to size up a prospective juror and, thus, are in no position to assess whether a prospective juror spoke with assurance or uncertainty, enthusiasm or hesitation, candor or guile. On the other hand,

[a] trial judge is uniquely positioned to evaluate whether a prospective juror can render an impartial verdict, considering that the trial judge, unlike appellate judges, can observe a prospective juror in person and take account of her demeanor and countenance, not just the words that she speaks.

(Citation and punctuation omitted.) Harrison v. State, 309 Ga. App. 454, 454 (1) (711 SE2d 35) (2011). Thus, we owe substantial deference to the findings of the trial court, including its “resolution of any equivocations or conflicts” in the testimony of the prospective juror. Leonard v. State, 292 Ga. 214, 217 (3) (735 SE2d 767) (2012). Moreover, and in keeping with the substantial deference that we owe to the trial court, we must look to the record as a whole when we review the way in which the trial court exercised its broad discretion. Ledford v. State, 289 Ga. 70, 76 (6) (709 SE2d 239) (2011).

Viewing Juror No. 42’s voir dire as a whole, we conclude that the trial court did not abuse its discretion in finding that she was qualified to serve.

(c) During voir dire, Juror No. 75 indicated that he knew the victim and her family because he, the victim, and the victim’s family attended the same church. The transcript shows that both parties were able to question Juror No. 75 regarding any potential bias that he may have based on his acquaintance with the family. Although he acknowledged that it would be hard on him if he were chosen as a juror in the case, he confirmed that he could set aside any preconceived notions and friendships and listen to the evidence. Juror No. 75 further indicated that he thought he could be a fair and impartial juror, and he later confirmed that he could be fair. In response to questioning from Futch’s counsel, Juror No. 75 acknowledged that it was possible that if Futch was found not guilty that it would create a conflict that he would have a hard time dealing with based on his acquaintance with the victim’s family. Juror No. 75 further conceded that it would be fair for Futch’s counsel to assume that he could not be fair and impartial, but Juror No. 75 never indicated that he could not be fair and impartial. Futch’s counsel did not question Juror No. 75 any further, nor did he seek to do so.

At the conclusion of voir dire, Futch moved to strike Juror No. 75 for cause, contending that he had indicated that he could not be a fair and impartial juror because he knew the victim and her family. Juror No. 75, however, made no such statement. Rather, Juror No. 75 stated that he thought he could be fair and impartial, that he recognized that he would have a hard time hearing this case, and that he conceded that it would be fair for Futch’s counsel to assume that he could not be fair and impartial. In denying the motion to strike, the trial court noted Juror No. 75’s demeanor and credibility, and found that he did not have a fixed opinion as to Futch’s guilt or innocence. The trial court further found that there was nothing to indicate that Juror No. 75 could not listen to the evidence and follow the court’s instructions.

With regard to a trial court’s decision not to strike a juror, there is no manifest abuse of discretion unless it is shown that the juror’s opinion is so fixed and definite that he would be unable to decide the case based on the evidence and the instructions from the trial court. Beaudoin, supra. Accord Miller v. State, 275 Ga. 730, 736 (5) (571 SE2d 788) (2002) (Dismissal of three prospective jurors for cause, based on exposure to pretrial publicity and their initial inclinations to lean toward the prosecution, was not warranted where the prospective jurors indicated that they could set aside their preconceived notions and decide the case based solely on the evidence and the trial court’s instructions.). Furthermore, we give substantial deference to the trial court’s findings regarding the demeanor and credibility of the prospective juror, as well as its resolution of any equivocations or conflicts in the prospective juror’s testimony. Harrison, supra; Leonard, supra.

While we may have reached another conclusion based merely on the words on the paper transcript, we were not able to view the juror testify in court. Viewing Juror No. 75’s voir dire as a whole, we cannot say that the trial court abused its discretion in denying the motion to strike him for cause.

We note that Futch ultimately exercised his peremptory strikes to exclude the three jurors at issue in this case. However, this fact has no bearing on our analysis, because a defendant is entitled to a full panel of qualified jurors against which to exercise his peremptory strikes. See Rice v. State, 292 Ga. 191, 194-195 (3) (733 SE2d 755) (2012). However, as the trial court did not manifestly abuse its discretion in denying Futch’s motions to strike these jurors for cause, we conclude that there is no reversible error.

2. Futch contends that the trial court erred in denying his motion in limine to exclude any testimony or argument regarding the victim’s religious beliefs being a possible motive for her outcry. We disagree.

“As a general rule, the admission of evidence is a matter resting within the sound discretion of the trial court, and appellate courts will not disturb the exercise of that discretion absent evidence of its abuse.” (Citation and punctuation omitted.) Alford v. State, 320 Ga. App. 523, 526 (2) (738 SE2d 124) (2013).

Here, the testimony of the victim and an outcry witness showed that the victim delayed making her outcry because she was embarrassed about the sexual abuse. After she was baptized, the victim believed that God had forgiven her, and she then decided to tell her teacher. We find that such testimony is relevant and admissible to explain why the victim waited over two years to make an outcry to a third party. Alford, supra at 527-528 (2) (a), (b). As the testimony is admissible for the purpose of showing the effect of the sexual abuse on the victim and to explain the victim’s conduct, we conclude that such testimony does not constitute improper bolstering. Id. at 528 (2) (c). Accord Ledford v. State, 313 Ga. App. 389, 391-392 (2) (721 SE2d 585) (2011). Furthermore, as the victim testified at trial, any perceived “bolstering” could have been explored by Futch on cross-examination. Id.

Futch also argues that testimony improperly injected religion and the victim’s character into evidence. Our Supreme Court has held that background information about the victim that is not relevant to the issues in the guilt/innocence phase, particularly the sort of background information likely to engender the jury’s sympathies, should not be presented to the jury during that phase. See Lucas v. State, 274 Ga. 640, 643 (2) (b) (555 SE2d 440) (2001).

In the context of this particular case, however, the testimony which referenced the victim’s baptism was relevant to explain the circumstances surrounding the victim’s ultimate decision to come forward after years of sexual abuse. See Brinson v. State, 191 Ga.App. 151, 154 (5) (381 SE2d 292) (1989) (“The victim’s conduct and veracity are matters concerning which the truth must be found. . . . [T]he minor victim’s credibility, which might be sustained by prompt reporting of the offense or by offering an explanation for the failure to do so, as well as by her reaction to and interaction with defendant, were relevant issues for the jury’s consideration”) (citations and punctuation omitted). Moreover, Futch had ample opportunity to cross-examine the victim regarding her credibility.

As the testimony was relevant and the probative value of the testimony outweighed its prejudicial effect, we find that the trial court did not abuse its discretion in allowing this testimony.

3. Futch contends that the trial court erred by initially granting the State’s pre-trial motion in limine to exclude any testimony or argument regarding the victim’s history of sexual self-stimulation and the fact that the victim had previously been touched by a boy at daycare. Specifically, he argues that these facts were central to his theory of defense — i.e., that the victim was molested by the boy and that her allegations against Futch were fabricated. Futch further argues that the trial court’s reversal of its ruling during the trial prevented him from presenting this defense. We discern no reversible error.

Prior to trial, the State sought to exclude any testimony regarding certain statements made by the victim to a school counselor regarding the victim’s self-stimulation during class. The defense proffered that there would be testimony to show that a school counselor had previously questioned the victim about the cause of her behavior and that the victim had told the counselor that on one occasion another child had accidentally touched her at daycare. The trial court granted the State’s motion in limine, but the trial court expressly stated that it could reconsider its ruling depending on the evidence presented at trial.

Relevant evidence is that “which logically tends to prove or to disprove a material fact which is at issue in the case, and every act or circumstance serving to elucidate or to throw light upon a material issue[.]” (Citations and punctuation omitted.) Owens v. State, 248 Ga. 629, 630 (284 SE2d 408) (1981). “As a general rule, the admission or exclusion of evidence on the grounds of relevancy lies within the sound discretion of the trial court, whose decision will not be disturbed without a showing of a clear abuse of that discretion.” (Punctuation and footnote omitted.) Hall v. State, 320 Ga. App. 48, 49 (739 SE2d 61) (2013).

Absent a showing of relevance, evidence of a child’s past sexual history, including acts committed by persons other than the accused, is inadmissible. Moreover, evidence of a prior molestation or previous sexual activity on the part of the victim is not relevant in a child molestation case to show either the victim’s reputation for nonchastity or her preoccupation with sex. However, this [C]ourt also has held that where the State introduces medical testimony indicating that the child has been sexually abused or evidence of child abuse accommodation syndrome and connects the child’s behavior to that syndrome, evidence that the victim may have been molested by someone other than the accused may be admissible to establish other possible causes for the behavioral and medical symptoms exhibited by the child.

(Footnote omitted.) Id. at 49-50.

During the State’s presentation of its case-in-chief, the State elicited testimony from the outcry witness, the victim’s teacher, that the victim exhibited several behavioral and physical symptoms of sexual abuse while at school which included, inter alia, that the victim was sexually stimulating herself during class. The teacher testified that the victim’s self-stimulation continued for several months, that she had talked to the victim about it, and that the victim did not know why she was doing it other than it sometimes “felt good.” After several months of this behavior, the victim finally approached the teacher, told her that she knew what she was doing was wrong, and that she wanted to stop. She then disclosed that Futch had been sexually abusing her. As this testimony appeared to connect the victim’s behavior to the sexual abuse committed by Futch, the testimony proffered by the defense regarding the victim’s prior explanation for her self-stimulation during class — i.e., that she had been inappropriately touched by another child at daycare, would have been admissible to establish another possible cause for the victim’s behavior.

Pretermitting whether the trial court erred in initially granting the State’s motion in limine, the record shows that the State ultimately introduced evidence that the victim had been touched by another child at daycare. The trial court then reversed its prior ruling and decided to allow Futch to question the witnesses about the daycare incident.

Futch contends that, by this point, his defense was compromised because he was unable to cross-examine the State’s earlier witnesses regarding the daycare incident. However, the record shows that Futch had ample opportunity to present his theory of defense.

After the trial court reversed its decision, the State recalled the victim’s teacher to the witness stand. She testified that the victim, during her outcry, did not mention the daycare incident. Futch chose not to cross-examine this witness to determine whether she had any other knowledge of the daycare incident or whether the victim had previously disclosed that the daycare incident was the cause of her behavior in class.

The State then called the victim to testify, and Futch was able to cross-examine the victim regarding the daycare incident. The victim testified that she had told her teachers and a counselor that “a little boy accidentally touched me,” and she further testified that the boy was about her age and that it happened only once while they were playing. Futch did not question the victim any further regarding this issue.

Lastly, Futch testified at trial, and he was questioned by both the defense and the State about his knowledge of the daycare incident.

After the presentation of the above testimony, Futch did not ask to recall any of the earlier witnesses or seek to call any additional witnesses to explore the daycare incident any further. As Futch had ample opportunity to explore the daycare incident as a possible cause of the behavior exhibited by the victim but declined to do so, we find any resulting harm suffered by Futch falls squarely on his shoulders. It is axiomatic that “[a defendant] cannot complain of error induced by his own conduct.” (Punctuation and footnote omitted.) Drummond v. State, 275 Ga. App. 86, 87 (1) (619 SE2d 784) (2005).

4. In his last enumeration of error, Futch contends that the trial court erred by admitting the audio recording of the statement that he gave to the police during the investigation. Specifically, Futch argues that his statement was not freely and voluntarily made. We disagree.

In reviewing a trial court’s decision regarding the admissibility of a defendant’s statement, we owe no deference to the way in which the trial court resolved questions of law, but we accept the trial court’s factual findings and credibility determinations unless clearly erroneous. Edenfield v. State, 293 Ga. 370, 374 (2) (744 SE2d 738) (2013).

At the Jackson-Denno hearing prior to trial, Special Agent Jason Shoudel of the Georgia Bureau of Investigation testified that he interviewed Futch and made an audio recording of his statement. Agent Shoudel testified that, prior to this interview, he advised Futch of his Miranda rights, that Futch indicated that he understood those rights, and that Futch agreed to talk with him about the victim. Agent Shoudel testified that Futch was not impaired or otherwise unable to understand his rights or the purpose of the interview, that Futch was not threatened in any way, and that Futch did not request an attorney or seek to terminate the questioning at any time during the interview. Based on this testimony, the trial court found that Futch’s statement was freely and voluntarily made, and it ruled that Futch’s statement would be allowed into evidence at trial.

(a) The audio recording of the interview was played for the jury at trial. During his testimony, Agent Shoudel acknowledged that he had used trickery during the interview when he told Futch that the police had conducted a forensic interview/polygraph test of the victim and that the results revealed with certainty that she was telling the truth about being sexually abused by Futch, that the victim’s brother had witnessed an incident where Futch had sexually abused the victim, and that there was an audio recording of the victim’s father confronting Futch about the sexual abuse. Agent Shoudel further testified that his representations to Futch were untrue and that he had used such trickery in an attempt to elicit a truthful response from Futch. Ultimately, when confronted with the possibility that something could have happened between Futch and the victim while Futch was intoxicated, Futch stated that “anything is possible.”

Our Supreme Court has held that the “[u] se of trickery and deceit to obtain a confession does not render it inadmissible, so long as the means employed are not calculated to procure an untrue statement.” (Citation and punctuation omitted.) Harris v. State, 274 Ga. 422, 424 (3) (554 SE2d 458) (2001). Applying this principle, we find that Agent Shoudel’s misrepresentations as to the existence of inculpatory evidence against Futch does not affect the admissibility of Futch’s statement. Id.

(b) Furthermore, the fact that Agent Shoudel told Futch repeatedly during the interview that he was there to help Futch does not constitute a hope of benefit which would render Futch’s statement involuntary. Agent Shoudel testified that he was merely offering to help Futch get the guilt off of his chest.

Under former OCGA § 24-3-50, a confession is only admissible if it was made voluntarily, “without being induced by another by the slightest hope of benefit[.]” This Code section “does not encompass every conceivable benefit that the police may offer a suspect in an effort to induce him to confess.” Brown v. State, 290 Ga. 865, 868 (2) (b) (725 SE2d 320) (2012). Rather, the phrase “slightest hope of benefit” as used in this Code section has consistently been interpreted to mean “promises related to reduced criminal punishment — a shorter sentence, lesser charges, or no charges at all.” (Citations omitted.) Id. at 868-869 (2) (b).

Decided March 20, 2014.

Hogue & Hogue, Laura D. Hogue, Susan D. Raymond, for appellant.

Denise D. Fachini, District Attorney, for appellee.

Having reviewed the audio recording of the interview, and after considering the context of Agent Shoudel’s numerous statements to Futch that he “was there to help him,” we conclude that Futch could not have reasonably understood such statements to mean that he would receive lesser punishment or that he would never be charged or arrested for his crimes. Thus, Agent Shoudel did not induce Futch’s statement with a “hope of benefit” within the meaning of former OCGA § 24-3-50. Brown, supra at 869-870 (2) (c).

For the above reasons, the trial court did not err in allowing Futch’s statement into evidence.

Judgment affirmed.

Barnes, P. J., concurs. Miller, J., concurs in judgment only.

       When the material facts are not in dispute because they can be ascertained from a recording of a statement, we give less deference to the trial court’s factual findings. Edenfield v. State, 293 Ga. 370, 374 (2), n. 6 (744 SE2d 738) (2013).

        Miranda v. Arizona, 384 U. S. 436 (86 SCt 1602, 16 LE2d 694) (1966).

       This Code section, which was in effect at the time of Futch’s trial, has been repealed by Ga. L. 2011, p. 99, § 2, effective January 1,2013. This principle of law, however, has been carried forward without any substantive change in the new Georgia Evidence Code. See OCGA § 24-8-824.


text:
    A13A2446.
    GALARDI et al. v. CITY OF FOREST PARK.
    (756 SE2d 637)
   Ray, Judge.

Jack Galardi, Red Eyed, Inc. d/b/a Crazy Horse Saloon, Walleye, LLC, Mia Luna, Inc. d/b/a Pink Pony South and JGP&P, LLC (collectively, Appellants) appeal from the trial court’s dismissal of their complaint for want of prosecution. For the reasons that follow, we vacate the court’s judgment and remand the case to the trial court.

OCGA § 9-11-41 (b) allows the trial court to dismiss a plaintiff’s case without prejudice when there has been a “failure of the plaintiff to prosecute or to comply with this chapter or any order of court... ,” A dismissal without prejudice for failure of the plaintiff to prosecute “does not operate as an adjudication upon the merits,” OCGA § 9-11-41 (b), and such a dismissal by the trial court for failure to prosecute “is discretionary . . . and is not subject to review by this [C]ourt in the absence of an abuse of that discretion.” (Citation and punctuation omitted.) Peachtree Winfrey Assocs. v. Gwinnett County Bd. of Tax Assessors, 197 Ga. App. 226, 226 (398 SE2d 253) (1990). With these guiding principles in mind, we now turn to Appellants’ enumerations of error.

1. In their first enumeration of error, Appellants argue that the trial court erred in dismissing their case for want of prosecution because their legal counsel was present at the trial court’s peremptory calendar on May 10, 2013, announced ready for trial, and filed a Notice of Stipulation to Active List on that same day. In their appellate brief, Appellants contend that the trial court’s Notice of Peremptory Calendar Call “instructed parties to stipulate to the active list within ten (10) days of May 10, 2013 or the case will be dismissed without prejudice[,]” and that because they filed such notice, the trial court’s dismissal was in error. The appellate record shows that Appellants did, in fact, file a Notice of Stipulation to the Active List; however, the record contains neither the referenced trial court’s Notice of Peremptory Calendar Call (and its requirements for complying with the trial court’s orders) nor a transcript of the peremptory calendar proceedings. The trial court’s order, however, does not provide any specifics as to why it dismissed the case without prejudice for want of prosecution.

Because Appellants did, in fact, file a Notice of Stipulation to Active List with the trial court and because the trial court’s order is silent as to why it dismissed the case for want of prosecution, we vacate the trial court’s judgment and remand the case to the trial court. In doing so, we direct the trial court to file a new order explaining the basis of its dismissal without prejudice for want of prosecution. We also direct parties to arrange for any relevant documents that do not currently exist in the record to be filed with the trial court’s clerk’s office so that the issue can be properly dealt with should a subsequent appeal arise.

2. In light of our holding in Division 1, we need not address Appellants’ remaining enumerations of error.

3. Appellee’s motion to dismiss the appeal is denied.

Judgment vacated and case remanded with direction.

Barnes, P. J., and Miller, J., concur.

Decided March 20, 2014.

Bloom Sugarman Everett, Simon H. Bloom, Stephanie A. Everett, Sherri G. Buda, for appellants.

Fincher, Denmark & Williams, Steven M. Fincher, Winston A. Denmark, Emilia C. Walker, for appellee.

       See also Uniform Superior Court Rule 14 (providing that “[o]n its own motion or upon motion of the opposite party, the court may dismiss without prejudice any civil action... upon the failure to properly respond to the call of the action for trial or other proceeding. . . .”)•

       We note that in some jurisdictions it is not typical for a peremptory calendar proceeding to be transcribed nor is it typical for a trial court to file a notice of peremptory calendar call in the record.


author: MCFADDEN, Judge.

text:
    A13A2466.
    BATTLEFIELD INVESTMENTS, INC. v. CITY OF LaFAYETTE.
    (756 SE2d 639)
   MCFADDEN, Judge.

Battlefield Investments, Inc., filed a complaint against the City of LaFayette, claiming that the city’s negligent operation of its sewer system caused damage to a building owned by Battlefield when the sewer system backed up and overflowed into the building. The city answered, asserting, among other things, sovereign immunity and a denial of negligence. The city moved for summary judgment, and the trial court granted the motion. Battlefield appeals, challenging the trial court’s grant of summary judgment to the city and its denial of a motion to recuse. Because there exist no genuine issues of material fact as to the city’s negligence and the motion to recuse was untimely, we affirm.

1. Summary judgment.

Battlefield challenges the trial court’s summary judgment ruling on two grounds, arguing that the city is not protected by sovereign immunity and that it is negligent under the doctrine of res ipsa loquitur. We note that the trial court did not indicate in its order the precise basis for its summary judgment ruling. But because there exist no genuine issues of material fact as to negligence, we affirm on that basis and need not address the sovereign immunity issue. “A grant of summary judgment must be affirmed if right for any reason, whether stated or unstated. It is the grant itself that is to be reviewed for error, and not the analysis employed.” Travelers Excess & Surplus Lines Co. v. City of Atlanta, 297 Ga. App. 326 (677 SE2d 388) (2009) (citation omitted).

Summary judgment is proper when there is no genuine issue of material fact and the movant is entitled to judgment as a matter of law. OCGA § 9-11-56 (c). We review a grant of summary judgment de novo and construe the evidence in the light most favorable to the nonmovant. Home Builders Assn. of Savannah v. Chatham County, 276 Ga. 243, 245 (1) (577 SE2d 564) (2003). So construed, the evidence shows that Battlefield owns a commercial building located at 501 Mize Street in LaFayette, Georgia. On September 21,2009, torrential rainfall in LaFayette caused flash flooding in the area. The National Weather Service’s flood warning described it as a “flooding event... of historic proportions.” Battlefield’s building flooded when water and sewage backed up through the toilets, overflowing and causing damage to the building.

The city asserts that Battlefield has produced no evidence of any negligence on its part, and that the evidence instead shows that the overflow was caused by the historic flooding. The city points to deposition testimony establishing that the manhole covers near the Battlefield building were completely submerged in water due to the flooding, that there was nothing the city could have done to prevent infiltration of rainwater when the manhole covers were submerged, and that infiltration into the sewer line can cause backflow from the sewer into toilets. The city also cites undisputed evidence that the only incident of a sewage backup at the Battlefield property occurred on the date of the flood, there having been no such incidents either before or after the flood. Moreover, Battlefield acknowledges that there were no other complaints about sewage backup on any other property in the city.

Battlefield has pointed to no evidence in the record showing negligence by the city, and instead relies on the doctrine of res ipsa loquitur. That reliance is misplaced.

Res ipsa loquitur is a rule of evidence to be applied in cases where there is no evidence of consequence showing negligence on the part of the defendant. The doctrine authorizes, but does not require, the jury to infer facts from the circumstances in which the injury occurred, thereby filling the evidentiary gap. Res ipsa loquitur is authorized where (1) the injury is of a kind which ordinarily does not occur in the absence of someone’s negligence; (2) it must be caused by an agency or instrumentality within the exclusive control of the defendant; and (3) it must not have been due to any voluntary action or contribution on the part of the plaintiff.

Aderhold v. Lowe’s Home Centers, 284 Ga. App. 294, 295 (643 SE2d 811) (2007) (citation omitted). The doctrine of “[r]es ipsa loquitur should be applied with caution and only in extreme cases, and is not applicable when there is an intermediary cause which could have produced the injury. [Cits.]” Id.

In this case, as discussed above, there is evidence that the alleged injury was produced by the intermediary cause of the flooding event of historic proportions. Moreover, there is evidence in the record, and Battlefield acknowledged at the summary judgment hearing, that there is a valve that it could have installed on its property that would have prevented the backflow incident. “Under such circumstances, the second [and third] element [s] of the res ipsa loquitur [are] not satisfied and the doctrine does not apply.” Aderhold, supra.

A defendant moving for summary judgment may demonstrate that there is no genuine issue of material fact and that it is entitled to judgment as a matter of law

by either presenting evidence negating an essential element of the plaintiff’s claims or establishing from the record an absence of evidence to support such claims. Thus, the rule with regard to summary judgment is that a defendant who will not bear the burden of proof at trial need not affirmatively disprove the nonmoving party’s case, but may point out by reference to the evidence in the record that there is an absence of evidence to support any essential element of the nonmoving party’s case. Where a defendant moving for summary judgment discharges this burden, the nonmoving party cannot rest on its pleadings, but rather must point to specific evidence giving rise to a triable issue.

Cowart v. Widener, 287 Ga. 622, 623-624 (1) (a) (697 SE2d 779) (2010) (citations and punctuation omitted). Here, the city pointed out by reference to the record that there is an absence of evidence to support the essential element of negligence. Battlefield has failed to point to specific evidence giving rise to a triable issue, and therefore the trial court did not err in granting summary judgment to the city. See Meadow Springs, LLC v. IH Riverdale, LLC, 323 Ga. App. 478, 479-480 (1) (747 SE2d 47) (2013).

2. Motion to recuse.

Battlefield claims the trial court erred in denying a motion for recusal of the judge based on comments he had made in another case involving counsel for Battlefield. However, a motion to recuse, accompanied by supporting affidavits, must be filed no later than five days after the affiant first learned of the alleged grounds for disqualification. Long v. State, 324 Ga. App. 882, 895 (5) (752 SE2d 54) (2013). Uniform Superior Court Rule 25.3 provides that “[w]hen a judge is presented with a motion to recuse, or disqualify, accompanied by an affidavit, the judge ... shall immediately determine the timeliness of the motion[.]” See Crosbie v. State, 304 Ga. App. 613, 614 (1) (697 SE2d 278) (2010). Here, the alleged statements were made on June 13, 2012, in an unrelated criminal case, and Battlefield’s counsel stated in his affidavit that he learned of the comments on June 22, 2012. But the motion to recuse was not filed within five days of that date. Rather, it was filed months later, on November 26, 2012, and counsel has made no showing of good cause for the late filing. “Because the motion to recuse was untimely, the trial court did not err by denying it. [Cit.]” Long, supra.

Decided March 20, 2014.

W. David Cunningham, for appellant.

Brinson, Askew, Berry, Seigler, Richardson & Davis, J. Anderson Davis, Alison S. Warren, for appellee.

Judgment affirmed.

Doyle, P. J., and Boggs, J., concur.