author: BARNES, Presiding Judge.

text:
    A14A1634.
    McCULLOUGH v. THE STATE.
    (769 SE2d 138)
   BARNES, Presiding Judge.

Based on evidence that he had multiple videos of child pornography on his laptop computer, a jury found Kyle Jameson McCullough guilty of five counts of sexual exploitation of children. McCullough filed a motion for a new trial, which the trial court denied. On appeal, McCullough contends that the trial court committed plain error in its charges to the jury on the law of deliberate ignorance, equal access, and the use of custodial statements for impeachment purposes. For the reasons discussed below, we conclude that there was no plain error and therefore affirm.

“Following a criminal conviction, the defendant is no longer presumed innocent, and we view the evidence in the light most favorable to sustain the verdict.” Anthony v. State, 317 Ga. App. 807 (732 SE2d 845) (2012). So viewed, the evidence showed that on January 7, 2010, an undercover detective with the Paulding County Sheriff’s Office conducted a search for child pornography on LimeWire, a peer-to-peer file-sharing program that was available for free over the Internet at the time in question, and which allowed users to search for and download files stored in a shared folder on other users’ computers. See United States v. Conner, 521 Fed. Appx. 493, 494-495 (6th Cir. 2013) (explaining LimeWire); United States v. Stults, 575 F3d 834, 842 (8th Cir. 2009) (same). The detective used specialized software developed by the Federal Bureau of Investigation to detect files that LimeWire users made available for download that might contain child pornography. Using this software, the investigator identified four suspicious files made available for sharing by a particular computer, downloaded them, and confirmed that they contained images of child pornography. On January 30, 2010, the detective downloaded an additional file containing child pornography while searching LimeWire that appeared to come from the same computer.

Through a subpoena to the Internet service provider, the detective traced the Internet Protocol (“IP”) address for the computer sharing the child pornography to the residence where McCullough and his roommate resided in Douglas County. The detective also was able to identify the “GUID,” or “global unique identifier,” that had been assigned by LimeWire to the specific computer sharing the child pornography. The detective turned over copies of the child pornography files that he had downloaded and placed on an encrypted disk, the IP address information, and the GUID information to the Georgia Bureau of Investigation (the “GBI”), which applied for and obtained a search warrant for the residence of McCullough and his roommate.

On April 28, 2010, special agents with the GBI and the Douglas County Sheriff’s Office executed the search warrant for child pornography at the residence. McCullough and his roommate, along with McCullough’s girlfriend, were present at the time of the search. During the search, agents found McCullough’s Toshiba laptop computer with his wallet and cell phone on top of it on the nightstand next to his bed. A GBI forensic computer specialist conducted a preliminary search of McCullough’s laptop and discovered images of child pornography, leading the GBI agents to seize the laptop so that a more complete forensic analysis could be conducted. The computer specialist also conducted a preliminary search of two other computers in the residence, including the roommate’s desktop computer, and neither contained any images of child pornography. The computer specialist also discovered as part of her preliminary search that the GUID assigned by LimeWire to the specific computer sharing the child pornography matched the GUID on McCullough’s laptop rather than the other computers at the residence.

During the execution of the search warrant, McCullough, his roommate, and his girlfriend were brought into the living room of the residence, where an investigator with the Douglas County Sheriff’s Office stayed with them. McCullough, who was “visibly upset,” asked the investigator “what was going on.” When the investigator told McCullough that the search warrant was for child pornography, McCullough began rocking back and forth and rubbing his face with his hands, and he told the investigator that he did not think that he could get in trouble for having “it” on his computer. McCullough also told the investigator that his friends had used his computer from time and time and he did not know what they had viewed. However, McCullough admitted to the investigator that he had looked “at animals and other crazy stuff” on his computer, but insisted that he was not a pedophile.

One of the GBI special agents carried a digital audio recorder to memorialize any statements made to her during the execution of the warrant. The special agent first spoke separately with McCullough’s roommate, who denied that he had ever used McCullough’s laptop. After speaking with the roommate, the GBI special agent approached McCullough and read to him from a form advising him of his rights under Miranda v. Arizona, 384 U. S. 436 (86 SCt 1602, 16 LE2d 694) (1966). The special agent asked McCullough if he understood his rights, and he responded, “I’m doubtful, I am just kind of numb,” and “I don’t really understand it.” The special agent again asked McCullough if he understood his rights, if he wanted to speak with her, and if he wanted to give a reason for what the agents were finding, and he answered, “I guess not, I don’t really have a reason.” The special agent continued to seek a definitive answer from McCullough, who continued to give equivocal responses, including “I really don’t have an explanation.” Finally, the special agent asked, “You don’t have a problem talking to me just like we are doing right now, no issues?” McCullough responded, “I guess not.” The special agent then briefly asked McCullough about one of the computers and explained that if the police found anything on it, further action would be taken.

McCullough was arrested and transported to the Douglas County Sheriff’s Office, where the GBI special agent again advised him of his rights under Miranda in a video-recorded interview. McCullough initially invoked his right to counsel but initiated further communication with the special agent about what was taken from his residence. McCullough went on to tell the special agent that he “never had a problem getting a girlfriend” and “never thought about anybody underage.” But McCullough said that “if there’s anything on there,” it was like “looking at a train wreck,” or looking at “weird things,” or “people do[ing] weird stuff.” McCullough also told the special agent that there was “animal stuff” on the laptop that he knew was illegal, but that it was just the “weirdness of it,” the “shock factor.” McCullough said that he was “just tore up about this” and expressed concern that “people are going to be looking at me like I’m some kind of pedophile, and I’m not.”

A different GBI forensic computer specialist subsequently conducted a more detailed analysis of McCullough’s laptop. The computer specialist discovered 41 videos containing images of child pornography in the LimeWire folder designated for shared files. The videos included images of young girls involved in sexual acts with grown men and with animals. The LimeWire folder and the files within the program that contained the child pornography were stored under the user name “Kyle,” McCullough’s first name. The computer specialist conducted a similar forensic analysis on the desktop computer of McCullough’s roommate, but she did not discover any images of child pornography on it.

McCullough was indicted and tried before a jury on five counts of sexual exploitation of children for the child pornography discovered on his laptop. At trial, the State introduced into evidence disks containing the 41 videos of child pornography discovered on McCullough’s laptop and played portions of them to the jury, and called as witnesses the previously mentioned law enforcement officials who testified to events as summarized above. Additionally, the State called McCullough’s roommate as a witness, who denied ever using McCullough’s laptop or searching for or viewing child pornography on his own desktop computer. Portions of the audio recording of the statements made by McCullough at his residence during the execution of the search warrant, and of the video recording of his statements made at the Douglas County Sheriff’s Office, also were introduced and played for the jury. Lastly, the State presented expert forensic testimony aimed at linking McCullough to the LimeWire program on his laptop and the downloads of child pornography through texts and pictures found on his cell phone.

McCullough did not contest that his laptop contained child pornography. Rather, McCullough’s sole defense was that he did not know that the child pornography was on his laptop and that his roommate had equal access to his laptop and thus had the opportunity to place the child pornography on it without his knowledge. To support his theory of the case, McCullough called defense witnesses who testified that they had seen McCullough’s roommate using his laptop. McCullough also presented the testimony of an expert forensic computer specialist in an effort to discredit the testimony of the State’s expert and link the roommate to the laptop. McCullough himself elected not to testify.

Following the presentation of the conflicting witness testimony, the parties’ closing arguments, and the charge of the trial court, the jury found McCullough guilty of the charged offenses. McCullough moved for a new trial, and the trial court denied the motion. This appeal followed in which McCullough challenges three jury charges given by the trial court and argues that he is entitled to a new trial.

Because McCullough did not object at trial to the jury charges that he now challenges on appeal, we review the charges only for plain error. See OCGA § 17-8-58 (b); Booker v. State, 322 Ga. App. 257, 260 (2) (744 SE2d 429) (2013).

Under State v. Kelly, 290 Ga. 29 (718 SE2d 232) (2011), we are bound to consider whether the trial court committed plain error as to a charge by considering four factors: First, there must be an error or defect —- some sort of deviation from a legal rule — that has not been intentionally relinquished or abandoned, i.e., affirmatively waived, by the appellant. Second, the legal error must be clear or obvious, rather than subject to reasonable dispute. Third, the error must have affected the appellant’s substantial rights, which in the ordinary case means he must demonstrate that it affected the outcome of the trial court proceedings. Fourth and finally, if the above three prongs are satisfied, the appellate court has the discretion to remedy the error — discretion which ought to be exercised only if the error seriously affects the fairness, integrity or public reputation of judicial proceedings.

(Citations and punctuation omitted.) Brown v. State, 318 Ga. App. 334, 338 (3) (733 SE2d 863) (2012). “Satisfying all four prongs of this standard is difficult, as it should be.” (Citation and punctuation omitted.) Kelly, 290 Ga. at 33 (2) (a). Mindful of this standard, we turn to the three jury charges given by the trial court that McCullough argues constituted plain error.

1. McCullough first contends that the trial court committed plain error by charging the jury on the law of deliberate ignorance. Specifically, the trial court charged the jury:

Knowledge on the part of the defendant as to the age of the individuals depicted in the sexually explicit material may be actual or may be inferred. A finding beyond a reasonable doubt of conscious purpose to avoid enlightenment would permit an inference of knowledge. Stated another way, a defendant’s knowledge of a fact may be inferred from willful blindness as to the existence of the fact. Again, whether or not you draw any such inference is a matter solely within your discretion.

The trial court provided the jury with a copy of the jury charges for their deliberations.

It was error for the trial court to charge the jury on the law of deliberate ignorance. As we have explained, a jury charge on deliberate ignorance or wilful blindness is

appropriate when the facts support the inference that the defendant was aware of a high probability of the existence of the fact in question and purposely contrived to avoid learning all of the facts in order to have a defense in the event of a subsequent prosecution. A court should not instruct a jury on deliberate ignorance when the evidence points to actual knowledge or no knowledge on the defendant’s part.

Hutchins v. State, 326 Ga. App. 250, 259 (3) (756 SE2d 347) (2014), quoting Williamson v. State, 300 Ga. App. 538, 549 (6) (685 SE2d 784) (2009). Here, there was no evidence that McCullough was aware of a high probability of the existence of child pornography on his laptop and purposefully contrived to avoid learning of this fact to have a defense in the event of criminal prosecution. Rather, the conflicting evidence pointed either to McCullough having actual knowledge of the child pornography on his laptop or no knowledge at all. Accordingly, the trial court erred in charging the jury on deliberate ignorance.

Even if the jury charge on deliberate ignorance was erroneous and the error was obvious, the error does not rise to the level of plain error because McCullough cannot demonstrate that it affected the outcome of the trial court proceedings. “[P]lain-error analysis, which must be distinguished from harmless-error analysis, requires the appellant to make an affirmative showing that the error probably did affect the outcome below.” (Citations and punctuation omitted.) Shaw v. State, 292 Ga. 871, 873 (2) (742 SE2d 707) (2013). Under the facts of this case, the charge on deliberate ignorance was clearly irrelevant and did not touch on any of the issues raised by the parties. Indeed, the charge on deliberate ignorance was embedded in a charge on the defendant’s knowledge of the age of the children depicted in the pornography, and McCullough never disputed that the children in the videos found on his laptop were minors and never asserted that he knew about the pornography but was unaware that the children were minors. In this context, the charge on deliberate ignorance was nothing more than surplusage that was unlikely to mislead or confuse the jury about the real issue in dispute — whether McCullough or his roommate downloaded the child pornography on the laptop.

Though a part of the charge of the court to the jury may not be pertinent to the issues involved, if it be so clearly irrelevant to such issues that the jury could not have been misled or confused by the giving of such instruction, a new trial will not be granted upon the ground that it was error to give it.

(Citation and punctuation omitted.) Duncan v. State, 101 Ga. App. 504, 506 (1) (114 SE2d 376) (1960). See Brown v. State, 211 Ga. App. 267 (438 SE2d 713) (1993) (no reversible error where charge at issue was mere “surplusage”) (citation and punctuation omitted). That is the situation here, and thus we find that the trial court’s charge on deliberate ignorance did not constitute plain error.

2. McCullough next contends that the trial court committed plain error by giving an erroneous charge on the law of equal access. The trial court charged the jury on the presumption of possession arising from ownership and on the equal access rule:

If you find that a person owns personal property containing contraband, when I say contraband, that means allegedly obscene videos of minors, containing contraband such as alleged in this case, you will be permitted, but not required, to infer that such person is in possession of all files located on or in that property. However, this is a rebuttable inference and may be overcome by evidence in this case that others had access to the property. Whether or not this inference is drawn from proof that a person is the owner of the property and whether or not the inference has been overcome by proof that others had access to the premises, and I’m referring to the computer, are questions for the jury alone. I further charge you in that connection that if you find that the property was used by others with the defendant, such evidence would not alone authorize conviction. However, such a fact, if it is a fact, should be considered by you, the jury, together with all the evidence in the case in passing on the guilt or innocence of the defendant.
If you determine from the evidence that persons other than the defendant had equal opportunity to possess or place the articles of child pornography on the computer at issue without the defendant’s knowledge, then you should acquit the defendant. However, if you are convinced beyond a reasonable doubt that the defendant knowingly possessed the child pornography, or shared possession or control with another person and helped or procured the other person in possessing and having control of the contraband, you would be authorized to convict.

(Emphasis supplied.)

“A charge on equal access is appropriate to counter a jury instruction on presumption of possession^] Equal access is merely a defense available to the accused to whom a presumption of possession flows.” (Citation and punctuation omitted.) McLean v. State, 291 Ga. 873, 878 (5) (a) (738 SE2d 267) (2012). Under the law of equal access, the presumption of possession arising from ownership is rebuttable and does not apply where the evidence shows that a person or persons other than the owner had equal access to the property at issue and thus equal opportunity to possess the contraband. Reyes v. State, 322 Ga. App. 496, 499 (3) (745 SE2d 738) (2013).

According to McCullough, the trial court’s charge on the law of equal access was erroneous because of the italicized language regarding the defendant’s knowledge, which the trial court added at the request of the State. McCullough contends that the italicized language could have misled and confused the jury into mistakenly believing that it could not acquit McCullough if he had knowledge that other persons had even the opportunity to place child pornography on his laptop. We are unpersuaded in light of the jury charges read together as a whole.

Jury charges “cannot be viewed in isolation.” Gaston v. State, 257 Ga. App. 480, 487 (6) (b) (571 SE2d 477) (2002). Rather, in determining whether there was plain error, jury charges “must be read and considered as a whole.” Guajardo v. State, 290 Ga. 172, 176 (4) (718 SE2d 292) (2011). See also Emerson v. State, 315 Ga. App. 105, 112 (2) (726 SE2d 600) (2012).

In addition to the previously quoted charges, the trial court charged the jury that “[kjnowledge that these videos were on the computer hard drive... is an essential element of the crime,” and that the offense of sexual exploitation of children is committed when the defendant “knowingly possesses” the child pornography at issue. The trial court also charged the jury on actual and constructive possession and explained that “a person who knowingly has direct physical control over a thing at a given time is in actual possession of it,” while a person who “knowingly has the power and intention at a given time to exercise authority or control over a thing is in constructive possession of it.” The trial court went on to charge the jury on sole and joint possession and further charged the jury that it “would be authorized to convict only if [it] should find beyond a reasonable doubt that the defendant had actual or constructive possession either alone or jointly with others.”

When these combined charges are read together, it would have been clear to the jury that to convict McCullough, he had to knowingly possess the child pornography found on his laptop, either alone or jointly with others. The combined charges further make clear that the presumption of possession of the child pornography arising from McCullough’s ownership of the laptop could be rebutted by evidence that others had equal access to the laptop. Furthermore, to the extent that the italicized language regarding knowledge could have potentially led to any confusion, that confusion was removed by the subsequent sentence of the charge making clear that to be convicted, McCullough had to have knowingly possessed the child pornography, or have shared possession or control of the child pornography with another person and helped or procured the other person in possessing and having control of that pornography. Accordingly, when the jury charges are read as a whole, we discern no error, much less plain error, arising from the italicized language that McCullough challenges on appeal.

3. Lastly, McCullough contends that the trial court committed plain error in its charge to the jury regarding the use of his audio-recorded statement made to the GBI special agent for impeachment purposes. With regard to McCullough’s audio-recorded statement made during the execution of the search warrant at his residence, the trial court charged the jury to first determine whether McCullough was advised of his Miranda rights and, if so, whether he knowingly and voluntarily waived those rights before making his statement. The trial court further charged the jury:

If you find that all of the warnings as to the defendant’s constitutional rights were given, that the defendant did clearly understand the meaning of what was said and knowingly gave up such rights, and that the statement was voluntary, then you may consider it as evidence. If so, then you must apply the general rules for testing the believability of witnesses and decide what weight, if any, you will give to all or part of such evidence. ... If you fail to find any one of the conditions that I’ve just described, you must disregard the statement entirely and give it no consideration in reaching your verdict, except for the purposes of impeachment.

(Emphasis supplied.) McCullough contends that, because he did not testify at trial, the inclusion of the phrase “except for purposes of impeachment” was plain error because it allowed the jury to consider his audio-recorded statement even if the jury found that his statement was obtained in violation of his Miranda rights.

McCullough is correct that the inclusion of the phrase “except for purposes of impeachment” was erroneous because he did not testify at trial and thus the charge was not adjusted to the evidence. See Jackson v. State, 191 Ga. App. 362, 363 (381 SE2d 759) (1989) (“The instructions of a trial court in a criminal case must be ... adjusted to the evidence admitted in court.”). But even so, it did not rise to the level of plain error because McCullough cannot demonstrate that it affected the outcome of the trial.

In Byrd v. State, 325 Ga. App. 24, 29-30 (2) (b) (752 SE2d 84) (2013), we addressed the same charge at issue here and concluded that the trial court erred by including the phrase “except for purposes of impeachment” because the defendant did not testify at trial. But we pointed out that the trial court also charged the jury on the general law of impeachment, namely, that “a witness may be impeached by disproving the facts to which the witness testified or by proof of contradictory statements previously made by the witness about matters relevant to the witness’s testimony and to the case.” (Punctuation omitted.) Id. at 30 (2) (b). Based on the charge on the general law of impeachment, we reasoned that the jury would have understood that impeachment only applies to witnesses who testify at trial, and given that the defendant did not testify or call any defense witnesses, we concluded that any error from the inclusion of the phrase “except for purposes of impeachment” was harmless. Id. See Biswas v. State, 255 Ga. App. 339, 343-344 (3) (565 SE2d 531) (2002) (any error in giving a charge on impeachment was harmless where defendant did not testify at trial and there was no testimony that could have been impeached).

Here, as in Byrd, the trial court charged the jury on the general law of impeachment. However, McCullough argues that the present case is distinguishable from Byrd because McCullough called several defense witnesses at trial, and the jury could have been confused into believing that it could consider his audio-recorded statement to impeach the testimony of those witnesses, even if it found that the statement was obtained in violation of his Miranda rights.

We need not resolve whether the trial court’s general charge on impeachment could have led the jury to mistakenly consider McCullough’s audio-recorded statement to impeach other defense witnesses. Even if that were true, there still would be no plain error. The trial court’s charges on Miranda and the voluntariness of a defendant’s custodial statements were expressly limited to McCullough’s audio-recorded statement made during the execution of the search warrant at his residence and did “not apply to the video statement” made by McCullough at the Douglas County Sheriff’s Office. As previously noted, McCullough expressly waived any jury instruction on whether he had asserted or waived his right to counsel during his interrogation at the Douglas County Sheriff’s Office or on whether his statements during that interrogation were voluntary. Hence, the jury had before it and was authorized to consider McCullough’s video-recorded, incriminating statements made at the Douglas County Sheriff’s Office, irrespective of whether it found that his prior audio-recorded statement made during the execution of the search warrant was obtained in violation of Miranda. The jury also had before it McCullough’s initial incriminating statements made to the Douglas County investigator in the living room during the execution of the search warrant that were not included on the audio recording made by the GBI special agent. Under these circumstances, McCullough cannot demonstrate that any error in the charge relating to his audio-recorded statement had any effect on the outcome at trial, and thus cannot establish plain error. See generally Cane v. State, 285 Ga. 19, 20-21 (2) (a) (673 SE2d 218) (2009) (improper admission of statement harmless when cumulative of other statements admitted and considered by the jury).

Decided February 17, 2015

Steel Law Firm, Brian Steel, Garland, Samuel & Loeb, John A. Garland, for appellant.

Brian K. Fortner, District Attorney, Thomas E. Kegley, Assistant District Attorney, for appellee.

Judgment affirmed.

Boggs and Branch, JJ., concur.

       Agents also seized various illegal drugs from the residence. McCullough pled guilty to several drug-related offenses, but his convictions on those counts were not at issue at trial or in this appeal.

       Before the GBI agent advised McCullough of his Miranda rights, the Douglas County investigator who had already been speaking with McCullough in the living room prodded him to provide a more complete explanation and encouraged him to “do the right thing” and to “come forth and be clean.” The trial court concluded that the investigator should have advised McCullough of his rights under Miranda before prodding him further about what had occurred. Consequently, the trial court excluded from trial comments that McCullough made in response to the investigator’s prodding up to the point when he was advised of his rights under Miranda by the GBI special agent. In contrast, McCullough’s initial comments made to the Douglas County investigator in the living room, discussed in the preceding paragraph of this opinion, were not excluded.

       At trial, McCullough expressly waived any jury instruction on whether he had asserted or waived his right to counsel during his interrogation at the Douglas County Sheriff’s Office or on whether his statements during that interrogation were voluntary. Consequently, the video recording of that interrogation played for the jury omitted the portion in which McCullough was advised of his rights under Miranda and initially invoked his right to counsel.

       In Williamson, 300 Ga. App. at 548-550 (6), we reversed the defendant’s conviction and remanded for a new trial because the trial court charged the jury on deliberate ignorance. But Williamson is distinguishable from the present case. First, the defendant in Williamson objected to the charge, and thus we employed a harmless error rather than the more stringent plain error analysis. Id. Second, the charge on deliberate ignorance in Williamson went further than the charge in the present case and erroneously stated that the intent element of the underlying criminal offense (not simply the knowledge element) could be satisfied by evidence of deliberate ignorance. Id. at 549 (6). Thus, the charge in Williamson, unlike the charge here, contained an erroneous statement of the law that could have misled the jury.
      We also concluded that the trial court erred in its charge to the jury on deliberate ignorance in Able v. State, 312 Ga. App. 252, 260-261 (3) (b) (718 SE2d 96) (2011), and Hutchins, 326 Ga. App. at 258-259 (3). However, in both of those cases, the charge erroneously equated knowledge and intent, like the charge in Williamson. See Able, 312 Ga. App. at 260-261 (3) (b); Hutchins, 326 Ga. App. at 259 (3). Moreover, in both Able and Hutchins, we did not reach the issue of whether the charge was prejudicial because we had already determined in a prior division of those opinions that a retrial was necessary on other grounds. See Able, 312 Ga. App. at 258 (2); Hutchins, 326 Ga. App. at 258 (2).

       The State argues that McCullough affirmatively waived the alleged error because his trial counsel stated at the charge conference that the jury charge at issue was “appropriate” and was a “balanced charge.” See generally Hicks v. State, 295 Ga. 268, 275 (2) (759 SE2d 509) (2014) (affirmative waiver prevents a finding of plain error). However, the record reflects that the trial court did not add the italicized language regarding the defendant’s knowledge until after defense counsel made the above-referenced comments, and thus the comments were based on a version of the charge that did not include the italicized language in dispute. As such, there was no affirmative waiver.


source: Caselaw Access Project

author: McMillian, Judge.

license: Public Domain

text:
    A14A1621.
    CHILDS v. THE STATE.
    (769 SE2d 147)
   McMillian, Judge.

Herbert Lee Childs, Jr., was tried before a jury and convicted of trafficking in cocaine in violation of OCGA § 16-13-31 (a) (1) and several motor vehicle-related offenses. On appeal, Childs contends that the evidence was insufficient to support the trafficking conviction because the State failed to prove that he had knowledge of the weight of the cocaine. We agree and reverse Childs’ conviction as to trafficking in cocaine.

Viewed in the light most favorable to the jury’s verdict, the record shows that on January 5,2012, Corporal Robert Duncan of the Monroe County Sheriff’s Office was monitoring southbound traffic on 1-75 in Monroe County, Georgia. At approximately 3:00 p.m., Duncan observed a vehicle with extremely dark tinted windows and a tinted tag cover. He stopped the vehicle, which was driven by Childs. Duncan approached the passenger side of the vehicle and smelled the odor of raw marijuana coming from within the vehicle as soon as the passenger, Tamika Freeman, rolled down the window. Childs told Duncan that he was driving his uncle’s vehicle and eventually admitted that there was marijuana in the car but said there was just enough for a joint. While Duncan waited for backup, he learned from dispatch that Childs’ driver’s license was suspended and placed Childs under arrest. Duncan asked Freeman to get out of the car and noticed that she was chewing what he believed to be marijuana. Childs told Duncan that Freeman had the marijuana on her and told Freeman to “give him the weed.” Duncan then placed Freeman in custody and began a probable cause search of the vehicle.

At trial, Duncan testified that, within seconds, he located a brown paper bag inside the center console of the car between the driver seat and the front passenger seat. Inside the brown paper bag were two clear plastic bags. One appeared to contain powdered cocaine and the other held what appeared to be crack cocaine. Duncan testified that, based on his experience, the bags contained a large amount of cocaine that was consistent with distribution rather than personal use. GBI forensic chemist James Wadsworth testified that one bag contained a white chunky substance that appeared to be crack cocaine and weighed 27.32 grams. The other bag contained 35.13 grams of powdered cocaine that he tested and found to be 45.2 percent pure. Wadsworth also testified that although he performs 90 to 100 tests on suspected cocaine each month, he only sees cocaine that falls within the statutory trafficking weight approximately once per month.

Freeman, who was tried along with Childs, testified that she was just riding with Childs that day to visit her mother-in-law near Greenbrier Mall and that she did not know there was any cocaine in the car. She and Childs left Macon around noon, and when they arrived at the mall, she immediately left to spend time with her mother-in-law at a nearby nail salon and restaurant. She did not know what Childs did during this time, but only 30 to 40 minutes later, she called Childs, who then returned to pick her up. Duncan pulled their vehicle over on their way back to Macon when it was almost time for her to pick her kids up from school. According to Freeman, Duncan located the bag of cocaine inside a gray hat that belonged to Childs. Freeman testified that Childs was unemployed at that time but always had money.

1. Childs asserts that the evidence was insufficient to support his conviction for trafficking in cocaine because the State failed to prove that he knowingly possessed a trafficking amount of cocaine. In addressing the sufficiency of the evidence, this Court does not weigh the evidence or determine witness credibility but only considers whether “a rational trier of fact could have found the defendant guilty of the charged offense [ ] beyond a reasonable doubt.” (Citation and punctuation omitted.) Freeman v. State, 329 Ga. App. 429, 431 (1) (765 SE2d 631) (2014). We will uphold a jury’s verdict so long as there is “some competent evidence, even though contradicted, to support each fact necessary to make out the State’s case.” (Citation and punctuation omitted.) Id.

Former OCGA § 16-13-31 (a) (l), in relevant part, provided:

Any person who knowingly sells, manufactures, delivers, or brings into this state or who is knowingly in possession of 28 grams or more of cocaine or of any mixture with a purity of 10 percent or more of cocaine, as described in Schedule II, in violation of this article commits the felony offense of trafficking in cocaine ....

And in Scott v. State, 295 Ga. 39 (757 SE2d 106) (2014), the Supreme Court of Georgia recently overruled a long line of appellate cases on the knowledge required to prove a trafficking offense and held:

The plain language of the version of former OCGA § 16-13-31 (a) (1) at issue dictates the conclusion that knowledge of the quantity of the drug was an element of the crime. It contains express scienter requirements, that is, knowledge of the nature and amount of the drug and of being in possession of it. And, certainly where “knowledge” is made part of an offense, the State has the burden to prove the defendant’s guilty knowledge.

Id. at 40 (1). Thus, the State had the burden of proving that Childs knowingly possessed 28 grams or more of cocaine with a purity of at least 10 percent.

The State, citing Hernandez-Garcia v. State, 322 Ga. App. 455, 461 (745 SE2d 706) (2013), correctly argues that “it 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.” The State contends that the jury could infer that Childs knew the weight of the cocaine based on the fact of the short turn-around trip to Atlanta from Macon, his always having money despite having no employment, the packaging of the cocaine and the two different types of cocaine, and the amount of cocaine, which was consistent with distribution and sale. While this evidence may be sufficient to support a conviction for the lesser included offense of possession of cocaine with intent to distribute in violation of OCGA § 16-13-30 (b), the State nonetheless failed to present sufficient facts and circumstances from which a jury could reasonably infer that Childs knowingly possessed 28 grams or more of cocaine with a purity of 10 percent or more.

Although the State introduced evidence that Childs possessed two bags of cocaine, one bag only appeared to contain crack cocaine. Because that substance was never tested, there is no evidence of its purity. The only confirmed substance was the powdered cocaine, which weighed 35 grams, only seven grams more than the statutory threshold. Moreover, the State could not point to a scale or any other evidence that Childs had weighed or measured the cocaine. And the State presented no evidence of prior similar transactions or other evidence that Childs was specifically familiar with trafficking weights of cocaine and would know that the cocaine he possessed on January 5, 2012 weighed at least 28 grams.

Decided February 18, 2015.

S. Cindy Wang, for appellant.

Thus, the facts of this case are unlike those presented in other cases in which this Court found that the evidence was sufficient to prove that the defendant had knowledge of the weight of the cocaine. For example, in Freeman, the cocaine at issue had a purity of 82 percent and weighed 50.62 grams, nearly two times the trafficking threshold weight of 28 grams. 329 Ga. App. at 432-433 (1). The jury in that case also heard evidence of five similar transactions, including Freeman’s three convictions for possession of cocaine with the intent to distribute, including possession in the amounts of nearly 26 grams and 19 grams of cocaine. Id. Compare also Harrison v. State, 309 Ga. App. 454, 458-459 (2) (b) (711 SE2d 35) (2011) (evidence overwhelmingly showed defendant knowingly possessed a trafficking amount of cocaine where the cocaine was 32 percent pure and weighed 106 grams — more than three-and-a-half times the trafficking threshold and defendant testified that he had previously dealt cocaine and handled 25 grams of cocaine).

Based on the record before us, we find the evidence was insufficient to prove an essential element of the crime of trafficking in cocaine, i.e., that Childs knowingly possessed 28 grams or more of cocaine. Accordingly, we reverse Childs’ conviction for trafficking in cocaine.

2. Because we have reversed his trafficking in cocaine conviction, Childs’ remaining enumerations of error have been rendered moot. See Hamlett v. State, 323 Ga. App. 221, 234 (3) (753 SE2d 118) (2013).

Judgment reversed.

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

Richard G. Milam, District Attorney, Paul E. Hemmann, Assistant District Attorney, for appellee.

        Jackson v. Virginia, 443 U.S. 307 (99 SCt 2781, 61 LE2d 560) (1979).

       Childs is married to Freeman’s cousin.

       During this time, Duncan also confirmed that the vehicle’s windows were tinted approximately 12 percent in violation of OCGA § 40-8-73.1 and that the tag was covered by a tinted cover in violation of OCGA § 40-2-41. Childs does not argue the sufficiency of the evidence on these convictions. The trial court later vacated the conviction for driving while license suspended in violation of OCGA § 40-5-121 (a) because the State failed to present evidence that Childs had received actual or legal notice of the suspension.

       The jury found Freeman guilty only as to one count of tampering with evidence. She is not a party to this appeal.

       The version of the statute applicable to Childs was effective July 1, 2003 to June 30, 2012. See Ga. L. 2003, p. 177, § 4; Ga. L. 2012, p. 899, § 3-8. The present version of the statute became effective July 1, 2013. See Ga. L. 2013, p. 222, § 4. In the latest amendment, the General Assembly deleted “knowingly” throughout subsection (a). See Scott v. State. 295 Ga. 39, 41 (2) (757 SE2d 106) (2014).

       Neither Childs nor the State requested a jury charge on any lesser included offenses.

       See Nixon v. State, 258 Ga. App. 343, 346 (2) (574 SE2d 404) (2002) (unemployment status coupled with large amount of drugs can be evidence of intent to distribute); Navicky v. State, 245 Ga. App. 284, 285-286 (3) (537 SE2d 740) (2000) (presumption arises that a person in control of an automobile possesses contraband found therein); Stewart v. State, 232 Ga. App. 565, 566 (1) (502 SE2d 502) (1998) (4.9 grams of cocaine is sale amount not personal use amount).

       Seven grams equates to approximately 0.25 ounces. See Sloan v. State, 172 Ga. App. 620, 620 (323 SE2d 834) (1984) (one ounce is approximately 28.35 grams).

       We emphasize that unlike in Freeman, the second hag of suspected crack cocaine was never tested for purity and thus cannot be used to show that Childs possessed such a large amount of cocaine with the purity prohibited by statute that his knowledge of the amount could be reasonably inferred.


author: Ray, Judge.

text:
    A14A1902, A14A1903.
    EDWARDS v. THE STATE (two cases).
    (769 SE2d 150)
   Ray, Judge.

A jury convicted Randy Edwards of one count of making a false statement and writing (OCGA § 16-10-20). He was convicted because, although, he had obtained and pawned the title to a car, he signed an official Cancellation of Certificate of Title for Scrap Vehicles form falsely stating that he had not obtained the title and that there were no security interests or liens on the vehicle. In Case No. A14A1902, he appeals from that conviction and from the trial court’s denial of his motion for new trial, arguing that his trial counsel rendered ineffective assistance by failing to file a special demurrer or other challenge to the indictment. He also challenges the sufficiency of the evidence.

As a result of statements he made to a police officer while he was in custody during the investigation of Case No. A14A1902, Edwards was then charged and convicted of five counts of terroristic threats and acts (OCGA § 16-11-37 (a)). In Case No. A14A1903, he appeals from his conviction and the trial court’s denial of his motion for new trial, arguing that his trial counsel rendered ineffective assistance for failing to file a special demurrer or otherwise challenge the indictment, and that the trial court erred in failing to direct a verdict of acquittal.

We have consolidated these cases for purpose of appeal. After careful review, we affirm in both cases.

“On appeal from a criminal conviction, the evidence must be viewed in the light most favorable to support the verdict, and [the defendant] no longer enjoys a presumption of innocence [.]” (Citations and punctuation omitted.) Jackson v. State, 252 Ga. App. 268, 268 (1) (555 SE2d 908) (2001). On appeal, this Court determines only whether the evidence authorized the jury to find the defendant guilty beyond a reasonable doubt, and in doing so, we neither weigh that evidence nor judge the credibility of witnesses. Id. We will consider each case in turn.

1. Case No. A14A1902. The record shows that in October 2011, Edwards entered into a pawn contract with Complete Cash, a title pawn business in Rome. As part of the transaction, Edwards provided, inter alia, a title to his 1988 Chevrolet van, proof of address, and driver’s license. After the loan process was complete, Complete Cash allowed the contracted 30 days for the customer to fully repay the loan. After the 30-day period, Edwards had not paid the loan, and Complete Cash tried many times to contact him from November 2011 through March 2012. Edwards never made a payment on the loan until he paid it in full in June 2012.

On November 29, 2011, Edwards sold the van to Newell Recycling for scrap, and Newell Recycling paid him $540. On that date, Edwards completed a Cancellation of Certificate of Title for Scrap Vehicles form in conjunction with the sale. The form clearly states that the form was to be delivered to the Department of Revenue — Motor Vehicle Division in Atlanta within 72 hours of purchase. On that form, Edwards checked that there were no security interests or liens on the vehicle and that he had “not obtained a Certificate of Title on this vehicle or lost the Certificate of Title.” The documents completed by Edwards were submitted to the Georgia Department of Revenue.

About two weeks after he sold the vehicle for scrap, Edwards told a representative of Complete Cash, who had called in an attempt to collect on the debt, that the vehicle had broken down on Interstate 75.

(a) OCGA § 16-10-20 provides that a person commits the offense of making a false statement or writing, in part, when that person

knowingly and willingly falsifies, conceals, or covers up by any trick, scheme, or device a material fact; makes a false, fictitious, or fraudulent statement or representation; or makes or uses any false writing or document, knowing the same to contain any false, fictitious, or fraudulent statement or entry, in any matter within the jurisdiction of any department or agency of state government[.]

(Emphasis supplied.)

Edwards contends that there is insufficient evidence to demonstrate that he made a false statement regarding a matter within the jurisdiction of a State department or agency. This is without merit. The Cancellation of Certificate of Title for Scrap Vehicles form completed by Edwards clearly states that it was to be sent to the Department of Revenue — Motor Vehicles Division. The Department of Revenue — Motor Vehicles Division is clearly a “department or agency of state government” as defined by the statute. See generally Grant v. State, 227 Ga. App. 88, 92 (2) (488 SE2d 79) (1997).

(b) Edwards next asserts that his trial counsel rendered ineffective assistance for failing to file a special demurrer to the indictment because the indictment failed to name the entity to whom the false statement had been tendered. To the extent that Edwards’ trial counsel should have sought greater specificity in the indictment, “such an argument would be made in a special demurrer.” (Footnote omitted.) Chapman v. State, 318 Ga. App. 514, 517 (1) (a) (733 SE2d 848) (2012). This defense fails in the context of Edwards’ claim for ineffective assistance because he cannot demonstrate prejudice.

If a timely special demurrer is granted, the trial court quashes the indictment. However, the quashing of an indictment merely bars trial on the flawed indictment; it does not bar the State from reindicting the defendant. Thus, even if [Edwards’] attorney had filed a demurrer, it would not have prevented the State from reindicting and trying [Edwards]. And [Edwards] does not argue that the imperfect indictment prejudiced his defense in any way, instead, he argues that the count was void. Under these circumstances, [Edwards] has failed to show that he was prejudiced by his attorney’s failure to file a special demurrer.

(Punctuation and footnotes omitted.) Id.

2. Case No. A14A1903. While Edwards was in custody after being arrested for the charges in Case No. A14A1902, Floyd County police detectives Jeff Jones and Byron McCarley attempted to question him in an interview room at the jail. After the detectives informed Edwards of his Miranda rights, Edwards invoked his right to counsel, and the interview was terminated. At that time, Edwards attempted to leave the interview room alone, in violation of jail protocol. Detective Jones tried to get him to come back into the interview room, but the jail’s booking personnel “took control of” Edwards and placed him in the juvenile holding room.

As the detectives left the jail, they walked past the juvenile holding room. At that time, Edwards addressed the detectives through a door with a glass panel, and Detective Jones audio-recorded parts of the verbal exchange. During the exchange, Edwards told Detective Jones that he wished to

watch you and your loved one, your wife, kids die in a car wreck... laugh[,] cause your day in hell is coming____I hope you die and go to hell. ... I hope your kids die. Seriously I do.... Seriously every night I get on my knees from now on hoping that the old man named Satan does something to your stinking ass, to your kids, or somebody you love man. Every day for the rest of my life until I hear it and see it for myself.... You got me charged with a non-violent crime, that means I’m gonna get out of jail or whatever I’m gonna make bond. You ain’t gonna stop that. But every day until I die I will pray that Jeff Jones will suffer from something, every day from today on. . . .

Detective Jones’ recording was played for the jury. In the recording, Detective Jones is heard laughing at one of Edwards’ comments, but at trial he testified that he laughed because he wanted to give the appearance that he was not afraid or in fear at the time. Detective Jones further stated that he felt terrorized by the statements and that they put him in fear of the safety of himself and his family.

After the close of evidence, the jury convicted Edwards of five counts of making terroristic threats. The trial court denied his motion for new trial, and he appeals.

(a) Edwards argues that the trial court erred in failing to direct verdicts of acquittal on each count of terroristic threats because the statements he made to Detective Jones do not rise to a violation of OCGA § 16-11-37.

“A person commits the offense of a terroristic threat when he or she threatens any crime of violence [ ] . . . with the purpose of terrorizing anotherf.]” OCGA § 16-11-37 (a). Accord Clement v. State, 309 Ga. App. 376, 379 (1) (710 SE2d 590) (2011) (To sustain a conviction for making terroristic threats, the State must establish two elements: “(a) that the defendant threatened to commit a crime of violence against the victim, and (b) that the defendant did so with the purpose of terrorizing the victim”) (citation omitted). Furthermore, “OCGA § 16-11-37 encompasses threats of physical violence directed toward an absent third party.” (Punctuation and footnote omitted.) Nassau v. State, 311 Ga. App. 438, 441 (715 SE2d 837) (2011). And, “a defendant need not have the immediate ability to carry out the threat to violate OCGA § 16-11-37 (a).” (Punctuation and footnote omitted.) Id.

Edwards argues that statements he made to Detective Jones did not constitute a terroristic threat because the statements did not specifically threaten that he would commit “violence against” Detective Jones or his family. Although OCGA § 16-11-37 does not define “threat,” this Court has found that under the plain and ordinary meaning of the word, “ ‘threat’ refers to a communication, declaration, or expression of an intention to inflict harm or damage.” (Footnote omitted.) Clement, supra. Here, Edwards’ repeated declaration that he wished Detective Jones and his family to suffer, combined with his statement that he was likely to be released from jail soon, is sufficient for the jury to infer that Edwards did, in fact, intend his statements to threaten violence against Detective Jones and his family. See Clement, supra (A threat under this Code section “need not take any particular form or be expressed in any particular words, and may be made by innuendo or suggestion”) (citation and punctuation omitted); Jordan v. State, 214 Ga. App. 346, 346-347 (447 SE2d 341) (1994) (evidence sufficient to sustain conviction of terroristic threat when defendant told an officer during a pat-down that the officer “better get a bulletproof vest for [his] head, because we got your 308’s, your 9 millimeters, and your UZI’s. We got it all.”); Enuka v. State, 314 Ga. App. 466, 467-468 (1) (724 SE2d 471) (2012) (evidence was sufficient to sustain conviction of terroristic threat where defendant, after an enraged confrontation, angrily returned to the scene to tell the victim that he was a “dead man”).

Decided February 19, 2015.

Steven A. Miller, for appellant.

Leigh E. Patterson, District Attorney, Emily G. Johnson, Assistant District Attorney, for appellee.

Edwards asserts that the convictions were not warranted because the following facts proved that Detective Jones was not terrorized by the threats: that Edwards was in custody when they were made; no immediate action was taken by the detectives with regard to the threats; and Detective Jones laughed during the exchange, proving that he was not terrorized by the threats. However, “[t]he crime of making terroristic threats focuses solely on the conduct of the accused and is completed when the threat is communicated to the victim with the intent to terrorize.” (Footnote omitted.) Armour v. State, 265 Ga. App. 569, 571 (1) (594 SE2d 765) (2004). We find no error.

(b) Edwards next argues that his trial counsel rendered ineffective assistance by failing to file a special demurrer to the indictment because the indictment failed to name Detective Jones’s family members who were threatened. However, contrary to Edwards’ assertion, the indictment does, in fact, specifically mention Detective Jones’ family members by first initial and last name. Further, this argument fails for the reasons articulated in Division 1 (b) of this opinion.

Judgments affirmed.

Andrews, P. J., and McFadden, J., concur.


text:
    A14A1940.
    MAHALO INVESTMENTS III, LLC et al. v. FIRST CITIZENS BANK & TRUST COMPANY, INC.
    (769 SE2d 154)
   McMillian, Judge.

This appeal presents an issue of first impression — whether under OCGA § 14-11-504 (a), an order charging a member’s interest in a limited liability company with payment of an unsatisfied judgment must be initiated as a separate action against the limited liability company. As more fully set forth below, we discern no error in the issuance of the charging order by the trial court that also entered judgment on the underlying debt and therefore affirm.

Pertinent to the issues presented here, the record shows that on August 18, 2011, appellee First Citizens Bank & Trust Company, Inc. (“FCB”) obtained a judgment in excess of three million dollars (hereinafter referred to as the “original judgment”) against Mahalo Investments III, LLC (“Mahalo”), Mark B. Epstein, and Andrew Kelly (hereinafter collectively referred to as “appellants”) in the State Court of Cobb County. Appellants appealed to this Court, and we affirmed the original judgment without opinion pursuant to our Rule 36. See Mahalo Investments III v. First Citizens Bank & Trust Company, Inc., 319 Ga. App. XXVII (January 24, 2013) (unpublished opinion).

Following remittitur, FCB engaged in discovery in an effort to collect its judgment. During their post-judgment depositions, both Epstein and Kelly revealed they owned interests in several limited liability companies (the “LLCs”), and FCB filed an application under OCGA § 14-11-504 (a) seeking an order charging their interests in the LLCs with payment of the unsatisfied judgment. FCB filed its application in the same court under the same file number assigned to the original civil action in which the original judgment was rendered, and appellants opposed FCB’s request for a charging order on the basis that, inter alia, OCGA § 14-11-504 (a) requires the judgment creditor seeking a charging order to initiate a separate proceeding, apart from the proceeding in which the judgment establishing the debt was rendered. Following a hearing, the trial court issued a charging order against appellants’ interests in the LLCs, without specifically addressing whether the application had been properly filed in that court.

On appeal, appellants contend the trial court erred by entering the charging order against their interest in the LLCs as part of the same action in which the original judgment was entered, and without first establishing that venue and jurisdiction over the LLCs was proper. Appellants argue that their position is supported by both the “statutory text and structure of the charging order remedy” as it relates to limited liability companies, limited partnerships, and partnerships, and our Supreme Court’s decision in Prodigy Centers/Atlanta No. 1 v. T-C Assoc., 269 Ga. 522 (501 SE2d 209) (1998).

We begin with the premise that in construing a statute, we look at its terms, giving words their plain and ordinary meaning, and “[w]here the plain language of a statute is clear and susceptible of only one reasonable construction, we must construe the statute according to its terms.” Atlanta Independent School System v. Atlanta Neighborhood Charter School, Inc., 293 Ga. 629, 631 (748 SE2d 884) (2013).

Under OCGA § 14-11-504, a judgment creditor of a member of a limited liability company has a statutory right to collect a judgment debt from the member’s distributional interests in a limited liability company by obtaining a charging order and diverting payments to the creditor which would otherwise have been made to the member. Subsection (a) of that section sets out the procedure for obtaining a charging order:

On application to a court of competent jurisdiction by any judgment creditor of a member or of any assignee of a member, the court may charge the limited liability company interest of the member or such assignee with payment of the unsatisfied amount of the judgment with interest. . . .

The court that can issue a charging order is mentioned twice in this provision. First, subsection (a) makes it clear that the application must be filed with a court of competent jurisdiction. Appellants do not assert on appeal that the state court does not have subject matter jurisdiction over an application for a charging order. The second reference to court simply refers to “the court,” and grammatically refers back to the “court of competent jurisdiction,” which received the application. Thus, under the plain and unambiguous language of OCGA § 14-11-504 (a), we can discern no basis for disallowing the court that entered the underlying judgment to also enter the charging order so long as that court is a “court of competent jurisdiction.” See Couch v. Red Roof Inns, Inc., 291 Ga. 359, 363 (729 SE2d 378) (2012) (“Instead, what a legislature normally does, if it wants to make sure that readers understand that a word with a broad ordinary meaning does not include something within that meaning, is to expressly define that thing out of the category.”).

Appellants point to slightly different language in the Georgia Uniform Limited Partnership Act’s charging order provision to support their argument that the judgment creditor must initiate an action in a separate court to obtain a charging order. OCGA § 14-8-28 (a) provides:

On due application to a competent court by any judgment creditor of a partner . .., the court which entered the judgment, order, or decree, or any other court, may charge the interest of the debtor partner . . . with payment of the unsatisfied amount of such judgment debt with interest thereon. . . .

Relying on the language “the court which entered the judgment, order, or decree,” appellants assert that these charging order provisions must be read in pari materia and the absence of this language in OCGA § 14-11-504 (a) means that the court that entered the judgment is not permitted to also enter the charging order.

Pretermitting the question of whether the charging order provisions are related statutes for purposes of applying the in pari materia rule, we disagree that the Georgia Uniform Limited Partnership Act’s charging order provision has any bearing on construing the plain and unambiguous language in OCGA § 14-11-504 (a). It has long been held that “[e]ven statutes in pari materia may not be resorted to where the language of the statute under consideration is clear.” Corey Outdoor Advertising, Inc. v. Board of Zoning Adjustments of the City of Atlanta, 254 Ga. 221, 222 (1) (327 SE2d 178) (1985) (citing Ryan v. Commrs. of Chatham County, 203 Ga. 730, 732 (48 SE2d 86) (1948)).

The reason for this rule is obvious — construing statutes together that separately are plain and unambiguous may create ambiguities where none exist. In this case, the Georgia Uniform Limited Partnership Act’s charging provision specifies that the charging order may be issued by “the court which entered the judgment, order, or decree, or any other court.” If, as appellants argue, the absence of the language “which entered the judgment, order, or decree” in OCGA § 14-11-504 (a) means that such courts are prohibited from issuing charging orders, then the same rule ought to apply to the term “or any other court,” which is also absent from subsection (a). But construing the statutes together to prohibit in one what is expressly mentioned in the other would mean that under OCGA § 14-11-504 (a), no court could issue a charging order, an absurd result that has no basis in the text.

In addition to the statutory textual argument, appellants also assert that their interpretation of the statute is supported by our Supreme Court’s decision in Prodigy, 269 Ga. 522. In Prodigy, the issue was whether an interest in a limited liability partnership constitutes a chose in action under Georgia law. The underlying facts were that T-C Associates (“TCA”) first obtained a monetary judgment against Prodigy Child Development Centers (“PCDC”) in the Superior Court of Fulton County. TCA then filed a judgment lien and an application for a charging order against PCDC’s interests in several limited partnerships in the Superior Court of DeKalb County. Id. at 522-523. However, before TCA’s judgment lien was recorded or a charging order was issued, the Internal Revenue Service filed a federal tax lien against PCDC in the Superior Court of Fulton County. The case was subsequently removed to federal court, where the federal government argued that its federal tax lien should have priority over TCA’s lien because its lien was recorded prior to TCA’s lien. On the other hand, TCA contended it should have priority because it obtained its judgment before the federal tax lien was filed. The government responded to this contention by asserting that the debtor’s partnership interest is a chose in action, which requires a charging order, garnishment, or some other collateral proceeding in order for the judgment to attach, which had not taken place at the time the federal government filed its tax lien. The district court granted summary judgment to TCA, and this ruling was appealed to the United States Court of Appeals for the Eleventh Circuit, which certified the question to our Supreme Court. Id. at 522 (citing Prodigy Centers/Atlanta v. T-C Assoc., 127 F3d 1021, 1022 (11th Cir. 1997)). Our Supreme Court answered that question in the affirmative, supporting its conclusion in part by reference to the charging order statutes under the limited liability partnership acts and the Georgia Uniform Limited Partnership Act:

Each statute provides a means by which a judgment creditor of a partner may cause the diversion of monetary payments the partner expects to receive from the partnership to the partner’s judgment creditor. Under both statutory schemes, the judgment creditor must initiate a collateral proceeding in which the creditor seeks a court order charging the debtor partner’s partnership interest with payment of the unsatisfied amount of the judgment, or serves process of garnishment on the partnership. (OCGA §§ 14-9-703 (a); 14-9A-52 (a); 14-8-28 (a).) A judgment creditor must initiate the identical collateral proceedings in order to attach a lien to a chose in action. [Cit.]

Id. at 526 (4).

Appellants argue that the Court’s use of the phrase “initiate a collateral proceeding” means that the application for a charging order must be filed in a wholly separate action. However, we are not persuaded that Prodigy stands for the proposition urged by appellants. First, the question of whether an entirely new proceeding, meaning, according to appellants, a separate proceeding under a different case number and possibly in a different court, must be initiated by a judgment creditor to obtain a charging order against a member’s interests in a limited liability entity was not at issue in Prodigy. Our appellate courts have

repeatedly cautioned that our decisions stand only for the points raised by the parties and decided by the court. Questions which merely lurk in the record, neither brought to the attention of the court nor ruled upon, are not to be considered as having been so decided as to constitute precedents.

(Citations and punctuation omitted.) Holton v. Physician Oncology Svcs., L.P., 292 Ga. 864, 869-870 (2) (742 SE2d 702) (2013).

Moreover, appellants’ own statutory textual argument is antithetical to its interpretation of Prodigy. In referencing “collateral proceedings” to obtain a charging order, Prodigy cited to the charging order statutes under the limited liability partnership acts and the Georgia Uniform Limited Partnership Act. But both Georgia’s Uniform Limited Partnership Act, OCGA § 14-9A-52 (a), (“ULPA”) and Georgia’s Revised Uniform Limited Partnership Act, OCGA § 14-9-703 (a), (“RULPA”) contain language similar to the language used in OCGA § 14-11-504 (a), authorizing a judgment creditor to bring an application for a charging order in “a court of competent jurisdiction,” or a “competent court,” respectively, and each of these statutes refers generally to “the court” that may issue the charging order. In addition, Prodigy cited the Georgia Uniform Limited Partnership Act’s charging order provision, OCGA § 14-8-28, which appellants rely on, without distinguishing it from the limited partnership charging order statutes, implying that the language should be read consistently.

Thus, the language cited by appellants in Prodigy merely confirms that, beyond obtaining a judgment establishing a debt, a creditor must initiate an additional proceeding, collateral to the one establishing the debt, and request a separate order from the court to charge a debtor’s interests in a limited liability company, limited liability partnership, or partnership. See generally Brown v. King, 266 Ga. 890, 891 (1) (472 SE2d 65) (1996) (“a contempt action to enforce court-ordered child support payments is an independent proceeding that is ancillary to the divorce action and not a new civil action”). And the charging order statutes further direct that the additional proceeding be initiated by a written application filed in a court of competent jurisdiction.

However, that conclusion merely brings us to the ultimate issue in this case — what is meant by a “court of competent jurisdiction” as that term is used in OCGA § 14-11-504 (a). And more specifically, whether jurisdiction and venue over the judgment debtor and member of the limited liability company is sufficient or whether, as appellants contend, a court is competent to issue a charging order only if jurisdiction and venue over the limited liability company is proper.

As to this issue, we begin again with the charging order statute and the remedy that it provides to a judgment creditor vis-á-vis the limited liability company. As an initial matter, we note that OCGA § 14-11-504 (a) is silent as to whether the limited liability company is to be made a party to the proceeding initiated by the application for a charging order.

Instead, subsection (a) focuses on the judgment debtor/member’s interest in the limited liability company, limits the rights of the judgment creditor under the charging order: “[t]o the extent so charged, the judgment creditor has only the rights of an assignee of the limited liability company interest,” and makes it clear that “[t]his chapter does not deprive any member of the benefit of any exemption laws applicable to his or her limited liability company interest.” OCGA § 14-11-504 (a). See also OCGA § 14-11-502 (concerning assignment of a limited liability company interest). Moreover, under OCGA § 14-11-504 (b), unless provided in the articles of organization or in a written operating agreement, “a judgment creditor shall have no right under this chapter or any other state law to interfere with the management or force dissolution of a limited liability company or to seek an order of the court requiring a foreclosure sale of the limited liability company interest.” See generally L. Andrew Immerman and Bryan N. Baird, The Georgia LLC Act: Recent Developments and Future Possibilities, 6 John Marshall L. J. 565, 597 (2013) (“The amendment to section 14-11-504 (b) of the Georgia LLC Act clarifies that when a creditor receives a judgment against a member or an assignee of an LLC interest, the creditor is not thereby granted leave to interfere in the management of the LLC or to take certain other actions that would be disruptive to the company’s business.”).

We glean from these provisions that the charging order is a mechanism by which a judgment creditor can attach a member’s limited liability company interest to satisfy an unpaid judgment, but that the charging order does not permit the judgment creditor to replace the member or otherwise interfere in the governance of the limited liability company. Moreover, it is the judgment debtor’s right to possession of distributions in the future that is essentially being levied or charged. Thus, from the limited liability company’s standpoint, it is business as usual except that any distributions to the member subject to the charging order are diverted to the judgment creditor. Because the limited liability company has no right or direct interest that is affected by the charging order, we see no reason why it must be added as a party to the proceeding to obtain the charging order. See Bank of America, N. A. v. Freed, 983 NE2d 509, 520-521 (Ill. App. Ct. 2012) (rejecting contention that a court must obtain jurisdiction over a limited liability company or partnership in order to charge a judgment debtor’s distributional interest in those entities under similar charging order statutes). Thus, we hold that under Georgia’s limited liability company act, it is only necessary for a court to have jurisdiction over the judgment debtor to have the authority to enter charging orders against the judgment debtor’s interest.

In the present case, there is no contention that the court that entered the charging order did not have jurisdiction over Epstein and Kelly. Accordingly, and because appellants assert no other error warranting reversal, we hereby affirm the order of the trial court charging Epstein and Kelly’s interests in the named LLCs.

Judgment affirmed.

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

Decided February 19, 2015.

Schreeder, Wheeler & Flint, John A. Christy, Andrew J. Lavoie, for appellants.

Stokes Lazarus & Carmichael, William K. Carmichael, Rachel A. Humphrey, King & Spalding, N. Charles Campbell, for appellee.

       Although our opinion may he found in the section listing unpublished written opinions issued under our Rule 33 (b), we decided this case under Court of Appeals Rule 36, which governs judgments that are affirmed without an opinion.

       Appellants do not appear to contest FCB’s general entitlement to a charging order against their interests in the LLCs.

       Although in the proceedings below appellants argued that a charging order is an equitable remedy that can only be imposed by a superior court, they have not pressed this argument on appeal.

       Georgia’s ULPA applies to limited partnerships existing before 1988, unless the preexisting limited partnership elects to adopt the provisions of Georgia’s RULPA in writing. OCGA § 14-9A-2.1; Prodigy, 269 Ga. at 524, n. 4.

       OCGA § 14-9A-52 (a) provides: “On due application to a court of competent jurisdiction by any judgment creditor of a limited partner, the court may charge the interest of the indebted limited partner with payment of the unsatisfied amount of the judgment debt. . . .” OCGA § 14-9-703 (a) provides: “On application to a competent court by a judgment creditor of a partner or of any assignee of a partner, the court may charge the partnership interest of the partner or such assignee with payment of the unsatisfied amount of the judgment, with interest. . . .”


author: Branch, Judge.

text:
    A14A2268.
    CPF INVESTMENTS, LLLP v. FULTON COUNTY BOARD OF ASSESSORS.
    (769 SE2d 159)
   Branch, Judge.

This interlocutory appeal arises out of a dispute between CPF Investments, LLLP (“CPF’) and the Fulton County Board of Assessors (“the Board”) over the Board’s valuation of certain real property owned by CPF. CPF purchased the property in 2011 from the Federal Home Loan Mortgage Corporation (“Freddie Mac”), and CPF contends that OCGA § 48-5-2 (3) requires the Board to value the property at its 2011 sale price for the 2012 tax year. CPF moved for summary judgment on this issue in the court below and the Board opposed that motion. The Board argued that OCGA § 48-5-2 (3) does not apply to sales involving government agencies because such entities are obligated to act in the best interests of their constituents, rather than in the best interests of the entities themselves. Thus, sales involving government agencies cannot meet the statutory definition of an arm’s length, bona fide transaction, which requires that both parties to the transaction be acting in their own best interests. The Board further asserted that Freddie Mac constitutes a government agency.

The trial court agreed with the Board and denied CPF’s motion for summary judgment. The court then certified its order for immediate review, and we granted CPF’s application for an interlocutory appeal. For reasons explained below, we find that the trial court erred as a matter of law when it found that a tax authority may presume that any sale of property that involves a government agency is not an arm’s length, bona fide transaction. Additionally, the record shows that the Board failed to come forward with any evidence supporting its assertion that the 2011 sale of the property by Freddie Mac was not an arm’s length, bona fide transaction. Thus, regardless of whether Freddie Mac is a government agency, the trial court erred in denying CPF’s summary judgment motion.

The facts in this case are undisputed and show that the property at issue is located in a residential subdivision and that a five-bedroom house is situated on the land. On March 2, 2010, Chase Home Finance, LLC (“Chase”), purchased the property for $271,735. That same day, Chase sold the property to Freddie Mac for the price at which Chase had purchased it. In June 2010, Freddie Mac offered the property for sale with an asking price of $306,900. The property remained on the market for approximately seven months, until Glenn French, the general partner of CPF, purchased it from Freddie Mac for $207,000 in February 2011. On June 16, 2011, French executed a quitclaim deed transferring the property to CPF.

The Board appraised the property at $370,400 for the 2012 tax year. CPF appealed that valuation to the Board of Equalization (“BOE”) asking that the appraisal be lowered to the 2011 purchase price. The BOE subsequently adjusted the appraisal to $340,000. The “Appraiser Notes” in the BOE file state that CPF “was asking for sales price of $207,000[,] which does not reflect the market in 2011. The sale was a Fannie Mae [sic] sale, which the county [does] not recognize. The BOE agreed with the county on a value of $340,000.”

CPF appealed the BOE decision to the Fulton County Superior Court, seeking to have the appraised value of the property reduced to the 2011 sales price and asserting a claim for attorney fees. After the case had been pending for six months, CPF moved for summary judgment on the issue of valuation, asserting that under OCGA § 48-5-2 (3) the valuation for the 2012 tax year could be no higher than the 2011 sale price of $207,000. In support of its motion, CPF submitted the affidavit of French, who stated that he was not and never had been “related to or affiliated with Freddie Mac,” and that the 2011 sale was an arm’s length transaction, entered into in good faith and without fraud or deceit. The Board opposed the motion, arguing that sales involving government agencies were presumed not to meet the definition of a bona fide sale under OCGA § 48-5-2 (3) and that Freddie Mac was a government agency. To support these assertions, the Board submitted the affidavit of Douglas Kirkpatrick, the deputy chief appraiser of the residential division of the Fulton County Board of Tax Assessors. Kirkpatrick averred that “[b]ecause government agencies are not willing sellers acting out of self-interest, but acting in the interest of the public, the Tax Assessors’ residential staff is trained that sales involving government agencies do not meet the definition of a bona fide sale”; that “[b]ased on its charter, purpose[,] and mission, [Freddie Mac] is acting in the interest of the United States’ public, not in its own self-interest”; and that “[accordingly, no sale from [Freddie Mac] is considered by the Tax Assessors as a bona fide sale.” Kirkpatrick further indicated that the presumption that sales involving government entities were not bona fide sales was based on OCGA § 48-5-274, which provides a formula for the State Auditor to use in formulating an adjusted property tax digest for each county.

Relying on Kirkpatrick’s affidavit, the trial court found that because “Freddie Mac is a government agency” the 2011 sale of the property did not qualify as an arm’s length, bona fide sale under OCGA § 48-5-2 (3). The court further found that the sale did not reflect the fair market value of the subject property. Based on these findings, the court denied CPF’s motion for summary judgment. This appeal followed.

Both in the trial court and on appeal, the parties have focused on the question of whether Freddie Mac is a government agency. That question, however, is relevant only if OCGA § 48-5-2 (3) authorizes the Board to treat property sales involving government agencies differently from all other property sales. We therefore begin our analysis by construing the relevant statutory language found in OCGA § 48-5-2.

“When we consider the meaning of a statute, ‘we must presume that the General Assembly meant what it said and said what it meant.’ ” Deal v. Coleman, 294 Ga. 170, 172 (1) (a) (751 SE2d 337) (2013) (citation omitted). Thus if the language of the statute is plain and unambiguous, we simply apply the statute as written. See Opensided MRI of Atlanta v. Chandler, 287 Ga. 406, 407 (696 SE2d 640) (2010); Frazier v. Southern R. Co., 200 Ga. 590, 593 (2) (37 SE2d 774) (1946) (when construing the language of a statute, appellate courts “may not substitute by judicial interpretation language of their own for the clear, unambiguous language of the statute, so as to change the meaning”).

The first of the statutory provisions at issue, OCGA § 48-5-2 (3), provides:

“Fair market value of property” means the amount a knowledgeable buyer would pay for the property and a willing seller would accept for the property at an arm’s length, bona fide sale. The income approach, if data is available, shall be considered in determining the fair market value of income-producing property. Notwithstanding any other provision of this chapter to the contrary, the transaction amount of the most recent arm’s length, bona fide sale in any year shall be the maximum allowable fair market value for the next taxable year. . . .

(Emphasis supplied.)

The statute contains no language exempting sales involving government agencies from the mandate found in the last sentence of this Code section. Moreover, the above-emphasized language makes clear that this mandate applies to all sales of real property, regardless of the identity of the parties, provided such a transaction constitutes an “arm’s length, bona fide sale.” The definition of an “arm’s length, bona fide sale” is found in OCGA § 48-5-2 (.1), which provides:

“Arm’s length, bona fide sale” means a transaction which has occurred in good faith without fraud or deceit carried out by unrelated or unaffiliated parties, as by a willing buyer and a willing seller, each acting in his or her own self-interest, including but not limited to a distress sale, short sale, bank sale, or sale at public auction.

(Emphasis supplied.)

The Board argues that any sale involving a government agency can never meet the statutory definition of an arm’s length, bona fide sale “[b]ecause government^] sponsored enterprises, like [Freddie Mac do] not... act[ ] out of self-interest, but act[ ] in the interest of the public.” To support this presumption, the Board relies on the portion of Title 48 that sets forth the State Auditor’s duties in establishing adjusted property tax digests for each county. See OCGA § 48-5-274. That statute instructs the State Auditor to use the “Standard on Assessment-Ratio Studies published by the International Association of Assessing Officers” when establishing for each county the “ratio of assessed value to fair market value of county property” subject to taxation. OCGA § 48-5-274 (c). In his affidavit, Kirkpatrick stated that this Standard “provides that sales involving government agencies are generally invalid for the ratio studies used in mass appraisal tax assessments” and “specifically states that these ‘types of sales are often found to be invalid for ratio studies and can be automatically excluded unless a larger sample size is needed and further research is conducted to determine that the sales are open market transactions.’ ” Citing OCGA § 48-5-274 and Kirkpatrick’s affidavit, the Board contends that sales involving government agencies are excluded from “the ratio studies used in mass appraisals ... because they do not reflect [sales] from a willing seller acting in its own self-interest.” Thus, the Board concludes that it is authorized to presume that sales involving government agencies do not constitute arm’s length, bona fide sales under OCGA § 48-5-2 (3). We find this argument wholly unpersuasive.

First, the Board offers no support for its assertion as to the reason that real estate transactions involving government agencies are excluded from property tax ratio studies. Although the Board cites to Kirkpatrick’s affidavit to support this proposition, Kirkpatrick in fact offered no opinion as to the reasons underlying this asserted rule. Rather, he simply stated that the rule existed. Moreover, the Board fails to offer any reasoned argument or legal authority to explain why we should look to OCGA § 48-5-274 (which deals with the duties of the State Auditor in formulating county tax digests) to interpret OCGA § 48-5-2 (which defines terms relevant to the ad valorem taxation of property by counties). Accordingly, we must conclude that had the legislature intended to exempt transactions involving government agencies from the mandate of OCGA § 48-5-2 (3), then the legislature would have expressed that intent directly. See Six Flags Over Ga. v. Kull, 276 Ga. 210, 211 (576 SE2d 880) (2003) (“[w]here the language of a statute is plain and unambiguous, judicial construction is not only unnecessary but forbidden”) (citation omitted).

In light of the foregoing, the sale at issue must be deemed an arm’s length, bona fide sale unless the Board can offer some evidence that would support a finding that the transaction involved fraud or deceit; that there was some relationship or affiliation between Freddie Mac and French that predated the sale; or that Freddie Mac was, in fact, acting counter to its own best interests in order to benefit French. See OCGA § 48-5-311 (e) (4) (a county’s “board of tax assessors shall have the burden of proving its opinions of value and the validity of its proposed assessment by a preponderance of evidence”). Moreover, as noted above, OCGA § 48-5-2 (.1) expressly defines an arm’s length, bona fide sale to include those types of transactions where the seller might suffer a financial loss (including distress sales, short sales, bank sales, or sales at public auction). Thus, the mere fact that Freddie Mac suffered a financial loss as a result of the sale is insufficient to show that Freddie Mac was not acting in its best interests.

Here, because the Board bore the burden of proving that Freddie Mac’s sale of the property to French was not an arm’s length, bona fide sale, CPF was entitled to summary judgment if the record showed either an absence of evidence supporting the Board’s position or affirmative proof that contradicted that position — i.e., proof that the sale was an arm’s length, bona fide transaction. See Warner v. Hobby Lobby Stores, 321 Ga. App. 121 (741 SE2d 270) (2013). CPF came forward with affirmative evidence, in the form of French’s affidavit, that the purchase of the property constituted an arm’s length, bona fide transaction. To defeat CPF’s summary judgment motion, therefore, the Board was required to come forward with some evidence that disputed French’s affidavit and supported the Board’s case. Id. Instead, the Board offered only its unfounded presumption that as a government agency, Freddie Mac could never act in its own best interest. Accordingly, CPF was entitled to judgment as a matter of law.

Decided February 19, 2015.

Hillis, Robison & Coffelt, Lindsey W. Hillis, Eric A. Coffelt, for appellant.

Shalanda M. J. Miller, for appellee.

In light of the foregoing, the order of the trial court denying CPFs summary judgment motion is reversed. The case is remanded for entry of judgment in favor of CPF and for consideration of CPF’s claim for attorney fees.

Judgment reversed and case remanded with direction.

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

       This Code section provides in part that for tax appraisal purposes, “the transaction amount of the most recent arm’s length, bona fide sale [of a property] in any year shall he the maximum allowable fair market value [of that property] for the next taxable year.”

       Chase acquired the property from an owner who had paid $420,000 for the property in June 2002. It therefore appears that Chase purchased the home at a foreclosure sale and Freddie Mac then bought the property from Chase.

       The Board’s reliance on OCGA § 48-5-274 is discussed more fully below.

       Additionally, the language of OCGA § 48-5-2 (3) makes clear that so long as the sale at issue was an arm’s length, bona fide transaction, the Board may not assess the property at a higher value in the year following that sale, regardless of whether the Board believes the sale price reflects the actual fair market value of a property. Put another way, the Board may not engage in any determination of a property’s actual fair market value for assessment purposes until the second year following that property’s most recent sale resulting from an arm’s length, bona fide transaction.

       We also find the Board’s position — that the best interests of a governmental entity are not and can never be synonymous with the best interests of the public which that entity serves — to be not only cynical, but also contrary to our fundamental understanding of government. As our founding fathers expressed in the Declaration of Independence: “Governments are instituted among Men, deriving their just powers from the consent of the governed.” See also The Federalist No. 62 (James Madison) (“A good Government implies two things: first, fidelity to the object of Government, which is the happiness of the People; secondly, a knowledge of the means by which that object can be best attained.”); McCulloch v. Maryland, 17 U. S. 316, 404-405 (4 Wheat. 316, 4 LE 579) (1819) (“The government of the Union, then ... , is, emphatically, and truly, a government of the people. In form and in substance it emanates from them. Its powers are granted by them, and are to be exercised directly on them, and for their benefit.”). Given these principles, and in the absence of any evidence to the contrary, we must assume that when a government agency acts so as to fulfill its duty to advance the public interest it simultaneously advances its own interests.

       There could be many reasons why a seller would view such as sale as being in the seller’s best interest.

       Again, for purposes of this appeal, we have merely assumed that Freddie Mac is a government agency; we have not decided that issue.


author: Miller, Judge.

text:
    A14A2321.
    MORRIS v. THE STATE.
    (769 SE2d 163)
   Miller, Judge.

Following a jury trial, Johnny David Morris was convicted of driving under the influence (“DUI”) less safe (OCGA § 40-6-391), driving too fast for conditions (OCGA § 40-6-180), failing to use brake lights (OCGA § 40-8-25), failing to use headlights (OCGA § 40-8-22), and a window tint violation (OCGA § 40-8-73.1). Morris appeals, arguing that the trial court erred by denying his motion for a directed verdict and that he received ineffective assistance from his trial counsel. For the reasons that follow, we affirm.

On appeal from a criminal conviction, we view the evidence in the light most favorable to the jury’s verdict. See Wallace v. State, 294 Ga. App. 159 (1) (669 SE2d 400) (2008). So viewed, the evidence shows that Officer Randy Greenewold, of the Forest Park Police Department, was on patrol on the morning of December 15, 2012. At approximately 5:18 a.m., Officer Greenewold observed Morris driving on Old Dixie Highway, traveling 60 to 65 miles per hour in a 40 mile per hour zone and without any lights on.

Upon approaching Morris’s car, Officer Greenewold noticed that Morris’s eyes were glassy and he smelled of alcohol. Morris told Officer Greenewold that he had drunk a six-pack of beer three hours earlier. Based on this information, as well as Morris’s performance on the horizontal gaze nystagmus test, the walk-and-turn test, and the one-leg-stand test, as well as Morris’s positive alcohol breath test, Officer Greenewold arrested him for DUI less safe. Officer Greene-wold also measured the car’s window tint and determined that it was too dark.

1. Morris argues that the trial court erred in denying his motion for directed verdict, insisting that there was insufficient evidence identifying him as the driver. Morris’s argument is without merit, because Officer Greenewold testified that Morris was the driver.

When the State first asked Officer Greenewold if Morris was the driver he arrested that night, Officer Greenewold hesitated and observed that it had been nearly two years since the incident. However, he ultimately responded in the affirmative and, at two points later in the trial, he again confirmed that Morris was the driver he arrested that night.

“[T]he testimony of a single witness is generally sufficient to establish a fact.” (Citation omitted.) Crawford v. State, 301 Ga. App. 633, 635 (1) (688 SE2d 409) (2009). Given Officer Greenewold’s identification of Morris, the evidence was sufficient for the jury to conclude that Morris was the driver. In addition, to the extent Morris challenges the credibility of Officer Greenewold’s identification, that is a matter which fell squarely within the province of the jury. See id.

2. Morris argues on appeal, for the first time, that he received ineffective assistance from his trial counsel. However, appellate review of this claim is barred because Morris failed to raise it at the first practicable opportunity.

Under well established Georgia law, appellant was required to raise any issue of ineffective assistance of trial counsel at the earliest practicable moment to avoid it being deemed waived. This requirement that an ineffectiveness claim be made at the earliest practicable moment is a requisite of a sound system of criminal justice, serving alike the proper ends of defendants and the public. By “earliest practicable moment,” we mean that the ineffectiveness claim must be raised before appeal if the opportunity to do so is available.

(Citations and punctuation omitted.) Garland v. State, 283 Ga. 201, 202 (657 SE2d 842) (2008). In cases where a defendant raises a claim of ineffective assistance of trial counsel for the first time on appeal — rather than through a motion for new trial before the trial court — the issue is procedurally barred. See Maxwell v. State, 262 Ga. 541, 543 (3) (422 SE2d 543) (1992) (failure to file motion for new trial raising ineffective assistance of counsel claim in trial court bars review); see also Dawson v. State, 302 Ga. App. 842, 843-844 (691 SE2d 886) (2010) (failure to file motion to withdraw guilty plea raising ineffective assistance of counsel claim in trial court bars review).

Decided February 20, 2015.

Knights Law Group, Stephen N. Knights, Jr., for appellant.

Tasha M. Mosley, Solicitor-General, for appellee.

In this case, the trial court entered Morris’s judgment of conviction on March 26, 2014. On April 23, 2014, Morris’s appellate attorney filed both an entry of appearance and a notice of appeal. Then, on May 28, 2014, appellate counsel filed a motion for new trial. The trial court dismissed the motion, as amended, because the pending appeal had removed the case from the trial court’s jurisdiction.

Morris was required to assert his claim of ineffective assistance of counsel at the earliest opportunity, and was further required to present his claim to the trial court before arguing it on appeal. See Garland, supra, 283 Ga. at 202. Where, as here, appellate counsel’s representation commences before the notice of appeal is filed, the defendant’s first opportunity to raise a claim of ineffective assistance of trial counsel is in a motion for new trial. See Dawson, supra, 302 Ga. App. at 844 (where current appellate counsel was appointed prior to the filing of the notice of appeal, defendant’s first opportunity to raise a claim of ineffective assistance of earlier counsel would have been in a second motion to withdraw his guilty plea); Williams v. State, 257 Ga. App. 589, 590 (3) (571 SE2d 571) (2002) (pro se defendant’s failure to file motion for new trial before filing notice of appeal bars review of his ineffective-assistance claim). Morris failed to file such a motion, and instead raised the claim for the first time in his appeal. Under these circumstances, Morris’s claim of ineffective assistance of trial counsel is now barred and may only be addressed in a habeas corpus proceeding.

Judgment affirmed.

Doyle, P. J., and Dillard, J., concur.