text:
    A12A0574.
    JONES v. THE STATE.
    (727 SE2d 216)
   Ellington, Chief Judge.

A Chatham County jury found Robert Lee Jones guilty of impersonating a police officer, OCGA § 16-10-23; burglary, OCGA § 16-7-1 (a); and armed robbery, OCGA § 16-8-41 (a). He appeals from the denial of his motion for new trial, contending that the evidence was insufficient to support his convictions, that the trial court abused its discretion in denying his motion to sever, and that he received ineffective assistance of counsel at trial. Finding no error, we affirm.

1. Jones contends that the evidence was insufficient to support his convictions, arguing that there was no direct evidence of his participation in the crimes and that the remaining evidence was purely circumstantial and did not eliminate the possibility that someone else had committed the crimes.

When a criminal defendant challenges the sufficiency of the evidence supporting his or her conviction, “the relevant question is whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt.” (Citation omitted; emphasis in original.) Jackson v. Virginia, 443 U. S. 307, 319 (III) (B) (99 SC 2781, 61 LE2d 560) (1979). It is the function of the jury, not this Court, to resolve conflicts in the testimony, weigh the evidence, and draw reasonable inferences from the evidence. Id.

To warrant a conviction based solely on circumstantial evidence, “the proved facts shall not only be consistent with the hypothesis of guilt, but shall exclude every other reasonable hypothesis save that of the guilt of the accused.” OCGA § 24-4-6.

In order to support a conviction, [however,] such circumstantial evidence does not have to exclude every possible hypothesis other than the defendant’s guilt, but only reasonable hypotheses. Whether a hypothesis is reasonable is a question for the jury, and such finding will not be disturbed on appeal unless the guilty verdict is insupportable as a matter of law.

(Citations omitted; emphasis in original.) Eberhart v. State, 241 Ga. App. 164, 165 (1) (526 SE2d 361) (1999). Ultimately, “[a]s long as there is some competent evidence, even though contradicted, to support each fact necessary to make out the State’s case, the jury’s verdict will be upheld.” (Citation and punctuation omitted.) Miller v. State, 273 Ga. 831, 832 (546 SE2d 524) (2001). Viewed in this light, the record reveals the following facts.

On the morning of May 31, 2008, a man entered a Chatham County supermarket, approached the owner, and identified himself as “Detective John,” a police officer who was investigating a “drug-related case.” According to the owner, the man was wearing a dark-colored jacket and glasses “just like an undercover policeman,” and was carrying a black briefcase. The man said that he wanted to talk to the owner in the store’s office and, once they were inside the office, the man (hereinafter, “the robber”) closed the door, opened his briefcase, and pulled out a handgun. The robber forced the owner at gunpoint to walk to the store’s counter, open a safe, and give him all of the money that was inside. The robber then forced the owner back into the office, where he made the owner lie down, told him not to move, and took all of the cash from the owner’s wallet. The robber threatened to kill the owner if he moved, then ran out of the store. The owner grabbed a handgun out of an office drawer and ran outside to stop the robber. The owner saw the robber running toward the passenger side of a white Ford Explorer SUV that was parked on a side street and saw another man standing near the driver’s side door. The owner started running after and shooting at the men, who abandoned the SUV and escaped on foot. Astore employee called 911, and police investigators found three shell casings from the owner’s gun in the side street. After photographing and attempting to lift fingerprints from the outside of the SUV, the officers impounded the SUV and obtained a search warrant for it.

In the meantime, shortly after the supermarket armed robbery, a couple who lived a few blocks away from the supermarket saw two men walking across a vacant lot behind their house and toward their back door. According to the wife, the men appeared to be police officers, because one of them was wearing a jacket with what appeared to be a metal badge. While one of the men kneeled down near a shed in the couple’s back yard, the other man approached the home’s back door and pushed his way inside the house. The intruder was wearing a blue jacket and dark trousers. After realizing that the intruder was not a police officer, the wife ran out the front door and flagged down a police patrol car that was passing by. Then, upon hearing sirens from nearby police patrol cars, the husband walked out the back door and, after the intruder followed him, the husband ran back inside and locked the intruder out of the house.

While searching the area around the couple’s home, a police officer found a black leather badge holder on the ground in a lane that ran between the home and a vacant lot. Officers also found a bandana and a BB pistol that was shaped like a handgun in the vacant lot behind the couple’s home. In addition, investigators found a briefcase near the shed, a pair of sunglasses in the back yard, and an abandoned dark blue jacket on some trash cans near the house.

During the search of the robber’s SUV that had been seized after the supermarket armed robbery, officers found two identification cards for “Robert Jones,” mail addressed to “Shamia Hamilton,” and a receipt for a bandana that had been purchased at a local Walmart store at 8:09 a.m. on the day of the crimes. The officers interviewed Hamilton, who later admitted at trial that she was a friend of the defendant in this case and that he was driving a white SUV on the day of the crimes. A detective and other police officers executed a search warrant for Hamilton’s residence on June 1, the day after the crimes occurred.

Upon entering Hamilton’s residence, the officers found the defendant sitting on a couch, nursing injuries to his foot that were consistent with a gunshot wound. The keys to the robber’s SUV were on the floor near the defendant. Among the other items found by the officers inside the residence were a pair of Nike sneakers with blood on the right shoe, income tax forms for “Robert J ones,” a torn up social security card bearing the name “Israel Jones,” an empty plastic package for a badge holder, and a Spring 2008 issue of Quartermaster magazine, from which law enforcement equipment may be ordered, that was addressed to “Israel Jones” at an Atlanta address. The officers arrested the defendant, and, because the evidence found in Hamilton’s residence also implicated Israel Jones in the crimes, they arrested him in Atlanta a few days later.

The supermarket owner subsequently identified Israel Jones from a photographic lineup, and again at trial, as the armed robber who had claimed to be “Detective John”; he was unable, however, to identify the man who had been waiting by the SUV and who had fled with the robber. The man who had been the victim of the home invasion, however, identified both Israel Jones and the defendant from separate photographic lineups as the man who had forcibly entered his home and as the man who had waited by the shed, respectively.

The State jointly indicted and tried the defendant and Israel Jones for the crimes committed at the supermarket and at the couple’s home, and argued to the jury that, while Israel Jones was the principal actor in both incidents, the evidence showed that the defendant was guilty as a party to the crimes. As shown above, this argument was supported by evidence establishing the defendant’s active involvement in aiding and abetting Israel Jones before, during and after the crimes, including evidence that the defendant drove Israel Jones to the supermarket in his SUV; that he waited by the SUV during the crimes with the intention of using it as a getaway car; that the pair ran away from the supermarket together; that he waited near the shed in the couple’s back yard while Israel Jones forced his way into the house; that a briefcase matching the one used during the supermarket armed robbery was found next to the shed; that the pair again fled together when they heard police sirens nearby; and that, shortly after the crimes were committed, he was found with an apparent gunshot wound to his foot in a residence that contained property belonging to him, as well as to Israel Jones.

Given this substantial, albeit circumstantial, evidence of the defendant’s active participation in the crimes that occurred at the supermarket before, during and after they were committed, the jury was authorized to conclude that he was guilty beyond a reasonable doubt as a party to those crimes. See Jordan v. State, 281 Ga. App. 419, 422-423 (1) (636 SE2d 151) (2006) (evidence that the defendant waited at the scene during the armed robbery of a jewelry store and then drove the getaway car, in which the stolen jewelry, a loaded pistol, and substantial other evidence from the crime were found when the car was stopped by the police, was sufficient to support the jury’s conclusion that she was guilty of the armed robbery as a party to the crime).

2. Jones argues that the trial court abused its discretion in denying his motion to sever his trial from that of his co-defendant, Israel Jones. We disagree.

When the death penalty is not sought, the severance of defendants’ trials is within the sound discretion of the trial court and its decision will not be disturbed unless there is an abuse of that discretion. OCGA § 17-8-4. The burden is on the defendant moving for severance to demonstrate more than the possibility that a separate trial would provide him with a better chance of acquittal; he must establish a clear showing of prejudice. In exercising its discretion, the trial court must consider the following factors: (1) whether the number of defendants creates confusion as to the law and evidence to be applied to each; (2) whether a danger exists that evidence admissible against one defendant might be considered against the other notwithstanding instructions to the contrary; and (3) whether the defenses are antagonistic to each other or each other’s rights.

(Punctuation and footnotes omitted.) Jordan v. State, 281 Ga. App. at 423-424 (2). See also Harper v. State, 300 Ga. App. 757, 769 (12) (686 SE2d 375) (2009) (“[T]he exercise of a trial court’s discretion in denying a motion to sever will not be disturbed on appeal unless the defendant clearly demonstrates that he suffered prejudice by one or more of the above factors amounting to a denial of due process.”) (punctuation and footnote omitted).

In this case, the defendant has failed to show that the evidence may have been confusing to the jurors, especially when there were only two co-defendants and when the eyewitnesses specifically identified Israel Jones as the principal actor in both the armed robbery and the home intrusion. Further, he has failed to show that his defenses were antagonistic to those of his co-defendant or that there was any evidence introduced at the joint trial that could not have been introduced against him in a separate trial. See Diaz v. State, 280 Ga. App. 413, 416 (634 SE2d 160) (2006) (even though the co-defendants’ defenses were antagonistic, severance of the trial was not required, because the charged offenses were a series of continuous acts, there was no likelihood of confusión, and the defendant failed to show he was harmed by the introduction of evidence that would have been admissible against him in a separate trial). In addition, as shown in Division 1, supra, there was overwhelming evidence of the defendant’s active participation in the crimes. Accordingly, we find that the trial court did not abuse its discretion when it denied his motion to sever. Jordan v. State, 281 Ga. App. at 424 (2); see Character v. State, 285 Ga. 112, 118 (5) (674 SE2d 280) (2009) (even if the jury heard evidence that was only relevant to the guilt of the appellant’s co-defendants, any error in denying his motion to sever was harmless considering the overwhelming evidence that the appellant participated as a party to the crimes in question).

3. Jones contends that his trial counsel provided ineffective assistance when he failed to present any evidence in support of an alibi defense. This claim lacks merit.

In order to prevail on a claim of ineffective assistance of counsel, a criminal defendant must show that counsel’s performance was deficient and that the deficient performance so prejudiced the client that there is a reasonable likelihood that, but for counsel’s errors, the outcome of the trial would have been different. The criminal defendant must overcome the strong presumption that trial counsel’s conduct falls within the broad range of reasonable professional conduct.

(Citations and punctuation omitted.) Robinson v. State, 277 Ga. 75, 75-76 (586 SE2d 313) (2003). See Strickland v. Washington, 466 U. S. 668 (104 SC 2052, 80 LE2d 674) (1984).

“As a general rule, matters of reasonable tactics and strategy, whether wise or unwise, do not amount to ineffective assistance of counsel.” (Citation and punctuation omitted.) Grier v. State, 273 Ga. 363, 365 (4) (541 SE2d 369) (2001). “The decisions on which witnesses to call and all other strategies and tactical decisions are the exclusive province of the lawyer after consultation with his client.” (Citation and punctuation omitted.) Moreland v. State, 263 Ga. App. 585, 588 (4) (588 SE2d 785) (2003). Ultimately, “[d]eciding what evidence to present or to forego in defending a client charged with a crime is a matter of strategy and tactics.” (Citation omitted.) Nichols v. State, 281 Ga. 483, 485 (2) (a) (640 SE2d 40) (2007). “Whether an attorney’s trial tactics [were] reasonable is a question of law, not fact.” (Citation and punctuation omitted.) Moreland v. State, 263 Ga. App. at 588 (4). When assessing the reasonableness of counsel’s actions, courts must evaluate counsel’s performance from his or her perspective at the time of trial. Grier v. State, 273 Ga. at 365 (4).

Finally, when this Court reviews a trial court’s ruling on an ineffective assistance claim on appeal, “[w]e accept the trial court’s factual findings and credibility determinations unless clearly erroneous, but we independently apply the legal principles to the facts.” (Citation and punctuation omitted.) Robinson v. State, 277 Ga. at 76.

In this case, the record shows that, at the hearing on the motion for new trial, trial counsel testified that the defendant had told him before trial that, although he had parked his car near the supermarket, he had left the area and loaned his car to someone else before the armed robbery took place. According to counsel, he investigated the defendant’s story and even subpoenaed some witnesses for trial, but he realized before trial that none of the witnesses were able to provide an alibi for the defendant for the actual time period during which the crimes took place, and he was unable to find any other evidence that supported the defendant’s alibi. Moreover, during the motion for new trial hearing, the defendant failed to present any evidence in support of his alibi or to proffer the testimony of any of the alibi witnesses he now claims were available to testify on his behalf at trial.

Therefore, without an affirmative showing that evidence supporting his alibi defense existed before trial and that a negligent oversight by counsel (as opposed to a strategic decision by counsel) prevented it from being presented to the jury, “it is impossible for [the defendant] to show there is a reasonable probability the results of the [trial] would have been different. Absent the required proffer, it cannot possibly be said that the additional witnesses would have testified favorably to [the defendant].” (Citations and punctuation omitted.) McRae v. State, 289 Ga. App. 418, 420 (2) (657 SE2d 323) (2008). See also Rouse v. State, 295 Ga. App. 61, 65 (2) (670 SE2d 869) (2008) (The defendant failed to present any admissible evidence regarding what his alleged alibi witness would have said if counsel had called her to testify at trial. Thus, he failed to demonstrate that the testimony would have been favorable to his defense and that, as a result, there was a reasonable likelihood the testimony would have changed the outcome of his trial.).

Decided April 6, 2012.

Brian L. Daly, for appellant.

Larry Chisolm, District Attorney, Julayaun M. Waters, Assistant District Attorney, for appellee.

Judgment affirmed.

Phipps, P. J., and Dillard, J., concur.

       The defendant and Israel Jones are not related to one another.

       The jury found both co-defendants not guilty of the burglary charge that arose from the home invasion.

       Every person concerned in the commission of a crime is a party thereto and may be charged with and convicted of commission of the crime. ... A person is concerned in the commission of a crime only if he: (1) Directly commits the crime; (2) Intentionally causes some other person to commit the crime under such circumstances that the other person is not guilty of any crime either in fact or because of legal incapacity; (3) Intentionally aids or abets in the commission of the crime; or (4) Intentionally advises, encourages, hires, counsels, or procures another to commit the crime.
      OCGA § 16-2-20. If the defendant is not the actual perpetrator of the crime, his mere presence at the scene of the crime is not sufficient evidence to establish that he was a party to the crime. Pruitt v. State, 282 Ga. 30, 32 (1) (644 SE2d 837) (2007). Instead, the State must show that the defendant shared a common criminal intent with the actual perpetrator, a fact which the jury may infer from evidence of the defendant’s conduct before, during, and after the crimes. Id.
      In this case, the trial court instructed the jury on parties to a crime.

       Although, the defendant argues on appeal that the jurors may have been confused because both defendants were black males and both had the last name of Jones, he failed to raise this argument in the court below. Accordingly, it was waived. See Williams v. State, 277 Ga. App. 106, 108 (2) (625 SE2d 509) (2005) (This Court does not consider issues or grounds for objection that were not raised and ruled upon in the trial court.).


source: Caselaw Access Project

author: Ellington, Chief Judge.

license: Public Domain

text:
    A12A0607.
    BRADBERRY v. THE STATE.
    (727 SE2d 208)
   Ellington, Chief Judge.

Eddie Bradberry brought this direct appeal from an order of the Superior Court of Jackson County that denied both his motion for sentence modification and his motion for forensic testing of what he characterized as a “DNA sample.” In this appeal, Bradberry does not challenge the court’s ruling with respect to his sentencing; rather, he contends that the court erred in denying his post-conviction motion to have a semen sample tested for the presence of condom lubricants, alleging that a positive test result would prove that the victim in this case obtained his semen from a condom that he had used with a different sexual partner and then placed it in her vagina in order to frame him for rape. For the following reasons, we lack jurisdiction and dismiss this appeal.

A Jackson County jury found Bradberry guilty of one count of rape, three counts of child molestation, and two counts of cruelty to children, and this Court affirmed those convictions. See Bradberry v. State, 297 Ga. App. 679 (678 SE2d 131) (2009). On January 10, 2010, following the return of the remittitur, Bradberry filed a “Motion for Reduction of Sentence and Consolidated Brief,” and, on April 12, 2010, he filed a “Motion for Forensic Testing of DNA Sample.” Following a hearing, the court denied both motions in a single order on November 17, 2010. On December 13, 2010, Bradberry filed a notice of appeal from the order.

“It is the duty of this Court in all instances to inquire into our jurisdiction.” (Footnote omitted.) Segura v. State, 280 Ga. App. 685, 686 (1) (634 SE2d 858) (2006). Our review of the record in this case shows that Bradberry was not authorized to bring this appeal directly, but, for the following reasons, was required to file an application for discretionary appeal.

In the jurisdictional statement of his appellate brief, Bradberry contends that a direct appeal is authorized pursuant to OCGA § 5-5-41 (c), which applies to a trial court’s decision on a felon’s post-conviction motion for the performance of forensic DNA testing. He characterizes his motion for the forensic testing of his semen sample as “DNA testing,” and asserts that he may bring a direct appeal pursuant to OCGA § 5-5-41 (c) since his motion was not accompanied by or made a part of a motion styled as an extraordinary motion for new trial, citing Howard v. State, 307 Ga. App. 772, 773, n. 1 (706 SE2d 136) (2001). The provisions of OCGA § 5-5-41 (c), however, only apply to those motions seeking “the performance of forensic deoxyribonucleic acid (DNA) testing.” OCGA§ 5-5-41 (c) (1). Bradberry is not seeking a DNA test; he is seeking to have a semen sample tested for the presence of chemicals typically found in condom lubricants, a test which may be accomplished using infrared spectroscopy and other non-DNA testing procedures, as his own expert opined in the affidavit attached to the motion. Thus, the order appealed is not one denying a stand-alone motion for DNA testing under OCGA§ 5-5-41 (c); therefore, it is not directly appealable under that Code section and the case law interpreting it. Thus, to maintain this 1direct appeal, Bradberry must have another, independent basis for the appeal.

Bradberry timely filed a motion for sentence modification within 120 days of the sentencing court’s receipt of the remittitur. OCGA § 17-10-1 (f). The denial of a timely motion to modify under this statute may be subject to a direct appeal. See, e.g., Anderson v. State, 290 Ga. App. 890 (660 SE2d 876) (2008); Maldonado v. State, 260 Ga. App. 580 (580 SE2d 330) (2003). However, because Bradberry did not appeal that portion of the court’s order addressing sentencing, he may not challenge those other rulings which, pursuant to OCGA § 5-6-34 (d), could have been brought up and reviewed with the appealable judgment, though they lacked an independent basis for appeal. See Bunn v. State, 284 Ga. 410, 412 (3), n. 2 (667 SE2d 605) (2008).

Nor has Bradberry shown that he may rely upon the collateral order doctrine as a basis for a direct appeal. Under the collateral order doctrine, an order that is not a final judgment may be appealed without compliance with the interlocutory appeal procedure provided in OCGA § 5-6-34 (b) if the order appealed

(1) resolves an issue that is “substantially separate” from the basic issues to be decided at trial, (2) would result in the loss of an important right if review had to await final judgment, and (3) completely and conclusively decides the issue on appeal such that nothing in the underlying action can affect it.

(Citation and punctuation omitted.) Britt v. State, 282 Ga. 746, 748 (1) (653 SE2d 713) (2007). The collateral order doctrine, however, addresses only the issue of finality and does not address whether the judgment is subject to the discretionary appeal procedure. OCGA § 5-6-34 (a) (1), concerning appealable final judgments, provides for the direct appeal of “[a]ll final judgments, that is to say, where the case is no longer pending in the court below, except as provided in Code Section 5-6-35 [the discretionary appeal statute].” (Emphasis supplied.) See generally Expedia, Inc. v. City of Columbus, 305 Ga. App. 450, 454 (699 SE2d 600) (2010); McFadden, Brewer and Sheppard, Ga. Appellate Practice, § 10:5 (2011-2012 ed.).

Bradberry has not identified in his brief an applicable jurisdictional basis for directly appealing the order denying his motion to retest his semen sample for condom lubricants. In fact, Bradberry has not shown that he had a right, under these circumstances, to file a post-conviction motion seeking only to retest the semen sample without also demonstrating that the expected test results would constitute newly discovered evidence warranting the grant of a new trial. Indeed, even if we construed Bradberry’s motion as an extraordinary motion for new trial based upon a claim that the test results would constitute newly discovered evidence, the denial of the motion cannot serve as a basis for this appeal. This is because a “direct appeal does not lie from the denial of an extraordinary motion for new trial separate from the original appeal; an application for discretionary appeal is required. OCGA § 5-6-35 (a) (7)[.]” (Citation omitted.) Gulledge v. State, 276 Ga. 740, 741 (583 SE2d 862) (2003). See also Crawford v. State, 278 Ga. 95, 96 (1) (597 SE2d 403) (2004). Consequently, we must dismiss this appeal for lack of jurisdiction.

Decided April 6, 2012

McNeill Stokes, for appellant.

J. Bradley Smith, District Attorney, Gregory L. Wagner, Robin R. Riggs, Assistant District Attorneys, for appellee.

Appeal dismissed.

Phipps, P. J., and Dillard, J., concur.

       Had Bradberry’s motion for DNA testing been made as part of an extraordinary motion for new trial, the court’s order denying the motion would have been subject to the discretionary appeal procedure, even though OCGA § 5-5-41 (c) (13) states that “[tjhe petitioner or the state may appeal an order, decision, or judgment rendered pursuant to this Code section.” Crawford v. State, 278 Ga. 95, 96 (1) (597 SE2d 403) (2004).

       OCGA § 5-6-34 (d) provides, in relevant part:

        Where an appeal is taken under any provision of subsection (a), (b), or (c) of this Code section, all judgments, rulings, or orders rendered in the case which are raised on appeal and which may affect the proceedings below shall be reviewed and determined by the appellate court, without regard to the appealability of the judgment, ruling, or order standing alone and without regard to whether the judgment, ruling, or order appealed from was final or was appealable by some other express provision of law contained in this Code section, or elsewhere. . ..
      (Emphasis supplied.) Id.

       Generally, a defendant is entitled to only one direct appeal from a judgment of conviction. Jackson v. State, 273 Ga. 320 (540 SE2d 612) (2001); Cox v. Hillyer, 65 Ga. 57 (1880). Exceptions to this rule are typically reserved for the “extraordinary motion or case.” Id. Compare Williams v. State, 271 Ga. 686, 688-689 (523 SE2d 857) (1999) (because a trial court retains jurisdiction to correct an illegal sentence and impose a legal sentence outside the term of court, a convicted defendant may challenge a void sentence by a motion in the trial court and direct appeal will lie). Since Bradberry has exhausted his appeal of right, his post-conviction remedies are limited. A criminal defendant’s conviction which has been affirmed on direct appeal may be reviewed again by the filing of an extraordinary motion for new trial or a petition for writ of habeas corpus. Richards v. State, 275 Ga. 190, 191, n. 1 (563 SE2d 856) (2002)6.


author: Dillard, Judge.

text:
    A12A0506.
    LIPSCOMB v. THE STATE.
    (727 SE2d 221)
   Dillard, Judge.

Following a trial by jury, Phillip David Lipscomb was convicted of one count of child molestation. On appeal, Lipscomb contends that (1) the evidence was insufficient, (2) the trial court erred in denying a motion to strike a juror for cause, and (3) the trial court erred in denying a motion for mistrial when the State during closing arguments made remarks that he alleges were improper. For the reasons set forth infra, we affirm.

Viewed in the light most favorable to the jury’s verdict, the record reflects that on the evening of April 14, 2010, Lipscomb was playing video games at the home of his brother and sister-in-law. Around 8:00 p.m., Lipscomb’s brother and sister-in-law decided to run two quick errands and to leave their children, three-year-old K. L. (the victim) and five-year-old N. L., with Lipscomb because the children had just been put in bed. When the parents returned approximately 20 minutes later, the mother immediately checked in on the children. She found N. L. asleep in his room, but K. L. was awake and whining in her bed. The mother apologized for disturbing K. L., left her in bed, and proceeded to the bathroom. But K. L. followed her mother to the bathroom and immediately made an outcry against Lipscomb, who was known to the children as “Uncle PJ.” When asked what was wrong, K. L. told her mother that Uncle PJ “licked my butt and stuck his finger in my wee-wee.” The mother then lifted K. L.’s shirt and saw that the child’s underwear was on sideways, with both legs through one hole.

Thereafter, K. L.’s father was summoned to the bathroom, where K. L. repeated her allegations against Lipscomb. The father also observed that K. L.’s underwear was on improperly. At this time, Lipscomb was still playing video games at the family’s home, and K. L.’s parents called the police. K. L. was taken to the emergency room later that night, where she repeated her outcry to the examining physician, who performed a genital exam. The exam revealed no injuries to K. L.’s genital or rectal area, although the State presented medical testimony that the absence of physical injuries was not inconsistent with the victim’s allegations of abuse.

A few weeks later, K. L. underwent a videotaped forensic interview. Although K. L.’s description of what transpired was somewhat different during this interview, she described Lipscomb’s penis as being white with dots on it. And law enforcement subsequently obtained a search warrant to photograph Lipscomb’s genitalia to corroborate this description. Lipscomb was thereafter indicted on one count of aggravated sodomy, two counts of aggravated sexual battery, and one count of child molestation. At trial, the jury found Lipscomb guilty on the count of child molestation but acquitted him as to all other counts. This appeal follows.

At the outset, we note that on appeal of Lipscomb’s criminal conviction, “we view the evidence in the light most favorable to the jury’s verdict, and [Lipscomb] no longer enjoys a presumption of innocence.” And we neither “weigh the evidence nor assess witness credibility, which are tasks that fall within the exclusive province of the jury.” With these guiding principles in mind, we turn now to Lipscomb’s enumerations of error.

1. Lipscomb first contends that the evidence was insufficient to sustain his conviction for child molestation. We disagree.

A person commits the offense of child molestation when he or she “does any immoral or indecent act to or in the presence of or with any child under the age of 16 years with the intent to arouse or satisfy the sexual desires of either the child or the person . . . .” And here, Lipscomb was charged with child molestation against K. L. in that he committed such an act with the intent to arouse his sexual desires by “removing the panties of [K. L.] and exposing his penis to her.”

As to the removal of K. L.’s panties, Lipscomb argues that the evidence was insufficient because K. L. never alleged that they were removed and because testimony by K. L.’s parents established that she had repeatedly removed her own clothing — including her underwear — throughout the day. Once again, we disagree.

While it is certainly true that K. L.’s parents testified that she removed her own clothing during the course of the day, their testimony also indicated that K. L. was not inclined to replace her clothing without assistance or instruction. And both testified that before they left to run a quick errand, K. L.’s underwear was on properly, but it was on improperly when they returned approximately 20 minutes later. Additionally, in K. L.’s forensic interview, the video of which was shown to the jury, K. L. explained to the interviewer that her uncle removed her underwear and then replaced them. From this, the jury could infer that K. L.’s panties had been removed by Lipscomb (and hurriedly replaced), which is sufficient evidence of child molestation.

As to the exposure of his penis, Lipscomb argues that the evidence was insufficient because K. L. never claimed that he showed her his penis. Nevertheless, we also find the evidence sufficient to convict Lipscomb on this count. K. L.’s forensic-interview description of Lipscomb’s penis as being white with dots was corroborated by photographic evidence, which revealed a freckle or mole on Lipscomb’s genitalia. From this, the jury could determine that Lipscomb’s genitalia was exposed to K. L., which is sufficient evidence of child molestation. Thus, Lipscomb’s conviction could be supported by the evidence that he removed K. L.’s underwear or that he exposed his penis because, in either event, the evidence was sufficient to sustain his conviction.

Finally, we note that although Lipscomb testified that he did not commit the charged offense, “the jury was not required to believe [his] testimony, nor to disbelieve the [S]tate’s witnesses.” The jury’s role is “to resolve conflicts in the evidence and determine the credibility of witnesses.” Accordingly, under the facts of this case, there was sufficient evidence from which the jury could convict Lipscomb of child molestation.

2. Next, Lipscomb contends that the trial court erred in failing to strike a juror for cause when the juror expressed bias against Lipscomb during voir dire. We disagree.

As we have previously held, “it shall be good cause of challenge that a juror has expressed an opinion as to which party ought to prevail or that he has a wish or desire as to which shall succeed.” And a potential juror must be excused for cause “if he or she holds an opinion so fixed and definite that he or she will be unable to set it aside and decide the case on the evidence and the court’s charge on the evidence.” When a challenge has been made, “the trial court has a duty to hear the competent evidence respecting the challenge as shall be submitted by either party, the juror being a competent witness.” And when bias is shown, “the trial court must do more than rehabilitate the juror through the use of any talismanic question” because the court “is statutorily bound to conduct voir dire adequate to the situation . . . ,” Additionally, “trial courts have broad discretion to evaluate and rule upon a potential juror’s impartiality, based upon the ordinary general rules of human experience.” In this regard, “a trial court may only be reversed upon a finding of manifest abuse of that discretion.”

In the case sub judice, Lipscomb takes issue with a potential juror who, through her responses to a number of questions asked of the panel as a whole, expressed that she had already formed an opinion as to the guilt or innocence of the defendant. The judge concluded that it would be appropriate to conduct individual voir dire of this juror (along with a number of other jurors). When questioned one-on-one by the trial judge as to why she had so answered the questions, the juror responded,

Well, I have two young girls and I have a friend whose nephew was assaulted sexually in a bathroom at a swimming pool. . . . And so just naturally, you know, I feel like if [the defendant’s] here, [the State] must have a lot of evidence against him and it’s just hard to think about it having small children.

Thereafter, the judge questioned the juror as to whether she could “wait until the evidence actually begins at trial before . . . [making] a decision about guilt or innocence,” to which the juror responded that she could. The juror also said that she did not have “a definite opinion” and that she had not formed an opinion “a hundred percent.” And although she indicated that she had some opinion as to guilt or innocence, when further questioned by the judge, the juror said that she could keep an open mind until actually hearing evidence, that she understood that the indictment against Lipscomb was not evidence, that she could be fair to both sides, and that she accepted the constitutional principle that Lipscomb was presumed innocent until proven guilty. She then, in response to additional questions by the court, described what had happened to her friend’s nephew, and her education and work experience. Finally, she again answered that she could base her decision on the evidence presented and be fair to both sides.

When Lipscomb thereafter moved to strike the juror for cause, the trial court denied the motion based on the juror’s responses. Lipscomb later used a peremptory strike against the juror, and he now appeals the trial court’s denial of his motion to strike for cause. But based on the extensive questioning by the trial court and the juror’s detailed responses to those questions, we find no manifest abuse of discretion in the trial court’s decision to deny Lipscomb’s motion to strike for cause.

3. Finally, Lipscomb argues that the trial court improperly denied a motion for mistrial after the State made improper statements to the jury during closing arguments. We disagree.

It is well settled that the State has a very wide permissible range in closing argument. And when a trial judge passes upon a motion for mistrial based upon an allegation that argument was improper, the judge “is vested with a broad and sound discretion, and his ruling will not be controlled by this Court unless manifestly abused.” Here, we find no manifest abuse of discretion by the trial judge.

In the case sub judice, Lipscomb contends that the State engaged in four instances of burden-shifting during closing arguments. Specifically, he refers to three instances in which the State questioned why Lipscomb did not present a medical expert to testify that bruising and trauma would have been present if K. L.’s allegations were true. The other instance surrounds the State’s question of why Lipscomb, when he testified, did not use one of the trial exhibits — a photograph of K. L.’s room — to identify a toy that was central to his defense, namely that on the night in question, he only briefly visited K. L.’s room after he heard her whining, and moved a toy she was playing with so that she would go to sleep. He contends that each statement equated to burden-shifting and that the latter statement was also a comment upon his right to remain silent.

But our Supreme Court has held that “[a] prosecutor may argue that the defendant has not rebutted or explained the State’s evidence.” And here, the State’s closing argument did this by addressing the defendant’s contention during his own closing argument that K. L. would have sustained injuries if she had been molested — a claim which contradicted the testimony of the examining physician. Moreover, the trial court sustained Lipscomb’s objections to these remarks and repeatedly instructed the jury that the burden of proof was upon the State and that the burden never shifts to the defendant.

Additionally, with regard to the State’s question as to why Lipscomb did not point out the above-referenced toy when a picture of K. L.’s room was on display during his testimony, “[t]here is no error in permitting the State’s attorney to comment on the absence of corroborating evidence in closing argument.” In his trial testimony, Lipscomb admitted that he informed one officer that he removed the toy from K. L.’s hands, but he also testified to never showing the toy to police and never mentioning it to family. Thus, the State was not commenting upon Lipscomb’s failure to testify but instead attacked Lipscomb’s defense that he entered K. L.’s room and removed a toy from her hands to help her sleep.

Accordingly, for all the foregoing reasons, we affirm Lipscomb’s conviction.

Judgment affirmed.

Ellington, C. J., concurs. Phipps, P. J., concurs fully as to Division 1 and in judgment only as to Divisions 2 and 3.

Decided April 9, 2012.

Teresa L. Smith, for appellant.

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

        See, e.g., DeLong v. State, 310 Ga. App. 518, 518 (714 SE2d 98) (2011).

       K. L. repeated her allegation that Lipscomb inserted a finger in her vagina but also alleged that he inserted a finger and his penis into her butt. She did not repeat the allegation that he licked her.

       OCGA § 16-6-2 (a) (2) (“A person commits the offense of aggravated sodomy... when he or she commits sodomy with a person who is less than ten years of age.”).

       OCGA § 16-6-22.2 (b) (“A person commits the offense of aggravated sexual battery when he or she intentionally penetrates with a foreign object the sexual organ or anus of another person without the consent of that person.”).

       OCGA § 16-6-4 (a) (1) (“A person commits the offense of child molestation when such person[ ]... [d]oes any immoral or indecent act to or in the presence of or with any child under the age of 16 years with the intent to arouse or satisfy the sexual desires of either the child or the person . . . .”).

        DeLong, 310 Ga. App. at 519-20.

        Id. at 520 (punctuation omitted).

       OCGA§ 16-6-4 (a) (1).

        See DeLong, 310 Ga. App. at 520-21 (1) (sufficient evidence of child molestation when, inter alia, child was found asleep with her underwear “pulled down”).

        See Westbrooks v. State, 309 Ga. App. 398, 399-401 (1) (710 SE2d 594) (2011) (sufficient evidence to sustain child molestation conviction when, despite lack of detailed testimony by victim at trial, victim’s out-of-court statements describing molestation to others were admitted); Wilkerson v. State, 266 Ga. App. 721, 722 (1) (598 SE2d 364) (2004) (holding that “simply exposing one’s sexual organs to a child can be sufficient proof” of child molestation).

        See Cantu v. State, 304 Ga. App. 655, 658 (2) (a) (697 SE2d 310) (2010) (“[When] conjunctive pleadings set forth more than one act by which the accused committed the crime, the evidence is sufficient so long as it shows at least one of the acts alleged. If a crime may be committed in more than one way, it is sufficient for the State to show that it was committed in any one of the separate ways listed in the indictment, even if the indictment uses the conjunctive rather than disjunctive form.” (punctuation omitted)).

        Brown v. State, 295 Ga. App. 542, 544 (672 SE2d 514) (2009).

        Id.

         See Obeginski v. State, 313 Ga. App. 567, 569 (1) (722 SE2d 162) (2012) (“The child victim’s testimony alone authorized [the defendant’s] convictions on the crimes charged, and her statements were further corroborated by her mother [and other witnesses].”).

        Harper v. Barge Air Conditioning, Inc., 313 Ga. App. 474, 475 (1) (722 SE2d 84) (2011) (punctuation omitted); see also OCGA§ 15-12-134.

        Wood v. B &S Enters., Inc., 314 Ga. App. 128, 133 (4) (723 SE2d 443) (2012) (punctuation omitted).

        Harper, 313 Ga. App. at 475 (1) (punctuation omitted).

        Bennett v. Mullally, 263 Ga. App. 215, 217-18 (1) (587 SE2d 385) (2003) (physical precedent only) (punctuation omitted).

        Wood, 314 Ga. App. at 133 (4) (punctuation omitted).

        Id. (punctuation omitted); see also Harper, 313 Ga. App. at 476 (1) (“[B]ecause trial courts are vested with hroad discretion in evaluating and ruling upon a potential juror’s impartiality, we will only reverse when there has heen a ‘manifest abuse’ of the trial court’s discretion.”).

        See Hardy v. Tanner Med. Ctr., Inc., 231 Ga. App. 254, 256 (4) (499 SE2d 121) (1998) (trial court did not abuse its discretion by denying motion to strike juror when juror’s answers to questions gave assurance that juror could be fair to both sides and listen to the evidence). Compare Harper, 313 Ga. App. at 478 (1) (holding that trial court abused its discretion in failing to make a proper inquiry of jurors and/or failing to strike jurors for cause after jurors explicitly expressed bias).

        See, e.g., Crusselle v. State, 303 Ga. App. 879, 884 (3) (694 SE2d 707) (2010) (“It is well settled that the permissible range of the state’s closing argument is very wide.”).

        Id. (punctuation omitted).

        Arrington v. State, 286 Ga. 335, 346 (16) (c) (687 SE2d 438) (2009).

       The examining physician testified it is not unusual to observe a lack of injuries when oral sodomy and digital penetration are alleged.

        See Arrington, 286 Ga. at 346 (16) (c) (holding that defendant’s claim that State engaged in burden-shifting was without merit when State argued that defendant had not rebutted evidence and trial court instructed jury as to burden of proof).

        Pearson v. State, 277 Ga. 813, 815 (3) (596 SE2d 582) (2004) (punctuation omitted).

        Id. (holding that State did not comment upon defendant’s failure to testify when it questioned during closing arguments why defendant never gave police the murder weapon because the comment “was a valid attack on the credibility of [the defendant’s] claim that the homicide was justified”); see also Arrington, 286 Ga. at 346 (16) (c) (“A prosecutor may argue that the defendant has not rebutted or explained the State’s evidence.”).


author: PHIPPS, Presiding Judge.

text:
    A11A1242.
    KITCHENS et al. v. EZELL et al.
    (726 SE2d 461)
   PHIPPS, Presiding Judge.

Shonquetta Kitchens, Merrill Kitchens, and Merrill Kitchens, individually and as administrator of the estate of Makayla Kitchens (the “Kitchenses”) sued Trenton Ezell and Azaline Jackson for damages arising out of an automobile accident. Contending that their automobile liability insurer, State Farm Mutual Automobile Insurance Company, had reached a settlement with the Kitchenses on their behalf, Ezell and Jackson filed a motion to enforce that settlement. The trial court granted the motion to enforce, and it denied a corresponding motion by the Kitchenses, who claimed that no settlement had ever been reached, for partial summary judgment on the issue of affirmative defense of settlement. The trial court, sua sponte, also awarded attorney fees and costs under OCGA § 9-15-14, and directed that they be paid by the Kitchenses’ counsel. For the reasons that follow, we find that the trial court erred in granting the motion to enforce settlement, in denying the motion for partial summary judgment, and in awarding attorney fees.

We conduct a de novo review of a trial court’s order on both a motion to enforce a settlement agreement and a motion for summary judgment. The issues raised in such motions are analogous. To prevail on either a motion for summary judgment or a motion to enforce a settlement agreement, a party must show the court that the documents, affidavits, depositions and other evidence in the record reveal that there is no evidence sufficient to create a jury issue on at least one essential element of the appellant’s case.

The evidence, which is not in dispute, shows that on June 28, 2009, a car driven by Ezell collided with a car driven by Shonquetta Kitchens. Kitchens and her daughter, Makayla, were both injured in the accident, and Makayla later died of her injuries.

The car driven by Ezell was owned by Jackson and insured by State Farm. The applicable policy limits were $25,000 per person/$50,000 per accident for bodily injury claims and $25,000 for property damage claims. On August 7, 2009, the attorney representing the Kitchenses sent a letter to State Farm offering to settle his clients’ bodily injury claims. The letter initially, however, addressed property damage claims. Counsel requested related information, such as repair estimates, and informed State Farm that “we will look into the property damage claims on this end so that we can sort out any remaining issues.”

Counsel then stated that his clients were “anxious to resolve all of their bodily injury claims quickly [.]” The letter asked State Farm for certain insurance documentation and affidavits, and then informed State Farm that his clients had an automobile policy with Liberty Mutual that provided for uninsured motorist coverage. Counsel then wrote:

[W]e will need to use a bodily injury release of only your insured that preserves my clients’ claims for uninsured motorist coverage. If you get that release to me with payment of the available bodily injury liability policy limits and all of the requested insurance information within twenty days of this letter, then my clients will sign the release and those claims will be settled.

After making several unsuccessful attempts to contact the Kitchenses’ counsel by phone, State Farm’s counsel, by fax on August 21, 2009, accepted the Kitchenses’ settlement demand and represented that she would provide, under separate cover, the items specified by the August 7 demand letter. On the next business day, August 24, the Kitchenses’ counsel confirmed receipt of State Farm’s August 21 fax. Also on August 24, State Farm informed the Kitchenses’ counsel that, as a minor, Makayla’s settlement would need to be approved by the probate court, and she also left a telephone message that State Farm was having difficulty obtaining the insured’s affidavits requested by the demand letter.

On August 25, the Kitchenses’ counsel agreed to extend the time allowed to provide the insured’s affidavits to August 28. That same day, State Farm’s counsel sent the Kitchenses’ counsel an e-mail attaching two proposed limited liability releases, and asking him to let her know if they met with his approval. The proposed documents released, “all claims, known and unknown, both to person and property, which have resulted or may in the future result from an incident which occurred on or about June 28, 2009.” The Kitchenses’ counsel responded by fax, also on August 25, that he had received State Farm’s “release proposal” and that he would review it with his clients “and get back to you.” The Kitchenses’ counsel’s letter also addressed several other issues, including that he would like to schedule an inspection of the vehicle in connection with “the property damage issues,” and that State Farm was already aware that Makayla had died and that there would be no court approval of a settlement.

On August 26, 2009, State Farm’s counsel notified the Kitchenses’ counsel that a proposed release would be provided taking into account Makayla’s estate, and then, via courier, delivered a package of documents “per your demand letter,” including settlement drafts in the amount of the bodily injury liability policy.limits and “[p]roposed (revised) limited liability releases.” The letter represented that State Farm had fully met the terms and conditions of the settlement demand and stated that “[i]f this is incorrect, please let me know as soon as possible.” The proposed documents again released “all claims, known and unknown, both to person and property, which have resulted or may in the future result from an incident which occurred on or about June 28, 2009.”

On August 29, the Kitchenses’ counsel responded to State Farm’s August 26 letter with a courier package returning the settlement checks. In the accompanying correspondence, he stated his position that, unlike his client’s settlement offer, State Farm had proposed a release of “any and all claims,” including property damage claims, as well as a release of State Farm and others, in addition to State Farm’s insured. The Kitchenses’ counsel informed State Farm that he had discussed State Farm’s offer with his clients, who had directed him to reject it.

The Kitchenses sued Ezell and Jackson on August 31, 2009 for damages arising out of the automobile collision. The following day, State Farm’s counsel sent revised limited releases to the Kitchenses’ counsel, who responded that “the opportunity to provide me with a release that complied with the terms of our offer” had passed.

After Ezell and Jackson answered the complaint, asserting defenses of accord and satisfaction, release and/or settlement, and payment, they filed a motion to enforce the settlement which, they maintained, State Farm had reached with the Kitchenses’ counsel on their behalf. The Kitchenses, in opposition to Ezell’s and Jackson’s motion to enforce, moved for partial summary judgment as to the affirmative defenses of settlement. The trial court entered an order granting the motion to enforce settlement agreement and denying the Kitchenses’ motion for partial summary judgment. In addition, finding that the Kitchenses’ counsel “acted in bad faith during negotiations,” the trial court awarded State Farm reasonable attorney fees and costs under OCGA§ 9-15-14. The trial court subsequently entered a final order and judgment, from which the Kitchenses appeal.

1. The Kitchenses argue that the trial court erred in granting the motion to enforce settlement agreement and in denying their motion for partial summary judgment because (a) the Kitchenses’ settlement offer could not be accepted by a promise of performance, only performance, and (b) State Farm’s performance did not meet the terms of the settlement offer. We agree.

(a) “[T]he law . . . favors compromise, and when parties have entered into a definite, certain, and unambiguous agreement to settle, it should be enforced.” But a settlement agreement is subject to the same requirements of contract formation as other contracts, and “[ojnly when a meeting of the minds exists will an agreement be formed.” Thus, an offer to settle “must be accepted in the manner specified by it; and if it calls for a promise, then a promise must be made; or if it calls for an act, it can be accepted only by the doing of the act.”

Ezell and Jackson argue that the presentation of a proper release was a condition of performance, not acceptance. But the offer specified that if State Farm delivered the bodily injury release, among other things, within 20 days of the settlement offer, then his clients would sign the release and the bodily injury claims would be settled. The offer did not, as Ezell and Jackson suggest, contemplate a mutual exchange of promises. We considered a similar situation in Penn v. Muhtar. There, the claimants’ attorney wrote the insurer, also State Farm, offering to settle his clients’ bodily injury claims on condition that his clients’ written release was limited to bodily injury claims and preserved their right to pursue uninsured motorist benefits claims under other insurance. The offer provided: “If you get me all of the requested insurance information with that release and a draft for the available bodily injury liability insurance within twenty days of this letter, then my clients will sign the release.” Within 20 days of the settlement offer, State Farm sent the claimants’ attorney a letter purporting to accept the offer, and it enclosed, along with a draft for the bodily injury liability policy limits, a proposed release which would have released State Farm’s insured and State Farm from “all claims, known and unknown, both to person and property.” The claimants refused to sign the release. We held that State Farm’s response constituted a counteroffer and that, because there was no meeting of the minds, there was no settlement.

Ezell and Jackson attempt to distinguish Penn by pointing out that the settlement draft in that case was directed to be held in trust pending the execution and return of the release, tantamount, they imply, to adding a condition to the agreement. But here, as in Penn, State Farm purported to accept the claimants’ offer to settle the bodily injury damage claims but submitted a non-conforming proposed release of any and all claims, including property damage. And as discussed above, the Kitchenses were entitled to specify the manner of acceptance by, in this case, requiring performance within 20 days of the offer. Thus, whether, as in Penn, State Farm submitted a counteroffer, or State Farm simply failed to comply with the terms of the Kitchenses’ offer, there was no meeting of the minds, and thus no settlement agreement formed.

(b) We also agree with the Kitchenses that State Farm’s tender was not sufficient to constitute acceptance of the settlement offer. In light of Penn, we cannot conclude that State Farm’s proposed release, which included a release of property damages, was substantially the same as a release of bodily injury damages. Ezell and Jackson suggest, however, that the Kitchenses’ attorney’s “pre-performance silence regarding the claimed defects” should be considered an admission as to the sufficiency of the proposed release, and that the attorney’s purposeful frustration of State Farm’s counsel should estop the Kitchenses from claiming that State Farm failed to perform. Ezell and Jackson also argue that the Kitchenses’ objection failed to account for the statutory requirements for limited liability releases.

“Acquiescence or silence, when the circumstances require an answer, a denial, or other conduct, may amount to an admission.” Further, “where good faith requires an answer to a letter, a party is presumed to admit the propriety of acts mentioned in a letter to him when he fails to answer the letter, and . . . such presumption is rebuttable.” Here, the Kitchenses’ attorney replied to State Farm’s release proposal on August 25, 2009, the same day he received it, by informing State Farm’s attorney that he would review it with his clients and get back to the attorney, implying, State Farm argues, that he would make any objections before the deadline for accepting the settlement offer passed on August 27, which the Kitchenses’ attorney failed to do. When State Farm’s counsel submitted the settlement check, proposed release, and other requested documents on August 26, she also wrote that the terms of the settlement demand had been met thereby, but that if this was not correct, “please let me know as soon as possible.” But State Farm does not show that the Kitchenses’ attorney had a legal duty to advise State Farm as to the appropriateness of the proposed release before the expiration of the offer, considering, among other things, that he was not silent but stated his intent to consult with his clients, he committed to no deadline for responding, and the terms of the Kitchenses’ offer were in writing and equally known to all parties, and so State Farm could not have been deceived as to its requirements. Nor does any evidence show that the Kitchenses’ attorney prevented State Farm from complying with that offer.

Ezell and Jackson further show that OCGA § 33-24-41.1 (b), which governs qualifying limited releases, provides that a limited release shall release the settling carrier “from all liability from any claims of the claimant or claimants based on injuries to such claimant or claimants,” and the insured “from all personal liability from any and all claims arising from the occurrence on which the claim is based except to the extent other insurance coverage is available which covers such claim or claims.” According to Ezell and Jackson, OCGA § 33-24-41.1 “seems to require” a release of any and all claims, although “[a]ny tension between the governing statute” and the Kitchenses’ offer might have been resolved if the Kitchenses’ attorney had responded to State Farm’s “pleas for contact.”

The implication of Ezell’s and Jackson’s argument is that a release could not comply with both OCGA § 33-24-41.1 and the Kitchenses’ settlement offer. Assuming, but not deciding, that the Kitchenses’ offer contemplated a legal impossibility, or merely, as State Farm suggests, was in “tension” with the governing law, it does not follow that State Farm could accept something other than the offer made by the Kitchenses.

For the foregoing reasons, we conclude that the trial court erred in granting Ezell’s and Jackson’s motion to enforce settlement agreement and in denying the Kitchenses’ motion for partial summary judgment.

2. The Kitchenses also claim that the trial court erred in awarding attorney fees under OCGA § 9-15-14. We agree.

In the same order in which it ruled on the motion to enforce the settlement agreement and the motion for partial summary judgment, the trial court, sua sponte, ruled that the Kitchenses owed attorney fees and costs under OCGA§ 9-15-14. It decided in the final order that the award was under OCGA§ 9-15-14 (a) and (b), against the Kitchenses’ counsel, and in favor of Ezell and Jackson, for $14,536.55.

OCGA § 9-15-14 (a) contemplates that attorney fees shall be awarded if a party “has asserted a claim, defense, or other position with respect to which there existed such a complete absence of any justiciable issue of law or fact that it could not be reasonably believed that a court would accept the asserted claim, defense, or other position.” OCGA § 9-15-14 (b) permits the trial court to award fees if

it finds that an attorney or party brought or defended an action, or any part thereof, that lacked substantial justification or that the action, or any part thereof, was interposed for delay or harassment, or if it finds that an attorney or party unnecessarily expanded the proceeding by other improper conduct. . . .

‘We affirm an award under subsection (a) if there is any evidence to support it, while we review subsection (b) awards for abuse of discretion.”

To the extent that the trial court’s award implicates the Kitchenses’ counsel’s alleged actions before the underlying lawsuit was filed, OCGA § 9-15-14 (a) and OCGA § 9-15-14 (b) address “the actions that may be undertaken in connection with the underlying legal proceedings and not upon any prelitigation actions. . . .” Further, as can be seen in Division 1, the Kitchenses’ position that no settlement was reached was legally supportable. Accordingly, the Kitchenses’ claims were not so devoid of a justiciable issue “that it could not be reasonably believed that a court would accept” them. Nor did their opposition to the motion to enforce settlement agreement “lack[ ] substantial justification.” In addition, we cannot conclude that the record supports the trial court’s findings that the actions of the Kitchenses’ counsel during the underlying legal proceedings unnecessarily enlarged those proceedings or were interposed for harassment. Accordingly, we find that no evidence supported an award under OCGA § 9-15-14 (a), and that it was an abuse of discretion to award fees under OCGA § 9-15-14 (b).

Decided March 16, 2012

Reconsideration denied April 10, 2012

Swope & Rodante, Darrell W. Hinson, Bondurant, Mixson & Elmore, Mary W. Pyrdum, Jill Pryor, for appellants.

Martin Snow, Cubbedge Snow III, Thomas P. Allen III, for appellees.

Judgment reversed.

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

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

       The proposed documents also provided, consistent with the previously submitted drafts, that the contemplated release “shall operate as a full and final release, except that it shall not bar any of the claims which the undersigned have against [Jackson or Ezell] to the extent [of] uninsured/uninsured [sic] motorist insurance coverage under any policies other than those issued by State Farm.”

        Greenwald v. Kersh, 275 Ga. App. 724, 726 (621 SE2d 465) (2005) (punctuation and footnote omitted).

       Id. (citation and punctuation omitted).

        Herring v. Dunning, 213 Ga. App. 695, 699 (446 SE2d 199) (1994) (citation and punctuation omitted). See Carterosa, Ltd. v. General Star Indem. Co., 227 Ga. App. 246, 248 (1) (489 SE2d 83) (1997) (“the offeror may specify a method through which the offer must be accepted”). We acknowledge the authority relied on by State Farm, particularly Craddock v. Greenhut Constr. Co., 423 F2d 111, 113-114 (5th Cir. 1970), indicating that, if possible, a court should interpret agreements as bilateral, i.e., comprised of mutually interdependent promises. But State Farm does not show that the Kitchenses were not permitted to frame an offer demanding acceptance by performance.

       See Moreno v. Strickland, 255 Ga. App. 850, 853-854 (1) (567 SE2d 90) (2002) (“[T]he presentation of a proper release in a form acceptable to plaintiff may have been a condition of defendant’s performance but it was not an act necessary to acceptance of plaintiff’s offer to settle for the policy limits.”) (punctuation omitted); Herring, supra (“[s]ince plaintiff’s offer contained no specified manner of acceptance, defendant’s counsel was entitled to accept by mailing the insurer’s promise to pay the policy limits in exchange for a full release of its insured, the defendant”).

       Compare Moreno, supra, 255 Ga. App. at 853 (1) (appellee’s offer to settle did not include the requirement that he receive the affidavit and release before the time limit expired).

       Compare Jackson Elec. Membership Corp. v. Ga. Power Co., 257 Ga. 772, 773-774 (1) (364 SE2d 556) (1988) (“contract originally was and primarily is constituted by the parties’ exchange of written promises which, notwithstanding the conditionfs] . . . , are nonetheless binding”).

       309 Ga. App. 849 (711 SE2d 337) (2011).

       Id. at 850.

       Id. (punctuation omitted).

       Id. (punctuation omitted).

       Id.

       Id. at 850-851.

       Id. at 850. It is not clear in Penn whether the submission of the settlement checks in trust had a substantial bearing on the result reached.

       See Johnson v. Martin, 142 Ga. App. 311 (235 SE2d 728) (1977) (requirement that settlement check be presented for payment only upon execution of release qualified acceptance by adding a condition to the agreement).

       See Penn, supra, 309 Ga. App. at 850; Jones v. Frickey, 274 Ga. App. 398, 402 (618 SE2d 29) (2005) (“a purported acceptance of a settlement offer which imposes conditions or otherwise varies the offer will be construed as a counteroffer to the offer”), aff’d, Frickey v. Jones, 280 Ga. 573 (630 SE2d 374) (2006).

       The Kitchenses also contend that the proposed release was inconsistent with their settlement offer because it released State Farm as well as Ezell and Jackson, but
      [b]eeause the [Kitchenses’] offer to settle bodily injury claims for the State Farm policy limits specifically included an offer to release the insureds from those claims, it necessarily implied an offer to release State Farm from its contractual responsibility under the policy to provide coverage for those claims.

        Penn, supra, 309 Ga. App. at 850, n. 2.

       OCGA§ 24-3-36.

        Collins v. Economic Opportunity Atlanta, 159 Ga. App. 898, 900 (285 SE2d 562) (1981). See OCGA§ 24-4-23.

       See Tybrisa Co. v. Tybeeland, Inc., 220 Ga. 442 (139 SE2d 302) (1964) (“In cases of silence there must be not only the right hut the duty to speak before failure to do so can operate as an estoppel____In order for an estoppel to arise, there must generally be some intended deception, or gross negligence amounting to constructive fraud by which another is misled to his injury.”) (citations omitted; emphasis in original).

       Compare, e.g., Kent v. Hunt & Associates, 165 Ga. App. 169, 171 (5) (299 SE2d 123) (1983) (jury verdict in favor of contractor affirmed, where in cross-claims for breach of contract, “[tjhere [was] evidence in the record that [the contractor] was locked off the job by [the owner],” and jury was properly charged that “where a party prevents the performance of a stipulation of a contract undertaken by the other party, he is estopped from setting up in his own behalf any injury which may have resulted from the nonperformance of such condition”).

       OCGA § 33-24-41.1 (b).

       We disagree with Ezell and Jackson that the Kitchenses waived the right to contest the attorney fees award on appeal because they did not sufficiently raise an objection below. The trial court did not provide advance notice of its decision to award fees, and so the Kitchenses could not have interposed a prior objection. See Williams v. Cooper, 280 Ga. 145, 147 (1) (625 SE2d 754) (2006) (a trial court may award attorney fees sua sponte under OCGA § 9-15-14 (b), but notice and a hearing is still required). By stipulation of the parties, the Kitchenses did waive a later scheduled hearing on the amount of the fees. See Ellis v. Caldwell, 290 Ga. 336 (720 SE2d 628) (2012) (party may waive hearing on a motion for attorney fees). But they did not thereby agree with, or acquiesce to, the attorney fee award, and this lack of consent was stated expressly, and repeatedly, in the stipulation filed with the trial court.

        Fox v. City of Cumming, 298 Ga. App. 134, 135 (679 SE2d 365) (2009) (footnote omitted).

        Cobb County v. Sevani, 196 Ga. App. 247, 248 (395 SE2d 572) (1990) (emphasis in original).

       Supra.

       OCGA§ 9-15-14 (a).

       OCGA § 9-15-14 (b).

       See Fox, supra.


text:
    A11A1707.
    BOARD OF REGENTS OF THE UNIVERSITY SYSTEM OF GEORGIA v. RUFF.
    (726 SE2d 451)
   PHIPPS, Presiding Judge.

John T. Ruff filed suit against the Board of Regents of the University System of Georgia for breach of contract, to recover money he paid for his son to attend study abroad programs. The Board of Regents moved for summary judgment on the ground that the suit was barred by the doctrine of sovereign immunity because no written contract existed. The trial court denied that motion, and the Board of Regents appeals. We find that there was no waiver of sovereign immunity, and reverse.

On appeal from the denial or grant of summary judgment, the appellate court conducts a de novo review of the evidence to determine whether there is a genuine issue of material fact and whether the undisputed facts, viewed in the light most favorable to the nonmoving party, warrant judgment as a matter of law.

These facts are undisputed. In January 2006, Ruffs son, who was a student at the University of Georgia, submitted an application to the University for acceptance into two study abroad programs offered by the University. A written refund policy and schedule was included as part of the application form for the program. The son was accepted into the program, and Ruff paid program fees to the University. The students participating in the programs were scheduled to depart the country on May 12, 2006.

The son was on probation, and on May 3, 2006 was arrested for violating a condition of his probation; he was thereafter released from jail. On or about May 10, 2006, a probation officer notified a University official that the son had violated his probation and that the probation officer would be recommending revocation of his probation and confinement in jail. The following day, a University representative notified Ruff that his son would not be permitted to attend the study abroad programs without the probation officer’s consent. On May 11, 2006, the son voluntarily surrendered himself to his probation officer, and Ruff contacted the University’s foreign studies program coordinator and requested a refund. The son did not gain his probation officer’s consent to leave the country, and he did not attend the foreign study abroad programs.

Ruff filed a complaint for breach of contract, demanding reimbursement of the program fees he had paid for his son to attend the study abroad programs. The Board of Regents filed a motion to dismiss, contending that sovereign immunity barred Ruff’s breach of contract suit. Ruff filed a response to the Board of Regents’ motion to dismiss and attached documentary exhibits which had not been included as part of his original complaint or otherwise made part of the record. On July 27, 2010, the trial court, without stating whether it had considered the exhibits, denied the motion to dismiss.

Discovery commenced: On December 28, 2010, the Board of Regents filed a motion for summary judgment, again contending that Ruff’s suit was barred by sovereign immunity and that there was no written contract which would waive the claim of sovereign immunity. Ruff filed a cross-motion for summary judgment. On March 2, 2011, the trial court denied both motions, finding that “there are questions of material fact and issues of law that are as yet unresolved in the case and that summary judgment as to either party is not appropriate.” This appeal ensued.

1. As an initial matter, we must consider Ruff’s contention that this court lacks jurisdiction to hear this appeal because the Board of Regents’ notice of appeal was not filed within 30 days from the entry of the order denying its motion to dismiss. Ruff argues that the Board of Regents’ motion for summary judgment, filed on the same grounds as asserted in its prior motion to dismiss and five months after the entry of an order denying the motion to dismiss, did not extend the time for appeal.

If, on motion to dismiss for failure to state a claim, the trial court elects to consider matters outside of the pleadings, the motion shall be treated as one for summary judgment and disposed of as provided in Code Section 9-11-56, and all parties shall be given reasonable opportunity to present all material made pertinent to such a motion by that code section.

“While the trial court may, on its own motion, convert a motion to dismiss into a motion for summary judgment, it must insure that the respondent to the motion has a full and final opportunity to controvert the assertions against him.” This opportunity consists of notice that the motion will be converted and additional time to submit affidavits, depositions, or other evidence.

Here, the Board of Regents filed a motion to dismiss, and Ruff was the only party to introduce evidence outside of the record. The Board of Regents never introduced evidence either in support of its motion to dismiss or in reply to Ruff’s response and exhibits. And there is no indication in the record that the trial court gave the parties notice that it was converting the motion to dismiss into a motion for summary judgment. There is also no indication in the record that the trial court, in its ruling on the motion to dismiss, considered Ruff’s exhibits or any evidence outside of the pleadings. Indeed, the order states, in part, that the case was before the court “on Defendant’s Motion to Dismiss,” and that it was ordered and adjudged “that Defendant’s Motion to Dismiss is DENIED.”

The record shows that after the trial court ruled on the motion to dismiss, discovery ensued. The Board of Regents responded to Ruff’s discovery requests and submitted an affidavit (with attachment). The exhibits attached to Ruff’s response to the motion to dismiss and the evidence produced through discovery advanced the litigation to a different point, and the Board of Regents was entitled to challenge Ruff’s claims by summary judgment motion; likewise Ruff filed a cross-motion for summary judgment. Ruff cites no authority which would preclude the Board of Regents from filing a motion for summary judgment on the same grounds as its motion to dismiss. As the denial of its motion for summary judgment involved a decision regarding sovereign immunity, the Board of Regents had a direct right to appeal under the collateral order doctrine.

2. The Board of Regents contends that the trial court erred in denying its motion for summary judgment because Ruff’s suit was barred by the doctrine of sovereign immunity. Specifically, the Board of Regents argues that its defense of sovereign immunity was not waived because there was no written contract between the parties. We agree.

“The doctrine of sovereign immunity, also known as governmental immunity, protects all levels of governments from legal action unless they have waived their immunity from suit.” “The Board of Regents is the state agency vested with the governance, control, and management of the University System of Georgia.” Sovereign immunity applies to the Board of Regents. The issue of whether there was a written contract is critical in this case because both the 1983 Georgia Constitution and its 1990 amendment provide for the waiver of sovereign immunity in contract actions.* Indeed, “[t]he defense of sovereign immunity is waived as to any action ex contractu for the breach of any written contract . . . entered into by the state or its departments and agencies.” “A waiver of sovereign immunity must be established by the party seeking to benefit from that waiver.”

“An implied contract will not support a waiver of immunity under the provisions of the Georgia Constitution.” “The doctrine of sovereign immunity requires that the conditions and limitations of the statute that waives immunity be strictly followed.”

[A] valid written contract may be formed when there are multiple, signed, contemporaneous agreements between the parties which demonstrate their intent to enter into a binding contract and the individual documents, considered together, include all of the necessary terms of a contract.

As evidence of a contract, Ruff presented a copy of the completed application his son signed and submitted for acceptance into the study abroad programs, a copy of the written refund policy and schedule, and excerpts from a manual which govern the University’s study abroad program. But none of these documents was signed by a representative of the Board of Regents or a representative of the University of Georgia. As such, there was no evidence which demonstrated the intent of the Board of Regents to enter into a binding contract with Ruff.

Decided March 13, 2012

Reconsideration denied April 10, 2012

Samuel S. Olens, Attorney General, William W. Banks, Jr., Robin J. Leigh, Assistant Attorneys General, for appellant.

John T. Ruff, pro se.

As the foregoing demonstrates, there was no written contract in existence between Ruff and the Board of Regents. Accordingly, there has been no waiver of sovereign immunity, and the trial court erred in denying the Board of Regents’ motion for summary judgment. The judgment of the trial court is reversed.

Judgment reversed.

Andrews and McFadden, JJ., concur.

        Watts v. City of Dillard, 294 Ga. App. 861 (670 SE2d 442) (2008) (citation and punctuation omitted).

       See generally OCGA § 5-6-38 which pertinently provides “[a] notice of appeal shall be filed within 30 days after entry of the appealable decision or judgment complained of.”

        Cox Enterprises v. Nix, 273 Ga. 152, 153 (538 SE2d 449) (2000) (punctuation omitted) (reversed in part on other grounds, 274 Ga. 801, 803 (1) (560 SE2d 650) (2002)); Johnson v. RLI Ins. Co., 288 Ga. 309, 310 (704 SE2d 173) (2010); OCGA§ 9-11-12 (b).

         Simmons v. Brady, 251 Ga. App. 717, 718 (1) (555 SE2d 94) (2001) (citation and punctuation omitted); see Wellstar Health System v. Painter, 288 Ga. App. 659, 660 (655 SE2d 251) (2007).

       OCGA§§ 9-11-12 (b), 9-11-56; Wellstar Health System, supra; Simmons, supra.

        Charles H. Wesley Education Foundation v. State Election Bd., 282 Ga. 707, 714 (1) (654 SE2d 127) (2007) (in ruling on a motion to dismiss for failure to state a claim upon which relief can be granted, a court must assume the factual allegations of the complaint are true, even if they are doubtful in fact; the critical question is whether, under the assumed set of facts, a right to some form of legal relief would exist); cf. Cowart v. Widener, 287 Ga. 622,623 (1) (a) (697 SE2d 779) (2010) (summary judgment is proper if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law).

        Board of Regents &c. of Ga. v. Canas, 295 Ga. App. 505, 507 (1) (672 SE2d 471) (2009); Strength v. Lovett, 311 Ga. App. 35 (714 SE2d 723) (2011) (appeal from the denial of a motion for summary judgment asserting, among other things, sovereign immunity).

        Cameron v. Lang, 274 Ga. 122, 126 (3) (549 SE2d 341) (2001) (footnote omitted); Watts, supra at 862 (1); Weaver v. City of Statesboro, 288 Ga. App. 32, 33 (1) (653 SE2d 765) (2007).

        Wilson v. Board of Regents &c. of Ga., 262 Ga. 413, 414 (3) (419 SE2d 916) (1992); Board of Regents &c. of Ga. v. Doe, 278 Ga. App. 878, 885 (2) (a) (630 SE2d 85) (2006); Ga. Const. of 1983, Art. VIII, Sec. IV, Par. I (b); OCGA §§ 20-3-21, 20-3-31.

         Wilson, supra.

        Wilson, supra at 414 (2); Board of Regents &c. ofGa. v. Tyson, 261 Ga. 368, 369 (1) (404 SE2d 557) (1991).

        Wilson, supra (citation and punctuation omitted; emphasis supplied); Tyson, supra.

        McCobb v. Clayton County, 309 Ga. App. 217, 218 (1) (a) (710 SE2d 207) (2011) (citation and punctuation omitted); Merk v. DeKalb County, 226 Ga. App. 191, 192-193 (1) (486 SE2d 66) (1997) (plaintiff must show that contract at issue was in writing in order to demonstrate a waiver of sovereign immunity); Doe, supra at 881 (1).

        Watts, supra at 863 (1) (citation and punctuation omitted).

        Dept. of Human Resources v. Hutchinson, 217 Ga. App. 70, 71 (1) (456 SE2d 642) (1995) (citation and punctuation omitted).

        Doe, supra at 879-881 (1) (a) (emphasis supplied); Baker v. Jellibeans, 252 Ga. 458 (314 SE2d 874) (1984); Tyson, supra.

       See Polk County v. Ellington, 306 Ga. App. 193, 199 (1) (702 SE2d 17) (2010); Tyson, supra at 370 (1).


author: Blackwell, Judge.

text:
    A11A1700.
    SIBLEY v. DIAL.
    (723 SE2d 689)
   Blackwell, Judge.

Michael Sibley sued James Dial to recover damages for injuries that Sibley allegedly sustained in an automobile accident, and although Dial admitted that he was negligent and responsible for the accident, he denied that the injuries that Sibley claimed were, in fact, sustained as a result of the accident. The case was tried by a Fulton County jury, which returned a verdict for Dial. Sibley now appeals, asserting as his sole claim of error that the court below failed to properly qualify prospective jurors as to their relationship with State Farm Insurance, which insured Dial. Sibley complains that, although prospective jurors were asked about their relationship with State Farm, they were asked without having taken the statutory oath. Sibley, however, failed to complain at trial about the way in which the court qualified prospective jurors, and for this reason, he has waived this claim of error, and we must affirm the judgment below.

The proceedings in which the prospective jurors were qualified were not transcribed, but we know a few things about those proceedings. Before prospective jurors reported to the courtroom for voir dire and jury selection, a member of the court staff inquired whether any prospective juror had a relationship with State Farm, and only those prospective jurors disclosing no such relationship were asked to report. None of the parties or their lawyers was present when this inquiry was made, but the lawyers apparently were informed that the inquiry had been made. When prospective jurors eventually reported to the courtroom, they were administered the oath required by OCGA § 15-12-132, and voir dire commenced. The lawyers for the parties were present for all the proceedings in the courtroom. The prospective jurors were asked in the courtroom about other potentially disqualifying relationships, but no one made any further inquiry about State Farm, although the court did not forbid the lawyers from asking about it. Sibley never objected to the way in which the prospective jurors were qualified as to any relationship with State Farm, and his lawyer never inquired of the court whether the prospective jurors had been under oath when they were asked outside his presence about State Farm.

Sibley apparently realized only after the trial was done that the prospective jurors might not have been under oath when asked about State Farm, and he raised this issue in a motion for new trial. The court below denied this motion, concluding that Sibley waived any error concerning the qualification of the jurors. About this, the trial judge was absolutely right.

We have held before that a party waives any error in the failure to administer the oath required of prospective jurors before the commencement of voir dire if he does not make a timely objection. Hill v. State, 268 Ga. App. 642, 644 (2) (602 SE2d 348) (2004). As we have explained, “if [a party] has an objection, there is an obligation to call the matter to the court’s attention so the trial judge will have an opportunity to remedy the situation.” Id. (citation and punctuation omitted). Here, Sibley and his lawyer knew that prospective jurors had been qualified as to any relationship with State Farm outside their presence, but they failed to object to this procedure or to even inquire whether the oath had been administered before the prospective jurors had been so qualified. If Sibley was concerned about the oath, he should have done something then, not take his chances with the jury and complain only after he lost. As the court below correctly concluded, Sibley waived any error with respect to the qualification of the prospective jurors as to State Farm, and for this reason, we affirm the judgment below.

Decided January 6, 2012

Reconsideration denied April 11, 2012

McKenney & Froelich, William J. McKenney, for appellant.

Harper, Waldon & Craig, Jonathan M. Adelman, for appellee.

Judgment affirmed.

Barnes, P. J., and Adams, J., concur.

       When an appeal involves proceedings that were not reported, there are several ways in which the parties can make a record of those proceedings for appellate review, and the proper means of making a record are set out in OCGA § 5-6-41. In this case, Sibley employed none of these means, but his lawyer filed an affidavit concerning the qualification of prospective jurors. An affidavit of counsel is not a proper way in which a record can be made for appellate review. See Womack v. State, 223 Ga. App. 82, 82-83 (1) (476 SE2d 767) (1996) (appellate court will not rely on affidavit of counsel as to what occurred in proceedings below). Nevertheless, Dial did not dispute some of what was said in this affidavit, and the court below addressed the affidavit and made some findings about what occurred in the unreported proceedings. We will accept the findings of the court below and those things on which the parties agree for the purposes of this appeal. See OCGA § 5-6-41 (g) (transcript of unreported proceedings can be prepared from recollection, so long as parties agree upon the content of the transcript, and if they do not agree, the trial judge can decide upon the correctness of the transcript).

       According to OCGA § 15-12-132, before voir dire commences, prospective jurors must take an oath to “give true answers to all questions as may be asked by the court or its authority, including all questions asked by the parties or their attorneys, concerning your qualifications as jurors in [this] case.”

       It is important to note that this is not a case in which no adequate remedy was available and any objection, therefore, would have been futile. See Dunn v. State, 308 Ga. App. 103, 110 (1) (b) (706 SE2d 596) (2011) (court already had dismissed juror, so any objection would have been futile).

       Sibley relies on Arp v. Payne, 230 Ga. App. 840 (497 SE2d 810) (1998) (physical precedent only), but that case involved the refusal of a trial court to qualify prospective jurors as to any relationship with a nonparty insurance carrier. Here, Sibley does not complain about a refusal to qualify prospective jurors as to such a relationship, only about the way in which they were so qualified, so Arp is inapposite.