text:
    A12A1877.
    TAYLOR v. THE STATE.
    (740 SE2d 327)
   Branch, Judge.

On appeal from her conviction for attempt and conspiracy to manufacture methamphetamine as well as possession of ephedrine and pseudoephedrine, Karen Taylor argues that the evidence was insufficient and that trial counsel was ineffective because his law partner represented Taylor’s co-defendant in the same matter. Taylor also argues that the trial court erred when it failed to merge two counts for sentencing purposes, held a portion of voir dire outside the presence of counsel, and admitted evidence of a similar transaction. We find no reversible error and affirm.

“On appeal from a criminal conviction, we view the evidence in the light most favorable to the verdict, with the defendant no longer enjoying a presumption of innocence.” (Citation omitted.) Reese v. State, 270 Ga. App. 522, 523 (607 SE2d 165) (2004). We neither weigh the evidence nor judge the credibility of witnesses, but determine only whether, after viewing the evidence in the light most favorable to the prosecution, a “rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt.” (Citation omitted.) Jackson v. Virginia, 443 U. S. 307, 319 (III) (B) (99 SC 2781, 61 LE2d 560) (1979).

In Hargis v. State, 319 Ga. App. 432 (735 SE2d91) (2012), we set out many of the facts relevant to this appeal as construed in favor of the jury’s verdict against Taylor and her co-defendant, Anthony Hargis:

[I]n June 2006, after reviewing records concerning Hargis’s transactions on eBay between September 2003 and March 2006, including the purchase of a number of items used in methamphetamine manufacture, a drug enforcement agent obtained a warrant to search the house where Hargis lived with . . . Taylor. The agent found Hargis working in an outbuilding outfitted with equipment used in methamphetamine manufacture, a ventilation shaft, and a surveillance camera. Taylor arrived during the search, and both were arrested. An agent recovered a handgun from a bedroom in the house. Other evidence seized included shipping labels addressed to Hargis, a box of false identification cards with his picture on each card, over-the-counter tablets containing ephedrine and pseudoephedrine, and liquids that tested positive for the two substances. Agents also found written directions to a number of pharmacies in Taylor’s handwriting. In September 2006, Hargis was charged with attempt and conspiracy to manufacture methamphetamine, possession of ephedrine and pseudoephedrine, possession of false identification, and second-degree forgery.

Id. at 432-433. Taylor, who owned the house, was charged only with conspiracy to manufacture methamphetamine and possession of ephedrine and pseudoephedrine.

The history of Hargis’s and Taylor’s representation is a tortuous one. Soon after Taylor’s arraignment in October 2006, Jeanne Davis appeared as court-appointed counsel on Taylor’s behalf. At this time, Hargis was represented by the Enotah Judicial Circuit Public Defender’s Office. In September 2007, Davis was hired as an Enotah Judicial Circuit public defender. Because both co-defendants were now represented by the same office, private counsel Joe Stauffer was appointed to assume representation of Taylor. In March 2008, Hargis hired private counsel Jeff Cox. In June 2008, Stauffer and Cox, who were now representing Taylor and Hargis respectively, became law partners. In November 2008, Stauffer returned Taylor’s representation to Davis of the public defender’s office. In December 2008, Cox moved to withdraw from Hargis’s case because he was not being paid, after which Hargis filed a State Bar complaint against him alleging a conflict arising from Stauffer’s previous representation of Taylor. The trial court granted Cox’s motion.

On February 18, 2009, a consent order was entered severing Hargis’s and Taylor’s cases for trial. When Hargis did not appear at the trial scheduled for February 23, 2009, a bench warrant was issued for his arrest. Hargis, supra at 433. In April 2009, Taylor retained Stauffer for a second time after waiving any conflicts arising from Cox’s representation of Hargis.

Taylor later testified that Hargis returned to her house on July 29, 2009, and spent the night there. On the next day, acting on a tip, police located Hargis in a truck belonging to Taylor and arrested him for obstruction after he refused to identify himself. Hargis, supra at 433. Police then searched the truck, recovering ephedrine, lighter fluid, brake cleaner, and 17 identification cards bearing Hargis’s photograph. See id.

Based on [this] evidence . . . , officers obtained a search warrant for Hargis’s house and found boxes containing devices for manufacturing and smoking methamphetamine, one of which contained the drug. A tape recorder and cassette tape were also seized. Conversations on the tape included Hargis instructing Taylor on the use of the recorder, Taylor’s conversations with her counsel, and their negotiations with prosecutors assigned to the case.

Id. Shortly after Hargis’s July 30, 2009 arrest, Cox, who was still practicing law with Stauffer, appeared on Hargis’s behalf for the second time. On August 12, 2009, Taylor and Hargis signed waivers of any conflict arising from the partners’ co-representation of each of them.

After the State moved to vacate its earlier motion to sever Hargis’s and Taylor’s cases, Stauffer and Taylor agreed that appearing with Hargis as a co-defendant would allow Taylor to argue that “she wasn’t involved.” Taylor’s and Hargis’s cases were thus rejoined for trial without objection from either co-defendant. At the same pretrial hearing at which the cases were rejoined, the trial court ruled that evidence of the events incident to Hargis’s July 2009 arrest were admissible as a similar transaction to show intent and course of conduct. Hargis also moved to suppress the evidence seized in July 2009 as the product of an illegal search. The trial court denied the motion. See Hargis, supra at 434.

On the first day of [the co-defendant’s] trial on the 2006 charges, held in late September and early October 2009, and in addition to the evidence directly supporting those charges, the State moved to admit evidence of Hargis’s failure to appear at the February 2009 trial as indicating consciousness of guilt as well as the tape seized in July 2009 for the purpose of showing the existence of a conspiracy [to manufacture methamphetamine] between Taylor and Hargis. The court ruled the tape admissible for the limited purpose of showing the existence of a conspiracy.

Id. After a jury found Taylor guilty on all three counts, she was convicted and sentenced to thirty years with fifteen to serve.

Davis, who had represented Taylor twice before in the case, was appointed as Taylor’s first appellate counsel and filed a motion for new trial on her behalf. At a joint hearing on Hargis’s and Taylor’s motions for new trial, Taylor testified that although she felt that Hargis’s second retention of Cox, which had occurred after her own second retention of Stauffer, had prejudiced Stauffer’s conduct of her defense, she wanted to waive any conflicts involving Davis and the public defender’s office. When Hargis refused to waive the same kinds of conflicts arising from Cox, Stauffer, and the public defender’s office’s representations on the cases, however, the trial court ordered new counsel appointed for both Hargis and Taylor. In January 2012, second appellate counsel for Taylor filed an amended motion for new trial, which the trial court denied after a hearing. This appeal followed.

1. Taylor first argues that the evidence was insufficient to sustain her convictions for (a) attempt and conspiracy to manufacture methamphetamine and (b) possession of ephedrine and pseudo-ephedrine. We disagree.

(a) Taylor argues that because she rarely entered the basement where the methamphetamine ingredients were found, and because the possession of those ingredients amounted to mere preparation, the evidence was insufficient to sustain her convictions for attempt and conspiracy to manufacture the drug. We disagree.

OCGA § 16-13-30 (b) renders it “unlawful for any person to manufacture . . . any controlled substance.” “A person commits the offense of criminal attempt when, with intent to commit a specific crime, he performs any act which constitutes a substantial step toward the commission of that crime.” OCGA § 16-4-1. “An act constituting a ‘substantial step’ is one done in pursuance of the intent, and more or less directly tending to the commission of the crime. In general, the act must be inexplicable as a lawful act, and must be more than mere preparation.” (Citation omitted.) Ogburn v. State, 296 Ga. App. 254, 255 (1) (a) (674 SE2d 101) (2009). To prove a conspiracy to violate the controlled substances laws, including the ban on the manufacture of them,

two elements must be shown: an agreement and an act in furtherance of it. The state need not prove an express agreement between the co-conspirators; it only must show that two or more persons tacitly came to a mutual understanding to accomplish or to pursue a criminal objective. Conspiracy may be shown through circumstantial evidence. The conspiracy may be inferred from the nature of the acts done, the relation of the parties, the interest of the alleged conspirators and other circumstances, such as presence, companionship and conduct before and after the commission of the alleged offense.

(Punctuation and footnotes omitted.) Williamson v. State, 300 Ga. App. 538, 547-548 (5) (685 SE2d 784) (2009).

The evidence at trial, including Taylor’s own testimony, supported reasonable inferences that she lived with Hargis in the house she owned both before and after the methamphetamine ingredients and equipment were found there in 2006, wrote out directions to numerous pharmacies in the area for the purpose of avoiding legal restrictions on the purchase of such ingredients, discussed with Hargis whether he should abscond from the February 2009 trial, bought him a truck in the spring of 2009, and invited him to stay in her house on the night before his rearrest in July 2009. Taylor’s list of pharmacy directions is evidence demonstrating a substantial step toward the commission of the crime of manufacturing methamphetamine. Additionally, Taylor’s involvement with Hargis and the presence of methamphetamine ingredients and equipment in her house was evidence that she assisted Hargis in the criminal objective of manufacturing methamphetamine both before and after his 2006 arrest. Thus the evidence outlined above was sufficient to sustain Taylor’s convictions for attempt and conspiracy to manufacture methamphetamine. See Ogburn, supra at 255 (1) (a) (jury could infer from defendant’s possession of individually wrapped methamphetamine packages, together with large quantities of pseudoephedrine tablets and starter fluid, that he was attempting to manufacture methamphetamine); Williamson, supra at 548 (5) (evidence including wife’s “overt act” of selling methamphetamine from the home she shared with her husband authorized a jury to infer a “tacit understanding” between the two to traffic in methamphetamine); Jackson, supra.

(b) Although Taylor asserts that she cannot be guilty of possession of ephedrine and pseudoephedrine, she was the owner of the house she shared with Hargis, and is thus presumed to have possessed all its contents, including the methamphetamine ingredients found there. See Johnson v. State, 159 Ga. App. 819, 822 (2) (285 SE2d 252) (1981). It was for the jury, and not this Court, to determine whether Taylor was credible when she testified that she rarely entered the basement where the ingredients were found and that she could not distinguish between items used in the drug’s manufacture and those Hargis used for computer or vehicle repair. See id. (trial court properly denied co-defendant’s motion for directed verdict because “[w]hile it might have been possible for each [co-defendant] to have set aside a part of the house as his exclusive domain, no such evidence was forthcoming”). It follows that the evidence outlined above was sufficient to support Taylor’s conviction for possession of methamphetamine ingredients. See OCGA § 16-13-30.3 (b) (defining illegal possession of ephedrine and pseudoephedrine); Inglett v. State, 239 Ga. App. 524, 528 (6) (521 SE2d 241) (1999) (evidence was sufficient to sustain convictions of multiple defendants living in the same residence for crimes including trafficking in methamphetamine and possession of marijuana; “to the extent that various of these convictions were solely based on circumstantial evidence, such evidence authorized the jury to find that every reasonable hypothesis except that of guilt was excluded”); Jackson, supra. Compare Aquino v. State, 308 Ga. App. 163, 166-168 (1) (706 SE2d 746) (2011) (reversing defendant’s conviction for trafficking in methamphetamine in the absence of evidence that he was ever seen in proximity to drugs or drug making equipment found in a house of which he was neither the owner nor the lessee).

2. As in her motion for new trial, Taylor argues that she was denied her right to effective assistance of counsel because Stauffer had an actual conflict of interest in that he had represented her while Cox was simultaneously representing Hargis, allegedly in violation of the Georgia Bar Rules and the Georgia Rules of Professional Conduct. As a result of this alleged conflict, Taylor asserts, Stauffer failed to press Taylor’s case as zealously as he should have. We disagree.

As the United States Supreme Court held in Cuyler v. Sullivan, 446 U. S. 335 (100 SC 1708, 64 LE2d 333) (1980):

Defense counsel have an ethical obligation to avoid conflicting representations and to advise the court promptly when a conflict of interest arises during the course of trial. Absent special circumstances, therefore, trial courts may assume either that multiple representation entails no conflict or that the lawyer and his clients knowingly accept such risk of conflict as may exist. . . . Unless the trial court knows or reasonably should know that a particular conflict exists, the court need not initiate an inquiry.

(Citations omitted.) Id. at 346 (IV) (A).

Thus when a defendant raises no objection to an alleged conflict during trial, he must demonstrate on appeal both the existence of an actual conflict and its significant effect on counsel’s performance. Cuyler, supra at 348 (IV) (B). In State v. Abernathy, 289 Ga. 603 (715 SE2d 48) (2011), for example, the Supreme Court of Georgia reversed a trial court’s grant of a new trial when a defendant could not show “actual harm” arising from the simultaneous representation of two co-defendants by two lawyers working in the same public defender’s office. Id. at 604 (1). Our Supreme Court held that “a defendant asserting ineffective assistance of counsel based on an actual conflict of interest must demonstrate that the conflict of interest existed and that it significantly affected counsel’s performance.” (Citation and punctuation omitted.) Id.

[T]he critical question is whether the conflict significantly affected the representation, not whether it affected the outcome of the underlying proceedings. That is precisely the difference between ineffective assistance of counsel claims generally, where prejudice must be shown, and ineffective assistance of counsel claims involving actual conflicts of interest, which require only a showing of a significant effect on the representation. A significant effect on the representation may be found, for example, where counsel is shown to have refrained from raising a potentially meritorious issue due to the conflict; where counsel negotiates a plea bargain for more than one defendant in a case conditioned on acceptance of the plea by all such defendants; or where one of the State’s witnesses was a current client of defense counsel in an unrelated criminal matter, thereby constraining counsel’s ability to cross-examine the witness.

(Citations and punctuation omitted; emphasis in original.) Id. at 604-605 (1).

Even in cases involving the simultaneous representation of two co-defendants by the same lawyer, a defendant seeking to demonstrate a deprivation of the right to counsel “must show that an actual conflict existed which adversely affected the attorney’s performance[.]” (Citation omitted.) Griggs v. State, 262 Ga. 766, 769 (4) (b) (425 SE2d 644) (1993). Thus, although “joint representation by one attorney of two or more defendants whose defenses are antagonistic is impermissible where an actual conflict of interest adversely affects the attorney’s performance,” Burns v. State, 281 Ga. 338, 339-340 (638 SE2d 299) (2006) (citation omitted), “counsel from the same [law firm] are not automatically disqualified from representing multiple defendants charged with offenses arising from the same conduct.” Id. at 340. And “[w]here defendants state on the record [below] that they have discussed the case with counsel, that there is no conflict of interest and that they are satisfied to proceed with one counsel, any error was induced by the defendants’ statements.” (Citation omitted.) Brumelow v. State, 239 Ga. App. 119, 123 (6) (520 SE2d 776) (1999).

(a) Even assuming that Taylor has shown the existence of an actual conflict arising from Stauffer’s representation of her at the same time Cox was representing Hargis, both she and Hargis explicitly waived any conflicts arising from Stauffer’s and Cox’s prior and simultaneous representations of each of them before proceeding to a consolidated trial. It follows that any error in allowing the joint trial to proceed was induced and thus cannot provide the basis for a claim that counsel was ineffective. Brumelow, supra at 123 (6).

(b) Taylor asserts that her waiver was ineffective because the risks of the joint representation were never explained to her. Even assuming that she is correct, however, Taylor has failed to show that her defense was compromised by that joint representation.

Although Taylor asserts (without citation to the record) that her viewpoint was “antagonistic” to Hargis’s, the record shows that neither Hargis’s cross-examination of Taylor nor his closing argument suggested that she was involved in any criminal activity; in fact, Hargis insisted in closing that neither defendant had committed any crime. Likewise, and despite Taylor’s critique of Stauffer’s “minimal” defense efforts, including not calling Hargis to the stand, the hearing on her motion for new trial shows that Stauffer and Taylor authorized Cox to “take the lead” before and at trial as part of a reasonable strategy to present Hargis as “the main character in this play” with Taylor “not being as involved.” Stauffer’s strategy, taken in consultation with Taylor, was to get to trial as quickly as possible: Taylor “was ready to be found innocent and get out of j ail,” and more evidence existed against Hargis than against Taylor, such that “people would see all the things that he had done and relatively little of what she had done____[T]hat was the trial strategy.” The plan included agreement to a consolidated trial, which in Stauffer’s judgment would bolster an argument that Hargis “ha[d] done everything” whereas Taylor had “not done anything,” but was merely “naive.” Finally, because “it would have been difficult” to put Hargis on the stand, thus risking the kind of extensive cross-examination to which the State subjected Taylor herself, Stauffer concluded that Taylor’s wiser course was not to call Hargis as a witness.

As our Supreme Court held in Burns, where there was no “finger pointing” between co-defendants, and where “both counsel pursued the same defense strategy that their respective clients were [innocent],” no actual conflict of interest arises from a single counsel’s co-representation of clients at the same trial. Burns, supra at 340-341. Moreover, “[w]hich witnesses to call and all other strategies and tactical decisions are the exclusive province of the lawyer after consultation with his client, and whether an attorney’s trial tactics are reasonable is a question of law, not fact.” (Citations omitted.) Crawford v. State, 302 Ga. App. 782, 784 (2) (691 SE2d 660) (2010). Here, as we have noted, there were abundant reasons for Taylor to undertake a strategy of allowing Hargis’s criminal activity to assume a leading role at a consolidated trial. For both of these reasons, we conclude that Taylor has failed to show that any actual conflict between her own and Hargis’s interests “caused divided loyalties” or “compromised” Stauffer’s representation of her at the same time that Cox represented Hargis. See Abernathy, supra at 605 (1). It follows that the trial court did not clearly err when it denied Taylor’s motion for new trial on this ground.

3. Taylor also argues that the trial court should have merged the counts on attempt to manufacture methamphetamine (Count 1) and possession of ephedrine and pseudoephedrine (Count 3) because the two offenses were based on the same conduct and evidence. We disagree.

UnderOCGA § 16-1-7 (a), “[w]hen the same conduct of an accused may establish the commission of more than one crime, the accused maybe prosecuted for each crime.” The accused may not, however, be convicted of more than one crime if “(1) [o]ne crime is included in the other; or (2) [t]he crimes differ only in that one is defined to prohibit a designated kind of conduct generally and the other to prohibit a specific instance of such conduct.” Id.

OCGA § 16-13-30 (b) renders it unlawful “for any person to manufacture, deliver, distribute, dispense, administer, sell, or possess with intent to distribute any controlled substance.” OCGA § 16-13-30.3 (d) outlaws the possession of “any amount” of ephedrine or pseudoephedrine that “have been altered from their original condition.” The indictment charging Taylor and Hargis with attempt to manufacture methamphetamine specified that they had not only “obtained and assembled” but also “take[n] steps to alter” the ephedrine and pseudoephedrine. The charge on possession also asserted that the co-defendants had altered these substances with the intent to manufacture the drug. The State provided evidence at trial that some of the methamphetamine ingredients had been altered.

The jury could have found Taylor guilty of both attempt to manufacture methamphetamine and possession of ephedrine and pseudoephedrine based on different conduct — here, that she assembled methamphetamine ingredients with intent to manufacture the drug, and also that she possessed some part of those ingredients after altering them. It was not necessary for the State to prove the surplusage in each count — the allegation of alteration in that count alleging attempted manufacture, or the allegation of intent to manufacture in the possession count — in order to obtain separate convictions for the two crimes. See Fair v. State, 284 Ga. 165, 167 (2) (a) (664 SE2d 227) (2008) (“An allegation in an indictment that is wholly unnecessary to constitute the offenses charged is mere surplusage.”). Because the evidence supported a conclusion that different conduct by Taylor resulted in the commission of both attempted manufacture of methamphetamine and possession of ephedrine and pseudoephedrine, the two crimes do not merge. See Dahlman v. State, 311 Ga. App. 465, 466-467 (716 SE2d 538) (2011) (convictions for manufacturing methamphetamine and possessing substances used to manufacture the drug with intent did not merge because defendant “had already completed the manufacture of methamphetamine” while other evidence showed that “he possessed [other] substances with the intent to use them to manufacture more methamphetamine in the future”); compare Gooch v. State, 249 Ga. App. 643, 648 (5) (549 SE2d 724) (2001) (vacating conviction for both possession of methamphetamine and possession with intent to distribute and remanding for resentencing where the two counts were proven “with the same facts”).

4. Taylor also argues that the trial court erred when it held a portion of voir dire and excused a law enforcement officer when neither she nor her counsel was present. We disagree.

As effective during the conduct of the 2009 trial at issue, former OCGA § 15-12-1 (a) (1) provided: Because statutes regulating the selection of jurors are “merely directory” rather than mandatory, the outcome of the process will not be set aside unless there is evidence that the court’s practice of excusing jurors is executed “in such a manner as to alter, deliberately or inadvertently, the representative nature” of the jury lists. (Footnote omitted.) Franklin v. State, 245 Ga. 141, 146-147 (1) (263 SE2d 666) (1980) (rejecting defendant’s attack on court clerk’s handling of juror exemptions and excuses when there was no evidence that the representative nature of the jury lists was affected).

Any person who shows that he or she will be engaged during his or her term of jury duty in work necessary to the public health, safety, or good order or who shows other good cause why he or she should be exempt from jury duty may be excused by the judge of the court to which he or she has been summoned or by some other person who has been duly appointed by order of the chief judge to excuse jurors.

The record shows that the judge told the prosecutor that the judge would not be “doing selection” but rather that she was merely going to “greet” the jury pool before voir dire. As a result, neither Taylor nor her counsel were present when a venireman who worked in law enforcement was excused.

Like the Supreme Court of Georgia, “we do not condone [the] practice” of conducting voir dire outside the presence of a defendant or counsel. See Robertson v. State, 268 Ga. 772, 774 (4) (493 SE2d 697) (1997) (trial court met with prospective jury members prior to voir dire, in the absence of defendant and his lawyer, and asked whether they were citizens of the county, whether they had served on the grand jury, and whether they would suffer any hardship if chosen to serve). Given that Taylor has made no showing of any systematic and adverse impact on the representative nature of the jury lists as a result of this judge’s conduct of voir dire in this or other cases, and that the trial court’s engagement with these prospective jurors was limited to investigating valid statutory grounds for excusing them, the court did not err when it excused the prospective juror at issue as a law enforcement officer engaged in work necessary for public safety. See id.; former OCGA § 15-12-1 (a) (1).

5. Finally, Taylor argues that the trial court erred when it admitted the evidence seized in 2009 as a similar transaction because the State did not produce sufficient proof that she committed the independent offenses of obtaining methamphetamine ingredients and attempting or conspiring once again to manufacture the drug. Again, we disagree.

Before any evidence of independent offenses may be admitted, the trial court must conduct the hearing required by USCR 31.3 (B) and the state must show: (1) that it seeks to introduce the evidence not to raise an improper inference as to the defendant’s character but for some proper purpose; (2) that there is sufficient evidence to establish that the defendant committed the independent offense; and (3) that there is a sufficient connection or similarity between the independent offense and the crime charged so that proof of the former tends to prove the latter.

Decided March 21, 2013.

Travis A. Williams, Lucy G. Huggins, H. Bradford Morris, Jr., for appellant.

W. Jeffrey Langley, District Attorney, Cathy A. Cox-Brakefield, Assistant District Attorney, for appellee.

Williamson, supra at 541 (2), citing Williams v. State, 261 Ga. 640,642 (2) (b) (409 SE2d 649) (1991). “We review the trial court’s determination that the similar transaction evidence was admissible under an abuse of discretion standard.” (Footnote omitted.) Williamson, supra at 542 (2) (b).

We note that Taylor has not raised the issue whether the evidence seized in July 2009 was the product of an illegal search. Compare Hargis, supra at 439 (3) (addressing legality of July 2009 search as an issue likely to recur on retrial). The issue presented here is whether the State produced sufficient evidence that Taylor was involved, either as a co-conspirator or as a party, in (a) possession of the methamphetamine ingredients found immediately after Hargis’s July 2009 arrest for obstruction in the truck he had borrowed from Taylor and (b) possession of the methamphetamine manufacturing equipment found in the house immediately thereafter.

Construed in favor of the trial court’s ruling, the record, including Taylor’s own testimony, supports a conclusion that in July 2009, Hargis was present at Taylor’s house with Taylor’s knowledge and consent on the night before the manufacturing equipment was found and that Hargis used her truck to transport the manufacturing equipment there. Even if there are some differences, such as the circumstances of Hargis’s arrest, between the events of 2006 and those of 2009, “the proper focus is on the similarities, not the differences, between them.” (Footnote omitted.) Williamson, supra at 543 (2) (b). Thus we cannot say that the trial court abused its discretion when it ruled that the State had provided sufficient evidence of Taylor’s involvement in the 2009 offenses. Id.

Judgment affirmed.

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

       Taylor asserts that the two attorneys were law partners, while the State argues that they were not. For the purposes of this appeal only, we assume that the two were law partners.

       In that decision, we reversed the denial of Hargis’s motion for new trial on the ground that the trial court erred when it received an ex parte communication from Taylor’s appellate counsel at the hearing on Hargis’s motion for new trial. Id. at 436 (2). Taylor herself has raised no such issue, either below or on appeal. See Ga. Power Co. v. Ga. Public Svc. Comm., 196 Ga. App. 572-573 (1) (396 SE2d 562) (1990) (complaint of ex parte communication had been waived on appeal when the issue was raised by a different party below).

       One of Taylor’s character witnesses later testified that she saw Taylor and Hargis together at a store at some point in the spring of 2009, when Hargis was wanted for failure to appear at the scheduled February trial.

       It was for the jury, and not this Court, to evaluate the credibility of Taylor’s explanation that she wrote out the directions to pharmacies for the purpose of Hargis’s obtaining a flu shot.

       See, e.g., Georgia Rules of Professional Conduct, Rule 1.7 (a) (“A lawyer shall not represent or continue to represent a client if there is a significant risk that the lawyer’s own interests or the lawyer’s duties to another client, a former client, or a third person will materially and adversely affect the representation of the client.”).

       See Georgia Rules of Professional Conduct, Rule 1.7 (c) (“Client consent is not permissible if the representation: (1) is prohibited by law or these Rules; (2) includes the assertion of a claim by one client against another client represented by the lawyer in the same or substantially related proceeding; or (3) involves circumstances rendering it reasonably unlikely that the lawyer will be able to provide adequate representation to one or more of the affected clients.”).

       The statute was amended in 1984 to remove a previously existing exemption of police officers from jury duty. Former OCGA § 15-12-1 was recodified in 2011 as OCGA § 15-12-1.1. See Ga. L. 1984, p. 1697; Ga. L. 2011, p. 59, § 1-5.


source: Caselaw Access Project

author:
McMlLLIAN, Judge.
      BARNES, Presiding Judge, McFadden, Judge,

license: Public Domain

text:
    A12A1988.
    HANSEN v. DOAN.
    (740 SE2d 338)
   McMlLLIAN, Judge.

This appeal arises out of defendant/appellee Laura Doan’s successful attempt to enforce a settlement agreement against plaintiff/ appellant Lawrence Hansen in this personal injury action.

The record discloses the following facts relevant to this appeal: On June 22, 2011, Hansen sustained severe injuries when the motorcycle on which he was riding was struck by the automobile Doan was driving. On July 1, 2011, Hansen’s attorney, Keith Bodoh, faxed a letter to Liberty Mutual Fire Insurance Company (Liberty Mutual), Doan’s automobile liability insurance carrier, stating that he represented Hansen and that Hansen’s injuries were “serious”; this letter also included a policy limits disclosure request pursuant to OCGA § 33-3-28.

Less than a week later, Brenda O’Rear, a senior claims specialist with Liberty Mutual, telephoned Bodoh and informed him that Doan had $25,000 in liability coverage. According to Bodoh’s affidavit, he told O’Rear that Hansen had suffered multiple fractures during the collision, requiring hospitalization and surgery, and O’Rear responded by stating that she would need “very few” medical documents before she could tender the policy limits.

On July 11, 2011, Bodoh sent a time-limited settlement demand letter to Liberty Mutual’s registered agent via overnight mail containing the following settlement offer:

Lawrence Hansen . . . will sign a Limited Release with Liberty Mutual... within the meaning of OCGA § 33-24.41.1 for the full $25,000 in liability insurance limits. This will allow Mr. Hansen to avail himself of the $25,000 in underinsured motorist insurance coverage he has available____To be accepted, the OCGA § 33-24-41.1 Limited Release in favor of Laura Henkleman Doan and Liberty Mutual... only (with no indemnity language) and the $25,000 check payable to only Lawrence Hansen and [Bodoh’s law firm] must be received within twelve (12) days of you receiving this demand. The offer is automatically withdrawn if these conditions are not complied with within the time limit.

On July 21, O’Rear sent Bodoh a letter, which did not specifically refer to the settlement offer, requesting an interview with Hansen and medical and wage authorization forms and information. The next day O’Rear telephoned Bodoh and recorded their conversation, and a recording of that conversation was played for the trial court. The transcript of the conversation reveals the following exchange:

O’Rear: I have requested that you send some information into me which you did which would allow me to tender our limits on this case. [As] you recall we have a $25,000 limit and I believe what you sent me is obviously sufficient enough for me to go ahead and pay that limit----I’m looking at your letter here and uh you wanted a limited release which is ... obviously not a problem. Do you have one that you want to use a specific release?
Bodoh: Um no huh-uh.
O’Rear: Okay uh let me see if I have one.
Bodoh: Um can you just um well I um I guess you can just fax me stuff you know.
O’Rear: Uh you mean .. . like a limited release. I only have one . . .
Bodoh: [Inaudible] told him she only had one release.
O’Rear: It may have language in there that you don’t like. Bodoh: Do you have my fax number?
O’Rear: I do.
Bodoh: Probably the best way to deal with stuff.
O’Rear: Yeah let’s see here because uh I believe the only one I have —
Bodoh: [Inaudible] I mean I hate to cut things short. I just have someone that [is] in my office.
[O’Rear apologizes]
O’Rear: [Just today w]as my last day to respond and I really didn’t want to —
Bodoh: I [inaudible] sat down in my office and I really can’t talk right now.
O’Rear: [Laughs] Okay well can I. . . call you back.
Bodoh: We’ll talk later ok.

Later that day O’Rear faxed Bodoh a letter confirming their conversation; that letter provided in pertinent part:

[W]e are agreeing to pay our policy limits of $25,000 to your client. We will also agree to a limited release. You indicated that you did not have a specific release you wanted to use. I am attaching the only limited release that I have which we can tailor to fit your needs. If you would please look it over and make your suggestions on any changes you wish to make then we can iron out those details. Your demand letter also stated the check had to be received in your office within 12 days of receiving the demand [and based on when we received the letter] 12 days would be 07/25/11.1 would like to iron out the details of the settlement today so we can meet your deadlines unless you will agree to let us mail the check to your office. Please get back to me at your earliest convenience so that we may conclude this matter.

Contrary to Bodoh’s demand, the release that was enclosed with the letter contained indemnification language.

O’Rear made several unsuccessful attempts to contact Bodoh over the next several days, and then sent him a letter, dated July 25, 2011, notifying him of her intent to “comply with your demand” by having the check delivered to his office that day. She also stated that “we still need to work out the details of the limited release” and requested that he contact her so they could “conclude this portion of the claim . . . .” She also sent Bodoh another letter that same day, confirming delivery of the check and once again asking him to contact her so they could “get the release out of the way. . . .”

On July 26, 2011, Bodoh notified Liberty Mutual that the settlement offer had been “automatically withdrawn” because Liberty Mutual did not accept the offer within the specified time and because the limited liability release Liberty Mutual “proffered” contained indemnification language. Hansen filed this personal injury action against Doan several days later, and Doan subsequently answered and filed a motion to enforce the purported settlement agreement. Following a hearing, the trial court granted Doan’s motion, and Hansen timely filed this appeal. Having considered Hansen’s contentions on appeal, we now affirm.

Before turning to Hansen’s specific enumerations of error, we take note of these overarching principles:

In reviewing the trial court’s order on both a motion to enforce a settlement agreement and a motion for summary judgment, we apply a de novo standard of review and... view the evidence in a light most favorable to the nonmoving party, t] Moreover, well-established principles guide our inquiry into whether the parties entered into a settlement agreement. In order to prevent litigation, compromises of doubtful rights are upheld by general policy. At the same time, courts are certainly limited to those terms upon which the parties themselves have mutually agreed. Indeed, apart from such mutual agreement, no enforceable contract exists between the parties. And settlement agreements must meet the same requirements of formation and enforceability as other contracts. Thus, an answer to an offer will not amount to an acceptance, so as to result in a contract, unless it is unconditional and identical with the terms of the offer. The offer must be accepted unequivocally and without variance of any sort. And if a purported acceptance of the plaintiff’s settlement offer imposes any new conditions, it constitutes a counteroffer rather than an acceptance. Furthermore, the party asserting the existence of a contract has the burden of proving its existence and its terms.

(Punctuation and footnotes omitted.) Torres v. Elkin, 317 Ga. App. 135,140-141 (730 SE2d 518) (2012). See also Anderson v. Benton, 295 Ga. App. 851, 852 (673 SE2d 338) (2009); Ruskin v. AAF-McQuay, Inc., 284 Ga. App. 49, 51-52 (1) (643 SE2d 333) (2007).

1. Hansen first contends that the trial court erred by enforcing the settlement agreement because Liberty Mutual failed to comply with the “specific and explicit condition precedent” to deliver a limited release that did not contain indemnification language.

An offer may be accepted... either by a promise to do the thing contemplated therein, or by the actual doing of the thing. The offer 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.

(Citation and punctuation omitted.) Herring v. Dunning, 213 Ga. App. 695, 699 (446 SE2d 199) (1994). Thus, the question here is whether Liberty Mutual’s delivery of a release that contained indemnification language, contrary to Hansen’s settlement demand, constituted an acceptance. Under the particular facts of this case, we conclude that it did.

In determining if parties had the mutual assent or meeting of the minds necessary to reach agreement, courts apply an objective theory of intent whereby one party’s intention is deemed to be that meaning a reasonable man in the position of the other contracting party would ascribe to the first party’s manifestations of assent. Cox Broadcasting Corp. v. Nat. Collegiate Athletic Assn., 250 Ga. 391, 395 (297 SE2d 733) (1982). In making that determination, “the circumstances surrounding the making of the contract, such as correspondence and discussions, are relevant in deciding if there was a mutual assent to an agreement, and courts are free to consider such extrinsic evidence. See 1 Williston on Contracts, § 21, 3 Corbin on Contracts, §§ 106, 577.” Cox Broadcasting, supra at 395.

Frickey v. Jones, 280 Ga. 573, 575 (630 SE2d 374) (2006). McReynolds v. Krebs, 290 Ga. 850, 853 (2) (725 SE2d 584) (2012).

Consideration of the extrinsic evidence in this case is particularly instructive. The first communication Bodoh received from Liberty Mutual after he sent his settlement offer was a letter from O’Rear seeking an interview and additional information concerning Hansen’s medical bills and earnings. But a mere request for confirmation does not constitute a counteroffer, e.g., Herring, 213 Ga. App. at 699; see also McReynolds, 290 Ga. at 855 (Melton, J., concurring in part and dissenting in part), and Bodoh conceded at the hearing on the motion to enforce the agreement that he did not “claim this was in response to [the] demand.”

The next communication occurred a day or so later when O’Rear called Bodoh and informed him that she had sufficient information to tender the policy limits. She also stated that it would not be a problem to provide him with the limited release he wanted, and inquired whether he had a release he wanted to use. Bodoh said he did not, and O’Rear informed him that the only one she had “may have language in there that you don’t like.” Bodoh did not directly reply to this comment, but instead asked O’Rear if she had his fax number and indicated that would “probably be the best way to deal with stuff.” Bodoh cut the conversation short when O’Rear again attempted to discuss the specifics of the only release she had to send him, although she did manage to inform him that she was trying to respond to his offer in a timely manner, which she mistakenly believed required her to respond that day.

O’Rear then faxed Bodoh a letter confirming their conversation, specifically inviting him to tailor the release to fit his “needs” and to make “any changes” he wished to make. At no point did she suggest, either in their conversation or the subsequent letters she faxed to Bodoh, that she was proposing release terms different or at variance with the ones he had requested. Further, we discern nothing that would suggest that she intended the release she provided to him to constitute a counteroffer or that Hansen had to sign that particular release as a condition of settlement. To the contrary, O’Rear clearly contemplated that Bodoh would strike through any portions of the release that were unacceptable to him. “[I]t is well settled that the mere inclusion of a release form unacceptable to the plaintiff does not alter the fact that a meeting of the minds has occurred with regard to the terms of the settlement.” Turner v. Williamson, 321 Ga. App. 209 (2) (738 SE2d 712) (2013).

Here, it is clear that Liberty Mutual accepted Hansen’s offer “ ‘unequivocally and without variance of any sort.’ ” Herring, 213 Ga. App. at 698. Further, to the extent that the offer could only be accepted by performance of certain acts, not by a mutual exchange of promises, we believe that the facts here show that Liberty Mutual did perform the acts demanded for acceptance by tendering the policy limits and providing Hansen with a limited liability release with the clear understanding that his attorney could tailor the release to fit his demand. Thus, “a binding contract [was] created, so far as the question of mutuality was concerned.” Douglas v. Austin-Western Road Machinery Co., 180 Ga. 29, 32 (1) (177 SE 912) (1934).

Further, the recent case of Kitchens v. Ezell, 315 Ga. App. 444 (726 SE2d 461) (2012), does not require a different result. First, Kitchens is physical precedent only and not binding. See Court of Appeals Rule 33 (a). And even if Kitchens were binding, it is factually distinguishable. In that case, counsel for the insurer sent the plaintiffs’ counsel two proposed releases that covered claims and parties that were not part of the original settlement offer, but unlike the present case did not specifically invite plaintiff’s counsel to change the releases to conform to the settlement demand. Thus, we do not believe Kitchens applies here. Further, we likewise find the following cases are distinguishable, as parenthetically explained: Frickey, 280 Ga. at 575-576 (no agreement to settle when insurer’s response required an additional act — resolution of all liens); McReynolds, 290 Ga. at 854 (no binding agreement when counsel’s response to settlement offer proposed resolution of liens “as part of this settlement”); Wyatt v. House, 287 Ga. App. 739, 741 (3) (652 SE2d 627) (2007) (no settlement agreement when insurer’s response required a full release rather than the limited release plaintiff wanted).

2. Although Hansen takes issue with the trial court’s reasoning on the issue of timely acceptance, he concedes on appeal that the trial court’s holding that Liberty Mutual met the deadline for delivery of the check to Bodoh’s office should be affirmed under the “right for any reason” rule. See OCGA § 1-3-1 (d) (3) (computation of time).

Judgment affirmed.

Doyle, P. J., Ray and Branch, JJ., concur. Barnes, P. J., Miller, P. J., and McFadden, J., dissent.

BARNES, Presiding Judge,

dissenting.

I respectfully dissent. The uncontroverted record demonstrates that while the plaintiff expressly conditioned his settlement offer on the tender of a limited release with no indemnity language, Liberty Mutual instead tendered a limited release that contained indemnity language and simply promised to reach agreement on the precise terms of a release at some indefinite time in the future. Because Liberty Mutual’s actions did not constitute an unequivocal acceptance of the plaintiff’s settlement offer, there was no meeting of the minds, and no settlement was reached. The trial court’s order enforcing the alleged settlement thus should be reversed.

The principles of law applicable in this case are well established. “A settlement agreement must meet the same requirements of formation and enforceability as other contracts. Only when a meeting of the minds exists will an agreement be formed.” (Punctuation and footnote omitted.) Greenwald v. Kersh, 275 Ga. App. 724, 725-726 (621 SE2d 465) (2005). See Ruskin v. AAF-McQuay, Inc., 284 Ga. App. 49, 51-52 (1) (643 SE2d 333) (2007). Hence, as with offers made in other contexts, an offer of settlement “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.” (Citation and punctuation omitted.) Herring v. Dunning, 213 Ga. App. 695, 699 (446 SE2d 199) (1994). Furthermore, acceptance of a settlement offer must be “unequivocal [ ] and without variance of any sort.” (Citation and punctuation omitted.) McReynolds v. Krebs, 290 Ga. 850, 853 (2) (725 SE2d 584) (2012). Consequently, a purported acceptance of an offer to settle “that varies even one term of the original offer is a counteroffer.” (Citation and punctuation omitted.) Butler v. Household Mtg. Svcs., 266 Ga. App. 104, 106 (1) (596 SE2d 664) (2004). See Herring, 213 Ga. App. at 698 (“An answer to an offer will not amount to an acceptance, so as to result in a contract, unless it is unconditional and identical with the terms of the offer.”) (citation and punctuation omitted).

The record reflects that after the plaintiff suffered multiple fractures and other severe injuries when his motorcycle was struck by an automobile, his counsel sent a settlement demand letter to the other driver’s automobile insurance carrier, Liberty Mutual, on July 11, 2011. The July 11, 2011 settlement demand letter made a “time limited offer” for the plaintiff to sign a “Limited Release with Liberty Mutual Fire Insurance Company within the meaning of OCGA § 33-24-41.1 for the full $25,000 in policy limits.” The demand letter specified the precise manner of acceptance by Liberty Mutual:

To be accepted, the OCGA § 33-24-41.1 Limited Release in favor of Laura Henkleman Doan and Liberty Mutual Fire Insurance Company only (with no indemnity language) and the $25,000 check payable to only Lawrence Hansen and Robertson, Bodoh & Nasrallah, LLP must be received within twelve (12) days of you receiving this demand. The offer is automatically withdrawn if these conditions are not complied with within the time limit.

By its plain language, the settlement demand letter did not contemplate a mutual exchange of promises; rather, the offer required Liberty Mutual to perform by supplying the limited release “with no indemnity language” and the $25,000 check within 12 days of Liberty Mutual receiving the demand. See generally Penn v. Muktar, 309 Ga. App. 849, 850-851 (711 SE2d 337) (2011) (offer to settle required insurance company to perform certain acts within 20 days of demand letter); Carterosa, Ltd. v. Gen. Star Indent. Co., 221 Ga. App. 246, 248 (1) (489 SE2d 83) (1997) (noting that “the offeror may specify a method through which the offer must be accepted”).

Liberty Mutual met the requirement of tendering the $25,000 check representing the insurance policy limits, but not the additional requirement of tendering a limited release with no indemnity language. In this regard, on July 22, 2011, Liberty Mutual tendered a limited release to plaintiff’s counsel that did contain indemnity language. Accompanying that release was a letter from Liberty Mutual’s claims specialist which stated, “We will... agree to a limited release,” and further stated:

You indicated that you did not have a specific release you wanted to use. I am attaching the only limited release that I have which we can tailor to fit your needs. If you would please look it over and make your suggestions on any changes you wish to make then we can iron out those details.

The claims specialist concluded the response to the plaintiffs offer by stating, “Please get back to me at your earliest convenience so that we may conclude this matter.”

Liberty Mutual’s July 22, 2011 tender of a limited release containing indemnity language, when construed with the accompanying letter from the claims specialist, clearly did not constitute an unequivocal, unvarying acceptance. See McReynolds, 290 Ga. at 853 (2) (acceptance of a settlement offer must be “unequivocal[ ] and without variance of any sort”) (citation and punctuation omitted). The release itself varied from the terms of the original offer made in the settlement demand letter. Furthermore, the accompanying letter from the claims specialist simply expressed a willingness by Liberty Mutual to agree in the future to a limited release after ironing out the details based upon the plaintiff’s suggestions. The net effect was that Liberty Mutual tendered a nonconforming release offering to work out acceptable terms with the plaintiff.

An agreement to agree in the future does not create a binding contract. See John Bleakley Ford, Inc. v. Estes, 164 Ga. App. 547, 548 (1) (298 SE2d 270) (1982). Moreover, when an offer calls for acceptance through performance of a specific act, then the act must be performed for the offer to be accepted; a party does not accept the offer simply by promising to perform that specific act in the future. See Herring, 213 Ga. App. at 699. Accordingly, Liberty Mutual’s tender of the limited release containing indemnity language, qualified and conditioned in the accompanying letter on the parties reaching an agreement on the actual terms of a release, did not operate as an unequivocal acceptance of the settlement offer. It follows that there was never any meeting of the minds, and thus no enforceable settlement. See Penn, 309 Ga. App. at 850-851 (no settlement agreement formed, where plaintiff’s offer expressly conditioned agreement on insurer’s tender of release covering only bodily injury claims, but insurer tendered release covering “any and all claims” resulting from collision). See also McReynolds, 290 Ga. at 853-854 (2); Frickey v. Jones, 280 Ga. 573, 575-576 (630 SE2d 374) (2006); Kitchens v. Ezell, 315 Ga. App. 444, 447-449 (1) (a) (726 SE2d 461) (2012) (physical precedent only). Cf. Porgar, LLC v. CP Summit Retail, LLC, 316 Ga. App. 668, 672 (730 SE2d 136) (2012) (letter stating that it was tenant’s “intent” to exercise option to renew lease and requesting that landlord contact tenant to “discuss” rental rates and “agree to terms” did not constitute an operative notice of acceptance of the renewal option).

The majority, in concluding that a binding settlement agreement was formed, states that the Liberty Mutual claims specialist “clearly contemplated that [plaintiffs counsel] would strike through any portions of the release that were unacceptable to him,” and “specifically invite [d] plaintiffs counsel to change the releases to conform to the settlement demand.” But the letter from the claims specialist to plaintiffs counsel expressly referred to any proposed revisions by counsel as “suggestions,” and went on to state that the parties would “iron out those details” and then “conclude the matter” at a later time. While the claims specialist’s willingness to contemplate the plaintiff’s proposed changes to the release may indicate her good faith attempt to settle the matter, the letter cannot be read as giving the plaintiff’s attorney permission to unilaterally revise the release to his choosing without any further review and input from Liberty Mutual and without the latter having a chance to agree or disagree with the proposed revisions.

The majority also relies upon the recent case of Turner v. Williamson, 321 Ga. App. 209 (738 SE2d 712) (2013), but that case is plainly distinguishable. Under Georgia law, unless an offer specifies otherwise, it can be accepted “either by a promise to do the thing contemplated therein, or by the actual doing of the thing.” Herring, 213 Ga. App. at 699. The settlement offer in Turner did not specify the mode of acceptance and thus could be accepted by a return promise made by the insurer. Therefore, as we held, a binding contract was formed in that case when the insurer agreed to provide the insurance policy limits in return for the plaintiffs’ execution of a limited release in accordance with OCGA § 33-24-41.1. Turner, 321 Ga. App. at 214 (2). In that context, where the settlement agreement could be formed through the exchange of mutual promises, the insurer’s presentation of a proper release for the plaintiffs to sign was a “condition of defendant’s performance” rather than an act necessary to the formation of a binding settlement. Id.

In contrast to Turner, the plaintiff’s settlement offer in the instant case could not be accepted merely by a return promise. Rather, as the plaintiff’s settlement demand letter makes clear, the offer to settle could only be accepted by performance, i.e., by Liberty Mutual’s tender of both the $25,000 check and a limited release with no indemnity language. Hence, the presentation of a limited release with no indemnity language was not merely a “condition of defendant’s performance” as in Turner, but rather an act necessary to acceptance of the plaintiff’s settlement offer. See Kitchens, 315 Ga. App. at 447-449 (1) (a); Penn, 309 Ga. App. at 850-851. The majority’s reliance on Turner, therefore, is misplaced.

Decided March 21, 2013

Robertson, Bodoh & Nasrallah, Keith D. Bodoh, for appellant.

Brown & Adams, Jeffrey A. Brown, for appellee.

For these combined reasons, I believe that a binding settlement agreement was never reached by the parties and that the trial court’s order granting the motion to enforce the settlement should be reversed. Because the majority concludes otherwise, I must respectfully dissent.

I am authorized to state that Presiding Judge Miller and Judge McFadden join in this dissent.

McFadden, Judge,

dissenting.

William Roper: So now you’d give the devil the benefit of law? Sir Thomas More: Yes. What would you do? Cut a great road through the law to get after the devil?
Roper: I’d cut down every law in England to do that.
More: Oh, and when the last law was down, and the devil turned on you, where would you hide, Roper, the laws all being flat? This country is planted thick with laws from coast to coast, man’s laws not God’s, and if you cut them down — and you’re just the man to do it — do you really think that you could stand upright in the winds that would blow then? Yes, I’d give the devil the benefit of the law, for my own safety’s sake.

Robert Bolt, A Man for All Seasons, act. 1, sc. 7.

Prominent in our law is the rule that one who makes an offer is master of the offer. A purported acceptance that fails to meet every condition of an offer — however unreasonable the condition — is a counteroffer and does not create a contract. The majority would cut down that rule to get after a claim that has not yet been brought. See Southern Gen. Ins. Co. v. Holt, 262 Ga. 267 (416 SE2d 274) (1992). I therefore respectfully dissent.

       But see In re Estate of Huff, 287 Ga. App. 614, 614 (652 SE2d 203) (2007) (noting that the “any evidence” standard applies when the trial court has resolved fact issues in deciding the enforceability of a settlement agreement).

       Before tendering the limited release containing indemnity language to plaintiff’s counsel by fax, Liberty Mutual’s claims specialist contacted counsel by phone and, unbeknownst to counsel, recorded the conversation. During the call in which the issue of indemnity was never mentioned, plaintiff’s counsel cut short the conversation and noted that “the best way to deal with stuff” would be by fax rather than by telephone. Contrary to the defendant insured’s suggestion on appeal, there is nothing in the transcript of the abbreviated telephone conversation to indicate that plaintiff’s counsel intended to change the offer to no longer require Liberty Mutual to tender a limited release without indemnity language as a condition of a settlement being reached.

       It may well be the case that the claims specialist was acting reasonably and in good faith and had the desire to reach a settlement with the plaintiff, and that any claim ultimately brought by the plaintiff pursuant to Southern Gen. Ins. Co. v. Holt, 262 Ga. 267 (416 SE2d 274) (1992), might fail. But the Soli issue presents a separate questionfrom whether Liberty Mutual made an unconditional acceptance of the settlement demand and thus from whether a binding contract was in fact formed between the parties.

       It is worth noting that the claims specialist could have tendered a release that conformed to the settlement offer by simply striking out the indemnity language before tendering the release.


author: MILLER, Presiding Judge.

text:
    A12A2116.
    FULLER v. THE STATE.
    (740 SE2d 346)
   MILLER, Presiding Judge.

Following a jury trial, Dontavious Fuller was convicted of two counts of armed robbery (OCGA § 16-8-41 (a)), and two counts of possession of a weapon during the commission of a crime (OCGA § 16-11-106 (b) (1)), arising from two separate incidents which were joined for trial. Fuller appeals from the denial of his motion for new trial, contending that (1) the evidence did not support his convictions; (2) the trial court erred in failing to sustain his objection, issue curative instructions or declare a mistrial based on the State’s allegedly improper closing arguments; (3) the trial court erred in allowing the State to elicit testimony concerning Fuller’s videotaped confession after ruling that the videotape was inadmissible; and (4) trial counsel was ineffective for failing to object to the State’s introduction of Fuller’s statements, which were part of his videotaped confession. For the reasons that follow, we affirm Fuller’s convictions.

On appeal from a criminal conviction, a defendant no longer enjoys the presumption of innocence, and the evidence is viewed in the light most favorable to the guilty verdict. . . . [W]e neither weigh the evidence nor assess the credibility of witnesses, but merely ascertain that the evidence is sufficient to prove each element of the crime beyond a reasonable doubt. Moreover, conflicts in the testimony of the witnesses are a matter of credibility for the jury to resolve. As long as there is some competent evidence, even though contradicted, to support each fact necessary to make out the [Sjtate’s case, the jury’s verdict will be upheld.

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

So viewed, the evidence shows that on January 18,2010, the first victim, a Domino’s Pizza employee, received an order to deliver pizza, wings and bread sticks to a house in Clayton County. When the first victim arrived at the house to deliver the food, two well-built black males wearing hooded face masks yelled at the first victim to give them his money, and the men tasered him repeatedly. The first victim gave the robbers the $20 he had in his pocket. The robbers also took the food and fled the scene.

The detective who investigated the pizza delivery robbery determined that four persons were involved. The detective also linked the phone number used to call in the pizza delivery order to the brother of Fuller’s co-defendant, Theo Douglas, at the Clayton County address where Douglas and his brother lived with their parents. Douglas and others identified Fuller as a participant in the robbery of the first victim.

The evidence further showed that the second victim listed a Blackberry cell phone for sale on craigslist.org, and exchanged a series of text messages with a person interested in buying the Blackberry. The person sending these texts to the second victim used a phone number linked to Fuller’s father, and wanted to meet the second victim at a Wal-Mart in Clayton County.

On January 30, 2010, the second victim met with Fuller and Douglas in the side parking lot of the Wal-Mart to discuss the sale of the Blackberry. While Fuller was speaking to the second victim about the Blackberry, Douglas put a gun to the back of the second victim’s neck, searched his pockets, and took the phone and his wallet. Fuller watched the robbery, and then ran into the woods with Douglas.

The detective investigating the robbery of the second victim at the Wal-Mart, who had also investigated the pizza delivery robbery, linked a telephone number listed in the police report to Douglas’s brother at the address where Douglas and his brother lived with their parents. The detective also determined that Fuller had moved into that house.

The detective obtained a search warrant to enter Douglas’s house. The detective and other officers went to the house on or about February 9, 2010 to interview Douglas and his brother. Douglas was at the house when the detective arrived. The detective executed the search warrant at Douglas’s house and found the stolen Blackberry there. The detective also found Fuller hiding in Douglas’s garage.

Fuller was subsequently arrested on an outstanding sheriff’s warrant. After receiving his Miranda rights, Fuller voluntarily gave a statement. Fuller stated that he and Douglas met the second victim on the right side of the Wal-Mart. Fuller said that he “played it cool” while Douglas approached the second victim with a gun, and stole the second victim’s Blackberry and money. Fuller also stated that Douglas gave him the second victim’s Blackberry after the robbery, and Fuller identified the stolen Blackberry during the police interview.

Fuller was indicted for armed robbery and possession of a weapon during the commission of a felony offense stemming from the armed robbery of the first victim. Fuller was also indicted for armed robbery and possession of a weapon during the commission of a felony offense arising from the armed robbery of the second victim.

At trial, the second victim identified Fuller as the person who robbed him at the Wal-Mart. The first victim did not identify his assailants at trial. However, Douglas, who pled guilty to charges arising from both armed robberies, testified at trial that Fuller had actively participated in both robberies.

1. On appeal, Fuller contends that the evidence did not support his convictions for armed robbery and possession of a weapon during the commission of a crime. We disagree.

A person commits the offense of armed robbery when, with intent to commit theft, he ... takes property of another from the person or the immediate presence of another by use of an offensive weapon, or any replica, article, or device having the appearance of such weapon. . . .

OCGA § 16-8-41 (a). A person commits the offense of possession of a firearm during the commission of a felony when he has on or within arm’s reach of his person a firearm during an armed robbery. See OCGA § 16-11-106 (b) (1). The term “firearm” includes stun guns and tasers. See OCGA § 16-11-106 (a). “Where a robbery is committed by the use of a firearm, separate convictions for armed robbery and possession of a firearm during the commission of a crime are specifically authorized by OCGA § 16-11-106 (e).” (Citations and punctuation omitted.) Howze v. State, 201 Ga. App. 96, 97 (410 SE2d 323) (1991). Moreover, this Court has held:

Where a party has committed armed robbery and possession of a firearm during commission of a felony, an accomplice who is concerned in the commission of those crimes under OCGA § 16-2-20 is likewise guilty of both offenses, notwithstanding the fact that the accomplice did not have actual possession of the firearm.

(Citation and punctuation omitted.) Bryson v. State, 316 Ga. App. 512, 514 (1) (729 SE2d 631) (2012); see also Howze, supra, 201 Ga. App. at 97. Furthermore, in accordance with OCGA § 16-2-20 (a), “[a]ny person concerned in the commission of a crime is a party to it and may be convicted as a principal.” (Citations omitted.) Wilcox v. State, 177 Ga. App. 596 (340 SE2d 243) (1986). Although “mere presence at the scene of the commission of a crime is not sufficient evidence to convict one of being a party thereto, presence, companionship, and conduct before and after the offense are circumstances from which one’s participation in the criminal intent may be inferred.” (Citation and punctuation omitted.) Bryson, supra, 316 Ga. App. at 514-515 (1).

(a) The robbery of the first victim.

The trial evidence showed that four persons, including Fuller, were involved in the robbery of the first victim, who delivered an order of pizza, wings and bread sticks to a house in Clayton County. The evidence also showed that two of the men were well-built black males wearing hooded face masks who yelled at the first victim to give them his money, and tasered the first victim repeatedly. However, the evidence of Fuller’s active participation in the armed robbery of the first victim rested heavily on Douglas’s testimony, because the first victim did not identify his assailants at trial.

The uncorroborated testimony of an accomplice is insufficient to support a felony conviction. See OCGA § 24-4-8 (2011). Furthermore, as the Supreme Court of Georgia has noted, the corroboration rule “is made more stringent by the requirement, not contained in the statute, that the [S]tate must provide corroboration of an accomplice’s testimony regarding the identification and participation of the defendant.” (Footnote omitted.) Parkerson v. State, 265 Ga. 438, 439 (2) (457 SE2d 667) (1995). Nevertheless,

[s] light evidence of a defendant’s identity and participation from an extraneous source is all that is required to corroborate the accomplice’s testimony and thus support the verdict. Moreover, the corroborating evidence itself need not be sufficient to warrant conviction, but only tend to connect and identify defendant with the crime. The corroborating evidence may consist entirely of circumstantial evidence and may include [the] defendant’s conduct before and after the crime was committed.

(Punctuation and footnote omitted.) Gilmore v. State, 315 Ga. App. 85, 87-88 (1) (726 SE2d 584) (2012). Moreover,

[i]t is well settled that the testimony of one accomplice may be used to corroborate that of another. For an accomplice’s corroborating testimony to authorize a conviction, it need not corroborate the testimony of the other accomplice as to all the material facts of the case. It is sufficient if it connects the accused with the commission of the crime, and tends to show [his] guilt.

(Citations and punctuation omitted.) Burton v. State, 293 Ga. App. 822, 825-826 (1) (668 SE2d 306) (2008).

Here, the State presented at least slight evidence connecting and identifying Fuller with the crime. Notably, another participant in the robbery of the first victim testified at trial that the four men, including Fuller, were together during the robbery and all four men ran off and ate the pizza afterward. Although the second accomplice’s testimony did not provide strong corroboration of Douglas’s testimony, it was sufficient to connect Fuller with the crime and tended to show his guilt. See Burton, supra, 293 Ga. App. at 825-826 (1). Thus, when viewed in the light most favorable to the jury’s verdict, the evidence was sufficient to authorize the jury to convict Fuller of armed robbery and possession of a firearm during the commission of a crime.

(b) The robbery of the second victim.

Fuller challenges the second victim’s credibility, contending that the second victim had no idea about who really robbed him until nearly two months after the fact.

We do not determine the credibility of eyewitness identification testimony. Rather the determination of a witness’ credibility, including the accuracy of eyewitness identification, is within the exclusive province of the jury. OCGA § 24-4-8 provides that the testimony of a single witness is generally sufficient to establish a fact.

(Citations and punctuation omitted.) Colzie v. State, 289 Ga. 120, 121 (1) (710 SE2d 115) (2011). The second victim identified Fuller at trial as the man he spoke to about selling the Blackberry while Douglas put a gun to his neck, searched his pockets and took the Blackberry and wallet. The second victim’s testimony was sufficient for the jury to find that Fuller actively participated in the robbery. See id. Moreover, Fuller’s flight from the scene with Douglas provided an additional circumstance from which the jury could infer his guilt. See Woodruff v. State, 233 Ga. 840, 842 (1) (213 SE2d 689) (1975) (holding that “evidence of flight may be admitted as one of a series of circumstances from which guilt may be inferred”) (punctuation omitted). Thus, the evidence was sufficient to authorize the jury to convict Fuller of armed robbery and possession of a firearm during the commission of a crime under the standard established in Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560) (1979).

2. Fuller contends that the trial court erred in failing to sustain his objection to the State’s closing argument concerning the Clayton County Police Department’s workload. Fuller also contends that the trial court erred in failing to issue curative instructions or declare a mistrial based on this argument. We do not agree.

(a) Fuller argues that during closing argument, the State commented on the veracity of the officer witnesses by stating that the Clayton County Police were overloaded with work.

With the exception of Fuller’s objection to the State’s comments, closing arguments in this case were not transcribed. “[Wjhere the transcript or record does not fully disclose what transpired at trial, the burden is on the complaining party to have the record completed in the trial court under the provisions of OCGA § 5-6-41 (f).” (Citation, punctuation and footnote omitted.) Carswell v. State, 251 Ga. App. 733, 736 (3) (555 SE2d 124) (2001). Here, the limited record on this issue shows that when Fuller objected to the State’s concluding argument, the prosecutor responded that he was merely pointing out that police officers have enough work and are not going to falsely accuse someone. The prosecutor also stated that he was not attributing anything to Fuller. After Fuller declined an opportunity to respond to the prosecutor’s explanation, the trial court overruled trial counsel’s objection.

Closing comments are judged in the context in which they are made. See Adams v. State, 283 Ga. 298, 302 (3) (e) (658 SE2d 627) (2008).

As a general rule, prosecutors are granted wide latitude in conducting closing argument, and defining the bounds of such argument is within the trial court’s discretion. This wide latitude encompasses the prosecutor’s ability to argue reasonable inferences raised by the evidence.

(Citations and punctuation omitted.) Tucker v. State, 313 Ga. App. 537, 542 (2) (722 SE2d 139) (2012). The prosecutor cannot state his personal belief as to the veracity of a witness; however, the prosecutor can urge the jury to draw such a conclusion from the evidence. See Adams, supra, 283 Ga. at 302 (3) (e).

Here, the State’s closing comments that the officers would not falsely accuse someone were merely comments urging the jury to make a deduction about the officers’ veracity from the facts, and such comments do not constitute an opinion about the officers’ veracity. See Manley v. State, 284 Ga. 840, 844-845 (2) (b) (672 SE2d 654) (2009) (holding that the State did not improperly comment on the veracity of its witnesses when the State argued in rebuttal that the investigators, officers and prosecuting attorney would not sacrifice their careers to frame the defendant); see also Tucker, supra, 313 Ga. App. at 541-542 (2) (holding that the prosecutor’s closing argument did not improperly vouch for the veracity of the State’s witnesses even when the prosecutor argued that the detectives and officers were not trying to make up a story). Accordingly, Fuller has not shown that the State’s concluding argument improperly opined on the veracity of the officer witnesses.

(b) Fuller also argues that the trial court erred in failing to issue a curative instruction or declare a sua sponte mistrial because the State’s closing comments alleged facts that were not in evidence.

Where the prosecutor improperly injects into the case prejudicial statements on matters outside the evidence, and defense counsel objects, the trial court has an independent duty to rebuke the prosecutor, give an appropriate curative instruction, or grant a mistrial. See O’Neal v. State, 288 Ga. 219, 221 (1) (702 SE2d 288) (2010) ; see also OCGA § 17-8-75.However,in the absence ofarequest for a mistrial,

the trial court [is] required to act sua sponte only if there [is] a manifest necessity for a mistrial. And manifest necessity requires urgent circumstances. A trial court’s decision whether to grant a mistrial lies within its discretion based upon a consideration of the totality of the surrounding circumstances. Thus, a trial court’s decision whether to grant a mistrial based upon manifest necessity is entitled to great deference. This deference to the judge’s sound discretion also precludes a reviewing court from assuming, in the absence of record evidence, that the trial judge deprived a defendant of constitutional rights.

(Citations and punctuation omitted.) Gonzalez v. State, 310 Ga. App. 348, 350-351 (2) (714 SE2d 13) (2011). Closing arguments in this case were not transcribed, and the limited record on this issue does not show that the State’s closing argument alleged facts not in evidence. Accordingly, the record does not demonstrate that the trial court erred by failing to fulfill its duty under OCGA § 17-8-75, or that manifest necessity required a mistrial. Moreover, even if the trial court did err, it is highly probable that such error did not contribute to the verdict since the trial court specifically instructed the jury that the closing arguments of counsel did not constitute evidence and the jury acquitted Fuller of three additional counts arising from a third armed robbery. See O’Neal, supra, 288 Ga. at 223 (2).

3. Fuller contends that the trial court erred in allowing the State to elicit testimony concerning Fuller’s videotaped confession after the trial court ruled that the videotape was inadmissible under the discovery statute. We disagree.

The discovery statute grants broad discretion to the trial court in remedying any violations of its provisions. The court may order the state to permit the discovery or inspection, interview of the witness, grant a continuance, or, upon a showing of prejudice and bad faith, prohibit the [S]tate from introducing the evidence not disclosed or presenting the witness not disclosed, or may enter such other order as it deems just under the circumstances. In enacting this statute, the legislature did not impose a rigid formulation or grant an exclusive remedy for a defendant or a fatal consequence to the State for failure to comply with the discovery mandates. Instead, it cloaked the trial court with the discretion to use its own judgment to ensure a fair trial.

(Citations and punctuation omitted.) Rooks v. State, 238 Ga. App. 177, 178 (1) (518 SE2d 179) (1999); see also OCGA § 17-16-6. “Before the harsh sanction of excluding evidence will be imposed by the trial court under OCGA § 17-16-6, the defendant must show both that he was prejudiced and that the [S]tate acted in bad faith.” (Footnote omitted.) Romero v. State, 247 Ga. App. 724, 726 (545 SE2d 103) (2001).

At trial, Fuller objected to the admission into evidence of his videotaped interview based on the State’s failure to produce a copy of the recording ten days before trial as required by OCGA § 17-16-4 (a) (1). Although the trial court excluded the videotape from evidence due to the discovery violation, the trial court did not rule that Fuller’s statements were inadmissible. Thus, contrary to Fuller’s argument, the State did not elicit testimony concerning the contents of the videotape in violation of the trial court’s ruling under the discovery statute.

Moreover, this Court may look to all evidence in the record in determining the admissibility of Puller’s confession, and our review of the record does not show that a motion to suppress would have been successful. See Haynes v. State, 269 Ga. 181, 183-184 (4) (496 SE2d 721) (1998). Notably, the detective testified that Fuller was not threatened or coerced into making his statements, he did not appear to be under the influence of any medicines or intoxicants, and he freely and voluntarily made his statements after receiving his Miranda rights verbatim. Accordingly, the trial court did not err in allowing the detective to testify to Fuller’s statements.

4. Fuller contends that his trial counsel was ineffective for failing to object to the State’s introduction of Fuller’s statements which were part of his inadmissible videotaped confession. Again we disagree.

To establish ineffective assistance of counsel under Strickland v. Washington, 466 U. S. 668 (104 SC 2052; 80 LE2d 674) (1984), a criminal defendant bears the burden of showing that counsel’s performance was deficient and that the deficient performance so prejudiced defendant that there is a reasonable likelihood that, but for counsel’s errors, the outcome of the trial would have been different.... The trial court’s determination with respect to effective assistance of counsel will be affirmed unless its findings are clearly erroneous.

(Citations and punctuation omitted.) Robinson v. State, 312 Ga. App. 736, 742 (3) (719 SE2d 601) (2011).

At the motion for new trial hearing, trial counsel testified that he probably would have filed a motion to suppress Fuller’s videotaped statements, but he did not have an opportunity to do so after he watched the videotape. However, trial counsel conceded that the evidence was overwhelming and Fuller would not have had a better chance at trial if the trial court had excluded Fuller’s videotaped statements. In denying Fuller’s motion for new trial, the trial court found that although trial counsel was deficient, Fuller failed to show that the outcome of his trial would have differed but for trial counsel’s error.

As we held in Division 3 above, the detective’s testimony regarding Fuller’s statements was admissible. Moreover, given the other admissible evidence of his guilt, Fuller did not show that there was a reasonable probability that the outcome of his trial would have differed but for trial counsel’s failure to object to the introduction of his statements at trial. See Rouse v. State, 295 Ga. App. 61, 65-66 (2) (670 SE2d 869) (2008). Accordingly, the trial court did not clearly err in finding that Fuller failed to show prejudice from trial counsel’s performance.

Decided March 21, 2013.

Stanley W. Schoolcraft III, for appellant.

Tracy Graham-Lawson, District Attorney, Elizabeth A. Baker, Assistant District Attorney, for appellee.

Judgment affirmed.

Ray and Branch, JJ., concur.

       The jury also found Fuller guilty of two counts of aggravated assault (OCGA § 16-5-21 (a) (1)); however, the trial court merged these counts into the armed robbery counts for sentencing purposes.

       Prior to trial, the trial court granted the State’s motion for joinder of the charges arising from the two robberies.

       Fuller contends on appeal that the pre-trial photo identification was tainted; however, he did not object to the in-court identification at trial, and thus has waived his right to raise that issue on appeal. See Baxter v. State, 188 Ga. App. 598, 600 (3) (373 SE2d 834) (1988). We also reject Fuller’s contention that the second victim identified Fuller because he was the only one sitting at the defense table. Simply seeing Fuller at the defense table did not automatically taint the second victim’s in-court identification. See Buchanan v. State, 273 Ga. App. 174, 179 (1) (b) (614 SE2d 786) (2005).

       Fuller was also indicted for armed robbery and two counts of aggravated assault arising from a March 2010 robbery. The jury acquitted Fuller of these counts.