author: ANDREWS, Presiding Judge.

text:
    A13A2451.
    ARMSTRONG v. THE STATE.
    (754 SE2d 652)
   ANDREWS, Presiding Judge.

After a bench trial on evidence stipulated to by the prosecution and the defense, Charles Christopher Armstrong was found guilty of trafficking in methamphetamine in violation of OCGA § 16-13-31 (e); possession of a controlled substance (oxycodone) in violation of OCGA § 16-13-30 (a); possession of a controlled substance (less than one ounce of marijuana) in violation of OCGA §§ 16-13-30 (j) and 16-13-2 (b); and driving while his license was suspended in violation of OCGA § 40-5-121. On appeal Armstrong contends (1) that the trial court erred by denying his pre-trial motion to suppress evidence found by police during a warrantless inventory search of his impounded car; and (2) that the evidence was insufficient to support the guilty verdict. We find that the trial court correctly denied the motion to suppress and that the evidence was sufficient to support the guilty verdict.

1. As to the motion to suppress, Armstrong’s contention on appeal and in the trial court was that (1) it was not reasonably necessary for police to impound the car; therefore police had no basis to conduct the warrantless inventory search of the car pursuant to the impoundment, and (2) the warrantless search was an illegal investigatory search conducted under the guise of an inventory search.

The following undisputed evidence was produced at the hearing on the motion to suppress and at the bench trial: A Gwinnett County police officer stopped the car driven by Armstrong because a computer check by the officer on the car’s license plate showed that the car’s registration had been cancelled. The officer made the stop when Armstrong turned the car into a gas station and parked in front of a gas pump. During the stop, Armstrong initially gave the officer a false name and a fake driver’s license. The sole passenger in the car also gave the officer false identification information. After determining Armstrong’s true name, additional computer checks conducted during the stop showed that Armstrong’s driver’s license was suspended, and that both Armstrong and the passenger had outstanding arrest warrants. The officer placed Armstrong and the passenger under arrest. After the gas station operator informed the officer that the car was blocking the gas pump and could not be left at the gas station, the officer made the decision to impound the car and tow it. Pursuant to police department procedures, the officer immediately conducted a warrantless inventory search of the impounded car. During the inventory search, the officer found a backpack in the rear passenger seat which contained various controlled substances which the State used as evidence to support the charges brought against Armstrong.

After lawfully impounding a vehicle, it is reasonable under the Fourth Amendment for police to conduct a warrantless, noninvestigatory search of the vehicle, pursuant to standard police procedures, to produce an inventory of the vehicle’s contents to protect the owner’s property, or to protect police from potential danger or claims for lost or stolen property. Stringer v. State, 285 Ga. App. 599, 601-603 (647 SE2d 310) (2007); Grizzle v. State, 310 Ga. App. 577, 579 (713 SE2d 701) (2011). Thus, “[^justification for an inventory search is premised upon the validity of the impoundment of the vehicle.” Stringer, 285 Ga. App. at 602. The test under the Fourth Amendment “is whether the impoundment was reasonably necessary under the circumstances, not whether it was absolutely necessary.” Grizzle, 310 Ga. App. at 579 (citation and punctuation omitted). In the present case, the trial court found that the impoundment was reasonably necessary because the car’s registration had been cancelled, the driver and the sole passenger were under arrest, and the owner of the private property where the car was stopped did not want the car to remain on the property. Because the unregistered car could not be lawfully driven, and could not remain where it was located, the trial court’s finding that the impoundment was reasonably necessary was supported by the evidence and will not be disturbed on appeal. Id. at 578-580. Contrary to Armstrong’s contention, the officer was not required under these circumstances to ask him what he wanted done with the car prior to impounding it. Scott v. State, 316 Ga. App. 341, 343-344 (729 SE2d 481) (2012).

Armstrong also contends that the warrantless search violated the Fourth Amendment because the officer admitted prior to the search that he suspected the car may contain contraband. Thus, Armstrong contends that the officer conducted an illegal investigatory search without a warrant under the guise of an inventory search.

The Fourth Amendment does not permit police officers to disguise warrantless, investigative searches as inventory searches. However, [police are not required to demonstrate] an absence of expectation of finding criminal evidence as a prerequisite to a lawful inventory search. When officers, following standardized inventory procedures, seize, impound, and search a car in circumstances that suggest a probability of discovering criminal evidence, the officers will inevitably be motivated in part by criminal investigative objectives. Such motivation, however, cannot reasonably disqualify an inventory search that is performed under standardized procedures for legitimate custodial purposes.

United States v. Lopez, 547 F3d 364, 372 (2d Cir. 2008) (citations and punctuation omitted). Because evidence showed that the impoundment of the car was lawful and that the search was conducted in good faith pursuant to standard police department procedure for a valid inventory purpose, the trial court’s denial of the motion to suppress was supported by the evidence and will be affirmed on appeal. Grizzle, 310 Ga. App. at 580.

2. The evidence was sufficient to support the trial court’s verdict finding Armstrong guilty of the charged offenses.

Evidence stipulated to by the prosecution and the defense showed the following: Armstrong was driving a car (which was also occupied by a passenger in the front passenger seat) when a police officer stopped the car for a cancelled registration. During the stop, the officer placed Armstrong under arrest because he gave the officer a false name and a fake driver’s license and was subject to an outstanding arrest warrant. The passenger was also arrested for giving false information during the stop and for being subject to an outstanding arrest warrant. Police impounded the car and conducted an inventory search of the car. During the search, the officer found a backpack in the rear passenger seat which contained clear crystals, ten pills, green leafy material, and a paper copy of the fake license that Armstrong gave to the officer. The State Crime Lab tested the crystals and the pills — the crystals tested positive for methamphetamine weighing more than 28 grams, and the pills tested positive for oxycodone. A police department crime scene specialist conducted tests on the leafy material which tested positive for marijuana weighing less than one ounce. Evidence also showed that Armstrong had received prior notice that his driver’s license was suspended. Finally, although Armstrong stipulated to evidence at the bench trial that a copy of the fake license he gave to the officer was found in the backpack, he disputed that evidence when he testified at trial that the copy of the fake license was in his wallet, not in the backpack, and that he had no knowledge of the backpack. Armstrong also testified at the trial that the passenger had no knowledge of the backpack or drugs in the backpack.

Decided February 6, 2014.

Ainsworth & Winfrey, Breeman N. Ainsworth, Jr., Daniel R. Partain, for appellant.

Daniel J. Porter, District Attorney, Jennifer L. Gower, Assistant District Attorney, for appellee.

Evidence showed that Armstrong was driving the car in which the backpack containing the contraband was located on the rear seat; that the sole passenger had no knowledge of the backpack; and that Armstrong was linked to the backpack by his control of the car and evidence that the backpack contained a copy of the fake driver’s license he gave to the officer. The evidence, direct and circumstantial, was sufficient for a rational trier of fact to find beyond a reasonable doubt: (1) that Armstrong knowingly had both the power and intention to exercise dominion or control over the controlled substances (methamphetamine, oxycodone, and marijuana) found in the backpack, and that he was in constructive possession of those substances (Reyes v. State, 322 Ga. App. 496, 497-498 (745 SE2d 738) (2013); OCGA §§ 16-13-31 (e); 16-13-30 (a); 16-13-30 (j); 16-13-2 (b)) and (2) that Armstrong knowingly drove the car while his license to drive was suspended (OCGA § 40-5-121). Jackson v. Virginia, 443 U. S. 307 (99 SCt 2781, 61 LE2d 560) (1979).

Judgment affirmed.

Dillard and McMillian, JJ., concur.


source: Caselaw Access Project

author: McMillian, Judge.

license: Public Domain

text:
    A13A2471.
    POWDER SPRINGS HOLDINGS, LLC et al. v. RL BB ACQ II-GA PSH, LLC.
    (754 SE2d 655)
   McMillian, Judge.

Powder Springs Holdings, LLC and others (collectively “Powder Springs”) appeal from the trial court’s order confirming the nonjudicial foreclosure sale of certain real property (the “Property”) by appellee RL BB ACQ II-GA PSH, LLC (“RL BB”). Powder Springs enumerates two errors, contending that the trial court erred by denying its motion to dismiss based on RL BB’s failure to obtain a certificate of authority prior to instituting the confirmation proceedings, which it contends was required under OCGA § 14-11-711, and that the trial court erred by confirming the sale because RL BB failed to present evidence of the fair market value of the Property as of the date of foreclosure. As more fully set forth below, we now affirm.

For purposes of this appeal, the underlying facts are undisputed. In July 2006, Powder Springs executed a promissory note, as subsequently modified, in favor of Branch Banking and Trust Company (“BB&T”), which was guaranteed by several individuals and an LLC and secured by a deed to secure debt (collectively “loan documents”). In 2011, BB&T transferred, assigned and conveyed all its interest in the loan documents to Rialto Real Estate Fund, LP (“Rialto”), a Delaware Limited Partnership, and Rialto subsequently transferred, assigned and conveyed its interest in the loan documents to appellee RL BB. By this time the loan was in default, and RL BB instituted foreclosure proceedings pursuant to the power of sale contained in the security deed and thereafter conducted a foreclosure sale of the property securing the loan. Pursuant to OCGA § 44-14-161, RL BB then reported the sale to an appropriate superior court judge and filed the present confirmation petition. Following two hearings, the trial court confirmed the sale, and Powder Springs filed this appeal.

1. We first consider whether the trial court should have dismissed the confirmation petition because RL BB, a Florida limited liability company, was not authorized to transact business in Georgia.

Pursuant to OCGA § 14-11-702 (a), a foreign limited liability company transacting business in this state is required to obtain a certificate of authority from the Georgia Secretary of State, subject to certain exceptions set forth in OCGA § 14-11-702 (b). Further, OCGA § 14-11-711 (a) prohibits a foreign limited liability company transacting business in this state from maintaining an action, suit, or proceeding in the courts of this state until it has obtained the required certificate. Relying on this section, Powder Springs moved to dismiss the confirmation petition, arguing that RL BB admitted in the confirmation petition that it “does business” in Georgia. RL BB defended the motion, arguing that the only business it transacted in this state was in connection with the loan and foreclosure related to the confirmation petition, and that all of these activities fell within the exceptions listed in OCGA § 14-11-702 (b). The trial court subsequently denied the motion without stating the specific basis for its decision.

On appeal, Powder Springs again relies solely on RL BB’s “affirmative allegation” in its confirmation petition that it “does business in the State of Georgia,” arguing that this “admission in solemn judicio” relieved Powder Springs of presenting any other evidence to establish that RL BB was required to obtain a certificate of authority prior to availing itself of the courts of this state. See OCGA § 24-8-821 (“Without offering the same in evidence, either party may avail himself or herself of allegations or admissions made in the pleadings of the other”).

Although it is true, as Powder Springs contends, that a party is estopped from contradicting a solemn admission in judicio, that rule applies only to admissions of fact and does not apply when the admission is merely the opinion or conclusion of the maker as to the law or fact. In other words, “[t]he rule as to admissions in judicio does not apply to legal conclusions but only to statements of fact.” In re Estate of Chambers, 261 Ga. App. 737, 740 (1) (583 SE2d 565) (2003). Here, RL BB alleged that it “does business” in Georgia, but, without more, that does not prove that it was required to obtain a certificate of authority to transact business in this state. The statute specifically provides that certain specified business activities “shall not be considered to be transacting business in this state, for the purpose of qualification under this chapter,” thereby allowing a foreign limited liability company to engage in these business activities without having to obtain a certificate of authority. OCGA § 14-11-702 (b). Thus, determining whether a foreign limited liability company is “transacting business” in this state within the meaning of OCGA § 14-11-702 (a) also requires a determination of whether any of the exclusions listed in subsection (b) apply, and presents a mixed question of fact and law concerning whether the company is required to obtain a certificate of authority because it is “transacting” business in this state within the meaning of the statute. E.g., Mansell 400 Assoc. v. Entex Information Svcs., Inc., 239 Ga. App. 477, 482 (519 SE2d 46) (1999) (on motion for reconsideration) (party not bound by his admission that he “vacated” the premises because the “vacate” as used in the lease was a question of law for the court to determine).

In this case, the pleadings and evidence show only that RL BB conducted the following activities in Georgia: acquired the underlying loan documents, advertised and conducted the foreclosure sale, purchased the property at the foreclosure sale, reported the sale and filed the confirmation petition. Powder Springs did not present any evidence showing that RL BB transacted any other business in Georgia. A limited liability company is not considered to be transacting business in Georgia merely because it engages in activities of this type. See OCGA § 14-11-702 (b). “A defendant bringing a motion in abatement^ such as the one asserted by Powder Springs,] has the burden of proving the facts necessary to support a judgment of dismissal.” Carrier411 Svcs., 322 Ga. App. at 170 (1). This Powder Springs failed to do. Accordingly, the trial court did not err by denying the motion to dismiss. Id.

2. Powder Springs also contends that the trial court should have disregarded RL BB’s appraiser’s testimony concerning the value of the property because: (1) “the appraiser admitted [at the hearing] that he had no current opinion about the value [of the property] on the date of the foreclosure”; (2) the appraiser’s testimony concerning the market value of Property was not the “product of reliable principles and methods”; and (3) the appraiser failed to apply “the principles and methods reliably to the facts of the case.” See OCGA § 24-7-702 (2013).

As we have explained on several occasions,

the confirmation process, which is a condition precedent to an action for deficiency judgment, was intended to protect a debtor from a deficiency judgment when the involuntary sale brings less than the true market value. The law requires that, following an application for confirmation of a foreclosure sale under power of sale, the trial court hold a hearing to require evidence of the property’s true market value and to pass upon the legality of the notice, advertisement, and regularity of the sale. The trial court’s primary duty at a hearing is a judicial ascertainment that the property brought at least its true market value on the foreclosure sale.

(Citations and punctuation omitted.) Nicholson Hills Dev., LLC v. Branch Banking & Trust Co., 316 Ga. App. 857, 860 (1) (730 SE2d 572) (2012). See also OCGA § 44-14-161. To fulfill its duty

the court shall require evidence to show the true market value of the property sold under the powers and shall not confirm the sale unless it is satisfied that the property so sold brought its true market value on such foreclosure sale. On appellate review, the test is not whether this court would have accepted appellant’s expert appraisals as the most reliable and accurate, but whether the record contains any evidence to support the findings of the superior court that the property brought its true market value at the foreclosure sale.

(Citation and punctuation omitted.) Diplomat Constr., Inc. v. State Bank of Texas, 314 Ga. App. 889, 890-891 (1) (726 SE2d 140) (2012).

At the final confirmation hearing, RL BB presented the testimony of Connie Richard Gragg, Jr., a certified general appraiser who was admitted without objection as an expert on commercial real estate evaluation. Gragg gave his opinion that the value of the property, which consisted of approximately 23 acres of undeveloped land zoned primarily for retail use in Powder Springs, Georgia, was approximately $1.8 million as of the date of the foreclosure sale. Further, Gragg testified at length concerning the method he used to appraise the property, why he chose that particular method, the market conditions affecting his appraisal, the factual information upon which he based his appraisal and other factors he took into account in reaching his opinion concerning the true market value of the property. Moreover, although Gragg testified that he prepared his appraisal report on May 13, 2011, approximately three weeks before the foreclosure sale on June 7,2011, he unequivocally testified that he was familiar with the market conditions during the intervening weeks and that there had been no change in those conditions which would affect the value of the property.

During cross-examination, Powder Springs questioned Gragg concerning “retrospective appraisals” and whether Gragg had done any additional work to determine if there had been any comparable sales after the foreclosure sale. Powder Springs also elicited testimony from Gragg to the effect that he was not testifying about the value of the property as of the date of the confirmation hearing, but was “defending” his evaluation of the property and his opinion concerning its value at the time of the appraisal and foreclosure. Following this testimony, Powder Springs moved to exclude Gragg’s testimony and dismiss the confirmation petition, arguing that there was no evidence of the fair market value of the property as of the date of foreclosure because Gragg did not “update” his appraisal prior to the hearing “to give his current opinion about the date, about the value of the property on the date of the foreclosure” but instead gave his “historical opinion.” The trial court took the motion under advisement and subsequently denied the motion in the order granting the confirmation of the sale. Powder Springs now challenges that ruling, arguing that the superior court should have disregarded Gragg’s testimony and then dismissed or denied the confirmation petition because no other evidence of the value of the Property at the time of the foreclosure had been presented.

We find no error. First, notwithstanding Powder Springs’ characterization of Gragg’s testimony, Gragg clearly testified concerning the value of the property at the time of the foreclosure, based on his evaluation of the market conditions and appraisal of the property at that time. As we have stated on numerous occasions, it is the date of the foreclosure sale that is relevant in determining the true market value of the property. E.g., Wilson v. Prudential Indus. Properties, LLC, 276 Ga. App. 180, 182 (2) (622 SE2d 890) (2005) (“[The] true market value is determined as of the date of foreclosure sale.”). We thus find Powder Springs’ argument that Gragg’s testimony did not establish the value of the property as of the relevant date to be unavailing, as did the trial court. Diplomat Constr., 314 Ga. App. at 891 (1).

Further, we find no merit to Powder Springs’ contention that Gragg’s testimony concerning the value of the property was inadmissible because it was not based on reliable principles and methods and because he failed to apply the principles and methods reliably to the facts of the case. See OCGA § 24-7-702 (2013). In support of this contention, Powder Springs argues that Gragg should have performed a “retrospective” appraisal, so that he could give his current opinion about the value of the property on the date of foreclosure. But, as we have also held on numerous occasions, the confirmation statute does not specify, or preclude, any particular method for appraising property to determine its true market value at the time of the foreclosure. Ivy Road Properties, LLC v. First Citizens Bank & Trust Co., 311 Ga. App. 409, 411 (2) (715 SE2d 809) (2011) (“OCGA § 44-14-161 (b) does not preclude any specific method of property appraisal”). And, as stated above, Gragg testified extensively about his training and the factual information and methods he used to arrive at his opinion, and there is no contention that those methods were not reliable — indeed Gragg testified that he adhered to the standards in appraising the property that Powder Springs argues on appeal were applicable here. Using these methods, and the market conditions existing at the time of the foreclosure, Gragg was able to give his opinion about the market value of the property as of the date of foreclosure. As stated above, this is what the law requires. “The admissibility or exclusion of expert testimony rests in the broad discretion of the trial court, and consequently, the trial court’s ruling thereon cannot be reversed absent an abuse of discretion.” Diplomat Constr., 314 Ga. App. at 895 (4). Based on the foregoing, we find the trial court did not abuse its discretion by admitting Gragg’s testimony. Accordingly, sufficient, competent evidence supported the superior court’s finding that the sale should be confirmed.

Decided February 6, 2014.

Robert J. Proctor, for appellants.

Womble, Carlyle, Sandridge & Rice, Arthur A. Ebbs, G. William Long III, Michael J. Sullivan, for appellee.

Judgment affirmed.

Andrews, P. J., and Dillard, J., concur.

       The other parties to this appeal are the guarantors of the loan.

       We will assume for the sake of our analysis that the filing of the confirmation petition constituted “proceeding^]” within the meaning of OCGA § 14-11-711 (a), noting that the parties do not contend otherwise. But see, e.g., River Walk Farm, L.P. v. First Citizens Bank & Tust Co., 321 Ga. App. 173, 176 (1) (741 SE2d 165) (2013) (confirmation proceeding is a limited statutory proceeding and issues concerning assignment and standing are outside the scope of the proceeding); Boring v. State Bank & Tust Co., 307 Ga. App. 93, 95 (1) (704 SE2d 207) (2010) (same); BBC Land & Dev., Inc. v. Bank of North Ga., 294 Ga. App. 759, 760 (1) (670 SE2d 210) (2008) (“application for confirmation pursuant to OCGA § 44-14-161 is a special statutory proceeding and not a complaint which initiates a civil action or suit in the ordinary meaning of those terms”); Sparti v. Joslin, 230 Ga. App. 346 (496 SE2d 490) (1998) (real party in interest not relevant at confirmation proceeding); Vlass v. Security Pacific Nat. Bank, 263 Ga. 296, 297 (1) (430 SE2d 732) (1993) (filing of application for confirmation is not a “complaint” which initiates a “civil action” and thus need not be served on the debtor); Wammock v. Smith, 143 Ga. App. 186, 187 (2) (237 SE2d 668) (1977) (because a confirmation is not a “suit,” foreign trustee need not file a certified copy of his appointment before he may “sue”); Jonesboro Investment Tust Assn. v. Donnelly, 141 Ga. App. 780, 783 (1) (234 SE2d 349) (1977) (confirmation proceeding is an application to a judge and not a “suit”).

       In Carrier 411 Svcs., Inc. v. Insight Technology, Inc., 322 Ga. App. 167, 169 (1) (744 SE2d 356) (2013), we held that an oral motion to dismiss asserted at trial based on a foreign corporation’s failure to obtain a certificate of authority prior to instituting garnishment proceeding was untimely, reasoning that this affirmative defense should have been specially pled in the garnishee’s answer. But, as Powder Springs points out, the debtor in a foreclosure confirmation case is not required to file an answer, see OCGA § 44-14-161; Belans v. Bank of America, 309 Ga. App. 208, 211-212 (709 SE2d 853) (2011), and our law allows an adverse party who is not required to file a responsive pleading to “assert at the trial any defense in law or fact to [the] claim for relief.” OCGA § 9-11-12 (b). See also Ramchandani v. State Bank & Tust Co., 324 Ga. App. 235 (749 SE2d 797) (2013) (discussing applicability of the Civil Practice Act to confirmation proceedings); Small Business Admin. v. Desai, 193 Ga. App. 852, 853 (1) (389 SE2d 372) (1989) (same).

       We note that the final hearing on the petition was held after the January 1,2013 effective date of the new Georgia Evidence Code and accordingly the citations in this opinion are to those provisions. We note, however, that OCGA § 24-8-821 was formerly codified at OCGA § 24-3-30 and that the prior and present versions are substantially the same.

       We reach our conclusion without considering the effect, if any, of RL BB’s assertion that it is a special purpose entity formed solely to handle the underlying foreclosure and related proceedings, an assertion that was supported only by the testimony of the foreclosure attorney who stated at the confirmation hearing that “RL BB is a special purpose entity created by Rialto.”

       That section provides in pertinent part as follows:
      ... [A] foreign limited liability company shall not be considered to be transacting business in this state . . . solely by reason of carrying on . . . one or more of the following activities:... (7) Making loans or creating or acquiring evidences of debt, mortgages, or liens on real or personal property or recording the same; (8) Securing or collecting debts or enforcing any rights in property securing the same; (9) Owning, without more, real or personal property!)]

       The prior version, which was substantially the same, was codified at OCGA § 24-9-67.1.

       OCGA § 24-7-702 is substantially the same as the prior version, which was codified at OCGA § 24-9-67.1.

       The record clearly demonstrates that the trial court properly performed its “gatekeeper” function prior to ruling that the expert’s testimony was admissible in this case. See Boring, 307 Ga. App. at 98 (Blackwell, J., concurring specially).


author: BARNES, Presiding Judge.

text:
    A13A2476.
    COLEMAN v. THE STATE.
    (753 SE2d 449)
   BARNES, Presiding Judge.

Jemal David Coleman and a co-defendant were jointly tried for the robbery of a bank. The jury found Coleman guilty of the charged offense, and the trial court denied his motion for new trial. On appeal, Coleman challenges the sufficiency of the evidence. Coleman further contends that the trial court’s charge to the jury on impeachment of a witness by a prior conviction amounted to an improper comment on the evidence; that the trial court erred in allowing the State to introduce into evidence the statement of his nontestifying co-defendant in violation of his Sixth Amendment right of confrontation; and that the trial court abused its discretion in denying his motion to sever his trial from that of his co-defendant. For the reasons discussed below, we affirm.

Construed in favor of the verdict, the evidence showed that on the morning of May 18, 2010, a man later identified by bank employees as Coleman entered the Bank of North Georgia in Paulding County. He was wearing a dark hat, sunglasses, and a jacket that was “zipped all the way up to his neck.” Coleman approached one of the tellers and placed a note on the counter in front of her that read, “Put money in the bag. Don’t push any buttons.” He then folded up the note and threw a black bag onto the counter. The teller placed over $5,000 in the bag, and Coleman left the bank with the money.

Unbeknownst to Coleman, when placing the money in the bag, the teller also included a “track pack.” The track pack was a set of bills that had a portion cut out of them into which a Global Positioning System (“GPS”) tracking device had been embedded. When the track pack was removed from the teller’s cash drawer, it sounded an alarm to a 911 call center and began transmitting information about the location of the device.

After the teller removed the track pack from her drawer, the 911 call center began monitoring the movement of the device and relaying the information about the location of the signal to a police dispatcher. The signal led the police down Interstate 20, Six Flags Drive, and ultimately to an apartment complex in Fulton County, where they found an empty car with its headlights on and the engine still running. When a police investigator with a handheld beacon for tracking the signal approached the car, the device emitted the strongest signal near the trunk.

Co-defendant Vernon Keith McDougald was standing nearby watching the police. When the investigator went over to the car with the handheld beacon, McDougald approached him, said that the car belonged to his mother, and asked what was going on. The investigator had another officer remove McDougald from the immediate vicinity of the car. The investigator then looked in the trunk of the car and saw the black bag containing the money and track pack. The serial numbers on the money matched the serial numbers of the money stolen from the bank. The police also performed a sweep of the apartment complex, where Coleman was discovered hiding on the floor of an apartment unit where he did not live or know the tenants.

The police arrested McDougald and Coleman for the robbery of the bank. A cell phone discovered on McDougald at the time of his arrest showed two phone calls between McDougald and Coleman earlier that morning approximately one hour before the robbery.

On the day of his arrest, McDougald consented to a police interview after being advised of his rights. In the recorded interview, McDougald admitted to the detectives that the car containing the stolen money belonged to his mother and that he had driven the car on Interstate 20, on Six Flags Drive, and in the apartment complex on the morning of the robbery. McDougald also told the detectives that he knew Coleman because his girlfriend was Coleman’s niece.

A detective later prepared photographic lineups that included a picture of Coleman for bank employees to review. The teller who had placed the money in the bag identified Coleman as the man who had given her the note and taken the money. Upon identifying Coleman as the bank robber, the teller told the detective that “she was 100 percent sure.” A second teller who had observed the bank robbery also identified Coleman as the robber in a photographic lineup.

McDougald and Coleman subsequently were tried together for the robbery after the trial court denied Coleman’s motion for a severance. The teller who had been approached by Coleman and who placed the money in the bag testified to the events as set out above and positively identified Coleman as the robber. She further testified that upon being approached by Coleman, her “breathing changed” and she was “very scared” because she was not sure if he had a gun. According to the teller, she thought she “would be hurt or one of [her] coworkers would be hurt” if she did not comply with Coleman’s demands.

The second teller who had witnessed the bank robbery also testified and positively identified Coleman as the robber. The 911 call center worker who monitored the location of the track pack and the officers and detectives involved in the case testified as well. Additionally, the bank robbery had been captured on the bank’s video-surveillance cameras, and the State introduced surveillance footage and still photographs taken from the footage.

Over objection from Coleman, the State also introduced into evidence and played for the jury three video clips from the recording of McDougald’s police interview in which McDougald made the statements about the car and about Coleman that were previously discussed. The trial court later charged the jury that an out-of-court statement by one defendant could only be considered as evidence against that defendant.

McDougald elected not to testify. In contrast, Coleman took the stand and testified that McDougald had dated his wife’s niece. Although he denied involvement in the bank robbery, Coleman testified that McDougald had picked him up in the car on the day of the robbery, that he ultimately had “jumped out of the car because there [were] cops all over the place” and he “was on parole,” and that he had fled “inside an apartment of people [he did not] know” before the police found him. Coleman further testified that McDougald had called him on the morning of the robbery and that he had called McDougald back that same morning, and that both calls occurred approximately one hour before the robbery. Moreover, Coleman testified that he had previously pled guilty to robbery in New York, where he had committed eight or nine robberies over a span of about three months. According to Coleman, he had been incarcerated for 12 years, and he had been out of prison for less than a year when the bank robbery occurred in this case.

After hearing all of the evidence, the jury convicted Coleman of robbery and McDougald of the lesser-included offense of theft by taking. Coleman filed a motion for new trial, which the trial court denied. This appeal followed.

1. Coleman contends that there was insufficient evidence to convict him of the robbery of the bank. His contention is without merit.

Following a criminal conviction, the defendant is no longer presumed innocent, and we view the evidence in the light most favorable to the jury’s verdict. Sidner v. State, 304 Ga. App. 373, 374 (696 SE2d 398) (2010). We do not weigh the evidence or assess the credibility of the witnesses. Id. Instead, we apply the standard set forth in Jackson v. Virginia, 443 U. S. 307, 319 (III) (B) (99 SCt 2781, 61 LE2d 560) (1979) and “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 and punctuation omitted.) Sidner, 304 Ga. App. at 374.

OCGA § 16-8-40 (a) (2) provides:

A person commits the offense of robbery when, with intent to commit theft, he takes property of another from the person or the immediate presence of another ... [b]y intimidation, by the use of threat or coercion, or by placing such person in fear of immediate serious bodily injury to himself or to another [.]

The indictment alleged that Coleman committed robbery in that, with the intent to commit theft, he took United States currency belonging to the Bank of North Georgia from the person or immediate presence of the teller “by intimidation, and by placing [the teller] in fear of immediate serious bodily injury to herself or another.”

The teller’s testimony, including her identification of Coleman as the robber and her description of being very scared, was sufficient, standing alone, to establish the essential elements of the offense of robbery beyond a reasonable doubt. See Thomas v. State, 322 Ga. App. 734, 736 (2) (a) (746 SE2d 216) (2013). See Muckle v. State, 307 Ga. App. 634, 637 (1) (a) (705 SE2d 721) (2011) (eyewitness testimony was sufficient by itself to sustain conviction). And while Coleman testified that he did not rob the bank, “it was the role of the jury, not this Court, to assess the credibility of the witnesses and decide whose testimony to accept or reject.” Muckle, 307 Ga. App. at 638 (1) (a). Accordingly, based upon the evidence set forth above, Coleman’s robbery conviction was authorized under the standard of Jackson v. Virginia, 443 U. S. at 319 (III) (B). See Thomas, 322 Ga. App. at 736 (2) (a).

2. Coleman also contends that the trial court’s charge to the jury on impeachment of a witness by a prior conviction amounted to an improper comment on the evidence. We disagree.

The trial court charged the jury on several aspects of impeachment, including the following:

To impeach a witness is to prove that the witness is unworthy of belief. A witness may be impeached by, (A), disproving the facts to which the witness testified; (B), by proof that the Defendant Jemal Coleman has been convicted of the offense of Robbery in the First Degree in the State of New York; or (C), by proof of contradictory statements previously made by a witness about matters relevant to the witness’s testimony and to the case.

(Emphasis supplied.) Also as part of its charge on impeachment, the trial court informed the jurors that “[i]t is for you to determine whether or not a witness has been impeached and to determine the credibility of such witness and the weight the witness’s testimony shall receive in consideration of the case.” Later in its charge, the trial court further stated that “by no ruling or comment that the court has made during the progress of this trial has the court intended to express any opinion whatsoever upon the facts of this case, upon the credibility of the witnesses, upon the evidence, or upon the guilt or innocence of the defendants.” Coleman did not object to the charge on impeachment during the charge conference or after the trial court completed its charge to the jury.

Coleman argues that by naming him and describing his prior conviction in its charge on impeachment of a witness by a prior conviction, the trial court “told the jury [that he] had, in fact, been convicted of the New York offense and it should be used as a basis for disbelieving him and inferring his guilt in the present case.” As such, Coleman argues that the trial court’s charge constituted an impermissible expression of opinion regarding what had been proven in the case and thus was reversible error under OCGA § 17-8-57.

“It is error for any judge in any criminal case, during its progress or in his charge to the jury, to express or intimate his opinion as to what has or has not been proved or as to the guilt of the accused.” OCGA § 17-8-57. “Even if defense counsel fails to raise an objection, if the trial court violates this statutory provision, we are required to order a new trial, and there can be no finding of harmless error.” (Citations and punctuation omitted.) Booker v. State, 322 Ga. App. 257, 259 (1) (744 SE2d 429) (2013). See State v. Gardner, 286 Ga. 633, 634 (690 SE2d 164) (2010); Sauerwein v. State, 280 Ga. 438, 439 (2) (629 SE2d 235) (2006).

In this case, the trial court’s charge on impeachment of a witness by a prior conviction was not an impermissible expression of opinion because the fact that Coleman had been convicted of robbery in the first degree in New York was undisputed and never contradicted by any evidence.

It is true that OCGA § 17-8-57 is violated when the court’s comment assumes certain things as facts and intimates to the jury what the judge believes the evidence to be. Courts of this State have always recognized, however, that a statement by a trial court concerning a fact that is uncontested or is not in dispute does not constitute a violation of this statute.

(Citations and punctuation omitted.) Rolland v. State, 321 Ga. App. 661, 665 (1) (a) (742 SE2d 482) (2013). See Sauerwein, 280 Ga. at 439 (2). See also Thomas v. State, 27 Ga. App. 38, 40 (107 SE 418) (1921) (statute prohibiting expressions of opinion by trial court “refers to the expression or intimation of an opinion touching some fact at issue involved in the case, and not to something that is conceded by both parties”) (citations and punctuation omitted). Therefore, “when the evidence to establish a fact is undisputed, and the fact is admitted by the accused on his trial, it is not error for the judge to assume such fact in formulating appropriate instructions to the jury.” McCloud v. State, 166 Ga. 436, 444 (143 SE 558) (1928).

Coleman expressly admitted during his testimony at trial that he had previously pled guilty to robbery in New York, where he had committed eight or nine robberies over a span of about three months. Later, during the charge conference, Coleman’s counsel expressly stated that the defense did not object to a charge on impeachment by prior conviction and never disputed that “New York calls it Robbery in the First Degree.” Under these circumstances, Coleman’s prior conviction for robbery in the first degree in New York was undisputed, and thus the trial court’s charge on impeachment was not an impermissible expression of opinion regarding what had been proven by the evidence. See Branscomb v. State, 272 Ga. App. 700, 701 (1) (613 SE2d 222) (2005) (trial court’s questioning of defendant regarding his prior guilty plea did not constitute impermissible expression of opinion because “the trial judge’s questioning of [the defendant] concerned facts that were not disputed by [the defendant]”). Compare Byrd v. State, 307 Ga. App. 589, 592 (705 SE2d 690) (2011) (trial court’s comment that venue had been proven constituted improper expression of opinion, when “at the time the court made its comment [ ], the record shows that venue was still contested”).

We likewise reject Coleman’s argument that the trial court violated OCGA § 17-8-57 because the charge on impeachment of a witness by a prior conviction “express [ed] an unfavorable opinion of [his] credibility” and “essentially told the jury the only inference they could draw” was that he was guilty of the bank robbery in this case. It is well established that “jury instructions must be read and considered as a whole in determining whether the charge contained error.” (Citation and punctuation omitted.) Hines v. State, 320 Ga. App. 854, 865 (5) (b) (740 SE2d 786) (2013). Taken as a whole, the trial court’s charge on impeachment did not require the jury to disbelieve Coleman’s testimony based on proof of his prior New York conviction. Rather, the trial court charged jurors that Coleman “may be impeached” by his prior New York conviction and that it was for them to determine whether any given witness had been impeached, whether the witness was credible, and what weight to assign the witness’s testimony. The trial court further charged jurors that none of its comments had been intended to express an opinion regarding the credibility of the witnesses or the guilt or innocence of the defendants. Thus, taking into account the jury charge as a whole, we discern no violation of OCGA § 17-8-57.

3. As previously noted, the trial court admitted into evidence the portions of the statement that co-defendant McDougald made to the police in which he stated that the car in which the stolen money was found belonged to his mother, that he had been driving the car on the day of the bank robbery, and that he knew Coleman because his girlfriend was Coleman’s niece. The trial court thereafter charged the jurors that an out-of-court statement by one defendant could only be considered as evidence against that defendant. Because McDougald elected not to testify at trial, Coleman contends that the introduction of McDougald’s out-of-court statement, which was redacted in part but still included the reference to Coleman, violated his Sixth Amendment right of confrontation under Bruton v. United States, 391 U. S. 123 (88 SCt 1620, 20 LE2d 476) (1968). Again, we disagree.

Under the Confrontation Clause of the Sixth Amendment, a criminal defendant has the right to confront witnesses against him and to cross-examine them. Generally, when a jury is instructed that certain testimony or evidence may only be considered against a co-defendant, the jury is presumed to follow the court’s instruction and the testimony or evidence is not considered to be “against” the defendant. In Bruton, however, the Supreme Court [of the United States] recognized a narrow exception to this principle, by-holding that when a facially, powerfully incriminating statement of a non-testifying co-defendant is presented to the jury, the risk is so great the jury will ignore the limiting instruction and consider the co-defendant’s confession against the defendant that the general rule cannot be followed. The Court thus held that the introduction of such statements, even with a limiting instruction, violates the defendant’s right of confrontation.
In contrast to cases involving powerfully incriminating statements of a co-defendant, the Supreme Court [has] stated that when a co-defendant’s statement does not directly incriminate the defendant and the jury is required to draw inferences to connect the statement to the defendant, it is a less valid generalization that the jury will not likely obey the instruction to disregard the evidence.
In accordance with the latter principle, [the Supreme Court of Georgia has] held that Bruton only excludes statements by a non-testifying co-defendant that directly inculpate the defendant, and that Bruton is not violated if a co-defendant’s statement does not incriminate the defendant on its face and only becomes incriminating when linked with other evidence introduced at trial.

(Punctuation and footnotes omitted.) Moss v. State, 275 Ga. 96, 98 (2) (561 SE2d 382) (2002). See Richardson v. Marsh, 481 U. S. 200, 206-208 (II) (107 SCt 1702, 95 LE2d 176) (1987); Dulcio v. State, 292 Ga. 645, 649 (2) (740 SE2d 574) (2013).

We conclude that the trial court did not err under Bruton by admitting portions of McDougald’s statement to the police. The only reference in the police statement to Coleman was when McDougald indicated that he knew Coleman because his girlfriend was Coleman’s niece. But that reference, standing alone, did not directly inculpate Coleman; rather, it became incriminating only when linked with other evidence presented at trial. Because McDougald’s statement was not “facially, powerfully incriminating” of Coleman, we presume that the jury followed the trial court’s limiting instruction and only considered the statement as evidence against McDougald. (Citation and punctuation omitted.) Moss, 275 Ga. at 98 (2). It follows that McDougald’s out-of-court statement was not “against” Coleman and therefore did not violate the Confrontation Clause. See id. See also Daniel v. State, 285 Ga. 406, 408 (3) (b) (677 SE2d 120) (2009); Thomas v. State, 268 Ga. 135, 137-138 (6) (485 SE2d 783) (1997).

4. Lastly, Coleman contends that the trial court erred in denying his motion to sever his trial from that of McDougald. We are unpersuaded.

Whether to grant a severance is a matter within the trial court’s discretion. Heard v. State, 274 Ga. 196, 199 (5) (552 SE2d 818) (2001).

When exercising its discretion, the trial court should consider factors such as: 1. Will the number of defendants create confusion of the evidence and law applicable to each individual defendant? 2. Is there a danger that evidence admissible against one defendant will be considered against another despite the admonitory precaution of the court? 3. Are the defenses of the defendants antagonistic to each other or to each other’s rights?

(Footnote omitted.) Ham v. State, 303 Ga. App. 232, 241 (5) (692 SE2d 828) (2010). See Daniel, 285 Ga. at 407-408 (3). “The burden is on the moving party to make a clear showing of prejudice and a denial of due process in the absence of severance.” Ward v. State, 288 Ga. 641, 644 (3) (706 SE2d 430) (2011).

Coleman has failed to carry his burden in this case. He essentially challenges the trial court’s determination on the second factor, i.e., “danger that evidence admissible against one defendant will be considered against another despite the admonitory precaution of the court.” (Footnote omitted.) Ham, 303 Ga. App. at 241 (5). In this regard, Coleman argues that McDougald’s out-of-court statement to police would not have been admissible if he had been tried separately, which would have eliminated the risk of the jury improperly considering the statement as evidence against him. However, as noted supra in Division 3, the introduction of McDougald’s statement in the joint trial did not constitute a Bruton violation. Thus, we presume that the jury followed the trial court’s limiting instruction and only considered the statement as evidence against McDougald. Because McDougald’s statement could be introduced in the joint trial without posing a Bruton problem, the trial court did not abuse its discretion in denying Coleman’s motion to sever. See Ham, 303 Ga. App. at 243 (5) (a).

Judgment affirmed.

Miller and Ray, JJ., concur.

Decided January 14, 2014

Robbery. Paulding Superior Court. Before Judge Osborne. Bentley C. Adams III, for appellant.

Dick Donovan, District Attorney, A. Brett Williams, Assistant District Attorney, for appellee.


text:
    A13A2158.
    LAVERTU v. THE STATE.
    (754 SE2d 663)
   BARNES, Presiding Judge.

A jury convicted Jacqueline Lavertu of driving with a blood alcohol count over 0.08 (“DUI per se”), of driving under the influence of alcohol to the extent that it was less safe for her to drive (“DUI less safe”), and driving with an open alcoholic container. She argues on appeal that the trial court abused its discretion in denying her motion for a new trial on her conviction of DUI less safe because the verdict was strongly against the weight of the evidence, and that she was entitled to a new trial because her trial counsel’s performance was deficient in failing to question witnesses about the handling of her blood sample and failing to object that the State’s closing argument was prejudicial. For the reasons that follow, we affirm.

“On appeal from a criminal conviction, we view the evidence in the light most favorable to the verdict, and the defendant no longer enjoys a presumption of innocence.” Green v. State, 323 Ga. App. 832 (748 SE2d 479) (2013). So viewed, the evidence shows that a trooper with the Georgia State Patrol observed Lavertu cross the yellow centerline several times and stopped her to investigate whether she was impaired. Her pupils were slightly constricted and bloodshot, and her speech was slightly slurred. She initially got out of the car with no shoes on but returned to the car and put them on when the trooper asked if she wanted to do so. Her hand gestures were “sporadic” and nervous. The trooper attempted to conduct field sobriety tests, but Lavertu said an injury prevented her from performing the one-leg stand or walk and turn tests. She performed several counting and dexterity tests, and when asked to count backward from 75 by ones she “butchered it” several times, counting off seemingly random numbers that were not sequential. When asked to perform a finger dexterity test counting from one to four and four to one while touching her thumb to her fingers, Lavertu was unable to count backward. With her head back and eyes closed, Lavertu was unable to touch her nose. While attempting to perform the horizontal gaze nystagmus test, the trooper observed a nystagmus at maximum deviation, but Lavertu would not follow his directions to continue focusing on his finger, and so the nystagmus was not sustained sufficiently for him to document its existence. She declined to take a portable breath test to confirm or deny the presence of alcohol in her system. She was very nervous and “antsy,” moving in and out of the camera frame as equipment in the trooper’s car recorded the stop.

A second trooper who was qualified as an expert in alcohol and drug recognition testified that the first trooper asked him to come to the scene and give his opinion about whether Lavertu was under the influence of drugs or alcohol. He also testified that Lavertu would not follow his stimulus on the horizontal gaze nystagmus test, which tested for involuntary jerking of the eyes, nor would she follow his directions for a balance test. When she closed her eyes and leaned her head back with her hands at her side, she estimated that 30 seconds had passed when actually 56 seconds had passed. The expert testified that an estimate of time off by five seconds either way is an indication of impairment. Finally, Lavertu had body tremors and her eyes showed a lack of convergence when tested. In the expert opinion of the second trooper, Lavertu was under the influence of a central nervous system depressant or cannabis, to the extent she was a less safe driver.

While the first trooper thought that Lavertu was not “falling over drunk,” he also thought she was not sober and was a less safe driver than someone who was not under the influence of drugs or alcohol because her reaction time was suppressed. He arrested Lavertu for DUI and after placing her in the back of his patrol car, he and other officers searched the area of her car within reach of the driver’s seat. Inside a pocketbook on the floor on the passenger side, the trooper found a shoe containing a small empty vodka bottle, of the size used on airplanes. A police cadet on scene found one or two more similar empty vodka bottles. The trooper read the implied consent notice to Lavertu, and she agreed to give a blood sample, which was drawn at the police station.

A toxicologist with the Georgia Bureau of Investigation (“GBI”) Division of Forensic Sciences testified that upon receipt of evidence, the “evidence receiving technician” creates a file in the GBI database with information such as the subject’s name, the date of receipt, and the incident information. The evidence is assigned a unique identification number, and bar code stickers with that number are printed and applied to all the evidence and paperwork associated with the case. The technician then photographs the evidence and forwards it to the toxicologist. After testifying about the specific testing procedures used, the toxicologist testified that the sample labeled with Lavertu’s name contained 0.159 grams of alcohol, plus or minus 0.006 grams, per 100 milliliters of blood, which exceeded the per se blood alcohol content of 0.08. The effect of that level of alcohol on a person would be decreased inhibitions, increased self-confidence and sociability, slower information processing, possible mental confusion, memory lapses, difficulty perceiving sights and sounds, uncoordinated motor skills, poor balance, and slowed reaction to glare. Driving would be affected because it would take longer to process information, and in the toxicologist’s opinion, someone with a 0.159 blood alcohol content would be a less safe driver.

The jury convicted Lavertu of DUI per se (alcohol), DUI less safe (alcohol), and the open container violation, but acquitted her of DUI less safe (alcohol and drugs) and failure to maintain her lane.

1. Lavertu argues that the trial court abused its discretion by denying her motion for new trial on her DUI less safe conviction because the verdict was “decidedly and strongly against the weight of the evidence.” OCGA § 5-5-21 authorizes the trial court to “exercise a sound discretion in granting or refusing new trials in cases where the verdict may he decidedly and strongly against the weight of the evidence even though there may appear to be some slight evidence in favor of the finding.” This statute gives the trial court broad discretion to sit as a “thirteenth juror” and weigh the evidence on a motion for new trial alleging this general ground. See Ricketts v. Williams, 242 Ga. 303, 304 (248 SE2d 673) (1978). When asked to do so, “the law imposes upon the trial court an affirmative duty to exercise its discretion and weigh the evidence to determine whether a new trial is warranted.” Hartley v. State, 299 Ga. App. 534, 540 (3) (683 SE2d 109) (2009).

A trial court’s review of the evidence under OCGA § 5-5-21 differs from its review of the evidence in response to a motion for a directed verdict under OCGA § 17-9-1. In the latter case, the trial court has a duty to grant a directed verdict of acquittal “when there is no conflict in the evidence and it clearly demands a verdict of acquittal as a matter of law.” Merino v. State, 230 Ga. 604, 605 (1) (198 SE2d 311) (1973). A review under OCGA § 5-5-21 also differs from a determination that the evidence was not sufficient to allow a rational trier of fact to find a defendant guilty beyond a reasonable doubt of the offense charged. See Ricketts, 242 Ga. at 304. In that case, “the court is required to approach the evidence from a standpoint most favorable to the government, and to assume the truth of the evidence offered by the prosecution.” (Citation and punctuation omitted.) Id. (grant of new trial under predecessor to OCGA § 5-5-21 is not a finding that evidence was legally insufficient and retrial thus is not barred under the Double Jeopardy Clause of the United States Constitution).

Lavertu argues both that the trial court failed to exercise its discretion and weigh the evidence and that it abused its discretion by failing to find the verdict was strongly against the weight of the evidence, contending that “[n]o rational trier of fact could find under the facts in this case, that [she] was guilty beyond [a] reasonable doubt of driving to the extent that she was less safe to drive.” She argues that the following evidence establishes that the trial court erred in denying her motion for new trial based on OCGA § 5-5-21: the officers on scene were unable to discern any definitive evidence of intoxication from field sobriety tests; four officers spent nearly an hour before deciding there was probable cause to arrest her; she consented to a blood test; and her acquittal of the offense of failure to maintain her lane of traffic indicates that the jury believed she was not driving unsafely.

In this case the trial court clearly exercised its discretion under OCGA § 5-5-21 to determine whether the verdict was against the great weight of the evidence. In its order denying Lavertu’s motion for new trial, the court found specifically that her conviction for DUI less safe was “not against the greater weight of evidence.” After thoroughly reviewing the evidence and Lavertu’s arguments, the trial court found that

[m]aking a conclusory allegation that the officer’s testimony is just “some slight evidence” and the remaining evidence weighs “heavily” against the verdict is not enough to overturn the Jury verdict in the instant case. The Defendant has made no showing that the Jury verdicts are against the weight of available evidence. Thus this Court finds no basis to overturn the Jury verdict on the DUI Less Safe [charge].

Likewise, we find no basis for reversing the trial court’s exercise of discretion in denying Lavertu’s motion for a new trial under OCGA § 5-5-21.

2. Lavertu argues that her trial counsel was ineffective for failing “to question the witnesses regarding the handling of the blood sample taken from [her] on the date of her arrest” and for failing to object during the State’s closing argument. Ineffective assistance is a deficient performance by counsel resulting in actual prejudice. Strickland v. Washington, 466 U. S. 668 (104 SCt 2052, 80 LE2d 674) (1984); Dillard v. State, 323 Ga. App. 333, 336 (2) (753 SE2d 772) (2013). “If an appellant fails to meet his or her burden of proving either prong of the Strickland test, the reviewing court does not have to examine the other prong.” Wright v. State, 291 Ga. 869, 870 (2) (734 SE2d 876) (2012). “In reviewing the trial court’s decision, [the appellate courts] accept the trial court’s factual findings and credibility determinations unless clearly erroneous, but... independently apply the legal principles to the facts.” (Citation and punctuation omitted.) Id.

(a) Lavertu argues that, although five days passed between the night the blood sample was taken and the day it was received by the lab, defense counsel “made no attempt to discern what happened to the blood” during this five-day window, such as what temperature it was kept at, whether it was handled properly or who possessed it. Because the only theory of defense was that the blood sample must have belonged to someone else, Lavertu argues, failing to raise questions about the test’s reliability constitutes deficient performance.

Lavertu concedes that the State met its burden of proving sufficient chain of custody evidence. She argues instead that her trial counsel should have challenged the authenticity or reliability of the sample itself, because while the trial court decides the legal issue of admissibility, the jury decides whether the evidence is believable. In rejecting this argument, the trial court noted in its order denying Lavertu’s motion for new trial that Lavertu’s trial counsel questioned the State’s witnesses about the temperature of the blood and whether it was handled properly. Citing Lawrence v. State, 274 Ga. 794, 795 (3) (560 SE2d 17) (2002), the court concluded that trial counsel’s decision “to delve into one particular aspect of the evidence more than another is a matter of exercising professional judgment by counsel” and does not show deficient performance. As we have emphasized, “the degree to which an attorney chooses to cross-examine witnesses and the manner in which to attack their credibility fall within the ambit of trial tactics.” (Citation and punctuation omitted.) Id.

Further, Lavertu has not even speculated about what her trial counsel could have asked the witnesses that would have caused the jury to question the test’s reliability, much less proffered evidence about their responses. “Absent a proffer, defendant cannot meet his burden of making an affirmative showing that specifically demonstrates how counsel’s failure would have affected the outcome of his case.” (Citation and punctuation omitted.) Hortman v. State, 293 Ga. App. 803, 807 (e) (670 SE2d 99) (2008) (defendant cannot establish that trial would have ended differently without proffering evidence at the motion for new trial hearing that would have been revealed if counsel had subpoenaed telephone records). As Lavertu established neither her trial counsel’s deficiency nor any resulting prejudice, reversal on this ground is not warranted.

(b) Lavertu contends that her trial counsel was ineffective for failing to object when the State personally vouched for a witness’s credibility during closing argument. During her cross-examination of the witness who drew her blood sample at the police station, Lavertu’s trial counsel brought out that the witness also served as the chaplain for Douglas County law enforcement officers. During her closing argument, defense counsel said about this witness:

[S]he is the lady as you’ll recall who owns the private blood taking company that works for Douglas County and 18 other counties. So not only does she do that, but she’s also the chaplain for police officers and inmates here in Douglas County. So she helps put away the people she then later goes and counsels. I’ll let you think about that one.

In response, the prosecutor argued that the jury had to look at the evidence and put it all together, and that he found it “offensive” that defense counsel said it was the “troopers [’] fault” and “the crime lab’s fault” for not doing what they should have done. He continued, “It’s the blood drawer’s fault because she’s a chaplain and she works with inmates and law enforcement.” After discussing the specific charges, the prosecutor said that the per se charge that it was illegal to drive with more than 0.08 grams of alcohol was “pretty straightforward. All right. Unless you get into some conspiracy theories as to where her blood came from and how it got there.” Later, discussing the testimony of the witness about the process of drawing Lavertu’s blood, the prosecutor said:

She said there was nothing to note about it. I’m sure there wasn’t. . . . I’m not sure what’s to be made of the fact that she’s a chaplain and works with inmates. And she works with the sheriff’s office. I’m not really sure what the big deal about that is other than the fact that she’s a good person. I don’t think too many chaplains would be making up evidence. You know, putting someone else’s blood in there. I don’t think she was doing that.

The prosecutor went on to discuss the chain of custody evidence and the toxicologist’s testimony, then noted that Lavertu’s defense seemed to be that the blood tested belonged to someone else. After reviewing more of the evidence, the prosecutor argued that the blood test results were consistent with the field sobriety tests and that “[n] o one’s trying to trick anybody here.”

Decided February 7, 2014.

Edward V. C. Silverbach, Katherine L. Dodd, for appellant.

Matthew C. Krull, Solicitor-General, David Holmes, Assistant Solicitor-General, for appellee.

At the hearing on Lavertu’s motion for new trial, her trial counsel testified that unless a prosecutor says something “really egregious,” she tended not to object because prosecutors “have a lot of latitude.” She also considered whether getting up and interrupting someone during closing argument to make an objection that might not be important would make her lose credibility with the jury. In hindsight, the prosecutor’s remarks might have been objectionable, but at the time she thought these remarks were not significant in light of the evidence regarding Lavertu’s blood alcohol level.

“It is improper for counsel to state to the jury counsel’s personal belief as to the veracity of a witness; however, it is not improper for counsel to urge the jury to draw such a conclusion from the evidence.” Metts v. State, 270 Ga. 481, 484 (4) (511 SE2d 508) (1999). The trial court found that, looking at these comments in context, the prosecutor’s closing argument in this case was a permissible response to Lavertu’s attempt to create a question of bias because the witness worked as a chaplain for the county sheriff’s department. The court concluded that the failure of Lavertu’s trial counsel to object to these comments was not ineffective assistance.

Pretermitting whether the prosecutor’s argument was an impermissible statement of his personal belief, “deficient performance, alone, does not amount to ineffective counsel. [Lavertu] must establish that counsel’s inaction was so prejudicial to [her] defense that, but for the deficiency, there was a reasonable probability that the outcome of the trial would have been different.” (Citation omitted.) Lloyd v. State, 280 Ga. 187, 192 (2) (d) (ii) (625 SE2d 771) (2006). “In light of the overwhelming evidence of [Lavertu’s] guilt, [she] has failed to demonstrate that but for the handful of comments in the prosecution’s closing argument discussed above, there is a reasonable probability that the outcome of the trial would have been more favorable to [her].” (Citation and punctuation omitted.) Reed v. State, 291 Ga. 10, 17 (4) (b) (727 SE2d 112) (2012).

Judgment affirmed.

Miller and Ray, JJ., concur.

       Lavertu does not challenge the search on appeal.


author: Boggs, Judge.

text:
    A13A2372.
    THOMAS v. CHANCE.
    (754 SE2d 669)
   Boggs, Judge.

Freída Thomas appeals from the trial court’s grant of summary-judgment to her brother, Donald Chance, on her complaint for repayment of loans totaling $132,700. In her appeal, Thomas asserts that the trial court erred by granting summary judgment in favor of Chance. For the reasons explained below, we agree and reverse.

“We review the grant or denial of a motion for summary judgment de novo, and we must view the evidence, and all reasonable inferences drawn therefrom, in the light most favorable to the nonmovant.” (Citation and punctuation omitted.) Woodcraft by MacDonald, Inc. v. Ga. Cas. & Surety Co., 293 Ga. 9,10 (743 SE2d 373) (2013). So viewed, the record shows that Thomas was the president and 90% owner of Formaboard, Inc., which employed her three siblings: Donald Chance, Andy Chance, and Joan Hayes. In June 1998, Formaboard, Inc. was sold in a stock purchase agreement for a confidential amount, and its operations were later moved from Georgia to South Carolina. Shortly before the sale of the business in 1998, Thomas met with her siblings, told them she had decided to sell the business, and offered to lend them money “to help each of them with their financial needs during the transition.” According to Thomas’ interrogatory responses, she “further stated that if and when her own financial need arose, she would give them notice to repay the loans.” In her deposition, she admitted that she did not recall whether Donald Chance expressly stated that he would repay the loans, explaining “[t]here was no disagreement ].”

Between June 1998 and October 2000, Thomas provided money to Donald Chance by writing checks to him or his immediate family members, giving him cash, or making payments directly to merchants on his behalf. Thomas testified that in 2007 she verbally asked Donald Chance to start making payments on the loans. In June or July 2009, she informed Donald Chance that she needed repayment of $100,000. According to Thomas, Donald Chance told her “he was unable to pay it all at once, but said he would get back to [her] to discuss the amount he could start paying.” After Donald Chance failed to get back with Thomas, she filed suit against him.

Andy Chance testified that Thomas made an oral agreement to loan him a total of $107,035 and that he repaid this money over a six-year period of time. He testified that he was present at meetings with Donald Chance, Joan Hayes, and Thomas shortly before the sale of Formaboard in which Thomas stated she would loan her three siblings money after the sale.

Joan Hayes testified that she also received loans totaling $ 135,000 from Thomas and that she repaid the money over time. As with her brother Andy, Hayes did not have a written loan agreement. She testified with regard to the loans that “we were told that — there might come a time that the need would be there for the money, and we could expect to have to pay that back.”

Donald Chance testified that funds he received from Thomas’ personal bank account over a two-year period of time after the sale of Formaboard were profit-sharing payments based upon his employment with Formaboard, even though he was working for Formaboard’s successor at the time he received these checks. He denied that Thomas loaned him any money or asked him to repay any loans.

The trial court granted summary judgment in favor of Donald Chance based upon its conclusion that the alleged verbal loan agreement was unenforceable because it did not specify an interest rate and a maturity date. It also concluded that there was “no verbal agreement sufficiently clear to be capable of enforcement.”

On appeal, Thomas correctly asserts that the lack of an interest rate and maturity date is not fatal to her claim. “If no time is specified for performance, performance is due immediately or within a reasonable time after the contract is made. What is a reasonable time is for the jury.” Parker v. Futures Unlimited, 157 Ga. App. 520, 520-521 (278 SE2d 99) (1981) (conflicting evidence authorized trier of fact to find that “money advanced to appellant by the appellee was a loan to be repaid and not compensation for employment”). And parties to a contract may contemplate a loan which is payable on demand at some indefinite time in the future. See Scarboro v. Ralston Purina Co., 160 Ga. App. 576, 578 (287 SE2d 623) (1981).

The cases relied upon by the trial court to require a specified interest rate as a condition for enforcement of the loan are distinguishable, because each of these cases involves an alleged breach of a promise to loan and disburse funds by a commercial banking institution, not the breach of an agreement to repay a personal loan already disbursed to a family member. See Dolanson Co. v. C. & S. Nat. Bank, 242 Ga. 681 (251 SE2d 274) (1978) (purchase-money borrower sued bank for breaching alleged promise to provide additional construction financing for property); Wachovia Bank of Ga. v. Mothershed, 210 Ga. App. 853 (437 SE2d 852) (1993) (granting summary judgment to bank for breach of alleged oral contract to make additional future loans). In this case, genuine issues of material fact exist as to whether the money provided by Thomas to Donald Chance were loans payable on demand as claimed by Thomas, or profit-sharing payments as asserted by Chance.

Decided February 7, 2014.

Daniel B. Greenfield, for appellant.

Chance’s failure to verbally respond when Thomas stated she would lend money to each of her siblings after the sale of Formaboard does not entitle him to summary judgment in his favor as a matter of law. “To constitute a valid contract, there must be parties able to contract, a consideration moving to the contract, the assent of the parties to the terms of the contract, and a subject matter upon which the contract can operate.” OCGA § 13-3-1.

In determining whether there was a mutual assent, 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, or that meaning which the other contracting party knew the first party ascribed to his manifestations of assent. Further, in cases such as this one, 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. Where such extrinsic evidence exists and is disputed, the question of whether a party has assented to the contract is generally a matter for the jury.

(Citations omitted.) Turner Broadcasting System v. McDavid, 303 Ga. App. 593, 597 (1) (693 SE2d 873) (2010). And “assent may be implied from the circumstances,” Redmond & Co. v. Atlanta & Birmingham Air-Line R., 129 Ga. 133, 142-143 (58 SE 874) (1907), and the conduct of the parties. Tom Brown Contracting v. Fishman, 289 Ga. App. 601, 603-604 (1) (658 SE2d 140) (2008). In this case, a genuine issue of material fact exists based upon Donald Chance’s conduct in accepting money from Thomas that she testified was offered to him as a loan. See Mills v. Barton, 205 Ga. App. 413, 414-415 (3) (422 SE2d 269) (1992) (affirming judgment for amount owed on loan where evidence showed that “defendant, through her father as her agent, accepted the money from the plaintiff in exchange for understanding that she would repay the plaintiff when she was financially able”). We therefore reverse the trial court’s grant of summary judgment in favor of Donald Chance.

Judgment reversed.

Doyle, P. J., and McFadden, J., concur.

James J. Hopkins, Robert J. Harker, for appellee.


author: Ray, Judge.

text:
    A13A2225.
    MELJON v. SONSINO et al.
    (753 SE2d 456)
   Ray, Judge.

This appeal seeks to reverse an order cancelling of record a notice of lis pendens. For the reasons that follow, we reverse.

In August 2007, appellant Solly Meljon and appellee Victor Sonsino, through a company Sonsino owned called Carmel Industries, Inc., agreed to purchase real property in Marietta. Allegedly in contravention of the agreement, Sonsino then took out a loan using the Marietta property as collateral. More than a year later, in October 2008, Sonsino conveyed a separate property that he owned in Dun-woody to his sister-in-law, appellee Helen Sonsino, via a quitclaim deed. In October 2010, the bank foreclosed on the Marietta property after Carmel Industries defaulted.

Meljon then sued the Sonsinos, seeking damages for, inter alia, conversion and breach of agreement related to the Marietta property. He also alleged that Victor Sonsino had fraudulently transferred ownership of the Dunwoody property to Helen Sonsino to shield it from Meljon’s legal claims. Meljon sought a temporary restraining order and interlocutory injunction to prevent the Sonsinos from selling, assigning, or mortgaging the Dunwoody property. Contemporaneously with his pro se complaint, Meljon filed a notice of lis pendens and attached the recorded deed for the Dunwoody property.

Helen Sonsino moved to cancel the lis pendens, arguing that because the primary dispute was over the Marietta property, the Dunwoody property was not “involved” in the litigation pursuant to OCGA § 44-14-610; Meljon sought only to prevent conveyance of the Dunwoody property and did not claim an interest in it. With the assistance of counsel, Meljon amended his complaint to allege, inter alia, fraudulent conveyance of the Dunwoody property from Victor Sonsino to Helen Sonsino and to have such transfer voided. The trial court granted Helen Sonsino’s motion to cancel the lis pendens in an order stating only that Meljon had failed to meet the requirements of a lis pendens cause of action under OCGA § 44-14-610. Meljon appeals.

In his sole enumeration, Meljon contends that the trial court erred in granting the motion to cancel the lis pendens because the Dunwoody property was involved in the litigation and because he met the requirements for creating a lis pendens.

Meljon has met the technical statutory requirements for filing a lis pendens. See OCGA § 44-14-610. However, Georgia continues to require a showing of the common law elements of lis pendens. Boca Petroco, Inc. v. Petroleum Realty II, 285 Ga. 487, 489 (678 SE2d 330) (2009). These elements are the following:

[T]he property must be of a character to be subject to the rule; the court must have jurisdiction both of the person and the subject matter; and the property involved must be sufficiently described in the pleadings. Further, the real property must be “involved” in the suit within the meaning of [OCGA § 44-14-610], i.e., it must be property which is actually and directly brought into litigation by the pleadings in a pending suit and as to which some relief is sought respecting that particular property.

(Citations and punctuation omitted.) Scroggins v. Edmondson, 250 Ga. 430, 432 (2) (297 SE2d 469) (1982).

In the instant case, the only common law element that has been raised is whether the property is “involved” in the suit. The Sonsinos argue on appeal that the Dunwoody property is not involved because Meljon’s suit involves only money damages related to the Marietta property and does not involve an ownership interest in the Dunwoody property.

It is true that “[a] lis pendens may not be based upon a suit for money damages only[.]” (Citation omitted.) Hutson v. Young, 255 Ga. App. 169, 170 (564 SE2d 780) (2002). Further, if “the litigation does not assert an interest in land, filing a lis pendens is improper.” (Citation omitted.) Id. at 171. In the instant case, Meljon seeks not only to enjoin transfer of the Dunwoody property, but also to reverse a fraudulent conveyance. “It is not essential... that a plaintiff assert a direct interest in the real property for a lis pendens to be valid, so long as the real property would be directly affected by the relief sought.” Meadow Springs, LLC v. IH Riverdale, LLC, 286 Ga. 701, 703 (690 SE2d 842) (2010). For example, our Supreme Court found that a lis pendens was proper in a suit where the plaintiffs sought no ownership interest in the land at issue, but rather alleged that an obstruction on that land was causing flooding and damage to their adjoining real property. Griggs v. Gwinco Dev. Corp., 240 Ga. 487, 487 (241 SE2d 244) (1978). Our high court concluded that real property was “involved” and the lis pendens was proper “since equitable relief was sought which would result in the removal of obstructions on the land, and [would] forhid any further grading or construction on the land[.]” (Citation omitted.) Id. As in Griggs, if Meljon prevails on his fraudulent conveyance claims, the real property in Dunwoody would he directly affected by the relief he seeks because title to the property would transfer from Helen Sonsino back to Victor Sonsino. Such a transfer falls squarely within the raison d’etre for a lis pendens: to inform prospective purchasers “that the real property in question is directly involved in a pending suit over title or an interest, i.e., a lien, an equitable interest, fraudulent conveyance, contract right, or other similar interest, which seeks some relief respecting such alleged interest in such realty.” (Citations omitted; emphasis supplied.) Hutson, supra at 170. Within the meaning of a suit “involving” real property as contemplated by OCGA § 44-14-610, “[a] classic example of such a suit is one which seeks to have a prior conveyance of the property set aside or declared null and void.” (Citation and punctuation omitted.) Moore v. Bank of Fitzgerald, 266 Ga. 190, 190 (465 SE2d 445) (1996) (lis pendens held proper in suit alleging wrongful foreclosure and seeking cancellation of bank’s deeds under power).

The Sonsinos rely on Quill v. Newberry, 238 Ga. App. 184 (518 SE2d 189) (1999), but that case is distinguishable. In that case, Quill sought not only to rescind a contract of sale on one property he had purchased from Newberry, but also sought to enjoin Newberry from selling a separate property, alleging that he wanted to prevent Newberry from hiding any sale proceeds. Id. at 184, 186. We held the lis pendens improper because Quill’s fraud claim did not involve claims related to the property that was subject to the lis pendens; rather, Quill would have to pursue the proceeds of any sale of that property to satisfy his claim. Id. at 190 (2) (a). Quill is distinguishable because it did not involve any claim in the lawsuit that any wrong had been committed by the defendant as to the subject property for which relief was sought, as is alleged here, but merely that it might be sold and thus unavailable should it be needed to satisfy any judgment if the plaintiff were to prevail. In this case, however, it is alleged that the subject property was fraudulently transferred by Victor Sonsino to Helen Sonsino to defeat the claims by the plaintiff herein, and as such, that the transfer should be set aside. Thus, so long as said claim remains a part of the complaint, it cannot be said that the subject property is not involved in this lawsuit. See generally Berger v. Shea, 150 Ga. App. 812, 813 (258 SE2d 621) (1979) (In suit for disparagement of title, Court of Appeals observed that “[t]he complaint alleged that appellee... sought in her separate suit to set aside a fraudulent conveyance of real property. Therefore, real property was involved and the filing of a lis pendens notice was proper”) (citations omitted).

Decided January 16, 2014

Reconsideration denied February 10, 2014

Kenneth P. Crosson, for appellant.

Stevens & Stevens, Ronald S. Stevens, Jillian L. Harmon, for appellees.

In the instant case, the lis pendens was proper, and the trial court erred in cancelling it.

Judgment reversed.

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

       Meljon is also known as Solly Melyon.

       OCGA § 44-14-610 provides that for an action to operate as a lis pendens, the clerk of the superior court in the county where the real property is located must record a notice of the action “containing the names of the parties, the time of the institution of the action, the name of the court in which it is pending, a description of the real property involved, and a statement of the relief sought regarding the property.”

       To the extent that the Sonsinos mean to argue that Meljon’s fraudulent conveyance claim is faulty or lacks merit, this Court has determined that “a court may not cancel a lis pendens notice on the ground that the underlying case . . . lacks merit.” (Punctuation and footnote omitted.) Boca Petroco, Inc. v. Petroleum Realty II, 292 Ga. App. 833, 836 (666 SE2d 12) (2008), aff’d, Boca Petroco, 285 Ga. 487, supra.