text:
    A13A1016.
    COMMUNITY MUSIC CENTERS OF ATLANTA, LLC v. JW BROADCASTING, INC.
    (748 SE2d 127)
   ELLINGTON, Presiding Judge.

Community Music Centers of Atlanta, LLC (“Community”) agreed to advertise on JW Broadcasting, Inc.’s (“JW’) radio station, but failed to pay for advertising services rendered. JW brought a suit on an open account, and Community counterclaimed, asserting claims for breach of contract, fraud, punitive damages, and attorney fees. Following a hearing, the trial court granted summary judgment to JW on its suit on account and on Community’s counterclaims, and Community appeals. For the following reasons, we affirm.

“To prevail at summary judgment under OCGA § 9-11-56, the moving party must demonstrate that there is no genuine issue of material fact and that the undisputed facts, viewed in the light most favorable to the nonmoving party, warrant judgment as a matter of law.” (Citation omitted.) Lau’s Corp. v. Haskins, 261 Ga. 491 (405 SE2d 474) (1991). “[T]he burden on the moving party may be discharged by pointing out by reference to the affidavits, depositions and other documents in the record that there is an absence of evidence to support the nonmoving party’s case.” Id. “If the moving party discharges this burden, the nonmoving party cannot rest on its pleadings, but rather must point to specific evidence giving rise to a triable issue.” Id. (citing OCGA § 9-11-56 (e)).

Community operates music centers and offers music lessons. JW owns radio stations in Atlanta and provides advertising on its stations. In early 2010, JW and Community agreed to an advertising package to promote Community’s services for a period of six months, which JW and Community later extended for four more months. Following the conclusion of the advertising agreement, Community failed to pay the balance owed to JW. After Community failed to comply with JW’s written demand for payment, JW filed this action. In its answer, Community admitted that it had entered into the advertising agreement, but it issued a general denial of JW’s claim on the overdue balance of the advertising. Community also filed a counterclaim, alleging that JW committed fraud and breach of contract.

The crux of Community’s answer and counterclaims, and the crux of its arguments on appeal, is that JW misrepresented the exposure it would provide through podcast downloads. The record shows that Community and JW negotiated a six-month initial package at a rate of $1,500 per month that would provide advertisements through on-air commercials, a banner ad on AM1690’s website, in-studio interviews featuring representatives of Community, and sponsorship of a weekly radio segment. For its sponsorship, Community chose a segment called “Backroads and Banjos with Art Rosenbaum” because of that segment’s exposure within the Atlanta market. As part of this sponsorship, Community’s Little 5 Points Music Center would “be mentioned before and after each segment[,]” which aired three times each Wednesday on AM1690. In addition, the segment was available for download as a podcast. During negotiations, JW’s account executive told Community’s director that “[t]his segment has received hundreds of thousands of downloads on iTunes meaning this will give Little 5 Points Music Center a ton of additional exposure.” During the time Community advertised through JW, Community repeatedly reported satisfaction with the advertisements. Moreover, in February 2011, after the parties’ advertising agreement had concluded, Community’s director told JW that he was “grateful . . . for the role 1690 has played this year in doubling our enrollment.” At that same time, Community acknowledged its debt to JW and offered to pay off the balance in ten equal payments. Then, just two weeks after acknowledging the debt, Community asked about podcast download statistics. In response, JW estimated that the total number of podcast downloads of the sponsored segment during the advertising agreement was likely less than hundreds of thousands.

According to Community, JW failed to fulfill its promise that there would be “hundreds of thousands of downloads” of the program Community sponsored and, as a result, Community did not receive the advertising exposure it had bargained for. This alleged misrepresentation by JW was the basis for Community’s fraud and breach of contract counterclaims.

The trial court granted JW’s motion for summary judgment on both JW’s suit on account and on Community’s counterclaims, based on an absence of evidence to support Community’s claims for fraud and breach of contract, and because Community’s debt was not disputed.

1. Community argues that the trial court erred in granting summary judgment to JW on its breach of contract counterclaim. According to Community, JW breached the contract by failing to fulfill its promise to provide advertising through hundreds of thousands of podcast downloads of the program Community agreed to sponsor. The construction of a contract is a question of law subject to de novo review. Holt & Holt, Inc. v. Choate Constr. Co., 271 Ga. App. 292 (609 SE2d 103) (2004).

Although Community claims that it agreed to sponsor a program that JW promised would be downloaded by listeners hundreds of thousands of times during its advertising agreement with JW, the record shows that JW never made such a promise. Instead, JW promoted the program’s national popularity by stating that it “has received hundreds of thousands of downloads,” in other words, in the past. Community has failed to present any other evidence to show that JW promised that there would be a certain number of future downloads of the program. Moreover, the evidence shows that JW provided the agreed-upon frequency of the radio show sponsorship announcements for the agreed-upon time period, as well as fulfilling all of its other obligations under the advertising agreement, including broadcasting thousands of commercials and 15-second “liners,” posting Community’s banner on its website, and broadcasting interviews of Community’s director. Therefore, Community received the benefits of the agreement and failed to show any breach of contract by JW that would relieve Community of its obligations under the advertising agreement.

JW is entitled to summary judgment on the breach of contract claim, which the trial court properly entered.

2. Community argues that there is an issue of material fact for the jury concerning whether it entered into the agreement with JW based upon fraudulent inducement and misrepresentation regarding the reach of JW’s circulation. To survive a motion for summary judgment on a fraud claim, a plaintiff must identify some evidence of fraud that supports each of the five elements, which are: “a false representation by a defendant; scienter; intention to induce the plaintiff to act or refrain from acting; justifiable reliance by [the] plaintiff; and damage to the plaintiff.” (Citation and punctuation omitted.) Wertz v. Allen, 313 Ga. App. 202, 207-208 (2) (721 SE2d 122) (2011).

Community’s claim for fraud fails for several reasons. First, even if JW had suggested that Community’s sponsorship would result in hundreds of thousands of advertising exposures, JW is still entitled to summary judgment because “[f]raud cannot consist of mere broken promises, expressions of opinion, unfulfilled predictions or erroneous conjecture as to future events.” (Footnote omitted.) Allen v. Columbus Bank & Trust Co., 244 Ga. App. 271, 277 (534 SE2d 917) (2000). Community sought, not a certain number of downloads, but, rather, to sponsor a radio show for a specific time period. Any prediction regarding future download statistics would be conjecture, falling short of fraud. Id.

Second, even if Community had pled that JW’s representation of the number of past downloads was actionable for fraud, Community still failed to present any evidence showing that JW’s representation was false. Instead, Community showed only that there had been at least 35,000 podcast downloads of the program from April 1, 2010 to December 31, 2011. Community showed no evidence of the number of podcast downloads prior to April 1, 2010.

Third, Community failed to present any evidence showing the element of justifiable reliance. “In order to prove the element of justifiable reliance, the plaintiff must show that he exercised his duty of due diligence.” (Footnote omitted.) Dyer v. Honea, 252 Ga. App. 735, 740 (3) (b) (557 SE2d 20) (2001). This is especially true when the representation relied upon is a general commendation of the thing to be sold, which amounts to mere “puffing.” ReMax North Atlanta v. Clark, 244 Ga. App. 890, 893-894 (537 SE2d 138) (2000). The record shows that Community did not inquire into the number of podcast downloads until the agreement at issue had expired and Community owed several thousand dollars on account. Community has presented no evidence of due diligence prior to or during the advertising agreement, and therefore cannot show justifiable reliance.

Decided August 27, 2013.

Matthew W. Carlton, for appellant.

Stokes, Lazarus & Carmichael, Marion B. Stokes, Rachel Humphrey, for appellee.

“Because summary judgment is appropriate if only one essential element of [Community’s] claim is eliminated, we need not address all the issues raised on appeal or in the motion for summary judgment to resolve this enumeration of error.” (Citation and punctuation omitted.) Wertz v. Allen, 313 Ga. App. at 208 (2). JW was entitled to summary judgment on the fraud claim, which the trial court properly entered.

It follows that Community is not entitled to punitive damages under its fraud claim. Weaver v. Pizza Hut of America, 298 Ga. App. 645, 653 (4) (680 SE2d 668) (2009).

3. Community argues the trial court incorrectly dismissed Community’s set-off counterclaim. However, because Community failed to prevail on any of its counterclaims, no setoff is available in this case. UWork.com v. Paragon Technologies, 321 Ga. App. 584, 594 (3) (740 SE2d 887) (2013).

Judgment affirmed.

Phipps, C. J., concurs. Branch, J., concurs in Divisions 1 and 3 and in the judgment.

       On appeal, Community admits that it failed to pay the full amount due on the advertising account.

       Community has shown no evidence of any prediction by JW regarding future podcast downloads. See Division 1, supra.


source: Caselaw Access Project

author: Ray, Judge.

license: Public Domain

text:
    A13A1267.
    VALENTINE v. THE STATE.
    (748 SE2d 122)
   Ray, Judge.

Following a bench trial, Bobby Gene Valentine was convicted of trafficking in marijuana (OCGA § 16-13-31 (c)). He appeals from that conviction, arguing that the trial court erred in denying his motions to suppress because the traffic stop leading to his arrest was not supported by reasonable articulable suspicion, because the traffic stop was impermissibly expanded, and because he did not consent to the search of his vehicle. Finding no error, we affirm.

There are three fundamental principles which must be followed when reviewing a motion to suppress.

First, when a motion to suppress is heard by the trial judge, that judge sits as the trier of facts. The trial judge hears the evidence, and his findings based upon conflicting evidence are analogous to the verdict of a jury and should not be disturbed by a reviewing court if there is any evidence to support it. Second, the trial court’s decision with regard to questions of fact and credibility must be accepted unless clearly erroneous. Third, the reviewing court must construe the evidence most favorably to the upholding of the trial court’s findings and judgment.

(Citation omitted.) Miller v. State, 288 Ga. 286, 286 (1) (702 SE2d 888) (2010).

So viewed, the evidence shows that Officer Jay Thompson was qualified during the motion to suppress hearing as an expert in the field of tractor and trailer safety inspection because of his experience owning his own trucking company, training he received from law enforcement and federal agencies, and his hundreds of tractor trailer stops. On March 3, 2011, Officer Thompson was monitoring traffic on Interstate 85 when he initiated a traffic stop of a tractor trailer driven by Valentine because the decal displaying the vehicle’s DOT numbers was too small and because the trailer’s mud flap was partially ripped. Approaching the vehicle, the officer noticed that the mud flap was torn from the top almost all the way down to the bottom and was held together by a piece of improvised wire. The officer then walked to the passenger door of the tractor trailer’s cab and asked to see Valentine’s driver’s license, insurance information, cab card registration, log book, and bill of lading. Valentine provided the officer with the paperwork he had, but did not know what a cab card registration was; the cab card registration in his possession did not match the vehicle he was driving. Valentine explained that he did not have his most recent bill of lading because he had driven from North Carolina to meet another driver in Texas to swap trailers with him, but that the other driver did not get in touch with him, and that he was driving back to North Carolina. Valentine later explained that he had driven to Texas to see a girl. The officer testified that Valentine was “very nervous” during his interactions.

The officer further testified that his inspection of Valentine’s log book showed excessive downtime and that the log book was not properly maintained. The officer questioned Valentine about why his log book revealed a detour to Montgomery, Alabama, and Valentine responded that he made the decision to stop there on his own and that the company that he drove for did not know about the detour. The officer’s suspicions were arousedbecause of this comment and because Valentine had made such a long and expensive trip without the prospect of making any money since the truck was empty of cargo both ways. The officer testified that the “trip made absolutely no sense as far as a typical legitimate truck driver.... In all the trucks I’ve stopped, I simply do not see that kind of a trip and not some kind of load attached.”

The officer then issued a warning to Valentine for the mud flap and for unsecured equipment he discovered while inspecting the vehicle. After issuing the warning, the officer then asked if there were any drugs or illegal items in the tractor trailer, and Valentine said no. The officer requested consent to search the tractor trailer, and Valentine, who was “[stuttering] pretty intensely,” agreed and signed a consent to search form. Four duffel bags and a backpack containing approximately 200 pounds of marijuana were found in the sleeper portion of the truck’s cab. Approximately 33 minutes had elapsed between the time the traffic stop was initiated and when Valentine signed the consent to search form.

Following a hearing, the trial court denied Valentine’s motion to suppress. In two enumerations of error, Valentine contends that the trial court erred in denying his motion to suppress because the officer did not have a “reasonable [,] articulable suspicion of criminal conduct” sufficient to warrant initiating a traffic stop and because the officer illegally detained Valentine beyond the time necessary for the investigation of the violations that served as the basis for the traffic stop, thus rendering Valentine’s consent to search the product of an illegal detention.

1. Valentine contends that the trial court should have granted the motion to suppress the evidence because the officer lacked sufficient legal basis to effectuate a traffic stop and because the stop was pretextual. We disagree.

All that is required to initiate a traffic stop is “specific and articulable facts that provide a reasonable suspicion that the individual being stopped is engaged in criminal activity.” (Citations omitted.) Jones v. State, 291 Ga. 35, 38 (2) (727 SE2d 456) (2012). “A suppression motion arguing that a traffic stop was pretextual necessarily fails where an officer observes the motorist committing even a minor traffic violation.” (Footnote omitted.) Stearnes v. State, 261 Ga. App. 522, 524 (2) (583 SE2d 195) (2003).

In this case, the officer’s testimony revealed that he stopped Valentine’s tractor trailer because he noticed that it had a torn mud flap that looked like it “could very easily come off” and potentially hurt a motorist driving behind the tractor trailer, in violation of OCGA § 40-8-7 (a), and because the decal displaying the vehicle’s DOT numbers did not comply with regulations set forth in federal regulations requiring the marking to be “readily legible, during daylight hours, from a distance of 50 feet . . . while [the vehicle] is stationary.” (Emphasis supplied.) 49 CFR § 390.21 (c) (3).

Valentine argues that these reasons were pretextual (1) because the officer testified that he did not personally witness the faulty mud flap cause any dirt, gravel, or debris to be sent into traffic, and (2) because the officer had never seen the tractor trailer in a stationary position and, thus, would be unable to tell whether the vehicle’s DOT decal complied with the law. These arguments miss the mark, as they presuppose that the crime must have been committed for the stop to have been valid.

If the officer acting in good faith believes that an unlawful act has been committed, his actions are not rendered improper by a later legal determination that the defendant’s actions were not a crime according to a technical legal definition or distinction determined to exist in the penal statute. It is not the officer’s function to determine on the spot such matters as the legal niceties in the definition of a certain crime, for these are matters for the courts. The question to be decided is whether the officer’s motives and actions at the time and under all the circumstances . . . were reasonable and not arbitrary or harassing.

(Punctuation and footnote omitted.) Dixon v. State, 271 Ga. App. 199, 201-202 (609 SE2d 148) (2005). In the present case, we find that the trial court’s conclusion that the officer had a good faith, reasonable belief at the time he initiated the traffic stop that Valentine’s tractor trailer violated the law was not clearly erroneous. See Pollack v. State, 294 Ga. App. 400, 402 (1) (670 SE2d 165) (2008) (“[s]ince there was evidence to support the trial court’s conclusion regarding the basis for the traffic stop, [the defendant’s] challenge to the stop affords him no relief”) (footnote omitted).

2. Valentine contends that the trial court erred in denying his motion to suppress because the officer detained Valentine “beyond the time necessary for an officer’s diligent investigation of the alleged violations that served as the basis for this traffic stop” before receiving and requesting permission to search the vehicle, thus rendering the consent to search invalid as the product of an illegal detention. We are unpersuaded.

“The officer’s purpose in an ordinary traffic stop is to enforce the laws of the roadway, and ordinarily to investigate the manner of driving with the intent to issue a citation or warning.” (Citation and punctuation omitted.) Richbow v. State, 293 Ga. App. 556, 558 (667 SE2d 418) (2008). If an officer prolongs the traffic stop beyond the time reasonably required to fulfill the initial purpose of the stop, then the continued detention of the vehicle and its occupants amounts to a second detention. Id. A reasonable time to conduct a traffic stop includes the time necessary for the officer to check the status of pertinent documents, such as the driver’s license, insurance, and vehicle registration. Young v. State, 310 Ga. App. 270, 272 (712 SE2d 652) (2011). The law further allows the officer to ask the driver questions unrelated to the purpose of the valid traffic stop, as long as the questioning does not unreasonably prolong the detention. Id. at 272-273. See Hayes v. State, 292 Ga. App. 724, 729 (2) (c) (665 SE2d 422) (2008) (“[A]ny questioning or small talk, of course, prolongs the detention [;] [t]he question is whether the prolongation is reasonable or unreasonable”) (footnote omitted). This Court defers to the trial court’s determination on the issue of reasonableness “unless the facts are truly egregious.” (Footnote omitted.) Id.

After stopping Valentine’s tractor trailer, the officer requested from Valentine the relevant paperwork, asked him to step out of the truck, and engaged him in a brief conversation about the purpose of his trip. These actions fell squarely within the officer’s lawful authority to conduct a traffic stop. See generally Salmeron v. State, 280 Ga. 735, 737 (1) (632 SE2d 645) (2006).

However, in the present case, the officer continued to ask Valentine questions and requested his consent to search the vehicle after issuing him a warning. For the officer’s continued detention of Valentine to be constitutionally valid, the officer must have a reasonable, articulable suspicion that Valentine was engaged in other illegal activity. Richbow, supra. Accord Young, supra at 272. To meet this standard,

an officer’s investigation during a traffic stop must be justified by specific, articulable facts sufficient to give rise to a reasonable suspicion of criminal conduct. Although this suspicion need not meet the standard of probable cause, it must be more than mere caprice or a hunch or an inclination.

Decided August 27, 2013.

Stemberger & Cummins, D. Scott Cummins, for appellant.

Peter J. Skandalakis, District Attorney, Philip D. Henderson, Assistant District Attorney, for appellee.

(Footnote omitted.) Pollack, supra at 403 (3).

Even though the officer had prolonged the initial traffic stop beyond the time necessary to fulfill the original purpose of the stop, the information learned by the officer during the course of the traffic stop provided him with a reasonable, articulable suspicion of other illegal activity sufficient to prolong the traffic stop. Specifically, the officer testified that his suspicions were piqued by Valentine’s inconsistent descriptions of his route, the inconsistent and noncompliant log books, Valentine’s statement that he had taken a “personal” trip to Montgomery, and the fact that he would have wasted a large amount of money by driving his truck from North Carolina to Texas and back with no cargo. See Rocha v. State, 317 Ga. App. 863, 867 (1) (733 SE2d 38) (2012) (holding that passenger’s and defendant’s conflicting stories during the traffic stop and inconsistencies in the driver’s log books provided reasonable, articulable suspicion to prolong defendant’s detention). Accordingly, the trial court did not err in denying Valentine’s motion to suppress drug evidence as a result of his consent to search his vehicle.

Judgment affirmed.

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

       Despite orally denying this motion during the motion to suppress hearing, the trial court did not enter a written order. However, because the trial court did allow the evidence sought to be suppressed in at trial, this appeal is properly before this Court.


author: ELLINGTON, Presiding Judge.

text:
    A13A1259.
    GEORGIA LIMITED PARTNERS, LLC et al. v. CITY NATIONAL BANK.
    (748 SE2d 131)
   ELLINGTON, Presiding Judge.

City National Bank auctioned Georgia Limited Partners, LLC’s property at foreclosure and then initiated confirmation proceedings. After a hearing, the Superior Court of Cobb County determined that the auction price was equal to or greater than the fair market value of the property and granted the bank’s application for confirmation. Georgia Limited Partners, LLC, and Paul Steinfurth (collectively “the debtor”) appeal, contending that the bank failed to carry its burden of proving the fair market value of the property and, therefore, that the trial court erred in granting the bank’s application. For the reasons explained below, we affirm.

Georgia law provides that, when a party holding a security interest in real property pursues nonjudicial foreclosure, the secured party may not obtain a judgment for any deficiency unless the secured party timely reports the sale and obtains confirmation of the sale from the superior court in which the land is located. OCGA § 44-14-161 (a).

The court shall require evidence to show the true market value of the property sold under the powers [contained in a security deed or other lien contract] and shall not confirm the sale unless it is satisfied that the property so sold brought its true market value on such foreclosure sale.

OCGA § 44-14-161 (b). Our appellate courts have read OCGA § 44-14-161 (b) “to require proof of true market value under the usual market conditions for sales of such property.” (Citations, punctuation and emphasis omitted.) Gutherie v. Ford Equip. Leasing Co., 206 Ga. App. 258, 261 (1) (424 SE2d 889) (1992). Because foreclosure sales are forced sales and are conducted under conditions that differ from the ordinary market for the property in question, they “notoriously fail to bring the true market price of the property.” (Citations and punctuation omitted.) Id. Thus, in order to achieve the legislative purpose of providing debtor relief by limiting and abating deficiency judgments, Georgia’s confirmation statute requires evidence of fair market value other than the public sale price. Id.

The trial judge in a confirmation proceeding sits as the trier of fact, and its factual findings and conclusions have the effect of a jury verdict. Thus, witness credibility and the weight of the evidence proffered by the parties at a confirmation hearing are to be judged by the trial court, and not this Court on appeal.

(Citation and punctuation omitted.) River Walk Farm v. First Citizens Bank & Trust, 321 Ga. App. 173 (741 SE2d 165) (2013). For this reason, we will not disturb the trial court’s findings of fact if there is any evidence to support them, and we view the evidence in the light most favorable to the trial court’s judgment. Id.; Howser Mill Homes v. Branch Banking & Trust, 318 Ga. App. 148, 149 (733 SE2d 441) (2012). “We apply a de novo standard of review[, however,] to any questions of law decided by the trial court.” Id. at 149. See also White Oak Homes v. Community Bank & Trust, 314 Ga. App. 502, 503 (724 SE2d 810) (2012) (The appellate court is not bound by the trial court’s conclusions of law, which are subject to de novo review.).

This case concerns Notting Hills, an apartment complex located in Marietta. The complex is comprised of 27 buildings, plus a clubhouse, and has over 300 units. The debtor purchased the property in 2008 and defaulted on a deed to secure debt in 2011, when it owed over $11 million to the bank. The bank foreclosed on the property on December 6, 2011, and auctioned the property on June 5, 2012. The bank submitted the only bid and bought the property for $9.5 million.

At the confirmation hearing, the bank presented two appraisals, one by Casey Lyons of the Buckhead Advisory Group and one by Scott Richards of Cushman & Wakefield. Lyons testified that he considered these market value indications: a sales comparison approach, an income approach, an effective gross income multiple, and a net operating income per unit analysis. In addition to other research, Lyons compared the property to five other apartment complexes that he determined to be comparable properties for the sales comparison approach. In Lyons’ opinion, the property was worth $5.9 million as of December 9,2011, when it had an occupancy rate of approximately 30 percent. At the time of Lyons’ analysis, the comparable properties in term of rents had occupancy rates of 70 to 80 percent. Lyons gave a “prospective stabilized value” of $8.2 million, assuming an occupancy rate of 82 percent, which he expected to take approximately two years to reach.

The other appraiser, Richards, testified that he based his valuation on a sales comparison analysis and an income analysis. He based the sales comparison analysis on eight comparable properties, which had occupancy rates ranging from 65 percent to 97 percent. Richards opined that the fair market value of the subject property was $5.25 million as of April 26, 2012, when the occupancy rate was 26 percent. In his opinion, the stabilized value of the property was $6.8million, assuming an occupancy rate of 89 percent projected to be achieved within one year. Richards opined that an increased occupancy rate would generally tend to increase his valuation of a property, but qualified that statement by noting that the occupancy rate is not always material and “there’s no one-to-one ratio” between occupancy and property value.

The trial court determined that the price the bank paid for the property, $9.5 million, was equal to or greater than the fair market value of the property on the auction date. On appeal, the debtor contends that “no sufficient evidence was presented from which the trial court could have determined the property’s true market value[.]” In particular, the debtor contends that both of the appraisers compared the property to other properties that were not truly comparable because their occupancy rates were much higher than the occupancy rate of the subject property. In addition, the debtor contends that the appraisers’ projected stabilized values, which differed by more than $1 million, were speculative and unreliable and failed to provide evidence of the property’s value under the usual market conditions for sales of such property.

Decided August 29, 2013.

Troutman Sanders, Christopher A. Wiech, John N. Phillips, for appellants.

The record shows that both appraisers took into account the differences among the occupancy rates of the subject property and the comparable properties. Both estimated the prospective value of the subject property assuming its return to typical occupancy rates. Although their valuations were not identical, there is no evidence of record that, even under the usual market conditions, the property was worth more than the bank paid at auction. More importantly, in reviewing the trial court’s decision, “the test is not whether this [Cjourt would have accepted [a particular appraisal] as the most reliable and accurate, but whether the record contains any evidence to support the findings of the trial court that the property brought its true market value at the foreclosure sale.” (Punctuation and footnote omitted.) Wilson v. Prudential Indus. Properties, 276 Ga. App. 180, 181 (1) (622 SE2d 890) (2005). Because the trial court’s findings are supported by evidence of record in this case, we must affirm the trial court’s order confirming the foreclosure sale. Henderson Property Holdings v. Sea Island Bank, 310 Ga.App. 795, 796-797 (1) (714SE2d 382) (2011); Atreus Communities v. KeyBank National Assn., 307 Ga. App. 716, 720 (706 SE2d 107) (2011); Mundy Mill Dev. v. ACR Property Svcs., 306 Ga. App. 730, 734 (703 SE2d 137) (2010); Wilson v. Prudential Indus. Properties, 276 Ga.App. at 181-182 (l).

Judgment affirmed.

Phipps, C. J., concurs. Branch, J., concurs in judgment only.

Paul Hastings, Shauna T. Phillips, Eric D. Stolze, William K. Whitner, for appellee.

       Paul Steinfurth guaranteed the debt.

       Cf. Gutherie v. Ford Equip. Leasing Co., 206 Ga. App. at 261 (1) (reversing grant of confirmation where the trial court’s conclusion that the subject property brought its true market value was not supported by any evidence in the record, once the flawed “quick sale” valuation was eliminated from consideration).


author: BARNES, Presiding Judge.

text:
    A13A1424.
    PITTS v. THE STATE.
    (747 SE2d 699)
   BARNES, Presiding Judge.

A jury found Duranty Beuford Pitts guilty of two counts of armed robbery and one count of aggravated assault, and the trial court denied his motion for new trial. On appeal, Pitts contends that the trial court erred in denying his motion to exclude his in-court identification by two of the victims and in denying his motion to admit a statement of a third victim under the necessity exception to hearsay. Pitts further contends that his trial counsel rendered ineffective assistance by failing to object to certain remarks made by the prosecutor during closing argument. For the reasons discussed below, we affirm.

“Following a criminal conviction, the defendant is no longer presumed innocent, and we view the evidence in the light most favorable to sustain the verdict.” Anthony v. State, 317 Ga. App. 807 (732 SE2d 845) (2012). So viewed, the evidence showed that on September 8, 2010, three landscape workers were taking their lunch break on the grounds of the Pine Village North Apartments in Cobb County. Two young men, Andrew Hibbler and Torrance Wright, walked by the workers. Hibbler commented to Wright that they should rob them. To determine if the workers had any money, Hibbler approached them and asked for change for a twenty dollar bill. When the workers indicated that they had no money, Hibbler and Wright walked away.

Hibbler and Wright returned to the neighboring apartment complex, the Regency Square Apartments, where they lived. Although the landscape workers had told Hibbler that they had no money, Hibbler did not abandon his idea of robbing them. Instead, he spoke with Pitts, who also lived at Regency Square Apartments, before meeting back up with Wright. The three men then walked back to the Pine Village North Apartments where the landscape workers were having their lunch break. Pitts was carrying a semiautomatic handgun.

The landscape workers saw the three men approaching and that one of them was carrying a weapon. They ran and got inside their truck in an effort to escape. Pursuing the workers, Pitts ran to the driver’s side of the truck and Hibbler ran to the passenger’s side while Wright stood a short distance away as the lookout. Pitts pulled the driver out of the truck and threw him to the ground. Pitts pointed the handgun at the driver and demanded money. After the driver gave Pitts four dollars out of his wallet, Pitts turned his gun toward the other two workers and demanded money from them. One of them surrendered twenty dollars, but the other one refused to hand over any money. Pitts, Hibbler, and Wright then ran back to the Regency Square Apartments. Once in the apartment complex, Wright ran to his apartment, where Hibbler soon joined him, and Pitts ran off by himself.

Immediately after the robbery, one of the landscape workers, the driver, got back inside the truck and followed the robbers into the Regency Square Apartments. Another worker called 911 andinformed the police where the robbers had fled. The police arrived shortly thereafter and successfully apprehended Wright and Hibbler in the former’s apartment. Later that afternoon, Wright gave a statement to a detective in which he named Pitts as the third robber. Wright also told the detective where Pitts lived in the apartment complex. The detective arrested Pitts at his apartment the following day.

Hibbler, Wright, and Pitts were jointly indicted on two counts of armed robbery and one count of aggravated assault. Hibbler and Wright pled guilty to lesser offenses and testified on behalf of the State at Pitts’s trial, and both identified Pitts as the gunman in the robbery Although one of the landscape workers moved to Mexico after the robbery and thus was unavailable to testify, the remaining two workers testified regarding the robbery. One of the workers, the driver of the truck, was able to positively identify Pitts in the courtroom as one of the robbers, but the other worker testified that he did not “remember that well” the faces of the robbers. After hearing from these and other witnesses presented by the State, the jury found Pitts guilty of the charged offenses. Pitts filed a motion for new trial, which the trial court denied, resulting in this appeal.

1. Pitts contends that the trial court erred in denying his motion in limine seeking to exclude his in-court identification by the two landscape workers. According to Pitts, his motion should have been granted because the police did not have the two workers participate in a pre-trial identification procedure. Pitts further argues that his motion should have been granted because the courtroom environment for the in-court identifications was too suggestive in that the workers believed that the gunman was African-American, and Pitts was the only African-American man sitting in the courtroom.

As an initial matter, it bears repeating that only one of the landscape workers positively identified Pitts in the courtroom as the gunman in the robbery. Hence, any error by the trial court in denying Pitts’s motion in limine to exclude the in-court identification by the worker who ultimately was unable to identify him as one of the robbers clearly would be harmless. See Harley-Davidson Motor Co. v. Daniel, 244 Ga. 284, 286 (1), n. 2 (260 SE2d 20) (1979) (“Obviously, if the evidence is never offered at trial, the denial of the motion in limine is harmless.”).

With respect to the landscape worker who positively identified Pitts in the courtroom, the trial court did not err in denying Pitts’s motion to exclude. The Supreme Court of Georgia has held that “[a] line-up identification, or identification from a group of photographs, is not a prerequisite to every in-court identification,” Ralston v. State, 251 Ga. 682, 684 (2) (309 SE2d 135) (1983), and this Court has specifically held that “the fact that the victim did not participate in a pre-trial identification [does not] render her in-court identification inadmissible.” Blige v. State, 205 Ga. App. 133, 135 (4) (421 SE2d 547) (1992). See Price v. State, 159 Ga. App. 662, 663 (1) (284 SE2d 676) (1981). It follows that the fact that the landscape worker did not participate in a pre-trial identification procedure before making his in-court identification of Pitts did not render the latter identification inadmissible.

We also must reject Pitts’s argument that his motion to exclude should have been granted because he was the only African-American man sitting in the courtroom when the identification was made. The Supreme Court of Georgia and this Court have previously rejected this argument, and we are bound by that precedent. See Ralston, 251 Ga. at 684 (2); Williams v. State, 174 Ga. App. 56 (1) (329 SE2d 226) (1985); Mangrum v. State, 155 Ga. App. 334 (1) (270 SE2d 874) (1980). An in-court identification “is subject to the same rules of evidence, witness credibility, and cross-examination as all testimony in a criminal trial,” Ralston, 251 Ga. at 683-684 (2), and the problematic aspects of an in-court identification go to the identifying witness’s credibility, which “is solely a question for jury determination.” Price, 159 Ga. App. at 664 (1). Here, defense counsel cross-examined the landscape worker about the fact that Pitts was the only African-American man sitting in the courtroom, and thus counsel had an opportunity to test the credibility of the worker and call into question his in-court identification. Additionally, defense counsel raised the issue of the suggestiveness of the in-court identification during his closing argument, thereby calling the jury’s attention to the matter. The trial court, therefore, committed no error in denying Pitts’s motion to exclude the in-court identification of the landscape worker.

2. Pitts also contends that the trial court erred in denying his motion to admit an out-of-court statement made by the landscape worker who was unavailable to testify at trial under the necessity exception to hearsay. The record reflects, however, that the trial court granted Pitts’s motion to admit the out-of-court statement, which was later introduced at trial. Accordingly, Pitts’s contention is without merit.

3. Lastly, Pitts contends that his trial counsel rendered ineffective assistance by failing to object to certain allegedly disparaging remarks made by the prosecutor during closing argument. To prevail on a claim of ineffective assistance under the two-pronged test set forth in Strickland v. Washington, 466 U. S. 668, 687 (III) (104 SCt 2052, 80 LE2d 674) (1984), “[Pitts] must show that counsel’s performance was deficient and that the deficient performance so prejudiced him that there is a reasonable likelihood that, but for counsel’s errors, the outcome of the trial would have been different.” (Citation and punctuation omitted.) Anthony v. State, 317 Ga. App. 807, 813 (4) (732 SE2d 845) (2012).

The context of the prosecutor’s remarks involved the following evidence. At trial, evidence was introduced that the police, while executing a search warrant, found a BB gun in the trunk of co-defendant Hibbler’s car. A detective testified that the material on the BB gun would not hold fingerprints and therefore that he did not attempt to lift fingerprints from the BB gun. During closing argument, defense counsel argued that the lack of fingerprint analysis was a “failure of evidence” and suggested that it called into question whether Pitts was the gunman involved in the robbery. In the rebuttal portion of his closing argument, the prosecutor responded that fingerprint analysis on the BB gun would have simply shown that Hibbler owned the BB gun, as the jury already knew, and “wouldn’t prove anything” because there was witness testimony that the BB gun was not the same gun used by Pitts in the robbery. As such, the prosecutor argued that defense counsel’s argument regarding the lack of fingerprint evidence was a “red herring” and was an example of “blowing some smoke up” to get the jury “off the trail.”

Pitts maintains that his trial counsel should have objected when the prosecutor responded to the defense’s fingerprint argument by referring to it as a “red herring” and as an example of “blowing some smoke up” to get the jury “off the trail.” According to Pitts, the prosecutor’s remarks during closing argument were disparaging toward his trial counsel, who was ineffective for failing to object and have the trial court strike the remarks and admonish the prosecutor in front of the jury. We are unpersuaded.

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

[cjounsel enjoys very wide latitude in closing arguments, and may make use of illustrations, so long as he does not make extrinsic or prejudicial statements that have no basis in the evidence. Counsel’s illustrations during closing argument may be as various as are the resources of his genius; his argumentation as full and profound as his learning can make it; and he may, if he will, give play to his wit, or wing to his imagination.

(Punctuation and footnote omitted.) Rainly v. State, 307 Ga.App. 467, 478 (8) (705 SE2d 246) (2010). In light of these general principles, “[t]he State is allowed considerable latitude in imagery and illustration in making its argument,” Pye v. State, 269 Ga. 779, 788 (19) (505 SE2d 4) (1998), and “any limitation of argument is a matter for the [trial] court’s discretion.” (Punctuation and footnote omitted.) Coghlan v. State, 319 Ga. App. 551, 556 (2) (a) (737 SE2d 332) (2013).

When viewed in the context in which they were made, the prosecutor’s remarks were simply part of an effort to show that the defense had not rebutted or explained away the State’s evidence and did not exceed the wide latitude permitted in closing argument. See, e.g., Coghlan, 319 Ga. App. at 555-556 (2) (a) (trial court did not err by permitting prosecutor to argue during closing argument that defense counsel was following a “smoke and mirrors” strategy); Rainly, 307 Ga. App. at 478 (8) (trial court did not err in permitting prosecutor to argue during closing argument that defense counsel was engaging in “magic” and “misdirection” and that jury should instead “focus on . . . the evidence and on the truth”). See generally Arrington v. State, 286 Ga. 335, 346 (16) (c) (687 SE2d 438) (2009) (“A prosecutor may argue that the defendant has not rebutted or explained the State’s evidence.”). The trial court, therefore, did not abuse its discretion in permitting the prosecutor’s remarks, and an objection by trial counsel would have been unsuccessful. Consequently, trial counsel’s failure to object did not constitute deficient performance. See Henry v. State, 279 Ga. 615, 617 (3) (619 SE2d 609) (2005) (“Failure to make a meritless objection cannot be evidence of ineffective assistance.”) (citations and punctuation omitted).

Additionally, even if the prosecutor’s remarks had been improper, Pitts cannot show that his trial counsel was deficient for failing to object. “Trial tactics and strategy, no matter how mistaken in hindsight, are almost never adequate grounds for finding trial counsel ineffective unless they are so patently unreasonable that no competent attorney would have chosen them.” (Citation and punctuation omitted.) Flemister v. State, 317 Ga. App. 749, 757 (4) (b) (732 SE2d 810) (2012). At the hearing on the motion for new trial, Pitts’s trial counsel testified that one of the reasons he did not object to the prosecutor’s remarks is that he wanted to avoid drawing the jury’s attention to them. Counsel’s strategic decision to forego making the objection was reasonable and did not constitute deficient performance. See Braithwaite v. State, 275 Ga. 884, 886 (2) (b) (572 SE2d 612) (2002) (concluding that defense counsel’s decision “to remain silent instead of objecting and calling attention to the improper argument” constituted reasonable trial strategy); Holmes v. State, 273 Ga. 644, 648 (5) (c) (543 SE2d 688) (2001) (“In this case, an objection may simply have highlighted the point being made by the prosecution, so we cannot say this was not a valid exercise of professional judgment.”) (citation and punctuation omitted).

Because Pitts failed to establish that his trial counsel was deficient, he could not prove his claim of ineffective assistance of counsel. See Anthony, 317 Ga. App. at 813 (4) (noting that “[w]e need not address both the deficient performance and prejudice prongs of the test if [the defendant] has made an insufficient showing on either prong.”) (citation omitted). The trial court thus did not err in denying Pitts’s motion for new trial.

Judgment affirmed.

Miller and Ray, JJ., concur.

Decided August 9, 2013

Reconsideration denied August 30, 2013

Edwin J. Wilson, for appellant.

D. Victor Reynolds, District Attorney, John R. Edwards, Benjamin M. First, Assistant District Attorneys, for appellee.

       Pitts did not testify or present any defense witnesses.

       We note that there may be procedures that a trial court in its discretion could follow in an effort to mitigate any potential problems of suggestiveness arising from an in-court identification where the defendant is the sole member of a particular race sitting in the courtroom. See Partridge v. State, 218 Ga. App. 580, 581 (462 SE2d 415) (1995) (Beasley, C. J., concurring specially).

       We note that Georgia courts have used the term “red herring” to describe an argument raised in a case. See, e.g., Smith v. State, 284 Ga. 304, 308 (3) (c) (667 SE2d 65) (2008) (“Smith’s suggestion that his Sixth Amendment right ‘to be confronted with the witnesses against him’ was violated is a red herring.”); Walker v. State, 262 Ga. App. 872, 877 (1) (b) (586 SE2d 757) (2003) (“Indeed, the ‘accuracy’ of the air flow sensor appears a red herring in this case, since Walker’s breath sample was significantly insufficient for BAC evaluation even taking into account the sensor’s small, 0.1 liter margin of error.”).


author: ANDREWS, Presiding Judge.

text:
    A12A0620.
    CITY OF BALDWIN v. WOODARD & CURRAN, INC.
    (748 SE2d 141)
    Decided August 30, 2013.

      Hulsey, Oliver & Mahar, R. David Syfan, for appellant.

      Oliver & Weidner, James C. Weidner, Ernest H. Woods III, for appellee.
   ANDREWS, Presiding Judge.

In City of Baldwin v. Woodard & Curran, 316 Ga. App. 768 (730 SE2d 486) (2012), we affirmed the jury verdict awarding Woodard & Curran $203,000 for work done on the City of Baldwin’s water treatment system. Our Supreme Court granted certiorari and reversed. See City of Baldwin v. Woodard & Curran, 293 Ga. 19 (743 SE2d 381) (2013). Accordingly, our previous opinion is vacated, the judgment of the Supreme Court is made the judgment of this Court, and the judgment of the trial court is reversed.

Judgment reversed.

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


author: Miller, Judge.

text:
    A13A1033.
    AMERICAN PROFESSIONAL RISK SERVICES, INC. et al. v. GOTHAM INSURANCE COMPANY.
    (748 SE2d 134)
   Miller, Judge.

American Professional Risk Services, Inc. and several of its employees (hereinafter collectively “AmPro”) filed suit in Fulton County against Gotham Insurance Company, Superior Roofing Company of Georgia, Inc., Atlas Group Enterprises, Inc. and Ron Herring for breach of contract, statutory and common law bad faith damages and declaratory judgment. In its suit, AmPro sought a determination that Gotham had a duty to defend AmPro in two underlying lawsuits arising from AmPro’s role as administrator of the Roofing and Sheet Metal Contractors Association of Georgia Workers Compensation Trust Fund (the “Trust Fund”). The superior court subsequently dismissed the underlying lawsuits, and, finding that there was no longer any reason to determine whether Gotham had a duty to indemnify and defend AmPro in the underlying lawsuits, then dismissed this action against Gotham sua sponte. AmPro appeals, contending that the trial court erred in dismissing the complaint as moot, and the trial court erred in failing to rule that Gotham had a duty to defend and indemnify AmPro. For the reasons that follow, we vacate and remand.

‘We review the trial court’s ruling on a motion to dismiss under the de novo standard of review.” (Citations and punctuation omitted.) Durrah v. State Farm Fire & Cas. Co., 312 Ga. App. 49 (717 SE2d 554) (2011).

So viewed, the record shows that Gotham issued a professional liability insurance policy (hereinafter the “Policy”) to AmPro effective for one year beginning June 30, 2010. The Policy provided claims-made coverage for AmPro’s professional services as a third-party administrator for workers’ compensation benefit plans. The policy excluded coverage for claims or claim expenses based upon, due to or involving directly or indirectly, the insolvency or receivership of any self-funded or partially self-funded benefit plan.

On February 9, 2011, Superior Roofing and Herring brought suit in Fulton County against AmPro alleging breach of contract, negligence and negligent misrepresentation arising from AmPro’s administration of the Trust Fund. That same day Atlas brought suit against AmPro in Fulton County raising identical claims. Less than one month later, the Superior Court of Fulton County placed the Trust Fund, whose members consisted of various roofing contractors including Superior Roofing and Atlas, under permanent receivership.

AmPro provided timely notice to Gotham of the claims made in the Superior Roofing and Atlas complaints (the “underlying suits”). Thereafter, Gotham sent a coverage denial letter notifying AmPro that, based on the exclusion for insolvent self-funded benefit plans, there was no coverage under the Policy for the claims alleged in the underlying suits.

AmPro responded to Gotham’s coverage denial, contending that Gotham had a duty under Georgia law to defend the underlying suits. AmPro further contended that some of the underlying claims did not fit into the exclusion because those claims were not based upon or did not involve the insolvency of the Trust Fund. As a result of Gotham’s denial of coverage, AmPro was forced to obtain attorneys to defend the underlying suits at its own expense.

AmPro subsequently filed this action against Gotham. Atlas and Superior Roofing moved to dismiss AmPro’s complaint for improper venue and on the ground that there was no controversy ripe for declaratory judgment. AmPro and Gotham filed cross-motions for summary judgment on Gotham’s duty to defend.

On September 18, 2012, the superior court entered a final order dismissing the underlying suits on the ground that the Insurance Commissioner, as permanent receiver of the Trust Fund, had exclusive standing to pursue the underlying claims. Thereafter, the superior court entered a final order dismissing this action sua sponte, on the ground that it was moot because there was no longer any reason to determine whether Gotham had a duty to indemnify and defend AmPro in the underlying suits given that they had been dismissed.

Superior Roofing appealed the dismissal of its underlying suit to this Court. See Superior Roofing Co. of Ga. v. American Professional Risk Svcs., 323 Ga. App. 416 (744 SE2d 400) (2013). This Court reversed the dismissal of Superior Roofing’s suit against AmPro, holding that the Insurance Commissioner, as the receiver of the Trust Fund, has exclusive authority to prosecute legal claims that are common to the Trust Fund, but the plaintiffs are not prohibited from pursuing their personal claims. See id. Accordingly, this Court returned the case to the superior court for a determination of which of the underlying claims are personal or common to the Trust Fund. See id.

AmPro contends that the superior court erred in dismissing its complaint as moot and in failing to determine whether Gotham had a duty to defend and indemnify AmPro. We agree.

“A case is moot when its resolution would amount to the determination of an abstract question not arising upon existing facts or rights[.]” (Citation and punctuation omitted.) Scarbrough Group v. Worley, 290 Ga. 234, 236 (719 SE2d 430) (2011). AmPro’s claims are no longer moot in light of this Court’s reversal of the dismissal in the Superior Roofing case. See Tampa Investment Group, Inc. v. Branch Banking & Trust Co., 290 Ga. 724, 729 (2) (723 SE2d 674) (2012) (holding that issue of whether guaranties sufficiently identified limited liability company as debtor on promissory notes was no longer moot in light of reversal); Provident Bank v. Morequity, Inc., 262 Ga. App. 331, 334 (2) (585 SE2d 625) (2003) (holding that defendant’s cross-claim was no longer moot in light of reversal of grant of summary judgment to defendant). This case is now ripe for adjudication by the superior court. Accordingly, we vacate the superior court’s dismissal of this case and remand for further proceedings consistent with this Court’s opinion in the Superior Roofing case.

Decided August 30, 2013.

Goodman, McGuffey, Lindsey & Johnson, W. Davis Hewitt, for appellant.

Jay W. Pakchar, for appellee.

Judgment vacated and case remanded.

Barnes, P. J., and Ray, J., concur.

       See State of Georgia, Ex Rel. Ralph T. Hudgens, Commissioner v. Roofing and Sheet Metal Contractors Association of Georgia Workers’ Compensation Trust Fund, Civil Action No. 2011-CV-197221.


author: Dillard, Judge.

text:
    A13A1041.
    MUSE v. THE STATE.
    (748 SE2d 136)
   Dillard, Judge.

Following a trial by jury, Preston Muse was convicted of criminal attempt to commit aggravated child molestation and criminal attempt to commit child molestation. On appeal from these convictions, Muse asserts that (1) the State failed to prove that he did not abandon the attempts and (2) he is entitled to a new trial in light of newly discovered evidence. For the reasons set forth infra, we affirm Muse’s convictions.

Viewed in the light most favorable to the jury’s guilty verdict, the record reflects that in June 2010, a member of a north Georgia internet-crimes-against-children task force created a fake Craig’s List post to which Muse responded, and the two continued to communicate via e-mail. The task-force member posed as “Father Dave,” the stepfather of a fictional minor girl, and offered to allow Muse to engage in sexual contact with the child. Although the initial internet advertisement did not specify the age of the female that would be involved in an encounter, the reply to Muse’s response made clear that the participant would be a 14-year-old girl. Thereafter, Muse expressed surprise at the girl’s young age but nevertheless continued to communicate with Father Dave, requesting proof that Father Dave was not associated with law enforcement, sending a photograph of himself, requesting a photograph of the stepdaughter, and detailing the oral and vaginal sex acts he would perform with the girl.

Over the course of several weeks, Muse contacted Father Dave multiple times to set up a time and location to meet the stepdaughter for the sexual encounter, communicating via e-mail, phone calls, and text messages. Eventually it was agreed that Muse would drive from Atlanta to a motel in north Georgia, where he would meet Father Dave and the girl.

On the day in question, Muse and Father Dave sent text messages back and forth regarding the details of the meeting time and location, and at one point Muse requested a nude photograph of the girl and inquired as to her hygienic habits. Although Muse indicated that he would be late to the meeting and driving a black Ford F150 truck, he showed up on time in a white GMC truck and parked outside of the room number designated by Father Dave. Five task force members arrived at the hotel parking lot at the meeting time in unmarked vehicles and wearing t-shirts that bore an FBI task force insignia on the left breast.

The lead agent posing as Father Dave and an adult female companion arrived in a silver Mazda, the type of car Muse was told to expect, and parked next to the white GMC. The agent believed he recognized Muse as the truck’s occupant from the photograph Muse had provided. Thereafter, at the lead agent’s request, another agent pulled into the parking space beside the Mazda, rolled down his window, examined the truck’s occupant, agreed that it was Muse, and relayed same to the agent in the Mazda before returning to his original strategic parking location.

At that point, Muse exited the motel parking lot at a high rate of speed and drove onto the interstate. The agents pursued Muse, initiated a stop, and made an arrest. Muse was then taken to the FBI office and spoke with law enforcement voluntarily. This appeal follows Muse’s indictment for and subsequent conviction on charges of attempted child molestation and attempted aggravated child molestation, and the trial court’s denial of his motion for new trial.

At the outset, we note that on appeal from a criminal conviction, “the defendant is no longer entitled to a presumption of innocence and we therefore construe the evidence in the light most favorable to the jury’s guilty verdict.” With this guiding principle in mind, we turn now to Muse’s enumerations of error.

1. Muse first argues that the evidence against him was insufficient because the State’s evidence failed to prove that he did not abandon the attempted crimes of child molestation and aggravated child molestation. We disagree.

To begin with, a person commits child molestation when he or she “[d]oes any immoral or indecent act to or in the presence of or with any child under the age of 16 years with the intent to arouse or satisfy the sexual desires of either the child or the person” and commits the offense of aggravated child molestation when he or she “commits an offense of child molestation which act physically injures the child or involves an act of sodomy.” And a person commits 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.”

In the case sub judice, Muse was convicted of attempting to commit child molestation and aggravated child molestation on the basis of his communications with Father Dave, in which he expressed a desire to engage in sodomy and vaginal intercourse with a 14-year-old female, and his act of traveling over 90 miles to the north Georgia motel on a predetermined date and time for the purpose of same. The evidence of Muse’s extensive communications expressing his sexual desires after learning the child’s age and his decision to travel to an established meeting location for the purpose of engaging in the planned encounter provided sufficient evidence of a “substantial step” to sustain his convictions for attempted child molestation and attempted aggravated child molestation. Nevertheless, Muse argues that he abandoned any effort to commit the crimes when he left the motel parking lot and that the State failed to prove otherwise.

With regard to the defense of abandonment, when a person’s conduct would otherwise constitute an attempt to commit a crime under OCGA § 16-4-1, “it is an affirmative defense that he abandoned his effort to commit the crime . . . under circumstances manifesting a voluntary and complete renunciation of his criminal purpose.” However, a renunciation is not voluntary and complete if it results from a “belief that circumstances exist which increase the probability of detection or apprehension of the person or which render more difficult the accomplishment of the criminal purpose____” And when a defendant raises and testifies in support of an affirmative defense, “the State has the burden of disproving that defense beyond a reasonable doubt.”

Here, Muse did not testify, but he argues that there was evidence at trial to show abandonment in that he left the motel parking lot. And while the evidence indeed showed that Muse left the parking lot shortly after law enforcement’s arrival, the evidence also showed that the undercover agents wore t-shirts bearing a large task-force insignia on the front breast, that at least two agents in two separate cars parked next to Muse and scrutinized him to make an identification, that the two agents — one occupying a car Muse was led to believe contained “Father Dave” — communicated through open windows about Muse’s identification, that the second agent moved his car back to a strategic position after identifying Muse, and that Muse left the parking lot at a “high rate of speed” almost immediately after this transpired. Additionally, the jury heard a recording of the statements Muse made to law enforcement following his arrest and, although Muse expressed hesitation as to whether he would have gone through with the planned acts, he did not definitively express a change of heart or explain that he left the motel because of same. Although he stated in the interview that he did not pay attention to the cars around him and left because he did not feel “right,” the lead agent testified that he and Muse looked at each other for “a long time.”

Based on the foregoing evidence, even if the jury did not conclude that Muse knew that the individuals in the cars were law-enforcement officers, “[Muse] was acutely aware of the individual [s’] presence, and a reasonable jury could conclude that [Muse] believed the individual[s’] presence increased the probability of his apprehension.” It was for the jury to determine whether the State met any burden to disprove an affirmative defense of abandonment — a determination which the jury made in the State’s favor. Accordingly, this enumeration of error is without merit.

2. Muse next argues that the trial court abused its discretion in denying his extraordinary motion for a new trial based on newly discovered evidence. Once again, we disagree.

Pursuant to OCGA § 5-5-23,

[a] new trial may be granted in any case where any material evidence, not merely cumulative or impeaching in its character but relating to new and material facts, is discovered by the applicant after the rendition of a verdict against him and is brought to the notice of the court within the time allowed by law for entertaining a motion for a new trial.

When we review the denial of an extraordinary motion for new trial based on newly discovered evidence, our review “is circumscribed because motions for new trial on this ground are addressed to the sound discretion of the trial judge, and a refusal to grant the motion will not be reversed unless that discretion is abused.” And our Supreme Court has held that a new trial may be granted on the basis of newly discovered evidence when the party seeking a new trial satisfies the lower court

(1) that the evidence has come to his knowledge since the trial; (2) that it was not owing to the want of due diligence that he did not acquire it sooner; (3) that it is so material that it would probably produce a different verdict; (4) that it is not cumulative only; (5) that the affidavit of the witness himself should be procured or its absence accounted for; and (6) that a new trial will not be granted if the only effect of the evidence will be to impeach the credit of a witness.

And here, the State discovered, following Muse’s convictions, that the Craig’s List posting presented to the jury at trial was not the posting to which Muse responded. Upon learning this, Muse made an extraordinary motion for new trial pursuant to OCGA § 5-5-23. He asserted before the trial court, and continues to assert before this Court, that the language in the posting presented at trial — as opposed to the posting to which he actually responded — strongly implicated that it sought a participant for a potentially illegal encounter and was, thus, more incriminating.

The record reflects that the State presented the jury with the following internet post as being that to which Muse responded:

Looking for a special bread [sic] of man who would be interest [sic] in helping me with the training of my yOu ng [sic] female friend. Must be someone who is completely open minded and who understand [sic] the importance of teaching the finer aspects of womanhood. I am completely straight and there will be no male to male contact, but I will be there to watch. If you are looking for a special adventure ... drop me a line.

However, the posting to which Muse actually responded, which was titled “Interested in Fa/Dau Meeting??,” read as follows:

Atruely [sic] unique opportunity for the right man. I’m a 55 year old [white male] who really likes to watch. My partner is a daughter type who likes to be watched. If any of this seems interesting to you[,] drop me a [message] and we can talk about it.

Decided August 30, 2013.

George B. Sparks, for appellant.

Herbert M. Poston, Jr., District Attorney, Susan L. Franklin, Mark P. Higgins, Jr., Assistant District Attorneys, for appellee.

The trial court denied Muse’s extraordinary motion for new trial, determining that Muse had knowledge of the correct posting prior to trial and that, even if he did not, the correct posting was not so material as to produce a different result. The trial court did not abuse its discretion in making this determination. Indeed, Muse was the party who actually responded to the Craig’s List post and, accordingly, was necessarily aware of its content. And furthermore, even if Muse’s first argument did not strain credulity, the trial court clearly did not abuse its discretion in determining that the content of the correct internet posting was not so material as to produce a different result. As noted by the trial court, Muse learned that the intended participant would be a 14-year-old girl only after responding to the initial post, and it was at that point he expressed his sexual desires, sought repeatedly to set up a sexual encounter through Father Dave, and actually arrived at a scheduled meeting time and location to engage in same. Therefore, the contested evidence is not so material that it would probably produce a different result.

Accordingly, for all the foregoing reasons, we affirm Muse’s convictions.

Judgment affirmed.

Andrews, P. J., and McMillian, J., concur.

        See, e.g., Castaneira v. State, 321 Ga. App. 418 (740 SE2d 400) (2013).

       After the initial response, various task force members acted as Father Dave when communicating with Muse through different means.

       In response to this request, law enforcement sent a childhood photograph of a consenting adult female and a photograph of realistic hut fake female genitalia.

        Castaneira, 321 Ga. App. at 418.

       OCGA § 16-6-4 (a) (1).

       OCGA § 16-6-4 (o); see also OCGA § 16-6-2 (a) (1) (“A person commits the offense of sodomy when he or she performs or submits to any sexual act involving the sex organs of one person and the mouth or anus of another.”).

       OCGA § 16-4-1.

        See Brown v. State, 321 Ga. App. 798, 800(1) (743 SE2d 474) (2013) (holding that evidence was sufficient when, after engaging in internet communications, defendant “traveled to an arranged location to have sexual intercourse with [a] 14-year-old [girl], and that this was a substantial step toward committing the offense of criminal attempt to commit child molestation”); Castaneira, 321 Ga.App. at424(2) (holding that evidence of attempted child molestation was sufficient when defendant engaged in sexually explicit internet communications with officer posing as 15-year-old girl, arranged to meet her for sexual encounter, and traveled to arranged meeting place); Millsaps v. State, 310 Ga. App. 769, 773 (3) (714 SE2d 661) (2011) (“[T]he jury’s conclusion that entrapment did not occur is supported by the record evidence, including the facts that . . . [the defendant) continued communicating with [the victim], including having sexually explicit conversations with her in which he stated he wanted ‘a lot of oral,’ after he learned that she was 14 years old . . . [and the defendant] left his home of Tennessee to meet a purportedly 14-year-old girl in order to have sex with her____”). Cf. Dennard v. State, 243 Ga. App. 868, 870-71 (1) (a) (534 SE2d 182) (2000) (affirming denial of general demurrer and rejecting defendant’s assertion that “attempted child molestation cannot be committed except in the physical presence of the intended victim”).

       OCGA§ 16-4-5 (a).

       OCGA § 16-4-5 (b).

        Bentley v. State, 261 Ga. 229, 230 (2) (404 SE2d 101) (1991). But cf. Perkins v. State, 224 Ga. App. 63, 65 (2) (479 SE2d 471) (1996) (“[The defendant] left after he had completed the attempt by making a substantial step toward committing child molestation. Because the evidence showed the completed crime of attempted child molestation, it was not error to refuse to charge on abandonment.”).

        Heard v. State, 299 Ga. App. 44, 47 (1) (681 SE2d 701) (2009).

        Bentley, 261 Ga. at 230 (2) (“The determination of whether the State has met its burden to disprove the affirmative defense is for the jury____”); see also Noble v. State, 282 Ga.App. 311, 312 (638 SE2d 444) (2006).

        Cf. Brockman v. State, 292 Ga. 707, 729 (15) n.8 (739 SE2d 332) (2013) (“Even if [the defendant’s] pulling the gun back inside the vehicle and fleeing after [the victim] twice did not respond to his demands is seen as evidence of abandonment, the crime of criminal attempt to commit armed robbery was completed when [the defendant] pointed the gun at [the victim] and demanded that [the victim] turn his money over to him. Moreover, the jury resolved the issue of whether or not [the defendant] voluntarily abandoned his attempt to rob [the victim] by returning a guilty verdict on the charge of criminal attempt to commit armed robbery.” (citations omitted)).

        Fetter v. State, 271 Ga. App. 652, 653 (610 SE2d 615) (2005) (punctuation omitted).

        Timberlake v. State, 246 Ga. 488, 491 (1) (271 SE2d 792) (1980) (punctuation omitted; emphasis added); accord Fetter, 271 Ga. App. at 653.

       We note that Muse has never asserted that the State acted in bad faith in presenting an erroneous internet posting, and the State explained at the motion-for-new-trial hearing that the error was attributable to the task force having provided an incorrect posting and that the State discovered the error during the prosecution of a subsequent case and immediately notified Muse and the court.

        Cf. Fetter, 271 Ga. App. at 653 (“[The defendant], who himself was present and was necessarily aware of [the potential witness’s] immediate presence during the conversation, knew prior to trial that she could have testified to that conversation.”); Davis v. State, 221 Ga. App. 375, 377-78 (471 SE2d 307) (1996) (holding that defendant’s presence and knowledge of potential witness’s involvement in incident precluded defendant from establishing first Timberlake factor).

        Cf. Brinson v. State, 288 Ga. 435, 436-37 (3) (704 SE2d 756) (2011) (holding that a receipt showing that defendant picked up food from a restaurant at around 8:30 p.m. was not material because the shooting for which defendant was convicted did not occur until 10:30 p.m. and, thus, the receipt did not impact whether defendant had time to commit the shooting). Compare State v. Simmons, 321 Ga. App. 688, 694 (742 SE2d 505) (2013) (holding that defendant was entitled to new trial because newly discovered phone records corroborated testimony as to defendant’s alibi); Lee v. State, 146 Ga. App. 189, 192 (III) (245 SE2d 878) (1978) (holding that defendant was entitled to new trial because newly discovered eyewitness testimony that victim raised a gun toward defendant constituted material evidence supporting defendant’s self-defense theory).


author: RAY, Judge.

text:
    A13A0900.
    BURGER v. THE STATE.
    (748 SE2d 462)
   RAY, Judge.

A jury convicted Rafael Radcliffe Burger of six counts each of armed robbery (OCGA § 16-8-41 (a)), false imprisonment (OCGA § 16-5-41 (a)), and possession of a firearm during the commission of a felony (OCGA § 16-11-106 (b)). He appeals, contending that he received ineffective assistance of counsel. For the reasons that follow, we affirm.

Viewed in the light most favorable to the verdict, Jackson v. Virginia, 443 U. S. 307, 319 (III) (99 SCt 2781, 61 LE2d 560) (1979), the evidence shows that Burger and three other perpetrators robbed several victims in an apartment complex. Burger gained access to the victims’ apartment by offering to bring a woman, Yasmein Spillman, to have sex with the victims. The perpetrators, armed with a rifle and a pistol, bound the victims’ hands and ankles, and hit or kicked them. Burger and the other perpetrators then took money, a television, DVD players, a suitcase, and cell phones. Some of these items were found pursuant to a search of the residence of some of the perpetrators who were with Burger.

A police detective who interviewed Burger testified that Burger told him he agreed to “set up a date” between Spillman and one of the victims, Juan Andrade, in exchange for money. The detective testified that Burger told him that when two of the other perpetrators, who were armed, came into the apartment, Burger initially got down on the ground and then got up and began helping the perpetrators search the victims and bind their hands and feet. Burger also admitted to holding a handgun while standing guard over the vietims. Another police detective who also interviewed Burger testified that Burger told him he was present during the incident, that he knew of the robbery just before it occurred and before he entered the apartment, and that he received money from the other perpetrators.

Burger testified at trial that he was setting up a date for sex between Andrade and Spillman. He indicated that when another perpetrator entered with a gun, “I was looking at him like, what? ... I was scared at that point. ... I knew what was going on; they was robbing the place, but I didn’t know if I was in any immediate danger at that time because, like I said, they were my friends.” He initially got down on the floor, but when one of the other perpetrators pointed a gun at him and told him to get up, he did. When a perpetrator told him to search the apartment, he did, locating cash and other items, including a gun and something that appeared to be cocaine. He gave these items to the other perpetrators. He admitted to holding a gun handed to him by one of the perpetrators and to guarding the victims. He then fled with the other perpetrators. He also testified that the other perpetrators later divided up the proceeds of the robbery and gave him a share.

The victims who testified at trial identified Burger as one of the assailants who participated in the armed robbery. Burger and three other perpetrators were charged with seven counts each of armed robbery, false imprisonment, and possession of a firearm during the commission of a felony. Burger was found guilty of six counts each of the aforementioned crimes and was acquitted of the remaining counts; his co-defendants pled guilty to all counts prior to trial.

On appeal, Burger contends that he received ineffective assistance of counsel. To prevail on an ineffective assistance of counsel claim, a criminal defendant must show that his counsel’s performance was deficient and that the deficient performance so prejudiced him that there is a reasonable likelihood that, but for counsel’s errors, the outcome of trial would have been different. Strickland v. Washington, 466 U. S. 668, 694 (III) (B) (104 SCt 2052,80 LE2d 674) (1984). “The likelihood of a different result must be substantial, not just conceivable.” (Citation omitted.) Hill v. State, 291 Ga. 160, 164 (4) (728 SE2d 225) (2012). We are not required to address both the deficient performance and prejudice prongs of the test if the defendant has made an insufficient showing on either one of them, and “a court need not determine whether counsel’s performance was deficient before examining the prejudice suffered by the defendant as a result of the alleged deficiencies.” Strickland, supra at 697 (IV). Further, “we accept the trial court’s factual findings and credibility determinations unless clearly erroneous, but we independently apply the legal principles to the facts.” (Citations and punctuation omitted.) Hill, supra.

1. Burger argues on appeal that Spillman told trial counsel in two interviews that he had no knowledge of any plan to commit armed robbery. However, at trial, Spillman testified that Burger knew about the robbery beforehand, told her that he was using her as “bait,” helped another perpetrator tie up victims, held a weapon during the crime, fled with the other perpetrators, and split the money with them. Burger now contends that his trial counsel was ineffective because he did not take the steps necessary to impeach Spillman: he did not record or otherwise preserve his interviews with her, nor did he make any provisions to have Burger represented by other counsel so that he could serve as an impeaching witness. Thus, Burger argues, his trial counsel was ineffective for not impeaching Spillman.

However, at the motion for new trial hearing, trial counsel only testified that he was surprised by Spillman’s testimony because she had told him that she did not know about the robbery beforehand. Trial counsel never testified that Spillman told him that Burger did not know about the robbery beforehand.

Trial counsel’s testimony would not provide a basis for impeaching Spillman as to whether or not Burger had prior knowledge of a planned robbery. Given this, and the overwhelming evidence of Burger’s guilt as outlined above, Burger cannot show that he was prejudiced by trial counsel’s failure to pursue a futile impeachment attempt. See Taylor v. State, 282 Ga. 693, 697 (2) (c) (653 SE2d 477) (2007) (defendant could not show prejudice from counsel’s failure to impeach witness with prior inconsistent statement where there was no reasonable probability that the difference between witness’ prior statement and in-court testimony would have altered the outcome of trial).

2. Burger also argues that trial counsel was ineffective because he failed to tender into evidence certified copies of the convictions of the other perpetrators, which could have been used for impeachment. Burger cites to testimony from the perpetrators that the prosecutor who was examining them had not promised them a deal. Burger argues that copies of their plea agreements and certified convictions would have served to undermine their credibility and would have shown that they promised to “testify truthfully” as a condition of their sentences.

At trial, the perpetrators whose testimony Burger cites in his appellate brief testified on cross-examination as to the maximum sentences for their crimes and testified that they received mandatory minimum sentences. The defense attorney made the point that he was eliciting this testimony to show their motivation to testify for the State. Further, the perpetrators swore to tell the truth on the stand.

At the motion for new trial hearing, Burger tendered certified copies of the convictions of two of the perpetrators into evidence, showing that they received the mandatory minimum sentences to which they testified at trial. The convictions indicate the perpetrators entered negotiated pleas.

Decided September 4, 2013.

J. Scott Key, for appellant.

Tommy K. Floyd, District Attorney, James L. Wright III, Assistant District Attorney, Alicia C. Gant, for appellee.

A better practice for trial counsel indeed may have been to tender certified copies of the convictions. However, the testimony elicited made the jury aware that the perpetrators had sworn to testify truthfully; that they were testifying for the State; that they had pled guilty; and that they had received mandatory minimum sentences rather than the maximum sentences available. Given this, and given the overwhelming evidence of Burger’s guilt (including his own testimony), he has failed to show that he was prejudiced by trial counsel’s failure to tender the certified copies of the convictions into evidence. Harrell v. State, 253 Ga. App. 691, 698 (5) (b) (560 SE2d 295) (2002) (even though certified copies of convictions could have impeached a witness, any deficiency in counsel’s failure to tender them did not prejudice defendant where jury already knew of the convictions, and where there was no reasonable probability of a different result at trial). See also English v. State, 290 Ga. App. 378, 383-384 (4) (659 SE2d 783) (2008) (counsel not ineffective for failing to impeach witness where that witness’s testimony merely corroborated the trial testimony of a different witness). The trial court did not err when it denied Burger’s motion for new trial on grounds of ineffective assistance of counsel.

Judgment affirmed.

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


text:
    A13A1242.
    THOMPSON v. THE STATE.
    (748 SE2d 465)
   Ray, Judge.

After a jury trial, Jummul Vincent Thompson was convicted of one count of forgery in the first degree (OCGA § 16-9-1), five counts of forgery in the second degree (OCGA § 16-9-2), and one count of fleeing or attempting to elude a police officer (OCGA § 40-6-395). He appeals his convictions and the denial of his motion for a new trial, contending that the trial court erred in admitting similar transaction evidence. For the reasons that follow, we affirm.

Construed most favorably to support the verdict, the evidence shows that on June 12, 2009, Thompson, Kathy McDowell, and Tony Russell drove to a Shell gas station/convenience store for the purpose of cashing fraudulent payroll checks. Thompson gave McDowell and Russell each a fraudulent check to cash, with the understanding that they were cashing the checks for Thompson and that they would receive some of the money in return for their participation. The fraudulent checks were made payable to McDowell (in the amount of $497.72) and Russell (in the amount of $388.14), and both checks were purportedly drawn on a bank account held in the name of Taco Mac Restaurants, Inc.

While Thompson waited outside the convenience store, McDowell and Russell went inside and tried to cash McDowell’s check. When the store owner called Taco Mac and determined that the check was fraudulent, McDowell snatched the check away from him and exited the store. McDowell and Russell got back into the vehicle with Thompson. The store manager immediately called the police to report the incident, and a customer was able to get the license plate number of Thompson’s vehicle before it drove off.

The police spotted Thompson’s vehicle just before it turned onto 1-20. When Thompson was getting onto 1-20, he noticed that he was being followed by the police car, and he accelerated in an attempt to get away from the police. The police officer then activated the patrol car’s lights and sirens and tried to catch up to Thompson’s vehicle on the interstate as it weaved in and out of traffic at speeds in excess of 100 mph. During the chase, the police officer observed small white pieces of paper being thrown from the windows. As Thompson was attempting to pull off the interstate onto an exit ramp, he lost control of his vehicle and crashed. Thompson, McDowell, and Russell were taken into custody at that time. The police were able to collect the pieces of paper that had been thrown from the vehicle, which were later determined to be pieces of fraudulent Taco Mac payroll checks.

McDowell and Russell both pled guilty to forgery and testified against Thompson at his trial. McDowell and Russell testified that they tore their fraudulent checks into pieces and threw them from the vehicle during the chase, and McDowell further testified that Thompson had asked her to retrieve additional fraudulent checks from the vehicle’s glove compartment and to tear them up as well.

In his sole enumeration of error, Thompson contends that the trial court erred in admitting evidence of two similar transactions showing that he was involved in other forgeries. Specifically, Thompson argues that the similar transactions were not sufficiently similar and were highly prejudicial. We disagree.

Similar transaction evidence is admissible where the [S]tate proves that (1) it is introduced for a proper purpose, (2) sufficient evidence shows that the accused committed the independent offense, and (3) a sufficient connection or similarity exists between the independent offense and the crime charged so that proof of the former tends to prove the latter. The decision to admit prior similar transaction evidence is within the discretion of the trial court and will not be disturbed absent an abuse of discretion.

(Footnotes omitted.) Chandler v. State, 311 Ga. App. 86, 90 (4) (714 SE2d 597) (2011).

At trial, after the court properly instructed the jury on similar transactions, evidence was admitted of a similar transaction that occurred in 2008, in which Thompson and an accomplice cashed two fraudulent payroll checks at a small independent grocery store. The fraudulent checks were in the amounts of $394.01 and $383.19 and were purportedly drawn from a bank account held in the name of a Taco Bell franchise. Thompson was arrested for this offense and pled guilty to forgery in the first degree.

In the second similar transaction, Thompson cashed a fraudulent payroll check at a gas station/convenience store in 2008. The fraudulent check was in the amount of $373.62 and was purportedly drawn from a bank account held in the name of another Taco Bell franchise. In this occurrence, Thompson had two other accomplices with him. One of the accomplices also had a purported payroll check from Taco Bell, but the clerk refused to cash it.

Thompson concedes that the similar transaction evidence at issue was introduced for a proper purpose and that there was sufficient evidence showing that Thompson committed the two independent offenses. However, he contends that the State failed to show a “sufficient degree of similarity” between the similar transactions and the offenses charged in this case.

When examining whether transactions are sufficiently similar, the proper focus is on the similarities between the prior acts rather than the dissimilarities. Chandler, supra. The law does not require the prior acts to be identical in all respects to the charged offenses, and there can be a variation of circumstances where there exists a logical connection between the crimes. Beck v. State, 291 Ga. App. 702, 703 (662 SE2d 798) (2008). “An appellate court should not disturb the findings of the trial court on the issue of similarity or connection of similar transaction evidence unless they are clearly erroneous.” (Citation and punctuation omitted.) Salinas-Valdez v. State, 276 Ga. App. 732, 734 (2) (624 SE2d 278) (2005).

In both the present case and the two similar transactions, Thompson was a participant with others in attempts to cash fraudulent payroll checks at small convenience stores. The fraudulent checks were for similar amounts and were purportedly drawn from bank accounts held by Mexican food restaurants. All three occurrences were committed within a 15-month time frame.

Thompson also argues that the trial court erred in admitting the similar transaction evidence because its probative value was substantially outweighed by its prejudicial effect. After the criteria for admitting similar transaction evidence are met,

the trial court retains the sound legal discretion to exclude relevant similar crimes evidence on the ground that its probative value is substantially outweighed by the danger of unfair prejudice. The exercise of this discretion requires that the court consider whether the State’s need for the similar transaction evidence outweighs the prejudice inherent to the defendant.

(Footnote omitted.) Gray v. State, 260 Ga. App. 197, 198 (2) (a) (581 SE2d 279) (2003).

In this case, Thompson’s defense was that he was not involved in the forgeries and that the only evidence implicating him to the fraudulent checks was the presumably biased testimony of McDowell and Russell. Therefore, the State’s need for extrinsic evidence was relevant to the disputed issue of Thompson’s participation in the forgeries. As the trial court noted in its ruling to allow the similar transaction evidence, the prior acts were probative and relevant because they indicated that Thompson participated in a “continuing enterprise” of negotiating fraudulent checks over a relatively short period of time. As the similar transaction evidence shows a course of conduct very similar to the scheme used in this case such that proof of the former tended to prove the latter, there was no error in permitting this testimony. See Grant v. State, 248 Ga. App. 203, 205 (2) (546 SE2d 339) (2001).

Decided September 4, 2013.

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

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

Under these circumstances, the trial court did not abuse its discretion in admitting the similar transaction evidence.

Judgment affirmed.

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

       OCGA §§ 16-9-1 and 16-9-2 were amended, effective July 1,2012, by Ga. L. 2012, p. 899, § 3-5, and OCGA § 40-6-395 was amended, effective July 1, 2012, by Ga. L. 2012, p. 729, § 1. Thus, we apply the earlier versions of these statutes that were in effect at the time of the crime.