text:
    A10A2097.
    REED v. THE STATE.
    (709 SE2d 847)
   BARNES, Presiding Judge.

A jury convicted Jerome Reed of two counts each of aggravated stalking and criminal trespass, and the trial court sentenced him to seven years, to serve two in confinement. He appeals, contending the evidence was insufficient, the trial court erred in admitting similar transaction evidence, and his trial counsel was ineffective. For the reasons that follow, we affirm the convictions.

Í. Reed contends the evidence presented at trial was insufficient to sustain his convictions. On appeal from a criminal conviction, we construe the evidence in the light most favorable to the verdict, and the defendant is no longer presumed innocent. Crane v. State, 297 Ga. App. 880, 880-881 (678 SE2d 542) (2009). When we evaluate whether the evidence was sufficient to support a conviction, we neither weigh it nor determine witness credibility, but only determine whether a rational trier of fact could have found the defendant guilty of the charged offenses beyond a reasonable doubt. Id.

Reed was charged with two counts of criminal trespass for intentionally damaging the victim’s tires, and with two counts of aggravated stalking for violating a temporary protective order by contacting the victim at her house, without her consent, “for the purpose of harassing and intimidating” her. The crime of “stalking” is defined as following, watching, or contacting someone, without her consent, to harass and intimidate her. OCGA § 16-5-90 (a). That subsection further defines the phrase “harassing and intimidating” as

a knowing and willful course of conduct directed at a specific person which causes emotional distress by placing [her] in reasonable fear for [her] safety or the safety of a member of . . . her immediate family, by establishing a pattern of harassing and intimidating behavior . . . which serves no legitimate purpose.

A person commits the offense of aggravated stalking when he, in violation of an order or bond condition “prohibiting the behavior described in this subsection, follows, places under surveillance, or contacts another person . . . without the consent of the other person for the purpose of harassing and intimidating the other person.” OCGA § 16-5-91.

Viewed in the light most favorable to the convictions, the victim testified at trial that she had known Reed since 2001, and became engaged to him in December 2003, but ended their relationship the following year. She recounted several instances of violence and jealousy during her time with Reed. For example, the victim discovered that Reed had obtained a key to her residence and gone through all her belongings when she was out of town, disposing of photographs and hundreds of letters from an ex-boyfriend. He had also listened to her voice mail messages at work without her permission or knowledge. In July 2003, Reed became angry while the couple was in Florida at a family gathering, and after they came home Reed left multiple successive messages on the victim’s work voice mail, “fussing just really, really bad, . . . forget me, forget my family,” which were played at trial.

In February 2004, Reed forced the victim into her house and ripped her engagement ring off her finger. The victim obtained a temporary protective order against Reed based on that event, but did not end the relationship and asked that the case be dismissed. One night in July 2004 the victim told Reed not to come over because she and her sister were cooking for a party, but he came anyway, banged on thé door, and then lurked outside for hours when she would not let him in. She saw him sporadically after that, and for the last time in November 2004.

On January 17, 2005, the victim began driving her car home from a friend’s house and discovered that she had no brakes. She was able to stop the car with her parking brake, and her friend, who was an automobile mechanic, testified that the brake line to one of her front wheels had been cleanly cut. She bought a replacement part and because the car could not be moved, the mechanic repaired it on the spot. After that, before driving the car the victim always checked her brakes, and her brake line was cut twice more, on January 31, 2005 and on February 6, 2005, while the car was parked at her residence. At some point during this time frame, all four of the victim’s tires were slashed and had to be replaced. After the second brake line incident on January 31, 2005, the victim contacted a detective and obtained an ex parte temporary protective order against Reed, and the court set a hearing date of February 17, 2005.

After the hearing, the court issued a “Stalking Twelve Month Protective Order” valid through February 16, 2006, finding that Reed had knowingly and wilfully violated the stalking statute and had placed the victim in reasonable fear for her safety. Reed was enjoined and restrained from harassing, interfering with, intimidating, or stalking the victim, from approaching within 100 yards of the victim, her residence, or her workplace, and from having any type of contact with the victim, including but not limited to telephone, fax, e-mail, voice mail, or mail.

The victim, on February 6, 2005, also installed a time-lapse surveillance camera after her brake line was cut for the third time. The camera was positioned to record the victim’s‘car and area around it, and she turned it on at night and off in the morning. Her tires went flat after she drove to work on February 25, 2005, and she discovered the sidewalls had been punctured. She reviewed her surveillance video from the night before with the detective she had contacted regarding her brake lines, and the detective described the video as showing a tall, slender man approach the victim’s car at 5:30 a.m. that day and bend over each tire. The victim was certain the man in the video was Reed, and the detective “felt it was a dangerous situation.” A magistrate thereafter issued an aggravated stalking arrest warrant against Reed. The State played the February 25, 2005 video at trial. As it played, the victim again identified the man bending over her tires as Reed, based on his build, the characteristic way he trotted from one place to another, and the way he held his left arm away from his body.

On March 2, 2005, the victim’s second set of new tires went flat after she drove to work, and she discovered that the sidewalls had been punctured. The detective viewed a videotape of the incident, which showed a man walking around the victim’s car at 2:18 a.m., leaning toward each tire and moving his hands from his body toward the car. As the jury watched the tape, the victim identified the man in the recording as Reed, based on his build and body movements, Reed was arrested for aggravated stalking, and on March 17, 2005, he was released on bond over the State’s opposition. The court imposed the following special condition of bond: “Have no contact of any nature or type w[ith the victim]. Absolutely no contact!”

Reed was subsequently indicted on two counts of criminal trespass for damaging the victim’s tires on February 25, 2005 and March 2, 2005, and for aggravated stalking based on his violation of the twelve-month stalking protective order prohibiting him from having contact with the victim. In July 2008, Reed notified the State of his intent to present alibi witnesses, and the victim remained in contact with the DeKalb County District Attorney’s office.

When the prosecutor contacted the victim shortly before the trial, which began on April 28, 2009, she mentioned that Reed had approached her at Wal-Mart on March 8, 2009. The prosecutor obtained copies of store recordings that documented the encounter, and on March 26, 2009 the State moved to revoke Reed’s bond. On April 1, 2009, the State filed a notice of its intent to present evidence about the Wal-Mart encounter as a similar transaction.

During the similar transaction hearing before trial, the State explained that it had filed the similar transaction notice “out of an abundance of caution,” even though the incident involved the same victim. Reed objected, arguing that he had no notice about the similar transaction, that the victim initiated the chance encounter, that the incident was not sufficiently similar to establish a course of conduct or pattern of behavior, and that the State wanted to introduce it for the improper purpose of showing Reed had a propensity to commit the crime of aggravated stalking. The trial court reviewed recordings of the encounter, and held that evidence of the incident was admissible.

After the trial court gave the jury a limiting instruction, the victim testified that she had been shopping with her grandson on March 8, 2009 when she heard her name called three times. While a recording played, the victim testified that it showed Reed pause at the aisle where she was shopping, then unbeknown to her, he walked up and down aisles close to her for 14 minutes before he approached her and said, “I just wanted to make sure it was you.” She replied that he knew what she looked like and walked away to finish her shopping. She found his unsolicited contact “a little” intimidating. When the victim went to pay for her items, she continued past a check-out line where Reed was standing. Reed approached her again and began asking questions about her family and her grandson, who turned and asked his grandmother, “Nana, have we met him before?” Reed replied to the grandson, “No, I’m just an admirer of your grandmother’s,” and left.

Reed testified, admitting he removed the victim’s ring from her finger by force in February 2004, but denied that the angry, profanity-laced voice mail messages from July 2003 were from him. Reed also denied being the person in the victim’s surveillance videos on February 25, 2005 and March 2, 2005, and denied cutting the victim’s brake lines or ruining her tires. He testified that he had been traveling during that time period, although on cross-examination he changed his testimony about his travel dates and itinerary.

We conclude that the evidence as outlined above was sufficient for a rational trier of fact to find Reed guilty beyond a reasonable doubt of two counts of aggravated stalking and of criminal trespass. Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560) (1979).

2. Reed contends the trial court erred in allowing the State to introduce as a similar transaction evidence of his March 2009 encounter with the victim in Wal-Mart. He argues that the State “procedurally” failed to give him proper notice of its intent to introduce the evidence, and that evidence of this encounter was not substantively admissible because the protective order had expired and because it was not similar to the crimes for which he was on trial.

Reed is correct that the Wal-Mart encounter was not a similar transaction, because it involved the same victim. “Similar transactions are independent crimes or occurrences that are unrelated or not connected to the crime with which the defendant is charged.” Freeman v. State, 269 Ga. App. 435, 436 (1) (604 SE2d 280) (2004).

Unlike similar transactions, prior [and subsequent] difficulties between the parties are not independent acts or occurrences, but are connected acts or occurrences arising from the relationship between the same people involved in the prosecution and are related and connected by such nexus. Evidence of a defendant’s prior [and subsequent] act[s] toward the same victim, whether an assault, a quarrel, or a threat, is admissible as evidence of the relationship between the victim and the defendant and may show the defendant’s motive, intent, and bent of mind in committing the act against the victim which results in the charges for which the defendant is being prosecuted.

Id. at 436-437 (1). The issue in Freeman was whether evidence of subsequent difficulties between the defendant and victim was subject to the similar transaction evidence requirements of USCR 31.3, involving notice and a hearing. We found “no material difference between . . . prior and subsequent difficulties evidence,” and held that the trial court therefore need not conduct a hearing before the State introduces subsequent difficulties evidence. Id. at 438 (1).

A subsequent difficulty between a defendant and the victim is admissible as evidence of the relationship between the two, and may show the defendant’s motive, intent, and bent of mind in committing the alleged crime against the victim. Bond v. State, 283 Ga. App. 620, 622 (2) (642 SE2d 223) (2007). The State charged Reed with aggravated stalking for violating a protective order, and introduced the Wal-Mart evidence to show that Reed also violated a condition of his bond by accosting the victim. The order granting Reed bond on the condition he have no contact with the victim had not expired, and although Reed argues that the Wal-Mart evidence portrays only a “non-criminal, coincidental, consensual and friendly encounter” between himself and the victim “in a very public place,” that is only his characterization of the incident. The victim testified she was “a little” intimidated by the encounter, and the jury could assess the credibility of Reed and the victim for themselves. The jury saw a recording of both the encounter between Reed and the victim and Reed’s actions beforehand, which allowed them to judge the nature of the incident for themselves and determine whether it showed Reed’s motive, intent, or bent of mind in committing the conduct charged against him.

While Reed argues the incident was presented to the jury as a similar crime, the trial court’s cautionary warning during testimony simply described the encounter as a “similar transaction,” which the jury could consider “for the limited purpose of showing, if it does, the state of mind and intent of defendant in the crime charged in the case now on trial. Such evidence, if any, may not be considered by you for any other purpose.” The court further instructed the jury that “the defendant is on trial for the particular offense charged in this bill of indictment only, and he is not on trial for the other offense or transaction. The Court does not express an opinion as to whether the defendant has committed any offense. This is solely a matter for your determination.” Finally, the trial court instructed the jury that before considering the transaction even for that limited purpose, it had to decide if Reed committed the other transaction and whether it was similar enough that proof he did it tended to prove he did the charged crime. The court gave the same limiting instruction in its charge to the jury.

Reed argues that the “entire complexion” of the case would have been different if the encounter had been introduced and argued as a subsequent difficulty instead of a similar transaction, because the parties’ opening statements and closing arguments would have been different. But the jury still would have seen the recording of the encounter and judged for itself its relevance to the charged crimes. The trial court still would have charged the jury that evidence of subsequent difficulties between Reed and the victim were admitted for the sole purpose of illustrating, if it did illustrate, “the state of feeling” between them and Reed’s “bent of mind and course of conduct.”

The trial court held a pre-trial hearing, found as fact that the State gave Reed notice of its intent to submit the Wal-Mart evidence, and gave a limiting instruction before the evidence was introduced, none of which is required for subsequent difficulty evidence. See Hill v. State, 243 Ga. App. 124, 125-126 (2), n. 2 (532 SE2d 491) (2000) (“While prior difficulties are admissible to show that past actions may be indicative of the defendant’s actions at the time of the offense charged, similar transaction evidence is inadmissible for such a broad purpose.”). The presence of these additional safeguards and limitations does not make the otherwise admissible evidence inadmissible.

3. Reed contends his trial counsel was ineffective for failing to present sufficient foundation evidence to introduce into evidence a hotel receipt; for failing to object to an improper question impeaching a defense witness; and for failing to request charges on identification.

[T]o prevail on a claim of ineffective assistance of counsel, a criminal defendant must show that his attorney’s performance was deficient and that the deficiency so prejudiced him that there is a reasonable likelihood that, but for counsel’s errors, the outcome of his trial would have been different. The defendant must overcome the strong presumption that counsel’s conduct was within the broad range of reasonable professional conduct.

(Citations omitted.) Lloyd v. State, 280 Ga. 187, 190 (2) (625 SE2d 771) (2006).

(a) Trial counsel testified that he decided not to introduce into evidence Reed’s hotel receipt for the night of March 1, 2005 to March 2, 2005, but to use it only to refresh Reed’s recollection of his whereabouts that day, because counsel thought Reed’s alibi witnesses would be better evidence. The receipt had no time stamp on it, was not signed by Reed, was for cash, and a copy was not requested until September 2006. Matters of reasonable trial tactics do not amount to ineffective assistance of counsel; here, the record reflects that trial counsel’s decision to focus on Reed’s alibi witness was clearly a matter of strategy, which we cannot say was patently unreasonable. Williams v. State, 293 Ga. App. 193, 198 (3) (a) (666 SE2d 703) (2008). Thus, we affirm the trial court’s finding that no deficiency was shown in this regard.

(b) Reed claims his trial counsel was ineffective for failing to object when the State asked his defense witness about a 2006 conviction for car theft. At the new trial hearing, counsel did not recall why he did not object. Regardless of whether trial counsel’s performance in this regard was deficient, however, Reed cannot show that any deficiency prejudiced him, because he cannot show a likelihood that his trial would have ended differently if counsel had objected.

The witness testified that he had lunch with Reed in Augusta on March 1, 2005, and that when Reed left at 12:30 p.m. he said he was traveling to North Carolina. Reed called him later that evening to say he was in North Carolina, and on cross-examination, the witness admitted he did not know for sure where Reed was then and said he had come to trial to testify about Reed’s good character. Reed testified that he traveled from North Carolina to Augusta on February 26, 2005, and left Augusta on March 3, 2005, to return home to Atlanta. He also said that he ate lunch with his witness on March 1, 2005, but when reminded that the witness testified that Reed left Augusta on March 1 to go to North Carolina, Reed responded: “See, James, me and James talk. He doesn’t know exactly what I do. I don’t tell him about my business. And one thing, we are friends for a good while, but we talk about business and we talk about personal; but like I said, what I do, I do my thing.” Then Reed said he arrived in Augusta on March 1, 2005. As the State said, Reed thus “torpedoed the testimony of his own alibi witness; under these circumstances, [trial counsel] not objecting to the State’s failure to tender a certified copy of conviction to impeach [the witness] could not have reasonably resulted in a different verdict at trial.” See Walker v. State, 268 Ga. App. 669, 673-674 (4) (a) (602 SE2d 351) (2004).

(c) Finally, Reed claims his trial counsel was ineffective for failing to request pattern jury charges on “Identification; Reliability” and “Identification; Burden of Proof.” Reed makes no further argument and cites no authorities to support this claim, other than the bare statement that failure to request the charges amounted to ineffective assistance and made it reasonably likely that the result of the trial would have changed. “When the asserted error of failure to charge is reached indirectly through a claim of ineffective assistance of counsel the test is whether, had the charge been requested, authorized, and given, there is a reasonable probability it would have changed the outcome of the trial.” (Emphasis omitted.) Springs v. Seese, 274 Ga. 659, 661 (3) (558 SE2d 710) (2002). As Reed’s trial counsel testified, this was not a typical identity case, in which the victim saw the defendant-stranger only for a short time while the crime was committed. The victim based her identification of Reed as the man puncturing her tires on the videotapes based on her knowledge of his build and mannerisms acquired during her lengthy relationship with him. The jurors saw the videos for themselves, and were able independently to judge the validity of the victim’s identification. Additionally, the trial court “then thoroughly and correctly charged the jury on the presumption of innocence, reasonable doubt, burden of proof, credibility of witnesses, and impeachment of witnesses.” Id. Given the circumstances, the trial court did not err in finding no reasonable probability that if separate charges on identity had been given, the outcome of the trial would have been different.

Decided March 23, 2011

Reconsideration denied April 11, 2011

Kenneth W. Sheppard, for appellant.

Gwendolyn Keyes Fleming, District Attorney, Akintunde A. Akinyele, Daniel J. Quinn, Assistant District Attorneys, for appellee.

Judgment affirmed.

Blackwell and Dillard, JJ., concur.


source: Caselaw Access Project

author: PHIPPS, Presiding Judge.

license: Public Domain

text:
    A10A2155.
    PHAN et al. v. ANDRE & BLAUSTEIN, LLP.
    (709 SE2d 863)
   PHIPPS, Presiding Judge.

Fonzie Phan and his company, International Farmers Market 1, LLR (collectively, hereinafter, Appellants) seek reversal of the judgment entered by the superior court upon its order confirming an arbitration award. While the Appellants have failed to demonstrate merit in their contentions asserting that the superior court erred by refusing to vacate the arbitration award, it does appear that the court erred in giving effect to that award. Accordingly, we vacate the court’s confirmation order and judgment thereupon; the case is remanded for proceedings not inconsistent with this opinion.

The underlying dispute between the Appellants and a law firm, Andre & Blaustein, LLP (hereinafter, A&B) was initially being litigated in superior court. In August 2009, the parties agreed by consent order to resolve by arbitration their dispute, which concerned whether and to what extent the Appellants owed monies to A&B in connection with legal services performed. In the consent order, the parties agreed that a certain individual would serve as arbitrator. The consent order further provided, “The arbitration shall proceed under the rules set by Henning Mediation & Arbitration Service and consistent with the Georgia Arbitration Code.” After an arbitration hearing, the named arbitrator ruled in favor of A&B and against the Appellants.

A&B filed an application with the superior court to confirm the arbitration award. The Appellants filed an application with the superior court to vacate that award, alleging that the arbitrator should have recused himself from the arbitration proceedings because he had not disclosed certain of his prior associations. Specifically, the Appellants alleged that the arbitrator had once, on behalf of a client, sued one of the lawyers of A&B. That lawyer had performed some of the legal services at issue in the arbitrated dispute. In addition, the Appellants alleged that, “in the 1980’s,” the arbitrator had been a partner at the same law firm as another lawyer who had testified by affidavit in the arbitrated dispute. The superior court summarily concluded that the Appellants had demonstrated no basis to vacate the arbitration award and thus denied their application; the superior court granted A&B’s application to confirm the award, entering judgment thereupon.

1. The Appellants contend that the superior court erred in denying their motion to vacate the arbitration award, complaining that the arbitrator did not disclose to them the alleged associations. The Appellants assert that the alleged prior associations amounted to the arbitrator having “potential conflicts in this case” which he was required to disclose. According to the Appellants, “The Henning Rules, which [the arbitrator] agreed to abide by, require[d]” the arbitrator to disclose the “potential conflicts.” Moreover, the Appellants urge that arbitrators be held to the standards set forth in the Code of Judicial Conduct such that an arbitrator be required to “disqualify [himself] in any proceeding in which [his] impartiality might reasonably be questioned.”

The Georgia Arbitration Code sets forth five exclusive grounds for vacating an arbitration award. Specifically, an arbitration award shall be vacated on application of a party if the court finds that the rights of that party were prejudiced by:

(1) Corruption, fraud, or misconduct in procuring the award;
(2) Partiality of an arbitrator appointed as a neutral;
(3) An overstepping by the arbitrators of their authority or such imperfect execution of it that a final and definite award upon the subject matter submitted was not made;
(4) A failure to follow the procedure of this part, unless the party applying to vacate the award continued with the arbitration with notice of this failure and without objection; or
(5) The arbitrator’s manifest disregard of the law.

The Appellants claim that the record evidenced that the arbitrator was partial and that he failed to follow procedure, overstepped his authority, and engaged in misconduct.

As to the degree of partiality required in order to vitiate the award, it has been held sufficient that the relationship between the arbitrator[ ] and one of the parties is of such a nature as to give clear grounds for suspicion of their proceedings and render it unlikely that they constituted the fair and impartial tribunal to which the other party is entitled.

However, the Appellants have cited this court to no competent evidence of the alleged prior associations. Consequently, we cannot conclude that the superior court abused its discretion in rejecting the Appellants’ claim that the arbitrator should have recused for partiality. Furthermore, the Appellants have not placed in the record “The Henning Rules,” upon which they rely. Nor have they cited any authority that the arbitrator fell within the ambit of the Code of Judicial Conduct. Given these circumstances, the Appellants have shown no merit in their contention that the superior court erred in denying their application to vacate the arbitration award.

2. The Appellants make two additional arguments concerning the arbitration award against Phan, individually. First, citing OCGA § 9-9-13 (b) (5), the Appellants re-assert their claim that the arbitrator “disregarded and violated Henning’s Rules regarding disclosure of potential conflicts.” Under that Code provision, an arbitration award may be vacated if it can be shown that the arbitrator manifestly disregarded the proper law applicable to the case before him. For reasons discussed above, the Appellants have failed to demonstrate that the superior court erred in refusing to vacate the arbitration award on that ground.

Second, the Appellants contend that the evidence was insufficient to support the arbitration award against Phan, individually. However, “a reviewing court is prohibited from weighing the evidence submitted before the arbitrator, regardless of whether the court believes there to be sufficient evidence, or even any evidence, to support the award.” The Supreme Court of Georgia has instructed: “The prohibition against considering the sufficiency of the evidence as grounds for vacating an arbitration award is unconditional.” It follows, then, that “[a]n appellate court will not consider the sufficiency of the evidence underlying an arbitrator’s award.”

[A] Rowing an appellate court to make a determination of the sufficiency of the evidence in arbitration cases would only frustrate the purpose of arbitration. A primary advantage of arbitration is the expeditious and final resolution of disputes by means that circumvent the time and expense associated with civil litigation. The legislature recognized this advantage by enacting the Arbitration Code, in which it made limited provision for the judicial review of arbitration awards, and set forth [five] grounds upon which a court may vacate awards. However, that legislative action did not make arbitration a part of the judicial process, nor did it make arbitration subject to traditional rules of appellate review.

3. The Appellants contend that, in its confirmation order, the superior court misconstrued the arbitrator’s award. They point out that the arbitration award provided:

I hereby award Andre & Blaustein, L.L.E, a judgment against International Farmers Market 1, L.E the sum of $366,347 plus legal interest from this date and, I award Andre & Blaustein, L.L.E a judgment of 60% of that amount against Fonzie Fhan, which is $219,808, plus legal interest thereon, if not recovered from International Farmers Market 1, L.E

The Appellants further point out that, in what is captioned the “AMENDED FINAL JUDGMENT,” the superior court provided, in pertinent part:

1. Final Judgment is entered in favor of Andre & Blaustein, LLF against International Farmers Market 1, L.E ... a total of $366,347.
2. Final Judgment is entered in favor of Andre & Blaustein, LLF and against Fonzie Fhan in the amount of $219,808.

Decided March 25, 2011

Reconsideration denied April 11, 2011

Gerard J. Lupa, for appellants.

Andre & Blaustein, Brendan J. McCarthy, for appellee.

The Appellants argue that the superior court’s order effectively turned a $366,347 award in favor of A&B into a $586,155 judgment in that law firm’s favor. We agree that the court’s order may be construed as awarding the larger amount. Given that the court expressly adopted “the findings of fact and conclusions of law set forth in the . . . Award in Arbitration,” it appears that the court did not intend that construction. Therefore, we vacate the court’s confirmation order and judgment and remand the case for entry of order(s) not inconsistent with this opinion.

Judgment vacated and case remanded with direction.

Miller, P. J., and McFadden, J., concur.

       See OCGA § 9-9-13 (b).

       See OCGA § 9-9-1 et seq.

       The record shows that the Appellants’ counsel represented below that such lawsuit had occurred about ten years earlier.

        White v. SunTrust Bank, 245 Ga. App. 828, 830 (4) (538 SE2d 889) (2000) (citation, punctuation and emphasis omitted). See Canon 3 (E) (1) of the Georgia Code of Judicial Conduct (“Judges shall disqualify themselves in any proceeding in which their impartiality might reasonably be questioned.”) and its Commentary (“Judges should disclose on the record information that the court believes the parties or their lawyers might consider relevant to the question of disqualification, even if they believe there is no legal basis for disqualification.”).

       See ABCO Builders v. Progressive Plumbing, 282 Ga. 308, 309 (647 SE2d 574) (2007) (judicial review of an arbitration award is strictly limited to five statutory grounds set forth in OCGA § 9-9-13 (b)); Greene v. Hundley, 266 Ga. 592, 595 (1) (468 SE2d 350) (1996) (bases set forth in Georgia Arbitration Code are exclusive grounds for vacating an arbitration award).

       OCGA § 9-9-13 (b).

        Blum v. Blum, 242 Ga. 718, 719 (251 SE2d 246) (1978) (citation omitted); Torres v. Piedmont Builders, 300 Ga. App. 872, 874 (3) (686 SE2d 464) (2009) (same) (footnote omitted).

        Bell v. Forster, 211 Ga. App. 76, 77 (2) (438 SE2d 145) (1993) (appellant has duty to show error asserted affirmatively by the record).

       See Blum, supra; see also Torres, supra.

       See Greene, supra at 595 (2) (noting that rights that are cognizable in a court of law are not necessarily dispositive of an arbitrated dispute; rather, arbitrating parties agree to waive certain such rights in favor of a quick resolution of their dispute by extralegal means).

       Id. at 595 (1) (“The Arbitration Code requires a trial court to confirm an award upon the timely application of a party to the award, unless one of the statutory grounds for vacating or modifying the award is established.”) (footnote omitted).

        ABCO Builders, supra.

       See Division 1, supra.

       See ABCO Builders, supra at 309-310 (explaining that the disregard must be both evident and intentional; an arbitrator who incorrectly interprets the law has not manifestly disregarded it; and to manifestly disregard the law, one must be conscious of the law and deliberately ignore it).

        Greene, supra at 596-597 (3). But see OCGA § 9-9-11 (permitting, upon timely application by a party, the arbitrator to change the award upon grounds, inter alia, that there was a miscalculation of figures or mistake in description of person, thing, or property referred to in award; that the arbitrators awarded upon a matter not submitted to them and the award may be corrected without affecting merits of decision upon issues submitted; or the award is imperfect in a matter of form, not affecting merits of controversy).

        Greene, supra at 596 (3).

        ABCO Builders, supra at 309 (citations omitted).

        Greene, supra at 597 (3) (emphasis omitted).

       In an “amended order confirming arbitration award,” the superior court “ORDERED AND ADJUDGED
      1. The Award in Arbitration awarded in favor of Andre & Blaustein, LLP against International Farmers Market 1, L.E . . . for a total of $347,547.
      2. The Award in Arbitration award in favor of Andre & Blaustein, LLP and against Fonzie Phan in the amount of $221,008.00”
      The discrepancies in amounts, however, are not mentioned by the parties and are not pertinent to the disposition of any issue in this appeal.


author: Dillard, Judge. BARNES, Presiding Judge,

text:
    A10A2245.
    PHILPOT v. THE STATE.
    (709 SE2d 831)
   Dillard, Judge.

Following a jury trial, Joshua E. Philpot was convicted on two counts of burglary, one count of being a “Peeping Tom,” one count of entering an automobile, one count of simple assault, and two counts of criminal trespass. Philpot appeals his convictions and the denial of his motion for a new trial, arguing that the trial court erred by admitting similar-transaction evidence without making the requisite findings on the record and by admitting impermissible testimonial evidence regarding that similar transaction in violation of his right to confrontation under the Sixth Amendment to the United States Constitution. For the reasons set forth infra, we affirm.

Viewed in the light most favorable to the verdict, the evidence presented at trial shows that around 7:00 a.m. on May 7, 2008, the homeowner victim was asleep in the bedroom of her suburban home when her husband left the house to go to work. As was his normal routine, the victim’s husband exited the house through a door leading into the garage, opened the automatic garage door by pressing a button located on the garage wall, and then drove his vehicle out of the garage onto the driveway. And because he had recently lost his vehicle’s remote garage-door opener, the victim’s husband went back into the garage and closed the garage door before exiting the garage through a back door. The victim also normally parked her vehicle inside the garage (because its locks did not always work), but she neglected to do so the previous evening, and on this particular morning her car — where she kept her remote garage-door opener — was parked on the driveway.

A few minutes after her husband drove off to work, the victim was awakened by a noise in her bedroom. Believing that her husband was perhaps running late, she called out, “Honey, are you still in?” But when an unfamiliar voice replied, the victim quickly sat up and saw a young man, whom she did not recognize, standing at the foot of her bed holding a pillow. The victim immediately began screaming at the intruder to leave, which he did post haste. She then woke up her younger cousin, who had been staying at her home and was sleeping in the spare bedroom. Unsure as to whether the intruder was still inside, the two women quickly exited the house while the victim called the police on her cell phone.

Shortly thereafter, the police arrived, and the victim provided them with a description of the intruder. The police then searched the house for the intruder, found no one inside, and ultimately concluded that nothing had been stolen (despite the fact that the home contained numerous electronics and cash left in plain view). On the floor inside of the victim’s garage, the police found a partially smoked cigarette, but the victim informed them that no one living in the house was a cigarette-smoker. As part of their investigation, the police also spoke to the victim’s next-door neighbor, who told them that while she and her daughter were eating breakfast that morning, they saw a young man running through their back yard from the direction of the victim’s house. When the young man paused for a moment, the neighbor’s daughter was able to see his face clearly and recognized him as a neighbor, who lived in a house across the street with his mother. Consequently, the police went to that house and initially spoke to Joshua Philpot’s mother. She informed the police that the young man lived with her and allowed them to come inside her home to speak with him. Philpot initially denied any involvement, but the police still arrested him because his physical appearance and the clothing found in his room matched the description provided by the victim and her neighbor’s daughter. During the subsequent interrogation at the police station, Philpot admitted to entering the victim’s home through the garage that morning to see “what was in it,” going into the victim’s bedroom, and fleeing when the victim screamed at him.

Thereafter, Philpot was indicted on two counts of burglary, one count of being a “Peeping Tom,” one count of entering an automobile, one count of simple assault, and two counts of criminal trespass. During the trial, the victim testified about waking up to find Philpot in her bedroom, and her neighbors testified about witnessing Philpot running away from the victim’s house and through their back yard on the morning of the incident. Several police officers also testified as to their investigation and interrogation of Philpot.

Additionally, the State presented similar-transaction evidence, which showed that several years prior to this incident, Philpot pleaded guilty to a burglary charge. In that earlier case, Philpot attempted to enter a woman’s home through a window during the morning hours, but fled when the woman saw him and began screaming. After the State rested, Philpot testified that he did, in fact, enter the victim’s home, but claimed that he only did so because he noticed that the victim’s garage door had been left open that morning, and upon further investigation saw that the door connecting the garage to the interior of the house was also left open. For this reason, Philpot claimed that he went inside the home merely for the purpose of informing the homeowners of the situation and to ensure that nothing was wrong at the residence. Nevertheless, at the conclusion of the trial, the jury found Philpot guilty on all counts. Subsequently, Philpot filed a motion for a new trial, which the trial court denied. This appeal follows.

1. We first address Philpot’s contention that the trial court erred by admitting the out-of-court statements that the victim of his prior burglary provided to the officer who investigated that crime. Specifically, Philpot argues that allowing the investigating officer to testify as to what the prior victim told him about the past burglary violated his right of confrontation under the Sixth Amendment to the United States Constitution. We disagree.

(a) The Sixth Amendment’s Confrontation Clause provides that, “[i]n all criminal prosecutions, the accused shall enjoy the right. . . to be confronted with the witnesses against him.” This ancient right dates back to Roman times, and is a “bedrock procedural guarantee [that] applies to both federal and state prosecutions.” And in 2004, the Supreme Court of the United States clarified the original meaning and scope of the right to confrontation of one’s accusers in Crawford v. Washington, holding that “the admission of out-of-court statements that are testimonial in nature violates the Confrontation Clause unless the declarant is unavailable and the defendant had a prior opportunity for cross-examination.” In analyzing Crawford and its progeny to determine whether an out-of-court statement is “testimonial” or “nontestimonial,” our Supreme Court has explained that

[statements made by witnesses to police officers investigating a crime are testimonial in nature when the primary purpose of the statements is to establish or prove past events potentially relevant to later criminal prosecution. Such testimonial statements may not be admitted into evidence unless the requirements of Crawford are satisfied. On the other hand, however, statements made by witnesses to questions of investigating officers are nontestimonial when they are made primarily to enable police assistance to meet an ongoing emergency. Such nontestimonial out-of-court statements are admissible if they meet one of this State’s hearsay exceptions.

(b) While this case was pending, the Supreme Court of the United States published its decision in Michigan v. Bryant, which — as some scholars have already noted — substantially alters and expands the framework for analyzing whether an out-of-court statement being challenged on Confrontation Clause grounds is testimonial or nontestimonial in nature. The facts of Bryant are as follows. Around 3:30 a.m., Detroit, Michigan police officers responded to a dispatch indicating that a man had been shot. At a local gas station parking lot, the officers found the victim lying on the ground next to his car and suffering from a gunshot wound to his abdomen. When asked by the police “what had happened, who had shot him, and where the shooting had occurred,” the victim stated that Bryant had shot him. The victim further explained that he had engaged in a conversation with Bryant, whom he recognized based on his voice, through the back door of Bryant’s house and that when he turned to leave, he was shot through the door, after which he drove to the gas station. The victim’s conversation with police ended within ten minutes when EMTs arrived. He was then transported to the hospital but died a few hours later. In the meantime, police went to Bryant’s house, and although they did not find Bryant there, they did discover blood and a bullet on the back porch, a bullet hole in the back door, and the victim’s wallet outside the house.

The issue presented in Bryant was whether the officers could testify, consistent with the Confrontation Clause, about the statement the victim made to them before he died. In its opinion, the Supreme Court revisited its lines of reasoning and holdings in Crawford and Davis v. Washington, and in doing so explained that these decisions established, in rather broad terms, the outer parameters of analyzing whether an out-of-court statement made by a witness to a state actor is “testimonial” or “nontestimonial” for Confrontation Clause purposes. Specifically, the Bryant Court noted that “[t]he basic purpose of the Confrontation Clause was to ‘targe(t)’ the sort of ‘abuses’ exemplified at the notorious treason trial of Sir Walter Raleigh,” and thus, “the most important instances in which the Clause restricts the introduction of out-of-court statements are those in which state actors are involved in a formal, out-of-court interrogation of a witness to obtain evidence for trial.” This is because, according to Bryant, “[e]ven where such an interrogation is conducted with all good faith, introduction of the resulting statements at trial can be unfair to the accused if they are untested by cross-examination.” The Bryant Court then noted that, “[wjhether formal or informal, out-of-court statements can evade the basic objective of the Confrontation Clause, which is to prevent the accused from being deprived of the opportunity to cross-examine the declarant about statements taken for use at trial.” And on the other end of the testimonial-nontestimonal spectrum, the Bryant Court noted that “[wjhen, as in Davis, the primary purpose of an interrogation is to respond to an ‘ongoing emergency,’ its purpose is not to create a record for trial and thus is not within the scope of the [Confrontation] Clause.” The Bryant Court then clarified and greatly expanded upon the potential range of nontestimonial statements, noting:

But there may be other circumstances, aside from ongoing emergencies, when a statement is not procured with a primary purpose of creating an out-of-court substitute for trial testimony. In making the primary purpose determination, standard rules of hearsay, designed to identify some statements as reliable, will be relevant. Where no such primary purpose exists, the admissibility of a statement is the concern of state and federal rules of evidence, not the Confrontation Clause.

The new analytical framework for assessing whether an out-of-court statement implicates the Confrontation Clause, then, is still one that seeks to discern the primary purpose behind that statement, but which also recognizes that “standard rules of hearsay,” and their respective indicia of reliability, are relevant to a court’s primary-purpose inquiry.

Likewise significant is the Bryant Court’s “additional clarification with regard to what Davis meant by ‘the primary purpose of the interrogation is to enable police assistance to meet an ongoing emergency,’ ” which requires a court to “objectively evaluate the circumstances in which the encounter occurs and the statements and actions of the parties.” In explaining this line of inquiry, the Bryant Court noted that

[a]n objective analysis of the circumstances of an encounter and the statements and actions of the parties to it provides the most accurate assessment of the “primary purpose of the interrogation.” The circumstances in which an encounter occurs — e.g., at or near the scene of the crime versus at a police station, during an ongoing emergency or afterwards — are clearly matters of objective fact. The statements and actions of the parties must also be objectively evaluated. That is, the relevant inquiry is not the subjective or actual purpose of the individuals involved in a particular encounter, but rather the purpose that reasonable participants would have had, as ascertained from the individuals’ statements and actions and the circumstances in which the encounter occurred.

And in conducting this objective analysis, “the existence of an ‘ongoing emergency’ at the time of an encounter between an individual and the police is among the most important circumstances informing the ‘primary purpose’ of an interrogation.” This is because the “existence of an ongoing emergency. . . focuses the participants on something other than ‘prov(ing) past events potentially relevant to later criminal prosecution,’ ” i.e., on ending the threatening situation. Put another way, “the prospect of fabrication in statements given for the primary purpose of resolving [an] emergency is presumably significantly diminished,” and therefore, “the Confrontation Clause does not require such statements to be subject to the crucible of cross-examination.”

The Bryant Court also rejected the “unduly narrow understanding of ‘ongoing emergency’ ” employed by the Supreme Court of Michigan. Specifically, it held that the “Michigan Supreme Court erroneously read Davis as deciding that ‘the statements made after the defendant stopped assaulting the victim and left the premises did not occur during an ‘ongoing emergency.’ ” The Bryant Court further explicitly renounced the Supreme Court of Michigan’s reading of Davis as defining the “outer bounds” of this jurisprudential concept, reasoning that (1) “whether an emergency exists and is ongoing is a highly context-dependent inquiry”; and (2) “[a]n assessment of whether an emergency that threatens the police and public is ongoing cannot narrowly focus on whether the threat solely to the first victim has been neutralized because the threat to the first responders and public may continue.” Nevertheless, it is likewise the case that an emergency cannot be “ongoing in every place or even just surrounding the victim for the entire time that the perpetrator of a violent crime is on the loose,” and as such, “a conversation which begins as an interrogation to determine the need for emergency assistance can evolve into testimonial statements.” And when this happens (as revealed by an objective assessment of the context in which the statements in question were made), a trial court can exclude from testimony — after considering the relevant Crawford factors — the portions of those statements that are testimonial in nature.

This is not to say, as Bryant makes clear, that “the existence vel non of an ongoing emergency is dispositive of the testimonial inquiry.” The overarching inquiry is, of course, to discern the “primary purpose” of the statements made by the declarant. Nevertheless, the existence of an ongoing emergency while the statements in question are being made is unquestionably an “important factor” that “informs the ultimate inquiry” regarding the “primary purpose” of an interrogation. Likewise relevant is “the importance of informality in an encounter between a victim and police.” This is so even though “[fjormality is not the sole touchstone of [the] primary purpose inquiry”; because “although formality suggests the absence of an emergency and therefore an increased likelihood that the purpose of the interrogation is ‘to establish or prove past events potentially relevant to later prosecution,’ ” informality does not “necessarily indicate the presence of an emergency or the lack of testimonial intent.”

In addition to the context in which an encounter between a victim and the police occurs, a trial court must also consider-per Bryant’s holding-“the statements and actions of both the declarant and interrogators,” which “provide objective evidence of the primary purpose of the interrogation.” Indeed, in many instances, the “primary purpose of the interrogation will be most accurately ascertained by looking to the contents of both the questions and the answers.” This “combined approach” has the effect of ameliorating “problems that could arise from looking solely to one participant”-primarily, “the problem of mixed motives on the part of both interrogators and declarants.”

In sum, when a court “must determine whether the Confrontation Clause bars the admission of a statement at trial,” it should seek to ascertain, if possible, the “primary purpose of the interrogation” by “objectively evaluating the statements and actions of the parties to the encounter, in light of the circumstances in which the interrogation occurs.”

(c) In the case sub judice, the officer who investigated the prior burglary testified that on the date in question, he responded within a few minutes to a report that a burglary had occurred only moments before at the home of the prior victim. Upon the officer’s arrival at the prior victim’s home, she told him that she heard a noise in her kitchen, and that when she went to investigate it, she saw a young man (later identified as Philpot) climbing into her home through the kitchen window while holding a knife. She further told the officer that once she began screaming, the young man fled. After speaking with the officer for a few more minutes, the prior victim looked out her window and exclaimed that the burglar (Philpot) was standing in the back yard of a home across the street. Consequently, the officer immediately began chasing Philpot and eventually arrested him.

Given our review of the record, we conclude that the prior victim’s statements to the officer were primarily offered to enable police assistance to meet an ongoing emergency, and are therefore nontestimonial in nature; as such, the complained-of statements do not implicate the safeguards afforded by the Confrontation Clause. Here, the officer responded to the prior victim’s 911 call within just a few minutes and found her to still be “shaken up” from her confrontation with the burglar as he questioned her in the home’s kitchen (an informal setting). Accordingly, under our case law, the prior victim’s statements to the officer were admissible as part of the res gestae of the crime (which, as noted supra, is a relevant consideration under Bryant). Additionally, while the (at that time) unidentified burglar had already fled the scene of the prior victim’s home by the time the officer arrived, it could have reasonably been presumed by both the prior victim and the officer that the burglar, who had just left the scene of the crime armed with a knife, was still in the immediate vicinity. Thus, while the prior victim was no longer being immediately threatened, similar to the situation in Bryant, the armed perpetrator was still on the loose, and thus continued to pose a serious potential threat to the prior victim and her neighbors. Indeed here, the police officer, unlike the officers in Bryant, had reason to believe that the armed perpetrator was still in the immediate area. In sum, because the circumstances surrounding the interrogation, as well as the statements and actions of the prior victim and responding officer, objectively indicate that the primary purpose of the interrogation was to enable police assistance to meet an ongoing emergency, the prior victim’s identification of Philpot as the burglar and her description of his actions were not testimonial in nature and did not violate the Confrontation Clause.

2. We now address Philpot’s remaining enumeration of error. Philpot contends that the trial court erred in admitting the similar-transaction evidence without making the findings required by Williams v. State on the record. We find that the trial court did not err in ruling that the similar-transaction evidence was admissible.

It is well established that “[t]he decision of a trial court to admit evidence of similar transactions will be upheld unless clearly erroneous.” Under Williams,

[t]o be admissible for the purposes of establishing motive, intent, course of conduct or bent of mind, the State must show (a) sufficient evidence that the similar transaction occurred and (b) sufficient connection or similarity between the similar transaction and the crime alleged so proof of the former tends to prove the latter.

Furthermore, “[w]hen considering the admissibility of similar transaction evidence, the proper focus is on the similarities, not the differences, between the separate crime and the crime in question.”

At a pre-trial hearing, the State argued that Philpot’s prior burglary was admissible as similar-transaction evidence because the prior offense was similar to the burglary at issue — i.e., that in both instances Philpot entered a suburban home early in the day and then fled before being able to commit a theft or other felony when confronted by the homeowner. The State further argued that it was offering the evidence to show Philpot’s intent and guilty knowledge. Following argument by both parties, the trial court ruled that it would allow the similar-transaction evidence, concluding that “the probative value of admitting the evidence substantially outweighs the prejudice to the defendant.”

And while the trial court did not make the requisite Williams findings on the record, “we find no harmful error as the evidence presented by the State at the [pre-trial] hearing was sufficient for the trial court to have concluded affirmatively on the record that each of the requirements of Williams . . . had been satisfied.” As previously noted, the State’s evidence showed that the two burglaries were fairly similar in nature. Furthermore, when as here, “similar transaction evidence is being introduced to prove motive, intent, or bent of mind, it requires a lesser degree of similarity to meet the test of admissibility than when such evidence is being introduced to prove identity.” Accordingly, Philpot’s contention that the trial court committed reversible error by not making its findings on the record is without merit.

Judgment affirmed.

Blackwell, J., concurs. Barnes, B J., concurs in Division 2 and concurs specially.

BARNES, Presiding Judge,

concurring specially.

While I concur fully in Division 2 of the majority opinion, I do not agree with all that is said in Division 1 concerning the admission of the statements to the police officer made by the victim of the prior similar transaction. Therefore, I concur in Division 1, but in the result only. Division 1 of the majority opinion thus decides only the issues in this case and may not be cited as binding precedent. Court of Appeals Rule 33 (a).

The circumstances surrounding the prior victim’s statements to the police officer were unique. As the majority indicates, the prior victim made her statements to the officer only a few minutes after her home was burglarized by a young man holding a knife, and the young man was observed standing in a nearby yard during the course of the victim’s statement, leading the officer to cut off his conversation with the victim and give immediate chase. In light of these unusual facts, I believe that the “primary purpose of the interrogation” was “to enable police assistance to meet an ongoing emergency” such that the prior victim’s statements to the officer were not testimonial hearsay under the framework discussed in Michigan v. Bryant, _ U. S. _ (131 SC 1143, 179 LE2d 93) (2011). However, neither Bryant nor the present case should be construed as opening the floodgates for the admission of out-of-court statements by a victim or witness merely because the statements occurred at the scene of the crime or would fall within the res gestae exception to the hearsay rule.

Decided March 22, 2011

Reconsideration denied April 11, 2011

Brandon A. Bullard, Colin J. Bellair, for appellant.

Fred A. Lane, Jr., District Attorney, Paul E. Hemmann, Anthony B. Williams, Assistant District Attorneys, for appellee.

        Davis v. State, 275 Ga. App. 714, 715 (1) (621 SE2d 818) (2005).

       OCGA § 16-7-1 (a).

       OCGA § 16-11-61 (a).

       OCGA § 16-8-18.

       OCGA § 16-5-20 (a) (2).

       OCGA § 16-7-21 (b) (1).

       U. S. Const, amend. VI.

        See Coy v. Iowa, 487 U. S. 1012, 1015 (II) (108 SC 2798, 101 LE2d 857) (1988); see generally Herrmann & Speer, “Facing the Accuser: Ancient and Medieval Precursors of the Confrontation Clause,” 34 Va. J. Int’l L. 481 (1994).

        Crawford v. Washington, 541 U. S. 36, 42 (II) (124 SC 1354, 158 LE2d 177) (2004); see also Pointer v. Texas, 380 U. S. 400, 406 (II) (85 SC 1065, 13 LE2d 923) (1965).

       541 U. S. at 68 (V) (C).

        Cuyuch v. State, 284 Ga. 290, 291-92 (2) (667 SE2d 85) (2008) (punctuation omitted) (describing holding of Crawford v. Washington).

        Id. at 292 (2) (punctuation and footnotes omitted); see also Davis v. Washington, 547 U. S. 813, 822 (II) (126 SC 2266, 165 LE2d 224) (2006).

       _ U. S. _ (131 SC 1143, 179 LE2d 93) (2011).

        See, e.g., The Confrontation Blog, http://confrontationright.blogspot.com/2011/03/ preliminary-thoughts-on-bryant-decision.html (March 2, 2011) (“For the first time, the Court has purported to give a broad, general approach to determining what is testimonial. It takes the ‘primary purpose’ language of Davis and expands on it. Now, ‘primary purpose’ is not simply a test to choose between whether a statement is testimonial or instead made in response to an ‘ongoing emergency.’ Rather, it appears, the accused now has the burden of establishing that the primary purpose of the conversation in which the witness’s statements were made was to ‘creat(e) an out-of-court substitute for trial testimony.’ ”); Posting of Colin Miller to EvidenceProf Blog, http://lawprofessors.typepad.eom/evidenceprof/2011/02/supreme-court-issues-opinion-in-michigan-v-bryant.html (February 28, 2011) (noting that in Bryant, the Court (1) adopted an objective test for determining whether statements are “testimonial”; and (2) concluded that this test should focus upon the statements and actions of both the interrogator and the declarant).

        See Bryant, 131 SC 1143, at 1168 (Scalia, J., dissenting) (claiming that the majority’s opinion “distorts our Confrontation Clause jurisprudence and leaves it in a shambles”); id. at 1170 (I) (A) (“The only virtue of the [majority’s] approach (if it can be misnamed a virtue) is that it leaves judges free to reach the ‘fairest’ result under the totality of the circumstances”); id. at 1174 (II) (A) (“But today’s decision ... is a gross distortion of the law — a revisionist narrative in which reliability continues to guide our Confrontation Clause jurisprudence, at least where emergencies and faux emergencies are concerned”).

        Id. at 1150 (I).

        Id.

        Id.

        Id.

         Id.

         Id.

         Id.

        Id. at 1176 (I)-(II).

        Id. at 1155 (II) (citation omitted).

        Id. at 1168 (II).

        Id.

        Id. (citation omitted; emphasis supplied).

        Id. at 1175 (II) (emphasis supplied).

        See id. at 1157 (III) (B) & n. 9 (noting that the logic underlying the treatment of statements made during an ongoing emergency as nontestimonial is similar to that underlying the admission of certain hearsay statements made under circumstances that eliminate the possibility of fabrication, coaching, or confabulation — e.g., excited utterances; statements by a co-conspirator during and in furtherance of the conspiracy; statements for purposes of medical diagnosis or treatment; records of regularly conducted activity; public records and reports; records of vital statistics; records of religious organizations; marriage, baptismal, and similar certificates; family records; statements against interest; business records, etc.); cf. id. at 1159 (III) (B) (explaining that “[t]he medical condition of the victim is important to the primary purpose inquiry to the extent that it sheds lights on the ability of the victim to have any purpose at all in responding to police questions and on the likelihood that any purpose formed would necessarily be a testimonial one,” and that “[t]he victim’s medical state also provides important context for first responders to judge the existence and magnitude of a continuing threat to the victim, themselves, and the public”).

        Id. at 1167 (II) (quoting Davis, 547 U. S. at 822).

        Id. at 1147 (III).

        Id. at 1156 (III) (A).

        Id. at 1155 (III) (B) (emphasis supplied); see also id. at 1157 (III) (B), n. 8 (“The existence of an ongoing emergency must be objectively assessed from the perspective of the parties to the interrogation at the time, not with the benefit of hindsight. If the information the parties knew at the time of the encounter would lead a reasonable person to believe that there was an emergency, even if that belief was later proved incorrect, that is sufficient for purposes of the Confrontation Clause. The emergency is relevant to the ‘primary purpose of the interrogation’ because of the effect it has on the parties’ purpose, not because of its actual existence.”).

        Id. at 1165 (III) (B) (quoting Davis, 547 U. S. at 822).

        Id.

        Id.

        Id. at 1155 (III) (B).

        Id.

        Id. at 1158 (III) (B). In this respect, the Bryant Court also emphasized that “the duration and scope of an emergency may depend in part on the type of weapon employed.” Id. at 1158 (III) (B).

        Id. at 1159 (III) (B) (citation and punctuation omitted).

        Id. at 1159 (III) (B).

        Id. at 1160 (III) (B).

        Id.

        Id.

        Id.

        Id.

        Id. at 1160 (III) (C). We note that in Cuyuch, our Supreme Court, relying on Davis, held that “it is in the final analysis the declarant’s statements, not the interrogator’s questions, that the Confrontation Clause requires us to evaluate,” in order to determine whether the primary purpose of a witness’s statement was to address an ongoing emergency. 284 Ga. at 294 (3). While this Court obviously has no authority to overrule Cuyuch in any respect, we are nevertheless compelled, on matters of federal constitutional law, to adhere to Bryant’s directive that the statements and actions of interrogators must also be considered when determining the primary purpose of a declarant’s statement to the police.

        Id. at 1161 (III) (C).

       Id. 1161 (III)(C).

        Id. at 1162 (IV).

        See OCGA § 24-3-3 (“Declarations accompanying an act, or so nearly connected therewith in time as to be free from all suspicion of device or afterthought, shall be admissible in evidence as part of the res gestae.”), see, e.g., Mubarak v. State, 305 Ga. App. 419, 422 (3) (699 SE2d 788) (2010) (holding that victim’s statements to officer made shortly after aggravated assault were admissible as res gestae); Sharif v. State, 272 Ga. App. 660, 661 (1) (613 SE2d 176) (2005) (same).

        See Bryant, at 1167 (IV).

       261 Ga. 640, 642 (2) (b) (409 SE2d 649) (1991).

        Payne v. State, 285 Ga. 137, 138 (674 SE2d 298) (2009).

        Id.

        Id.

        Hinton v. State, 290 Ga. App. 479, 482 (3) (659 SE2d 841) (2008) (punctuation omitted); see also Corbitt v. State, 301 Ga. App. 665, 669 (3) (b) (688 SE2d 642) (2009) (holding that because the evidence at the similar transaction hearing was sufficient for the trial court to conclude that the Williams requirements were met, no harmful error resulted from the trial court’s failure to make the findings on the record prior to the witness testifying).

        Carter v. State, 269 Ga. App. 363, 365 (604 SE2d 210) (2004) (punctuation omitted); see, e.g., Banks v. State, 225 Ga. App. 754, 755 (2) (484 SE2d 786) (1997) (holding that because a prior burglary was introduced to show defendant’s intent to commit theft, less similarity between the prior crime and the present charge was required).


author: MILLER, Presiding Judge.

text:
    A10A2343.
    BELANS v. BANK OF AMERICA, N.A.
    (709 SE2d 853)
   MILLER, Presiding Judge.

R. Chris Belans appeals from the trial court’s order confirming the foreclosure sales of three properties that Bank of America held as security for commercial loans he had guaranteed. This is the second appearance of this case before our court. The general facts of this case are as set forth in the first appeal, Belans v. Bank of America, 303 Ga. App. 35, 36-38 (1) (692 SE2d 694) (2010) (“Belans 7”):

In 2006, Belans guaranteed payment of three promissory notes in favor of the Bank. Each promissory note was secured by real property located in Douglas County, as evidenced by a Deed to Secure Debt and Security Agreement (security deed, including modifications) .When [Belans] and the grantor of the security deeds defaulted, the Bank conducted nonjudicial foreclosure sales of the property securing the notes. The Bank reported the foreclosure sales to a judge of the Douglas County Superior Court and applied for confirmation. Following a March 24, 2009 hearing, the trial court issued a confirmation order that included findings of fact and conclusions of law.

Id. at 35-36.

Belans filed an appeal from the trial court’s first confirmation order, contending that (i) the Bank failed to serve him personally with notice of the confirmation hearing; (ii) the evidence was insufficient to establish that the requirements of OCGA § 44-14-161 were satisfied; and (iii) the sale of the third property could not be confirmed since it was not reported to a judge within 30 days of the sale. See Belans I, supra, 303 Ga. App. at 35. In Belans I, we affirmed the trial court’s conclusion that service by publication was sufficient under the specific facts of this case. Id. at 36-38 (1). However, we reversed the confirmation order for lack of evidence to support the trial court’s determination that the properties were sold for their fair market values. Id. at 38-39 (2).

Following remand, the trial court issued a rule nisi scheduling a new confirmation hearing for June 8, 2010. The rule nisi was mailed to Belans and his counsel. Although Belans failed to appear at the June 8 confirmation hearing, he was represented by counsel, who cross-examined witnesses and presented arguments on his behalf. After the hearing, the trial court issued a second confirmation order that included findings of fact and conclusions of law. The instant appeal then ensued.

In this appeal, Belans contends that the second confirmation order was erroneous since (i) he did not receive personal service of process under OCGA § 44-14-161 (c) when the rule nisi was mailed to him; (ii) there was no competent evidence of fair market value since the realty and personal property were sold for a lump sum; and (iii) the third foreclosure sale was not reported to the trial court within 30 days after the sale. We discern no reversible error and affirm.

1. Belans’s contention that he was not properly served with the notice of hearing is without merit.

As we held in Belans I, the service by publication was authorized in this case. Id. at 36-38 (1). Our holding in Belans I became binding in all subsequent proceedings in the trial court as the law of the case. See OCGA § 9-11-60 (h) (“[A]ny ruling by the Supreme Court or the Court of Appeals in a case shall be binding in all subsequent proceedings in that case in the lower court and in the Supreme Court or the Court of Appeals as the case may be.”); Empire Fire &c. Ins. Co. v. Driskell, 262 Ga. App. 447, 449 (585 SE2d 657) (2003) (an issue that was resolved against appellant in a prior appeal cannot be relitigated).

Following entry of the remittutur from Belans I, the case was reinstated in the trial court and was returned to the posture it occupied prior to judgment. See OCGA § 5-5-49 (a); Strickland & Smith, Inc. v. Williamson, 281 Ga. App. 784, 785 (637 SE2d 170) (2006) (“When an appellate court reverses a judgment, the effect is to nullify the judgment below and place the parties in the same position in which they were before judgment.”) (punctuation and footnote omitted); Rogers v. Fidelity Fed. Sav. & Loan Assn., 180 Ga. App. 330, 331 (349 SE2d 7) (1986) (setting aside the prior order “did not erase the slate clean of all previously filed documents,” but rather, returned the case to the posture it occupied prior to judgment). Accordingly, the case proceeded as a pending action, not an entirely new action, and service of all subsequent pleadings and written notices was authorized to be made by mail in accordance with OCGA § 9-11-5 (b). See Allen v. Bd. of Tax Assessors &c., 247 Ga. 568, 569 (277 SE2d 660) (1981) (after a party has been apprised of the pendency of a lawsuit, his constitutional right to notice and an opportunity to be heard can be met through subsequent service by mail under OCGA § 9-11-5 (b)); Short v. Riles, 141 Ga. App. 881, 882-883 (234 SE2d 710) (1977) (service of a rule nisi by mail provides adequate notice of the hearing in a pending action). The mailing of the rule nisi scheduling the second confirmation hearing in the case was authorized. Id.

2. Nor do we discern any merit in Belans’s argument that the realty and personal property were sold for a lump sum, and thus, there was no competent evidence of fair market value. Significantly, we rejected this same argument in Belans⅛ prior appeal under Belans TV, supra, 306 Ga. App. at 254-256 (2). Here, as in Belans IV, there was no evidence that personal property was conveyed in the sales. While Belans makes reference to testimony that certain appliances were located on the properties, the evidence supported a finding that those appliances were fixtures that had become a part of the realty.

[Wjhatever is placed in a building subject to a mortgage, by a mortgagor or those claiming under him, to carry out the obvious purpose for which it was erected, or permanently to increase its value for occupation or use, becomes a part of the realty, although it may be removed without injury to itself or the building.

(Citation, punctuation and footnote omitted.) Belans IV, supra, 306 Ga. App. at 255 (2), citing Tifton Corp. v. Decatur Fed. Sav. &c. Assn., 136 Ga. App. 710 (222 SE2d 115) (1975). In this case, the record shows that the foreclosure sales involved only real property.

The Bank further presented competent evidence establishing that the property sold for its true market value. At the June 8 confirmation hearing, the Bank presented witness testimony establishing that the sales for the three properties were conducted at public outcry auctions to the highest bidder. The first property sold for $620,000; the second property sold for $200,000; and the third property sold for $325,000. The Bank’s expert appraiser, Jeffrey Bowling, testified as to his appraisals of the first and second properties and the methodology he used to determine the fair market value of the properties. Based upon Bowling’s testimony, the fair market values of the first and second properties were the same amounts for which the respective properties had been sold. The Bank also introduced testimony from another expert appraiser, William Born, who testified as to his appraisal of the third property. Born explained the methodology he used to determine the value of the third property and stated that the fair market value of the property was the same amount for which it sold. The testimony from the expert appraisers constituted competent evidence and supported the trial court’s conclusion that the properties were sold for their fair market values. See Belans IV, supra, 306 Ga. App. at 255-256 (2) (testimony from expert appraiser provided competent evidence of the property’s fair market value).

3. Belans also claims that the report of the third sale was untimely. This claim likewise affords no basis for relief.

OCGA § 44-14-161 (a) pertinently provides that “no action may be taken to obtain a deficiency judgment unless the person instituting the foreclosure proceedings shall, within 30 days after the sale, report the sale to the judge of the superior court of the county in which the land is located for confirmation and approval[.]” At the hearing below, Belans’s counsel argued that the time limitation set forth in this statute is akin to a statute of limitation. We agree.

Significantly, the statute of limitation is an affirmative defense which must be timely raised or it is waived. See In the Matter of Oellerich, 278 Ga. 22, 24 (596 SE2d 156) (2004); Lewis v. Waller, 282 Ga. App. 8, 10 (1) (a) (637 SE2d 505) (2006). Belans’s claim as to the timeliness of the report of the third sale was raised for the first time in his appeal under Belans I. The opinion in Belans I did not address Belans’s claim in light of its reversal of the confirmation order. See Belans I, supra, 303 Ga. App. at 39-40 (3). Our appellate courts often address claims of error that are deemed as moot when the issue is likely to recur or affect the proceedings upon remand. See Baldwin v. Vineyard, 275 Ga. 134, 135 (2) (562 SE2d 174) (2002); Barnett v. Farmer, 308 Ga. App. 358, 360, n. 7 (707 SE2d 570) (2011); Reese v. State, 296 Ga. App. 186, 188 (3) (674 SE2d 68) (2009). However, Belans ⅛ claim was not addressed since we concluded that it was not necessary to do so. See Belans I, supra, 303 Ga. App. at 39-40 (3). Our conclusion in Belans I is supported by the fact that the claim had been waived.

Although a debtor is not required to file an answer to the mortgagee’s report, he is permitted to raise objections. See Wall v. Fed. Land Bank &c., 240 Ga. 236, 237 (1) (240 SE2d 76) (1977). See also Weems v. McCloud, 619 F2d 1081, 1085 (I) (5th Cir. 1980). Although Belans had been duly served with notice of the first confirmation hearing, he did not appear nor did he take action to ensure his representation at the proceedings. His objection to the timeliness of the report of the third sale did not come until his appeal following entry of the first confirmation order. Generally, “[a]n argument not raised in the trial court is waived and cannot be raised for the first time on appeal.” (Footnote omitted.) Locke’s Graphic & Vinyl Signs v. Citicorp Vendor Finance, 285 Ga. App. 826, 828 (2) (a) (648 SE2d 156) (2007). And, since Belans was afforded the opportunity to appear and raise objections to the timeliness of the report, but he failed to do so, he waived this defense. See, e.g., Stephenson v. Roper Pump Co., 261 Ga. App. 131, 133 (581 SE2d 741) (2003) (in a proceeding where formal pleadings by the parties are not required, a plea of the statute of limitation is not required to be filed prior to a time when the evidence discloses that the matter is barred; however, waiver occurs if the defense is not urged until after an award or judgment has been made); Hatfield v. Leland, 143 Ga. App. 528, 529 (239 SE2d 169) (1977) (a party may not allow a case to be tried on the merits before coming in with a technical defense).

Judgment affirmed.

Barnes, P. J., and Andrews, J, concur.

Decided March 23, 2011

Reconsideration denied April 11, 2011

Schreeder, Wheeler & Flint, John A. Christy, Philip R. Green, for appellant.

Troutman Sanders, Thomas E. Reilly, Cory S. Menees, for appellee.

       In Belans v. Bank of America, 303 Ga. App. 35, 36-38 (1) (692 SE2d 694) (2010) (“Belans I”), we addressed Belans’s claims regarding the trial court’s prior confirmation order pertaining to the three properties in Douglas County that are at issue here. Belans and Bank of America have also recently appeared before this court in three additional appeals from confirmation orders as to other properties. See Belans v. Bank of America, 303 Ga. App. 654 (694 SE2d 725) (2010) (“Belans II”); Belans v. Bank of America, 304 Ga. App. XXIX, Case No. A10A0600 (decided July 7, 2010) (unpublished opinion) (“Belans III”); and Belans v. Bank of America, 306 Ga. App. 252 (701 SE2d 889) (2010) (“Belans IV”). Accordingly, the instant appeal is the fifth of its kind filed by Belans involving Bank of America. Belans was also a party to a similar appeal in Pine Grove Builders v. SunTrust Bank, 307 Ga. App. 764 (706 SE2d 29) (2011), which was recently decided by this court.

       An exception to the law of the case rule permits relitigation of an issue if the evidentiary posture of the case changes in the trial court “such that the original evidence submitted is found to be insufficient, and the deficient evidence is later supplemented.” (Citation and punctuation omitted.) Guthrie v. Wickes, 295 Ga. App. 892, 895 (3) (673 SE2d 523) (2009). But the exception does not apply here. While Belans contends that the Bank subsequently learned where he was residing, his contention does not refute the evidence that the Bank could not locate him at the time that the service by publication was effected. See Belans I, supra, 303 Ga. App. at 36-38 (1).

       At the first confirmation hearing held on March 24, 2009, defense counsel announced that he was appearing on behalf of Noble Builders, a co-defendant. Defense counsel did not file an entry of appearance on behalf of Belans until April 22, 2009, after the first confirmation hearing.

       We note that in Pine Grove Builders, supra, 307 Ga. App. at 765-766 (1), we held that Belans was not properly served with notice of the confirmation hearing, and thus, his claims were not waived by his failure to appear or take any action in the trial court’s proceeding. In the instant case, however, Belans was properly served with notice. Under these circumstances, his election not to appear for the proceedings resulted in waiver.


author: MlKELL, Judge.

text:
    A11A0046.
    STATE AUTOMOBILE MUTUAL INSURANCE COMPANY v. TODD et al.
    (709 SE2d 565)
   MlKELL, Judge.

While driving her friend Ernest Camden’s car, Elizabeth Ann Todd was involved in a collision in Georgia with a car driven by Steve Purvis. Purvis’s passenger, Anthony Bonner, sustained injuries in the wreck, and he sued Todd and Purvis. State Automobile Mutual Insurance Company (“State Auto”), Todd’s automobile insurance carrier, filed a declaratory judgment action against Todd, Bonner, and Purvis, seeking a ruling that it was not obligated to defend Todd because she regularly used Camden’s car, which was not a covered vehicle under the policy. The trial court denied State Auto’s motion for summary judgment, and we granted interlocutory review. Finding that the “regular use” exclusion in Todd’s policy bars coverage as a matter of law, we reverse.

1. To prevail at summary judgment. . . , the moving party must demonstrate that there is no genuine issue of material fact and that the undisputed facts . . . warrant judgment as a matter of law. A defendant may do this by showing the court that the documents, affidavits, depositions and other evidence in the record reveal that there is no evidence sufficient to create a jury issue on at least one essential element of plaintiffs case.

On appeal from an order granting or denying summary judgment, “we conduct a de novo review, construing the evidence and all reasonable conclusions and inferences drawn therefrom in the light most favorable to the nonmovant.”

So viewed, the record shows the following. The collision occurred on August 16, 2003. Todd deposed that she had borrowed Camden’s car to go on vacation and was driving back to her house in Illinois from a nine-day trip to South Carolina when the collision happened. Todd testified that she was in the midst of a bitter divorce, had been ordered to leave the marital home in September 2002, and began staying with Camden, although she obtained her own place. Todd did not have a vehicle, and Camden allowed her to use his car. Todd testified that Camden had heart trouble and diabetes, so she “was his legs.” Todd used his car to run all of his errands; it was a way for her to earn money during the divorce. Todd testified that although Camden did not pay her a salary, he bought her food and other necessities. Camden had two sets of keys to the car and gave one to Todd to use whenever she drove it. In March 2003, Todd’s husband gave her a truck pursuant to a court order, but she preferred to drive Camden’s car because the truck had mechanical problems and only got six miles to the gallon.

Todd further deposed that at times, she parked the car at her house and drove it when Camden went out of town. Todd testified that when Camden was on the road for work, he might be gone for weeks at a time, and the car “sat at [her] house” for the duration. When asked whether she drove the car daily, Todd replied: “Regularly, but maybe not a daily basis, but regularly.”

Todd’s policy specifically excluded from liability coverage “[a]ny vehicle, other than ‘your covered auto,’ which is: a. owned by you, or b. furnished or available for your regular use.” State Auto argues that the trial court erred in denying its motion for summary judgment because Todd’s deposition testimony demonstrates, as a matter of law, that Camden’s car was available to her for her regular use and thus excluded from coverage. We agree.

In Mattox v. Cotton States Mut. Ins. Co., we explained that

the purpose of the . . . non-owned regular use provision is to cover occasional or incidental use of other cars without the payment of an additional premium, but to exclude the habitual use of other cars, which would increase the risk on the insurance company without a corresponding increase of the premium. The covered use is also variously described as “casual” and “infrequentt,]” while the term “regular use” has been held to suggest a principal (though not necessarily exclusive) use as distinguished from a casual or incidental use. Thus the key to the insurer’s intention in the use of such clause is its obvious intention to cover only those uses, whether described as occasional, incidental, casual, infrequent or by other similar adjectives, which will not materially increase the insurer’s risk without a corresponding and compensating increase.

Following this reasoning, we affirmed the grant of summary judgment to the insurer in Nghiem v. Allstate Ins. Co. because the driver at issue “had unlimited access to the vehicle and could use it for her own personal use as she saw fit.” As a result, we held that the insurer had established as a matter of law that the driver “was more than just an incidental user of [her boyfriend’s] vehicle during the course of the policy period and materially increased [the insurer’s] risk without a corresponding increase in the policy premium.”

In Intl. Indem. Co. v. Keith, we reversed the denial of an insurer’s motion for summary judgment based on a policy exclusion for regular use of a furnished nonowned vehicle. We found that the undisputed facts showed “that the vehicle was furnished or available to [the insured’s husband] for his regular use, and that he regularly used the furnished vehicle.” We reach the same result in the case at bar. By her own admission, Todd regularly used Camden’s car, which Camden made available to her for her regular use. This is demonstrated by Todd’s use of the car to take a nine-day pleasure trip, during which time the collision occurred. Todd’s use of the car was not “occasional, incidental, casual or infrequent” within the meaning of Mattox, and the trial court erred in denying summary judgment to State Auto.

2. In his brief, appellee Bonner contends that questions of fact remain on the issue of laches. Bonner asserted in his answer and motion to dismiss that State Auto was guilty of laches due to an unjustifiable delay in bringing the action and in serving him. But the trial court denied Bonner’s motion to dismiss, and he has failed to file a cross-appeal. Bonner has thus waived his right to challenge the trial court’s ruling on this issue.

Decided March 4, 2011

Reconsideration denied April 11, 2011

Hawkins, Parnell, Thackston & Young, Brian W. Sprinkle, for appellant.

Gardner & Gardner, Milton F. Gardner, Martin Snow, Cubbedge Snow, Jr., Chambless, Higdon, Richardson, Katz & Griggs, Jon C. Wolfe, for appellees.

Judgment reversed.

Smith, P. J., and Dillard, J., concur.

       (Citation and emphasis omitted.) Lau’s Corp. v. Haskins, 261 Ga. 491 (405 SE2d 474) (1991).

       (Footnote omitted.) Allstate Ins. Co. v. Neal, 304 Ga. App. 267 (696 SE2d 103) (2010).

       156 Ga. App. 655 (275 SE2d 667) (1980).

       (Citations, punctuation and emphasis omitted.) Id. at 657.

       292 Ga. App. 588 (664 SE2d 925) (2008).

       Id. at 589.

       Id. at 590.

       199 Ga. App. 171 (404 SE2d 335) (1991).

       Id. at 173 (1). Compare Allstate Ins. Co. v. Czaplicki, 241 Ga. App. 247, 248 (526 SE2d 78) (1999) (physical precedent only) (affirming summary judgment to insured where parties stipulated that driver at issue drove his grandfather’s van “only occasionally”).

       Supra at 657.

       See Ga. Society of Plastic Surgeons v. Anderson, 257 Ga. 710, 711 (1) (363 SE2d 140) (1987) (as a general rule, appellee must file cross-appeal to preserve enumerations of error concerning adverse rulings); Callahan v. Hall, 302 Ga. App. 886, 887, n. 2 (691 SE2d 918) (2010) (same).


text:
    A09A1285.
    THE STATE v. PICKETT.
    (710 SE2d 212)
    Decided April 11, 2011.

      Paul L. Howard, Jr., District Attorney, John O. Williams, Assistant District Attorney, for appellant.
   PHIPPS, Presiding Judge.

In State v. Pickett, the Supreme Court of Georgia reversed the judgment of this court in State v. Pickett and stated that this court had “erred in affirming rather than vacating the trial court’s judgment and remanding the case for the court to exercise its discretion again using properly-supported factual findings and the correct legal analysis.” Accordingly, we vacate our earlier opinion, adopt the opinion of the Supreme Court as our own in its stead, vacate the trial court’s judgment, and remand the case for proceedings not inconsistent herewith.

Judgment vacated and case remanded.

Smith, P. J., and Dillard, J., concur.

Marilyn Primovic, Ashleigh B. Merchant, for appellee.

       288 Ga. 674 (706 SE2d 561) (2011).

       301 Ga. App. 251 (687 SE2d 239) (2009).

        Pickett, supra, 288 Ga. at 680.