text:
    A12A0461.
    KILLIAN v. THE STATE.
    (728 SE2d 258)
   Blackwell, Judge.

We granted James Killian’s application for discretionary review of a trial court order revoking his probation. After thorough consideration, of this case, including our review of the transcript of the revocation hearing, which was not available at the time we granted Killian’s application, we have determined that the State produced some competent evidence to show that Killian violated the terms of his probation. Accordingly, we find that the application for discretionary appeal was improvidently granted, and we dismiss Killian’s appeal.

Here, the State alleged that Killian violated his probation by possessing marijuana with the intent to distribute in violation of OCGA § 16-13-30 (j) (1), by possessing an open container of an alcoholic beverage in the passenger area of a vehicle in violation of OCGA § 40-6-253 (b) (1), and by obstructing a police officer in violation of OCGA § 16-10-24 (a). While Killian claims that the State failed to provide evidence to show that he had both the power and intention to exercise control over the marijuana and open container of alcohol found in the vehicle in which he was riding as a passenger, the record belies this claim. The marijuana and open container were found on the floorboard of the front passenger seat, literally at Killian’s feet. See Reed v. State, 244 Ga. App. 146, 147 (534 SE2d 871) (2000); see also Hulsey v. State, 284 Ga. App. 461, 461-462 (1) (643 SE2d 888) (2007). And other evidence indicates Killian’s intent to exercise control over the marijuana and the open container of alcohol: the officer could smell burning marijuana through Killian’s open window, Killian refused to look at the police officer during the traffic stop, the half-empty container of alcohol was still cold and was contained in an open brown paper bag of the type that would be used by a package store, and the other passenger of the vehicle possessed his own open and partially empty container of alcohol. See Vines v. State, 296 Ga. App. 543, 546 (675 SE2d 260) (2009); In the Interest of M. A. R., 306 Ga. App. 818, 819-820 (702 SE2d 919) (2010); Feliciano v. State, 302 Ga. App. 328, 331 (690 SE2d 680) (2010) (The finder of fact “may find criminal intention upon consideration of the words, conduct, demeanor, motive, and all other circumstances connected with the act for which the accused is prosecuted.”) (citation and punctuation omitted). Although Killian claims that the other occupants of the vehicle had equal access to the contraband, the evidence shows that, because of the large center console in the vehicle, the other occupants did not, in fact, have equal access to the marijuana and alcohol that lay at Killian’s feet. See Ely v. State, 241 Ga. App. 896, 898-899 (528 SE2d 532) (2000). And the trier of fact was authorized to conclude that it was not reasonable to believe, as Killian has suggested, that the other occupants of the vehicle were storing their marijuana and open container of alcohol at Killian’s feet. See Mora v. State, 292 Ga. App. 860, 862 (1) (666 SE2d 412) (2008).

Decided May 1, 2012.

Lisamarie N. Bristol, for appellant.

Layla H. Zon, District Attorney, Erie J. Newton III, Marie E. Greene, Assistant District Attorneys, for appellee.

Because we granted Killian’s application for discretionary review without the benefit of the full appellate record, including the transcript of the revocation hearing, and because the record supports the findings of the court below, we conclude that the application for discretionary appeal was improvidently granted. Accordingly, the order granting Killian’s application is vacated, and his appeal is hereby dismissed. See Woody v. State, 247 Ga. App. 684, 685 (545 SE2d 83) (2001).

Appeal dismissed.

Mikell, P. J., and Miller, J., concur.

       A trial court may revoke a probated sentence “if the evidence produced at the revocation hearing establishes by a preponderance of the evidence” that the defendant violated a condition of his probation. Thurmond v. State, 304 Ga. App. 587 (696 SE2d 516) (2010); see also OCGA § 42-8-34.1 (b). Accordingly, if the record includes some competent evidence to show that the defendant violated the terms of his probation, this court will affirm the judgment of revocation. Smith v. State, 283 Ga. App. 317, 318 (641 SE2d 296) (2007).

        See Dennis v. State, 313 Ga. App. 595, 597 (722 SE2d 190) (2012) (“Aperson who, though not in actual possession, knowingly has both the power and intention at a given time to exercise dominion or control over a thing is then in constructive possession of it.”) (citation and punctuation omitted); see also McBee v. State, 296 Ga. App. 42, 45 (2) (a) (673 SE2d 569) (2009) (“Power may be inferred from access to the drugs, while the matter of intent may be derived from the surrounding circumstances”) (citation and punctuation omitted).

       In any event, Killian offers nothing to suggest the court below erred when it found that a preponderance of the evidence showed he violated OCGA § 16-10-24 (a) by resisting his arrest. And the court below would have been authorized to revoke Killian’s probation based on this violation alone. Barnett v. State, 194 Ga. App. 892, 893 (392 SE2d 322) (1990).


source: Caselaw Access Project

author: MlKELL, Presiding Judge.

license: Public Domain

text:
    A11A2214.
    GOULD v. THE STATE.
    (726 SE2d 432)
   MlKELL, Presiding Judge.

Carl Gould, proceeding pro se, appeals the trial court’s order denying his motion for an out-of-time appeal. We discern no error and affirm.

The record shows that on September 26, 2003, Gould entered a negotiated plea of guilty to one count of sexual exploitation of children and one count of recidivism. Gould was sentenced to ten years, with one year to serve and the remainder on probation. Apetition to revoke Gould’s probation was filed on November 3,2009; and after a hearing, the trial court revoked the balance of the probation. Through counsel, Gould then filed a motion for new trial and a motion for reconsideration. After a hearing, the trial court on August 12, 2010, denied the motion for new trial but reduced the amount of time during which Gould’s probation was revoked to a period of two years. In May 2011, Gould, proceeding pro se, filed a motion for an out-of-time appeal in order to challenge this probation revocation order. After a hearing, the trial court denied Gould’s motion for an out-of-time appeal in an order entered June 10, 2011. This June 2011 order is the subject matter of the current appeal.

1. Gould first argues that the trial court abused its discretion in denying his motion for an out-of-time appeal. The grant or denial of a motion for an out-of-time appeal is within the discretion of the trial court, and its decision will not be reversed absent an abuse of such discretion.

In his motion for an out-of-time appeal, Gould does not challenge the validity of his guilty plea. Instead, he contests the trial court’s probation revocation order on the ground that he received ineffective assistance of counsel because he was not properly advised of his appellate rights after his probation revocation hearing. An out-of-time appeal is only authorized if the delay is attributable to the ineffective assistance of counsel, and not to the fact that the defendant himself slept on his rights. When the movant alleges deprivation of the right to appeal due to trial counsel’s ineffective assistance, judicial inquiry must be made whether appellant was responsible for the failure to pursue a timely appeal.

At the hearing on Gould’s motion for an out-of-time appeal, trial counsel testified that he informed Gould of his post-revocation appellate rights; and that together with his client, he made the strategic decision to file a motion for reconsideration and a motion for new trial, rather than to file an appeal. This strategy was partially successful, because the trial court did reduce the revoked time, after a hearing on the motions for reconsideration and new trial. The trial court was entitled to believe trial counsel’s testimony, which was sufficient to authorize the trial court to find that Gould had been informed of his right to appeal and had voluntarily waived this right, and that Gould’s right of a timely appeal was not frustrated by ineffective assistance of counsel. Since we apply the “any evidence” standard to the trial court’s findings when it acts as finder of fact, we conclude that the trial court did not abuse its discretion in denying Gould’s motion for an out-of-time appeal.

2. Gould contends that the trial court abused its discretion in basing its decision to deny the motion for an out-of-time appeal upon unsworn statements made by his counsel during the hearing. This contention is without merit. The trial judge was allowed to rely upon counsel’s unsworn statements because “an attorney takes an oath upon admission to the bar and is deemed to speak the truth and to be bound by his statements in open court as a failure in this might disbar him.”

3. Gould argues that the trial court abused its discretion in not allowing him to present evidence that he did not violate the terms of his probation. In a hearing on a motion for an out-of-time appeal, the trial court may only consider evidence relating to the issue of whether the loss of the right of appeal was attributable to the ineffective assistance of counsel or to the defendant himself sleeping on his rights. Gould presented no such evidence, but instead sought only to introduce evidence challenging his probation revocation. Accordingly, we find no abuse of discretion in the trial court’s ruling.

Judgment affirmed.

Miller and Blackwell, JJ., concur.

Decided March 8, 2012

Reconsideration denied May 2, 2012

Carl J. Gould, pro se.

Leigh E. Patterson, District Attorney, Emily G. Johnson, Assistant District Attorney, for appellee.

        Robertson v. State, 287 Ga. App. 271 (651 SE2d 198) (2007).

        Ray v. State, 287 Ga. App. 492 (652 SE2d 165) (2007).

       Id. at 493.

       See Butts v. State, 244 Ga. App. 366, 368 (536 SE2d 154) (2000).

       Id.

       See id.

        Thomas v. Scott, 221 Ga. 875, 878 (7) (148 SE2d 300) (1966). Accord Cannon Air Transport Svcs. v. Stephens Aviation, 249 Ga. App. 514, 516 (2), n. 13 (548 SE2d 485) (2001).

        Ray, supra at 492.


author: Dillard, Judge.

text:
    A12A0087.
    OVERBY v. THE STATE.
    (728 SE2d 278)
   Dillard, Judge.

Tracy Daniel Overby pleaded guilty to one count of arson and was sentenced to 20 years on probation. Additionally, the trial court ordered that Overby’s probation would be suspended after five years if restitution was paid and, after conducting a hearing on same, ordered that restitution be paid to the victim in the amount of $63,125 in monthly increments of $270. Overby challenges the trial court’s order of restitution on appeal, contending that the amount is not supported by fact or law. We agree and therefore vacate the court’s award and remand for a new restitution hearing.

The record reflects that on August 9,2010, Overby pleaded guilty to first degree arson of a dwelling owned by the victim, which Overby was renting. Overby apparently set fire to a sofa in the house, causing damage to the structure. At the restitution hearing, the victim testified that her husband purchased the land and built the home himself in 2001, that she charged between $350 and $500 per month in rent (which was her sole source of income), that she sold the home after the fire for approximately $3,000, and that she only wanted restitution for the loss of the home and rental income.

As to the damage caused by the fire, the victim testified that the fire was between the living room and kitchen; that the wall, carpet, and floor were damaged; that the entire house suffered smoke damage; and that although the home did not burn down, it was so “messed up” that she could not afford the necessary repairs. However, the victim also admitted that she did not attempt to make any repairs to the dwelling.

In addition to the victim’s testimony, the State presented the testimony of a tax appraiser for the county, who assessed the subject property in 2008 — prior to the fire — at a fair market value of $63,125. The appraiser did not recall returning to the property after the fire but testified to driving past it, based on his records, and thinking that the house had burned down because he could not remember seeing a home on the property at that time. Nevertheless, he opined that the house was worth nothing after the fire.

In response, Overby presented the testimony of a certified real estate appraiser who lives near the home and who gave his opinion as to its value and the estimated cost to repair the damage. And Overby testified regarding his state of employment (that being unemployed at the time of the hearing), limited source of income through side jobs, lack of assets, lack of a high school diploma or GED, and attempts at finding employment. At the end of the hearing, the State requested that the court award the victim the lost value of the home and lost rental income. Thereafter, the court issued an order in which it awarded $63,125 in restitution to the victim, also noting that it regarded the opinion of Overby’s expert as unreliable due to his former relation to Overby through marriage. This appeal by Overby follows.

At the outset, we note that a trial court determines the proper amount and type of restitution by a preponderance of the evidence. The State bears the burden of demonstrating “the amount of the loss sustained by a victim as a result of the offense,” and the amount of restitution ordered by the trial court “may be equal to or less than, but not more than, the victim’s damages.” As to the offender, he or she bears the burden of demonstrating his or her financial resources, including the needs of any dependents.

On appeal from an order of restitution, we review the record “to determine whether each party has met his or her specified burden and whether a restitution award was supported by the preponderance of the evidence.” And pursuant to the restitution statute, with certain exceptions not applicable in this case, “a victim of property damage is entitled to all special damages which a victim could recover against an offender in a civil action based on the same act or acts for which the offender is sentenced.” With these guiding principles in mind, we turn now to Overby’s sole enumeration of error.

Overby contends on appeal that the trial court used an improper method to calculate damages, looking to the diminution in value of the subject property as opposed to the cost of repairing the house and, accordingly, that the State presented insufficient evidence of damages because there was no evidence of repair costs. We are constrained to agree.

Here, the victim claimed only that her house was damaged, not that the house and lot were damaged. It is well established that the “[cjost of repairs is the appropriate measure of damages if the injury is to the building alone,” which is a rule that dates back to an 1887 opinion by our Supreme Court. And the application of this rule contrasts with situations in which injury is alleged to both a building and the property on which it stands. In such cases, “[t]he correct measure of damages for injury to realty is the difference in the value of the property before and after the injury.”

There is, however, an exception to the general rule, that being that the measurement of damages by repair or restoration costs is limited when restoring a building to its condition at the time of destruction would be “absurd.” Indeed, “[t]he cost of restoration may not be disproportionate to the diminution in the property’s value” and instead “must be reasonable and bear some proportion to the injury sustained.” Thus, we have applied this exception— instead calculating damages according to diminution in value — when buildings were in poor condition prior to destruction or when they have been completely destroyed, such that repairing or restoring the buildings would result in an inflated measure of damages and thus be absurd.

And here, as noted supra, the victim sought restitution only for damage to her home. Thus, the proper measure of damages was the cost to repair the home, unless such an undertaking was absurd, in which case diminution in value would be appropriate. But the State failed to present evidence of repair cost — save the victim’s vague testimony that she could not afford to repair the home — and there was likewise no indication that repair of the home would bean absurd undertaking. Instead, the State’s evidence focused on the testimony of a tax appraiser who opined as to the diminution in the home’s value after the fire. Accordingly, the State failed to meet its burden of proof by presenting insufficient evidence as to the amount of restitution, and the trial court’s order must be vacated and the case remanded for a new restitution hearing.

Decided May 2, 2012.

Jad B. Johnson, David J. Dunn, Jr., for appellant.

Herbert E. Franklin, Jr., District Attorney, for appellee.

Judgment vacated and case remanded with direction.

Ellington, C. J., and Phipps, P. J., concur.

        See OCGA § 16-7-60 (a) (1) (“A person commits the offense of arson in the first degree when, by means of fire ... he or she knowingly damages . . . [a]ny dwelling house of another without his or her consent. . . .”).

       While testifying, the appraiser reviewed photographs of the home from after the fire and opined that the interior was badly damaged, that the exterior photographs showed no visible damage, that he did not recall obtaining permission to enter the home, and that he rarely enters a home unless invited.

       OCGA § 17-14-7 (b); see also OCGA § 17-14-10 (providing list offactors that trial court is required to consider in awarding restitution); In the Interest of E. W., 290 Ga. App. 95, 96-97 (3) (658 SE2d 854) (2008).

       OCGA § 17-14-7 (b).

        In the Interest of E. W., 290 Ga. App. at 97 (3) (punctuation omitted).

       OCGA§ 17-14-7 (b).

        In the Interest of E. W., 290 Ga. App. at 96 (2) (punctuation omitted).

        Mayfield v. State, 307 Ga. App. 630, 631 (2) (b) (705 SE2d 717) (2011) (punctuation omitted); see also OCGA § 17-14-2 (2) (defining “damages” for purpose of restitution statute).

        Oglethorpe Realty Co. v. Hazzard, 172 Ga. App. 98, 99 (4) (321 SE2d 820) (1984); see Johnson v. State, 314 Ga. App. 560, 564 (6) (724 SE2d 859) (2012) (in burglary case, restitution for damage to home to be measured by cost to repair the house); City of Atlanta v. Atlantic Realty Co., 205 Ga. App. 1, 4 (5) (421 SE2d 113) (1992) (“The measure of damages for injury to abuilding is the cost of restoring the building to its original condition.”); see also Graves v. Diambrose, 243 Ga. App. 802, 803 (1) (534 SE2d 490) (2000); BellSouth Telecomm,., Inc. v. Helton, 215 Ga. App. 435, 437 (5) (451 SE2d 76) (1994) (physical precedent only); Holland Furnace Co. v. Willis, 120 Ga. App. 733, 738 (5) (172 SE2d 149) (1969); Morrow v. Johnston, 85 Ga. App. 261, 265 (4) (68 SE2d 906) (1952); Edelson v. Hendon, 77 Ga. App. 395, 395-96 (1) (48 SE2d 705) (1948); City of Macon v. Hawes, 27 Ga. App. 379, 380 (108 SE 479) (1921). Cf. Burke County v. Renfroe, 64 Ga. App. 395, 395 (3) (13 SE2d 194) (1941) (applying rule in context of damage to building for public purpose).

        See Harrison v. Kiser, 79 Ga. 588, 595 (8) (4 SE 320) (1887) (holding, when plaintiff’s house was damaged and not the land, that if the plaintiff “was entitled to recover any damages, he would be entitled to recover whatever sum it would take to put the house in the condition in which it was before it was injured”); see also Empire Mills Co. v. Burrell Eng’g & Constr. Co., 18 Ga. App. 253, 256-57 (2) (89 SE 530) (1916) (acknowledging the holding in Harrison v. Kiser and concluding that the proper measure of damages was the cost to repair when “damages [were] sought for the destruction of the building itself, and not for an injury to the freehold by reason of the destruction of the building”).

        Oglethorpe Realty Co., 172 Ga. App. at 99 (4); see also BellSouth Telecomm., Inc., 215 Ga. App. at 437 (5) (physical precedent only); Morrow, 85 Ga. App. at 266 (4); Empire Mills Co., 18 Ga. App. at 256; Davis v. Hopkins, 50 Ga. App. 654, 655-56 (1) (179 SE 213) (1935).

        Getz Servs., Inc. v. Perloe, 173 Ga. App. 532, 535 (3) (327 SE2d 761) (1985) (“Where there is injury to a building, the measure of damages is the cost of restoration of the building to the original condition, unless restoration to the original condition would be an absurd undertaking.”); see Mayfield, 307 Ga. App. at 633 (2) (b) (restitution in the amount of costs for restoration/repairs appropriate when no showing that repairs were an absurd undertaking under the circumstances); John Thurmond & Assocs., Inc. v. Kennedy, 284 Ga. 469, 474 (3) (668 SE2d 666) (2008) (amount of damages based on cost to repair was appropriate when no indication that this was inappropriate), affirming Kennedy v. John Thurmond & Assocs., Inc., 286 Ga. App. 642 (649 SE2d 762) (2007); see also Esprit Log & Timber Frame Homes, Inc. v. Wilcox, 302 Ga. App. 550, 552 (1) (691 SE2d 344) (2010); Georgia-Carolina Brick & Tile Co. v. Brown, 153 Ga. App. 747, 756 (266 SE2d 531) (1980); Atlanta Recycled Fiber Co. v. Tri-Cities Steel Co., 152 Ga. App. 259, 264-65 (3) (262 SE2d 554) (1979); Buhl v. Sandy Springs Med. Ctr., 147 Ga. App. 176, 176 (1) (248 SE2d 238) (1978); S. Ry. Co. v. Wooten, 110 Ga. App. 6, 8 (5) (137 SE2d 696) (1964).

        Ga. Ne. R.R., Inc. v. Lusk, 277 Ga. 245, 247 (2) (587 SE2d 643) (2003) (punctuation omitted).

        See Cornett v. Agee, 143 Ga. App. 55, 57-58 (237 SE2d 522) (1977) (on motion for rehearing) (structure totally destroyed and removal of debris would cost more than salvage worth); Mercer v. J & M Transp. Co., 103 Ga. App. 141, 143 (2) (118 SE2d 716) (1961) (destroyed house was old and in poor condition prior to destruction); Ga. Power Co. v. Maxwell, 52 Ga. App. 430, 432-33 (4) (183 SE 654) (1936) (building completely destroyed by fire). Cf. Revis v. State, 223 Ga. App. 470, 470-71 (2) (477 SE2d 880) (1996) (testimony lacked probative value when victim failed to account for depreciation in home destroyed by arson when home had tax value of $600, sat vacant for years, brought low amount of rent ($25 per month), was of unknown age, and would cost in excess of $31,000 to replace); State Highway Dep’t v. Murray, 102 Ga. App. 210, 213-14 (115 SE2d 711)(1960) (in condemnation case, replacement costs were inappropriate when five houses, which ranged in age from 2 to 20 years old, were damaged); Spainhour v. Nolind, 97 Ga. App. 362, 364 (1) (103 SE2d 154) (1958) (trial court erred by disallowing testimony as to value of home prior to damage when repair of home would be impracticable). Compare NEDA Constr. Co. v. Jenkins, 137 Ga. App. 344, 349-50 (4) (223 SE2d 732) (1976) (despite suggestion that fair market value was less than repair cost, repair costs were appropriate when notable and valuable historic home was damaged and there was no evidence that the home was dilapidated).

        See generally Gray v. State, 273 Ga. App. 747, 751 (2) (615 SE2d 834) (2005) (“[W]here we have found the restitution evidence insufficient to sustain the award, we have consistently remanded the case for a new restitution hearing.” (citations omitted)).


author: Ellington, Chief Judge.

text:
    A12A0160.
    DeKALB MEDICAL CENTER, INC. v. OBEKPA.
    (728 SE2d 265)
   Ellington, Chief Judge.

DeKalb Medical Center, Inc. (“the hospital”) appeals from an order of the Superior Court of DeKalb County that enjoined the hospital from reporting to the National Practitioner Data Bank (“the data bank”) a final, adverse decision of the hospital’s Board of Directors (“the board”) to deny the application of Dr. Adah E. Obekpa for renewal of his clinical privileges while Obekpa’s claims against the hospital remained pending. The hospital also appeals the court’s order denying its motion to dismiss Obekpa’s complaint for equitable relief, a complaint that seeks to set aside the board’s final decision and to reinstate a previous recommendation of the hospital’s hearing panel. For the following reasons, we reverse.

1. The hospital contends that the superior court erred in denying its motion to dismiss Obekpa’s complaint, which was converted to a motion for summary judgment when the court took evidence outside the pleadings with the consent of the parties, because the hospital is entitled to immunity pursuant to Georgia’s peer review statute, OCGA§ 31-7-132 (a). We agree.

Obekpa did not file a complaint for damages, which would have been governed by the federal Health Care Quality Immunity Act of 1986 (“HCQIA”). Rather, he sought equitable relief. In his complaint and the amendments thereto, Obekpa asked the superior court (1) to declare the final decision of the board void because it was motivated by malice and because the hospital failed to abide by the credentialing and corrective action policy of its medical staff bylaws, and (2) to enjoin the hospital from reporting its decision to deny his application for reappointment to the hospital staff to the data bank.

Georgia’s peer review immunity statute provides that no professional health care provider “shall be held, by reason of the performance of peer review activities,... to be civilly liable under any law unless [the provider] was motivated by malice toward any person affected by such activity.” OCGA § 31-7-132 (a). Unlike the HCQIA, this Code section provides immunity from all civil liability, not just from monetary damages. “Consequently, Georgia’s peer review statute [covers] claims for equitable relief.” Taylor v. Kennestone Hosp., Inc., 266 Ga. App. at 21-22 (4) (a). We review the superior court’s decision de novo and in the light most favorable to Obekpa. Id. So viewed, the record reveals the following undisputed facts.

Obekpa was appointed to the hospital staff in September 2008, with clinical privileges in internal medicine. A few weeks after his appointment, the hospital personnel began noticing that Obekpa was not properly documenting the treatment of his patients. The hospital’s Chief of the Department of Medicine spoke with Obekpa and expressed his concerns. Documentation problems persisted, however, and, over the next five months, the hospital received complaints that Obekpa was not appropriately attentive to or responsive to his patients and that he was not properly using hospital resources. These initial complaints prompted efforts by the medical staff to engage Obekpa in “collegial intervention.” Obekpa was informed that the hospital would be monitoring him by reviewing his progress notes and assessing the level of patient and staff complaints.

Despite these informal efforts, Obekpa’s professional conduct remained unchanged. On May 8, Obekpa was informed that “the medical staff ha[d] reached the point of making a decision on initiating an investigation[.]” He was advised of the peer review and investigation process, the bylaws, and the fact that he could resign, if he chose, prior to an investigation being initiated and that, if he did so, no report would be made to the data bank. On July 7, the hospital’s Medical Executive Committee (‘MEC”) voted to conduct an investigation into Obekpa’s professional conduct. The MEC appointed an investigatory credentials committee of nine doctors (none of whom were members of the MEC) to review 25 of Obekpa’s patient charts and to notify Obekpa of the investigation. Obekpa was advised that the investigation would focus on his documentation of patient treatment, his responsiveness to patients and their families, his responsiveness to hospital staff, and his use of hospital resources. The investigatory process was explained to Obekpa, and he was advised of his right to participate and to respond.

Over the next month and a half, the credentials committee reviewed 25 of Obekpa’s cases and discovered significant problems with nine of them. For example, concerning a patient who was admitted with pneumonia on April 27, Obekpa’s progress notes were “pre-written with no changes at all.” He failed to mention the patient’s lung sounds or oxygenation, to note that the patient had been restrained, to note any discussion of a treatment plan with the nursing staff, or to timely request a pulmonary consultation, which delayed the patient’s length of stay for almost a week.

On August 31, the credentials committee met with Obekpa to discuss their findings. After the meeting, the committee voted to recommend limiting the number of Obekpa’s patients for a period of six months, monitoring his compliance with the committee’s recommendations, and having him attend additional training in medical records documentation, developing treatment plans, and the appropriate use of hospital facilities. The credentials committee sent its recommendation to the MEC, which reviewed the report prior to making its final decision on September 1. On September 2, the hospital’s president and CEO notified Obekpa of the MEC’s decision to adopt the credentials committee’s recommendation and advised him of his right to appeal to a hearing panel. On September 28, Obekpa requested a hearing.

A panel of medical professionals (none of whom served on the MEC or the investigatory credentials committee) conducted a three-day hearing that concluded on January 21, 2010. Obekpa was represented by counsel. Obekpa admitted during the hearing that, even after the credentials committee investigation, he had received ten more peer review referrals concerning his performance, and that he had failed to respond to them in writing. The panel admitted into the record all previous letters, reports, charts, and other documents made during the course of the peer review process. It also accepted the final written statements of both the MEC and Obekpa. The panel issued its final report on March 3. In its report, the panel found that the MEC had met its evidentiary burden in support of its recommendation. The panel found that Obekpa had not shown, by a preponderance of the evidence, that the MEC’s adverse recommendation was either arbitrary, capricious, or not supported by credible evidence. Although the panel unanimously adopted the MEC’s conclusions, it recommended less severe corrective action in the desire to avoid negatively affecting Obekpa’s career. Specifically, the panel recommended that Obekpa receive additional training, attend case review conferences, and meet daily with the hospital’s risk management staff to ensure compliance with hospital policies. However, Obekpa’s patient referrals would not be limited, and no report of the adverse decision would be sent to the data bank.

On March 12, Obekpa appealed the decision of the panel to the board. He argued that, because the panel decided to reject some of the recommendations of the MEC, it should not have found that the MEC’s recommendations were supported by sufficient credible evidence and were not arbitrary or capricious. Obekpa then advised the board that he would withdraw his appeal if the board would adopt the panel’s final recommendations. Obekpa filed his written statement with the board on April 1. On April 7, the MEC informed the board that, although it stood by its recommendations, it had decided not to appeal the decision of the hearing panel and defer to the final decision of the board. On April 14, the board notified Obekpa that it had decided to adopt the original recommendations of the MEC. The board also decided to reject Obekpa’s application for reappointment to the hospital staff, effective May 11. The board notified Obekpa of his limited right to appeal the denial of his reappointment application. On June 14, the board conducted a hearing concerning Obekpa’s application. Obekpa, recognizing that the hospital bylaws permitted the board to determine the hospital’s final action, nevertheless asked the board to defer to the hearing panel’s recommendations, repeatedly stating that “the hearing panel got it right.” Obekpa’s attorney conceded that the peer review process was fair, that the process had worked as it was intended, and that any unfairness that may have happened prior to the panel’s hearing had been rectified. Counsel also stressed that he was not challenging the fairness, the findings, or the recommendations of the hearing panel, but questioning the board’s “unfettered discretion to ignore” the panel’s recommendations.

On June 16, the board notified Obekpa of its final decision. It affirmed its previous decision to deny Obekpa’s reappointment to the hospital staff, explaining that the decision was based upon the findings of both the MEC and the hearing panel. The board stated that it had declined to adopt the panel’s recommendations because, despite efforts at collegial intervention and several levels of formal review over many months, Obekpa’s professional conduct had failed to improve. The board explained:

[I]n particular, you were not responsive to patients, you inappropriately utilized the ICU, you delayed seeing patients, delayed patient discharges and delayed ordering care. Moreover, you contributed little to the management of your patients, often depending almost exclusively on consultants instead. Furthermore, there was inadequate documentation of your care, including progress notes of little clinical value, illegible progress notes, preprinted progress notes, missing daily assessments, and missing or unclear treatment plans. These concerns go to the very core of patient care.

Consequently, the board rejected the panel’s recommendations, concluding that it was unwise to expend hospital resources retraining a physician who had been out of medical school for over 12 years.

Obekpa’s complaint for equitable relief in the superior court seeks essentially the same relief that Obekpa sought before the board, that is, to have the recommendation of the panel confirmed as the final action in his case. As previously explained, however, absent a finding of malice in the peer review process, the superior court lacks the authority to grant Obekpa the equitable relief he seeks, because the hospital is immune from civil liability pursuant to OCGA § 31-7-132 (a). The superior court, in denying the hospital’s motion for summary judgment, found that the record revealed two facts from which a jury could infer malice:

First, Dr. [Dretler] was a part of the committee that did the initial peer review of Dr. Obekpa’s cases and, surprisingly, Dr. [Dretler] was also the head of the investigation of Dr. Obekpa. Additionally, there is evidence that Dr. [Dretler] somehow may have influenced the decision to affect [Obekpa’s] privileges at the hospital by limiting how many patients [Obekpa] could consult prior to having a full hearing on the issues.

We have reviewed the record before us and found no evidence to support an inference that Dretler, who was but one of the nine doctors on the investigatory credentials committee who reported to the MEC (of which he was not a member) was responsible for limiting Obekpa’s referrals. In fact, Obekpa’s appellate brief is entirely devoid of any record citations supporting these allegations of malice. In any event, the credentials committee’s recommendation concerning limiting Obekpa’s referrals was never imposed because Obekpa appealed that decision. At no time during the course of the entire peer review process did Obekpa note any concern with Dretler or the credentials committee’s role in conducting the investigation. And, as noted above, Obekpa conceded that, assuming there was any unfairness in the initial phases of the peer review process, such unfairness was cured by a fair hearing before the panel, a panel that he contends “got it right.”

Given the record in this case, we must conclude that the superior court erred in finding that there was evidence from which the jury could infer that the peer review process was motivated by malice. Therefore, the hospital is entitled to immunity from Obekpa’s equitable claims. OCGA § 31-7-132 (a); Taylor v. Kennestone Hosp., 266 Ga. App. at 21-22 (4) (a). Consequently, we reverse the court’s order denying the hospital’s motion for summary judgment.

2. Having found the hospital immune from suit and entitled to judgment in its favor, there exists no basis upon which to sustain the court’s order imposing an interlocutory injunction prohibiting the hospital from reporting its adverse decision concerning Obekpa to the data bank. See Bailey v. Buck, 266 Ga. 405-406 (1) (467 SE2d 554) (1996) (“[T]he sole purpose for granting interlocutory injunctions is to preserve the status quo of the parties pending a final adjudication of the case.”) (citations omitted). Therefore, that portion of the court’s order is hereby reversed.

Judgment reversed.

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

Decided May 2, 2012.

McKenna, Long & Aldridge, James C. Rawls, Darrell J. Solomon, for appellant.

Emmanuel L. West, for appellee.

       OCGA § 9-11-12 (c) provides, in relevant part, that
      [i]f, on a motion for judgment on the pleadings, matters outside the pleadings are presented to and not excluded hy the court, the motion shall he treated as one for summary judgment and disposed of as provided in Code Section 9-11-56, and all parties shall he given reasonable opportunity to present all material made pertinent to such a motion by Code Section 9-11-56.

       42 USC § 11101 et seq. Under the HCQIA, legal immunity from monetary damages is afforded for peer review actions taken
      (1) in the reasonable belief that the action was in the furtherance of quality health care, (2) after a reasonable effort to obtain the facts of the matter, (3) after adequate notice and hearing procedures are afforded to the physician involved or after such other procedures as are fair to the physician under the circumstances, and (4) in the reasonable belief that the action was warranted by the facts known after such reasonable effort to obtain facts and after meeting the [proceeding] requirement.
      42 USC § 11112 (a). See 42 USC § 11111 (a) (1) (legal immunity from damages only). The peer review action shall be presumed to have met the requisite conditions for immunity unless the presumption is rebutted by a preponderance of the evidence. 42 USC § 11112 (a) (4). The plaintiff bears the burden under the HCQIA of proving the peer review process was not reasonable as a matter of law under an objective standard. Patton v. St. Francis Hosp., 260 Ga. App. 202, 206 (1) (c) (581 SE2d 551) (2003). Further, a peer reviewer’s state of mind or malicious motive is immaterial under the HCQIA. See Taylor v. Kennestone Hosp., Inc., 266 Ga. App. 14, 19 (2) (596 SE2d 179) (2004).

       The HCQIA requires health care entities to report professional review actions concerning physicians that adversely affect the clinical privileges of a physician for a period longer than 30 days to the data hank. 42 USC § 11133 (a) (1).

       Federal law does not completely preempt OCGA § 31-7-132 (a). The HCQIA only preempts that Code section to the extent they conflict. Patrick v. Floyd Med. Ctr., 255 Ga. App. 435, 438 (2) (565 SE2d 491) (2002). Because the HCQIA does not provide immunity against claims for equitable relief, “we cannot say that it is in conflict with this aspect of OCGA § 31-7-132 (a).” Taylor v. Kennestone Hosp., Inc., 266 Ga. App. at 21 (4) (a), n. 4.


author: PHIPPS, Presiding Judge.

text:
    A12A0274.
    ARMOUR v. THE STATE.
    (728 SE2d 270)
   PHIPPS, Presiding Judge.

Following a jury trial, Sandra Armour was convicted of driving under the combined influence of marijuana and alprazolam to the extent that it was less safe for her to drive. She claims on appeal that the trial court erred in (i) denying her motion to suppress, (ii) improperly commenting on the evidence, and (iii) requiring her to spend eight days in custody following sentencing, notwithstanding that she moved for a supersedeas bond pending appeal. For the reasons that follow, we find no error and affirm.

1. Armour contends that the trial court erred in denying her motion to suppress her statements, test results, and other evidence stemming from her arrest because the arresting officer lacked probable cause to conclude that she had been driving under the influence of drugs to the extent it was less safe to drive (“DUI-less safe”). We disagree.

In reviewing a trial court’s decision on a motion to suppress, we construe the evidence most favorably to uphold the findings and judgment, and the trial court’s findings on disputed facts and credibility of the witnesses are adopted unless they are clearly erroneous. Further, because the trial court is the trier of fact, its findings are analogous to a jury verdict and will not be disturbed if any evidence supports them. However, when evidence is uncontroverted and no question of witness credibility is presented, the trial court’s application of the law to undisputed facts is subject to de novo appellate review.

Viewed in a light most favorably to uphold the trial court’s findings and judgment, the evidence showed that Armour was driving her car on a state route when she collided with a “four wheeler,” fatally injuring its driver. By the time the police officer who ultimately arrested Armour arrived at the site of the wreck, emergency and other law enforcement personnel were on the scene, and Armour had been transported to the hospital. The officer performed a quick inventory of Armour’s car. After smelling the odor of burnt marijuana coming from inside the car, he spotted green, leafy particles of what appeared to be marijuana on the floorboard of the passenger’s seat, and he also noticed a bottle of Xanax.

The officer traveled to the hospital, where he spoke with Armour, who was not visibly injured. He saw that her eyes were bloodshot and dilated. According to the officer, dilated pupils may indicate marijuana use. He asked Armour “about the medication and the marijuana.” Armour told him that she used marijuana every evening in place of the Xanax to calm her nerves. She denied having smoked marijuana that day, but admitted to having smoked marijuana the previous evening.

At the officer’s request, Armour agreed to undergo a “Romberg” field sobriety test, during which the officer looked for involuntary eye flutter and “internal clock.” He concluded that Armour’s internal clock was slow and that she exhibited eyelid tremors. Based on his training and experience, the officer concluded that Armour was an impaired driver and placed her under arrest. After he read Armour the implied consent warning, she agreed to a blood test, and after a nurse drew Armour’s blood, the officer transportedArmour to the jail.

Armour argues that the officer lacked probable cause to arrest her for DUI-less safe. We disagree. “The facts necessary to establish probable cause for arrest are much less than those required to prove guilt beyond a reasonable doubt at trial; the test merely requires a probability — less than a certainty but more than a mere suspicion or possibility.” Further, “[p]robable cause need not be defined in relation to any one particular element, but may exist because of the totality of circumstances surrounding a transaction.”

OCGA § 40-6-391 (a) (2) provides that a person shall not drive a moving vehicle while “[u]nder the influence of any drug to the extent that it is less safe for the person to drive.” A driver need not actually commit an unsafe act in order to be under the influence to the extent it is less safe to drive. On the other hand, “[e]vidence which shows only that a defendant had [a drug] in her body while driving provides insufficient probable cause to arrest for DUI.” Here, the evidence showed not only the smell of burnt marijuana in Armour’s car and her admission that she smoked marijuana every day, but that shortly after driving her eyes were bloodshot and her pupils dilated. In addition, the arresting officer made the determination, based on his training and experience, that Armour was an impaired driver only after evaluating her performance on a field sobriety test. Under the totality of circumstances, there was probable cause for the officer to arrest Armour for DUI-less safe. It follows that the trial court did not err in denying Armour’s motion to suppress.

2. Armour contends that the trial court erred by improperly commenting on the evidence in the presence of the jury. We disagree.

At trial, the jury heard testimony of a second police officer who evaluated Armour after she had been transported by the arresting officer to the jail. During defense counsel’s cross-examination of the second officer, counsel began a question, “was the fact that [Armour] was at a hospital waiting for treatment, had not received treatment —” but before he could finish, the prosecutor objected that no evidence had been presented that Armour did not receive the treatment that she needed or that she was waiting for treatment. The defense counsel responded to the prosecutor’s objection by stating his own recollection of the evidence. In ruling on the prosecutor’s objection, the trial court stated:

My recollection of the evidence was that [the arresting officer] obtained authorization from the nurse to segregate [Armour] from the other witnesses and before he removed her from the hospital, there was inquiry with this nurse after she had administered — had withdrawn the blood about whether or not she could be released is my recollection of the testimony. Whether that is erroneous or not, we can certainly play back the tape, if you wish ... but based on my recollection ... I would sustain the objection that’s been made ....

Armour argues that the trial court’s statements violate the rule that “[i]t is error for any judge in any criminal case, during its progress or in his charge to the jury, to express or intimate his opinion as to what has or has not been proved or as to the guilt of the accused.” But a judge’s remarks assigning a reason for a ruling do not generally constitute an impermissible expression of opinion or a comment on the evidence. Further, “a correct statement by the court as to the testimony of a witness is not error in the absence of special circumstances tending to show such an unwarranted emphasis upon certain testimony as might confuse or prejudice the jurors.” Here, the trial court’s remarks were a correct statement as to the testimony of a witness and were directed to counsel as an explanation for its ruling on the state’s objection. Under these circumstances, we find no error.

3. Last, Armour claims that the trial court erred in failing to immediately set an appeal bond, thereby requiring her to spend eight days in custody, notwithstanding that immediately following sentencing she filed a motion for new trial and moved for a supersedeas bond pending appeal. Because Armour’s motion for an appeal bond was granted following a motion hearing and her judgment of conviction has been affirmed, even if we found that the trial court erred in not immediately setting an appeal bond, there would be no benefit to Armour, and her claim of error is moot.

Decided May 2, 2012.

Catherine S. Bernard, for appellant.

L. Craig Fraser, District Attorney, Tafara C. Makaya, Assistant District Attorney, for appellee.

Judgment affirmed.

Ellington, C. J., and Dillard, J., concur.

       OCGA§ 40-6-391 (a) (4).

        Hammont v. State, 309 Ga. App. 395, 396 (710 SE2d 598) (2011) (punctuation and footnotes omitted).

        Brown v. State, 302 Ga. App. 272, 274 (1) (690 SE2d 907) (2010) (citation and punctuation omitted).

        Campbell v. State, 313 Ga. App. 436, 438 (721 SE2d 649) (2011) (citation and punctuation omitted).

       See Moss v. State, 194 Ga. App. 181, 182 (390 SE2d 268) (1990).

        Handley v. State, 294 Ga. App. 236,237 (668 SE2d 855) (2008) (citation and punctuation omitted; emphasis in original).

       See, e.g., Martin v. State, 214 Ga. App. 614, 616 (1) (448 SE2d 471) (1994) (circumstances giving officer probable cause to arrest for driving under the influence of drugs or alcohol included defendant’s dilated eyes and inability to explain how the accident occurred); Slayton v. State, 281 Ga. App. 650, 652 (1) (637 SE2d 67) (2006) (observations about suspect’s physical appearance, demeanor or behavior can support a finding of impairment).

       See Wilson v. State, 308 Ga. App. 383, 385 (2) (a) (708 SE2d 14) (2011) (“[a] witness who satisfactorily shows that he had opportunity to observe, and did observe, the condition of another, may testify whether that person was under the influence of intoxicants and the extent thereof, stating the facts upon which the opinion is based”) (citation and punctuation omitted); Lewis v. State, 214 Ga. App. 830, 832 (1) (449 SE2d 535) (1994) (“[a] police officer may give opinion testimony as to the state of sobriety of a DUI suspect and whether appellant was under the influence to the extent it made him less safe to drive”) (citations omitted).

       See Parker v. State, 307 Ga. App. 61, 66 (4) (704 SE2d 438) (2010) (circumstances which showed probable cause for a DUI violation included appellant’s performance on field sobriety tests).

       See Campbell, supra (probable cause' existed for appellant’s arrest for DUI-less safe where he “was observed speeding, admitted to smoking marijuana, had the smell of marijuana on his person, had bloodshot eyes, and exhibited multiple clues of impairment during several of the field sobriety tests”); Davis v. State, 302 Ga. App. 144, 146-147 (690 SE2d 464) (2010) (appellant’s “poor performance on the field sobriety tests and his physical manifestations of drug influence gave the officer probable cause to arrest [him] for DUI”); Slayton, supra.

       OCGA§ 17-8-57.

       See Bolden v. State, 281 Ga. App. 258, 260 (2) (636 SE2d 29) (2006); Williams v. State, 244 Ga. App. 692, 696 (3) (536 SE2d 572) (2000).

        Bolden, supra (citation and punctuation omitted). See Saladine v. State, 169 Ga. App. 425 (1) (313 SE2d 714) (1984).

         See Bolden, supra; Saladine, supra.

       Armour was convicted on February 24, 2010, and her motion for supersedeas bond was granted on March 4, 2010.

       We note that Armour misplaces her reliance on OCGA § 17-6-1 (b) (1), which provides, among other things, that a person shall not be refused bail during an appeal of a misdemeanor conviction. OCGA § 17-6-1 (b) (1) is subject to OCGA§ 17-6-1 (g), which provides in applicable part that “[t]he granting of an appeal bond to a person who has been convicted of... any offense set forth in Code Section 40-6-391, shall be in the discretion of the convicting court.”

       See Clark v. State, 301 Ga. App. 354, 355 (687 SE2d 593) (2009) (“the general rule is that if defendant would receive no benefit by reversal of the case, it is moot”) (citation, punctuation and footnote omitted); Davis v. State, 164 Ga. App. 633, 637 (7) (298 SE2d 615) (1982).


text:
    A12A0323.
    ZABAIN v. THE STATE.
    (728 SE2d 273)
   PHIPPS, Presiding Judge.

In connection with crimes perpetrated at a law office, DeShawn Zabain was tried by a jury, then convicted of burglary, armed robbery, false imprisonment, and sexual battery. On appeal, Zabain contends that the trial court erred by admitting similar transaction evidence, that the evidence was insufficient to prove burglary, and that the prosecution for the sexual battery count was time-barred. Because Zabain has shown no reversible error, we affirm.

The state’s evidence showed the following. The law office was that of a sole female practitioner. The attorney’s legal assistant was working alone when the crimes occurred at about 10:30 a.m. on September 7, 2006. A man entered the business and stated that he was seeking legal counsel. The legal assistant did not know the man, who did not have an appointment. Within moments, the man pointed a gun at her and demanded money. She handed him her purse, and he took a money order out of it. He then scurried into a separate room, the lawyer’s personal office, taking from that room a fire-resistant lock-box. The man returned to the assistant and, while still holding the gun, fondled her breast and crotch area, then fled the scene with the money order and lock-box. The legal assistant identified Zabain as the perpetrator to police about two days after the incident, and to the jury at trial.

To show Zabain’s state of mind, knowledge, or intent, the state presented similar transaction evidence. About three months after the law office incident, two men entered another female-operated business, a hair salon, during business hours and demanded money from the three women inside. The men took their purses and various items they collected from inside the hair salon. In connection with that incident, Zabain entered guilty pleas and was convicted of multiple counts of armed robbery, multiple counts of aggravated assault, and possession of a firearm during the commission of a felony.

Zabain took the stand and admitted that he had gone to the law office that morning and confronted the legal assistant. He testified that they already knew each other, that she owed him money for drugs, that he ordered her to pay him back, that she gave him the money order, and that he then left the premises. Zabain stated that he had no weapon, that he took nothing else out of the law office, and that he had not gone into any room in the back of the business (where the attorney’s personal office was located).

1. Zabain contends that the trial court erred by admitting the similar transaction evidence, asserting that the state failed to show that he committed the acts at the hair salon. We disagree. At the pretrial hearing on the admissibility of the similar transaction evidence, the state represented that it planned to present at the trial the testimony of a victim of the hair salon incident, as well as Zabain’s guilty pleas to the crimes committed. And at the trial, the state presented said testimony and introduced a certified copy of Zabain’s guilty pleas, indictment, and sentence related to the salon incident. There is no merit to Zabain’s contention that the state failed to show that he committed the offenses at the salon.

2. Challenging his burglary conviction, Zabain asserts that the evidence showed that the alleged unauthorized entry was with the legal assistant’s permission.

The burglary count of the indictment alleged that Zabain, “without authority and with the intent to commit a theft therein, entered the personal office of [the attorney].” Burglary requires proof of the essential element of entering “without authority” the building or room at issue. “ ‘Without authority’ means without legal right or privilege or without permission of a person legally entitled to withhold the right.”

Contrary to Zabain’s assertion, the legal assistant testified that she did not give Zabain permission to enter the attorney’s personal office located in the back of the law office, that she did not know Zabain, and that he had no appointment at the law office that day. Her testimony was sufficient for the jury to find beyond a reasonable doubt that Zabain’s entry at issue was without authority.

On appeal from a criminal conviction, the evidence must be viewed in the light most favorable to the verdict, and the appellant (defendant here) no longer enjoys the presumption of innocence; moreover, an appellate court does not weigh the evidence or determine witness credibility but only determines whether the evidence is sufficient under the standard of Jackson v. Virginia.[] Conflicts in the testimony of the witnesses, including the State’s witnesses, are a matter of credibility for the jury to resolve. As long as there is [sufficient] evidence, even though contradicted, to support each fact necessary to make out the State’s case, the jury’s verdict will be upheld.

3. Zabain challenges his sexual battery conviction, asserting that the charge was untimely brought as shown on the face of the indictment. As explained below, this challenge is not properly before us.

The indictment charged Zabain with sexual battery by intentionally making “physical contact with the intimate parts of the body of [the legal assistant] without the consent of [the legal assistant], by touching [her] breast and crotch area.” Upon the jury’s guilty verdict, Zabain was convicted and sentenced to 12 months of imprisonment.

Where sexual battery is considered a misdemeanor offense, any prosecution therefor “must be commenced within two years after the commission of the crime.” Here, the indictment alleged that the sexual battery occurred on September 7, 2006; the indictment was not filed until September 19, 2008. “If it appears on the face of the indictment that the statute of limitation has run, the indictment is fatally defective and subject to demurrer, unless the indictment also alleges one or more of the exceptions which would remove the bar of the statute.” Here, no such allegation was included in the indictment. But Zabain did not file a motion to dismiss that count of the indictment, and was tried thereon.

“Although any exception to the form of an indictment should be made in writing and before entering a plea to the merits, if an indictment is so defective that judgment upon it would be arrested, attention may be called to this defect at any time during trial, and it may be quashed on oral motion.”

[T]his court long ago held in Hollingsworth v. State that even though courts on the civil side require a defendant to plead the statute of limitation by way of defense, that rule should not be applied in criminal cases. Thus, unlike the situation which usually exists where pleas [in bar] and demurrers are not filed, even if the plea or demurrer is not filed before trial, the defendant may still assert the defense of the statute of limitations in the trial of the case.

But Zabain did not assert this defense at his trial, and was convicted of misdemeanor sexual battery.

When a count of the indictment is

absolutely void in that it fails to charge the accused with any act made a crime by the law and, upon the trial, no demurrer to the indictment is interposed and the accused is convicted under the indictment and judgment is entered on the verdict, the accused’s proper remedy is a motion in arrest of judgment or habeas corpus.

We find nothing in the record that can be construed as a motion in arrest of judgment or as a petition for habeas corpus, and Zabain makes no assertion that he appeals a ruling from either proceeding.

Instead, Zabain couches this contention as one challenging the sufficiency of the evidence, citing language from Lee v. State that “[t]he State was required to offer evidence or proof that.. .thecrime[ ] charged occurred within the applicable statute of limitation.” But unlike Zabain, the appellant in Lee had properly raised before the trial court the defense of the statute of limitation. And although Zabain moved for a directed verdict, he did so only on general grounds and not on the ground that any count of the indictment was barred by the statute of limitation. “Amotion for a directed verdict of acquittal addresses the sufficiency of the evidence, not the sufficiency of the underlying indictment.” Thus, “[a] motion for directed verdict of acquittal is not the proper way to contest the sufficiency of an indictment.”

Decided May 2, 2012.

Amanda R. Gaddis, Gregory A. Hicks, for appellant.

Patrick H. Head, District Attorney, Anna G. Cross, Assistant District Attorney, for appellee.

Based on the above, it is clear that... when a claim that an accusation or indictment is absolutely void is not properly asserted in the trial court, it can be reviewed on appeal only through a habeas corpus proceeding. . . . Here, [Zabain’s] claim is not properly before us because [he] failed to object to the indictment in any manner before or during trial and did not move to arrest the judgment after his conviction. The issue of whether the indictment underlying appellant’s conviction was void must await determination until such time as appellant avails himself of the proper procedures for attacking the conviction on that basis.

Judgment affirmed.

Ellington, C. J., and Dillard, J., concur.

       See Williams v. State, 261 Ga. 640, 642(2) (b), n. 2 (409 SE2d 649) (1991) (noting that some of the purposes which have been deemed appropriate include guilty knowledge and intent).

       See id. at 642 (2) (b) (for evidence of an independent offense or act to be admitted, the state must make three affirmative showings, among them, that the accused committed the independent offense or act).

        See Avila v. State, 289 Ga. 409, 411 (2) (711 SE2d 706) (2011) (decision to admit a similar transaction is reviewed for abuse of discretion).

       See Williams, supra (before any evidence of independent offenses or acts may be admitted, a hearing must be held pursuant to Uniform Superior Court Rule 31.3 (B), at which hearing the state must make three affirmative showings); Uniform Superior Court Rule 31.3 (B).

       See Pope v. State, 178 Ga. App. 148, 149-150 (3) (342 SE2d 330) (1986) (certified copies of guilty pleas, indictment, or sentences related to prior crimes are admissible where they pertain to crimes concerning which testimony has been admitted and foundation laid thereby).

       OCGA § 16-7-1 (a) (providing that a “person commits the offense of burglary when, without authority and with the intent to commit a felony or theft therein, he enters or remains within the dwelling house of another or any building, vehicle, railroad car, watercraft, or other such structure designed for use as the dwelling of another or enters or remains within any other building, railroad car, aircraft, or any room or any part thereof”) (emphasis supplied).

       OCGA § 16-1-3 (18); see Brown v. State, 143 Ga. App. 256-257 (238 SE2d 258) (1977).

       See Jackson v. Virginia, 443 U. S. 307, 319 (III) (B) (99 SC 2781, 61 LE2d 560) (1979) (on review of the sufficiency of the evidence to support a criminal conviction, the relevant question is whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt); Brown, supra (although defendant entered school during regular business hours when the office was open and unlocked, because defendant did not have authority to be in area where he was found, “where the props and purses were,” the jury was authorized to find the “without authority” element of burglary); see also Smith v. State, 281 Ga. App. 91, 93-94 (2) (635 SE2d 385) (2006) (where man in store during business hours passed through the store’s storage area to gain entry to store’s back office, where he took the store’s deposit bag containing money and checks, jury was authorized to find elements of burglary); Jenkins v. State, 217 Ga. App. 655-656 (1) (458 SE2d 497) (1995) (proof of unauthorized entry into unoccupied classroom of elementary school, possession of property stolen from that classroom, and flight when questioned about possessing the stolen property supported burglary conviction); see also Rubaldino v. State, 271 Ga. App. 726, 728 (1) (611 SE2d 68) (2005) (noting that burglary statute outlaws the unauthorized entry into “any building... or any room or any part thereof” with the requisite intent; thus jury was authorized to find elements of burglary where defendant initially entered house with permission, but then made an unauthorized entry into a bedroom of house with intent to commit aggravated assault).

       Supra.

        McKay v. State, 234 Ga. App. 556-557 (1) (507 SE2d 484) (1998) (citations and punctuation omitted).

       OCGA § 16-6-22.1 (setting forth conditions upon which sexual battery is classified as either a misdemeanor or a felony).

       OCGA§ 17-3-1 (d).

        State v. Barker, 277 Ga. App. 84, 87 (3) (625 SE2d 500) (2005) (footnote omitted).

       See Jenkins v. State, 278 Ga. 598, 604 (1) (604 SE2d 789) (2004) (if a defendant prevails on a pretrial plea in bar on the statute of limitation, the charge should be dismissed); see also Jackson v. State, 208 Ga. App. 391, 392 (1) (430 SE2d 781) (1993) (a motion to dismiss the indictment was “essentially a general demurrer, which challenges the very validity of the indictment”).

        Carey v. State, 263 Ga. App. 109, 110 (1) (588 SE2d 434) (2003) (citation and punctuation omitted).

       7 Ga. App. 16, 18-19 (65 SE 1077) (1909).

        Barker, supra.

        McKay, supra at 559 (2) (punctuation omitted).

       289 Ga. 95 (709 SE2d 762) (2011).

       Id. at 97 (citation and punctuation omitted).

       Id. at 95 (noting that, prior to opening statement, appellant raised the statute of limitation defense set forth in OCGA § 17-3-1 (d)).

       Compare Barker, supra at 85-86 (1) (trial court’s order granting defendant’s motion for directed verdict on the ground that the statute of limitation had expired was in substance a dismissal of the indictment); State v. Williams, 172 Ga. App. 708(1) (324 SE2d 557) (1984) (trial court’s order appealed was not a directed verdict of acquittal on the merits, but a dismissal of the indictment on the ground that the statute of limitation had expired).

        McKay, supra (citations and punctuation omitted).

       Id. (citations and punctuation omitted).

       Id. at 560 (2) (citations and punctuation omitted). See Fleming v. State, 276 Ga. App. 491, 495-496 (2) (623 SE2d 696) (2005) (rejecting appellant’s claim that he was entitled to have his challenge to the indictment fully adjudicated on appeal, where appellant failed to raise issue before trial court); Moore v. State, 246 Ga. App. 163, 165 (3) (539 SE2d 851) (2000) (general demurrer challenges the very validity of the indictment and may be raised at any time, but not in any proceeding; thus, if a challenge to the validity of an indictment has not been made before the trial court, the proper method for such a challenge is through habeas corpus proceedings).


text:
    A12A1191.
    CROWLEY v. THE STATE.
    (728 SE2d 282)
   Ellington, Chief Judge.

A Fulton County jury found Teontre Crowley guilty beyond a reasonable doubt of armed robbery, OCGA § 16-8-41 (a); aggravated assault, OCGA § 16-5-21 (a) (2) (with a deadly weapon); possession of a handgun by a person under the age of 18 years, OCGA § 16-11-132 (b); and possession of a firearm during the commission of a felony crime against another person, OCGA§ 16-11-106 (b) (1). He appeals from the denial of his motion for new trial, contending that the trial court abused its discretion when it improperly dismissed a juror, that it erred in denying his motion for mistrial that was based upon the juror’s dismissal, and that it erred in refusing to instruct the jury on robbery as a lesser included offense of armed robbery. He also contends that his convictions for armed robbery and aggravated assault should have been merged for sentencing. For the following reasons, we affirm the judgment of conviction, but vacate in part Crowley’s sentence and remand for resentencing.

1. Crowley contends that the trial court abused its discretion when it improperly dismissed a juror without a sound legal basis and that it erred in denying his motion for mistrial that was based upon the juror’s dismissal. Pursuant to OCGA § 15-12-172,

[i]f at any time, whether before or after final submission of the case to the jury, a juror dies, becomes ill, upon other good cause shown to the court is found to be unable to perform his duty, or is discharged/or other legal cause, the first alternate juror shall take the place of the first juror becoming incapacitated.

(Emphasis supplied.)

In this case, the record shows the following, undisputed facts. The prosecutor and the attorneys for Crowley and his co-defendant, Samuel Hartley, selected twelve jurors and one alternate juror from the panels, and the trial court told the selected jurors to sit in the jury box as their number was called out by the court’s case manager. After the remaining potential jurors were dismissed, the selected jurors were sworn in, and the trial court gave them initial instructions, including the specific directions that they must not speak with anyone about the case or conduct any outside investigation about the case. After the jurors were released for the day, it was discovered that only 11 jurors and the alternate had been in the jury box during the oath and instructions and that Juror No. 35 had left the courtroom instead of sitting with the rest of the selected jurors, apparently because she had not heard her number when it was called. When the trial resumed the next morning, the trial court ruled that the trial would proceed with the 11 jurors and the alternate, noting that they had been selected by the parties and had been sworn in and given instructions the previous afternoon, and that it was going to excuse Juror No. 35. Crowley’s counsel objected and moved for a mistrial, which was denied.

As Crowley argues on appeal, while OCGA § 15-12-172 authorizes the trial court to exercise its discretion to dismiss a juror and replace him or her with an alternate,

it must be an informed exercise, since the erroneous replacement of a juror may under certain circumstances deprive a defendant of his valued right to have his trial completed by a particular tribunal, his sixth amendment right to a fair, impartial and representative jury, and his due process rights grounded in the entitlement to procedures mandated by state law. There must be some “sound” basis upon which the trial judge exercises his discretion to remove the juror. Dismissal of a juror for want of any factual support, or for a legally irrelevant reason is prejudicial.

(Citations and punctuation omitted.) Herring v. State, 224 Ga. App. 809, 811 (1) (481 SE2d 842) (1997).

In this case, however, the trial court dismissed the juror and seated the alternate juror before the parties gave their opening statements or any evidence was presented. Thus,

[t] his is not a situation where the jury was deadlocked or had begun deliberations, when the need for investigation and the possibility of harmful error are heightened. [Crowley] has not shown how he was prejudiced by the use of an alternate, since pursuant to OCGA § 15-12-169, [] alternates are selected in the same manner and must have the same qualifications as members impaneled as the jury. The single purpose for voir dire is the ascertainment of the impartiality of jurors, their ability to treat the cause on the merits with objectivity and freedom from bias and prior inclination. The control of the pursuit of such determination is within the sound legal discretion of the trial court, and only in the event of manifest abuse will it be upset upon review. Replacing the juror [in this case] had no more effect of denying [Crowley] a qualified jury than if the juror had become ill or died. The alternate juror statute was designed to alleviate situations such as these.

(Citations and punctuation omitted.) Herring v. State, 224 Ga. App. at 811-812 (1). See also Scott v. State, 272 Ga. App. 32 (1) (611 SE2d 712) (2005) (Because the trial had not yet begun when the trial court replaced absent jurors with alternates, the defendant could not show that he was prejudiced by the trial court’s actions.).

Accordingly, under the circumstances of this case, we find that the trial court’s replacement of Juror No. 35 with an alternate juror did not constitute reversible error.

2. Crowley argues that the trial court erred when it refused to instruct the jury on robbery as a lesser included offense of armed robbery. The evidence presented at trial, viewed in the light most favorable to the jury’s verdict, showed the following facts.

At around noon on May 24, 2007, the victim, an employee of the College Park Golf Course, was mowing the grass when he was approached by two teenaged boys. One of the teenagers, who was later identified as Crowley, pointed a semiautomatic handgun at the victim and yelled at him to “give the s_t up.” Crowley kept yelling while he hit the victim on the side of the head with the handgun and fired one shot into the air. As that was going on, the second teenager, who was later identified as Hartley, took a wallet, cell phone and tool from the victim. After confirming that the victim had nothing else of value to give them, the teenagers ran away. Shortly thereafter, police officers apprehended them and three other teenagers who were with them, and the victim was taken to where they were being detained, at which time he identified Crowley as the teenager who had used the handgun during the robbery.

At trial, the court refused, over Crowley’s objection, to give a jury instruction on robbery as a lesser included offense of armed robbery because the uncontradicted evidence showed that a firearm was used to effectuate the armed robbery. Thus, the court concluded that, absent any evidence that the robbery was accomplished without the use of the firearm, the requested instruction on robbery was not adjusted to the evidence and was inapplicable. We agree.

When some evidence, even if slight, is presented that shows that a defendant committed a lesser included offense, the trial court should charge the jury on that offense. Rainly v. State, 307 Ga. App. 467, 479 (11) (705 SE2d 246) (2010). However, when the State’s evidence establishes all of the elements of an offense, and there is no evidence raising the lesser included offense, the trial court does not err in refusing to give a charge on the lesser offense. Id.; see Clark v. State, 279 Ga. 243, 247 (7) (611 SE2d 38) (2005) (Where the uncontradicted evidence in the record “shows completion only of the greater offenses, it is unnecessary for the trial court to charge on the lesser offenses.”) (citation and punctuation omitted).

In this case, we conclude that, given the evidence presented, the trial court did not err in refusing to give a jury instruction on robbery as a lesser included offense of armed robbery. Clark v. State, 279 Ga. at 247 (7); see Rainly v. State, 307 Ga. App. at 479-480 (11) (The trial court did not err in failing to give a jury charge on robbery as a lesser included offense to armed robbery, because the evidence was uncontradicted that a gun was used to effectuate the robbery and was brandished throughout the incident.).

3. Crowley also contends that his convictions for armed robbery and aggravated assault should have been merged for sentencing. We agree.

The indictment charged Crowley with committing two crimes against a single victim: armed robbery by intentionally stealing the victim’s possessions “by use of a gun, an offensive weapon,” and aggravated assault, under OCGA§ 16-5-21 (a) (2), “by threatening [the victim] with a gun, an obj ect which when used offensively against a person is likely to result in serious bodily injury.”

It is axiomatic that “Georgia law bars conviction for a crime that arises from the same criminal conduct included as a matter of fact or as a matter of law in another crime for which the defendant has been convicted.” (Citation and punctuation omitted.) Duncan v. State, 290 Ga. App. 32, 33 (658 SE2d 780) (2008). To determine if an aggravated assault with a deadly or offensive weapon, indicted under OCGA § 16-5-21 (a) (2), is a lesser included offense of armed robbery, we apply the “required evidence” test set forth in Drinkard v. Walker, 281 Ga. 211 (636 SE2d 530) (2006). Long v. State, 287 Ga. 886, 888 (2) (700 SE2d 399) (2010). Under that test,

the important question is not the number of acts involved, or whether the crimes have overlapping elements, but whether, looking at the evidence required to prove each crime, one of the crimes was established by proof of the same or less than all the facts required to establish the commission of the other crime charged.

(Footnote omitted.) Drinkard v. Walker, 281 Ga. at 216. In Long, the Supreme Court of Georgia concluded that there is no element of aggravated assault with a deadly or offensive weapon, OCGA § 16-5-21 (a) (2), that is not contained in armed robbery, OCGA § 16-8-41 (a). Long v. State, 287 Ga. at 889 (2). Consequently, “convictions for both offenses will merge — but only if the crimes are part of the same ‘act or transaction.’ ” (Citations omitted.) Thomas v. State, 289 Ga. 877, 880 (3) (717 SE2d 187) (2011).

In this case, the evidence showed that the co-defendants’ actions, which occurred either concurrently or in rapid succession, were committed as part of one uninterrupted criminal transaction and in pursuit of a specific, predetermined goal: the armed robbery of a single victim. See Ingram v. State, 279 Ga. 132, 133-134 (2) (610 SE2d 21) (2005) (an aggravated assault conviction merged as a matter of fact into a murder conviction, because it was committed as part of a continuous criminal act, i.e., at the same time and place, inspired by the same criminal intent, and with no deliberate interval between the criminal acts).

Decided May 2, 2012.

Long D. Vo, for appellant.

Paul L. Howard, Jr., District Attorney, Sheila E. Gallow, Assistant District Attorney, for appellee.

We conclude, therefore, that Crowley’s convictions for armed robbery and aggravated assault should have been merged for sentencing. Long v. State, 287 Ga. at 888-889 (2); Ingram v. State, 279 Ga. at 133-134 (2); Taylor v. State, 304 Ga. App. at 398-399 (1); Mack v. State, 283 Ga. App. at 175-176 (3). Accordingly, we vacate Crowley’s sentence on those convictions and remand this case for resentencing pursuant to this opinion.

Judgment affirmed, sentence vacated in part, and case remanded for resentencing.

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

       See OCGA § 15-12-169 (“Alternate jurors shall be drawn from the same source and in the same manner and have the same qualifications as the jurors already sworn. They shall be subject to the same examination and challenges. . . .”).

       See also Brooks v. State, 281 Ga. 14, 18 (3) (635 SE2d 723) (2006) (The trial court dismissed a juror who had arrived to court late and replaced her with an alternate. On appeal, the defendant contended that his trial counsel was ineffective for failing to object. Noting that the trial court had discretion to discharge the juror as long as there was a sound legal basis to do so, and finding that the “juror’s tardiness was a sound basis for her dismissal,” this Court concluded that counsel did not perform deficiently by failing to object.) (footnote omitted); Herring v. State, 224 Ga. App. at 811-812 (1) (The trial court did not abuse its discretion in replacing a juror in the middle of the trial after learning that the juror could not get to the courthouse because of mechanical difficulties with his truck and it was uncertain when, and if, he would arrive.); see generally Peek v. Kemp, 784 F2d 1479, 1484 (I) (1) (11th Cir. 1986) (The Court concluded that, while “it would be prejudicial and constitutionally deficient for a trial judge to excuse a juror during deliberations for want of any factual support, or for a legally irrelevant reason,” if the record shows that the juror was, in fact, too ill to effectively participate in deliberations, then the trial court had a sound basis for excusing the juror and the defendant could not show any prejudice resulting from the trial court’s failure to question the juror personally before allowing the juror to leave.) (citation and punctuation omitted; emphasis supplied).

       See OCGA § 16-8-40 (a) (The statute states, in relevant part, that “[a] person commits the offense of robbery when, with intent to commit theft, he takes property of another from the person or the immediate presence of another... [b]y use of force; [or] [b]y intimidation, by the use of threat or coercion, or by placing such person in fear of immediate serious bodily injury to himself or to another[.]”).

       See OCGA § 16-8-41 (a) (“A person commits the offense of armed robbery when, with intent to commit theft, he or she takes property of another from the person or the immediate presence of another by use of an offensive weapon, or any replica, article, or device having the appearance of such weapon. . . .”).

        Jackson v. Virginia, 443 U. S. 307, 319 (III) (B) (99 SC 2781, 61 LE2d 560) (1979).

       See footnote 4, supra.

       See OCGA § 16-5-21 (a) (2) (“Aperson commits the offense of aggravated assault when he or she assaults... [w]ith a deadly weapon or with any object, device, or instrument which, when used offensively against a person, is likely to or actually does result in serious bodily injury [.]”); see also OCGA § 16-5-20 (a) (“A person commits the offense of simple assault when he or she either: (1) Attempts to commit a violent injury to the person of another; or (2) Commits an act which places another in reasonable apprehension of immediately receiving a violent injury.”).

       In so holding, the Supreme Court held that “the assault requirement of aggravated assault — that the defendant attempt to commit a violent injury to the victim or place the victim in reasonable apprehension of receiving a violent injury - [is] the equivalent of the ‘use of an offensive weapon’ requirement of armed robbery.” (Citation and punctuation omitted.) Long v. State, 287 Ga. at 888-889 (2). Further, the Court held that the “deadly [or offensive] weapon” requirement of aggravated assault under subsection (a) (2) of OCGA§ 16-5-21 is the equivalent of the “offensive weapon” requirement of armed robbery. Id. at 889 (2).

       See also Taylor v. State, 304 Ga. App. 395, 397-399 (1) (696 SE2d 686) (2010) (convictions for aggravated assault by striking the victim in the head with a baseball bat and armed robbery committed with “an offensive weapon, to wit: a baseball bat” merged, because the evidence showed that the defendant reached into the victim’s pockets immediately after hitting him in the head with the bat); Mack v. State, 283 Ga. App. 172, 175-176 (3) (641 SE2d 194) (2007) (two counts of aggravated assault with a handgun, both indicted under OCGA § 16-5-21 (a) (2), merged, because there was no “ensuing interval” between the defendant’s acts of pointing the gun at the victim’s head and then lowering the gun’s aim and shooting the victim; in other words, the acts were committed in “quick succession” as part of a single, continuous criminal act) (citations and punctuation omitted).