text:
    A15A0037.
    COLLIER v. COLFIN AI GA I, LLC.
    (773 SE2d 440)
   Miller, Judge.

Cynthia Nunez Collier, proceeding pro se, appeals the trial court’s order denying her pauper status and refusing to accept her petition for writ of certiorari (OCGA § 5-4-3), in which she sought review of a dispossessory judgment. Collier contends that the trial court erred in denying her motion to proceed in forma pauperis (OCGA § 9-15-2) without first holding a hearing. For the reasons that follow, we reverse and remand.

Although a trial court’s determination on the validity of a pauper’s affidavit is not normally subject to review, the procedure used by the trial court in making an indigence ruling is appealable. See Boyd v. JohnGalt Holdings, LLC, 318 Ga. App. 866, 868 (1) (736 SE2d 459) (2012). “Whether the trial court followed the correct procedure when it denied [Collier’s] indigent status is a question of law for this Court.” (Citations omitted.) Id. at 869 (2).

So viewed, the very limited record in this case shows that Colfin AI GAI, LLC (“Colfin”) filed a dispossessory action against Collier. A magistrate court judge granted a writ of possession to Colfin, and denied Collier’s subsequent motion to set aside the judgment. Collier then filed a petition for writ of certiorari in superior court, accompanied by a sworn affidavit of indigence. Without holding a hearing, the trial court denied Collier’s pauper status and refused to accept her petition for writ of certiorari. This appeal ensued.

Collier contends that the trial court erred in denying her pauper status without a hearing. We agree.

“[W]here a party files an affidavit of indigence pursuant to OCGA § 9-15-2, and either the opposing party files a traverse or the court inquires into the truth of the affidavit on its own, a hearing is required on the matter.” (Citation omitted.) Gruner v. Thacker, 320 Ga. App. 146, 149 (2) (739 SE2d 440) (2013). In this case, Colfin filed no traverse, and the trial court held no hearing before denying Collier’s indigent status.

Here, without a traverse or a hearing, [Collier’s affidavit stands] unrebutted in the record, and [she] should have been relieved from paying costs without any adverse impact on [her] rights to pursue a legal remedy. Although the trial court [may have] attempted to inquire into the validity of the affidavit, it failed to hold the required hearing. All of the subsequent events were the result of this error.

Boyd, supra, 318 Ga. App. at 872 (2). Accordingly, the trial court’s order denying Collier’s pauper status is reversed, and the case is remanded to the trial court to hold an evidentiary hearing on the question of Collier’s indigence before further proceedings on the merits. See Gruner, supra, 320 Ga. App. at 149-150 (2); Boyd, supra, 318 Ga. App. at 872 (2).

Decided June 12, 2015.

Cynthia N. Collier, pro se.

Judgment reversed and case remanded.

Andrews, P. J., and Branch, J., concur.

       The trial court’s order is inconsistent in that it finds Collier indigent, but denies her motion to proceed in forma pauperis.


source: Caselaw Access Project

author: Branch, Judge.

license: Public Domain

text:
    A15A0324.
    DAVIS v. THE STATE.
    (773 SE2d 442)
   Branch, Judge.

Following a bench trial in Clarke County State Court, Cameron Davis was convicted of DUI less safe, DUI per se, and reckless driving. Davis now appeals, arguing that the trial court erred in denying his motion to suppress the results of his state-administered blood alcohol test. Specifically, Davis contends that because his alleged consent to that test resulted solely from Georgia’s implied consent notice, it was not freely and voluntarily given and the test therefore violated the Fourth Amendment and the related provision of the Georgia Constitution. For reasons explained below, we vacate both the trial court’s order denying Davis’s motion to suppress and the judgment of conviction and remand the case for further proceedings consistent with the Supreme Court of Georgia’s opinion in Williams v. State, 296 Ga. 817 (771 SE2d 373) (2015).

The record shows that at the bench trial, the parties stipulated to the relevant facts. The stipulated facts show that at approximately 12:30 p.m. on October 7, 2012, an Athens police officer conducted a legal traffic stop of a car driven by Davis. The officer initiating the stop noticed that Davis had bloodshot eyes and slurred speech and smelled strongly of alcohol. The officer asked Davis to take an alcohol breath test, but Davis refused, saying that he would prefer a blood alcohol test. The officer then explained that Davis was not under arrest, asked Davis to participate in field sobriety tests, and explained to Davis what those tests would entail. Davis responded that he would “rather not” undergo the field sobriety tests. The officer then arrested Davis and read him the implied consent notice and again asked him to submit to a breath test. Davis reiterated that he would prefer a blood test. The officer read the implied consent notice to Davis a second time and asked Davis to undergo a blood test; Davis then agreed to the request.

The traffic stop had occurred in the parking lot of Athens Regional Medical Center, so the officer took Davis into the hospital where his blood was drawn. Chemical tests of the blood performed by the Georgia Bureau of Investigation showed that Davis had a blood alcohol level above the legal limit. Davis was subsequently charged with DUI less safe, DUI per se, and reckless driving. Prior to trial, Davis filed a motion to suppress the results of the blood test, arguing that because his consent resulted solely from his being read the implied consent notice, it was not the voluntary consent required by the Fourth Amendment. Following a hearing on the motion to suppress, the trial court denied the same. The case proceeded to trial. After hearing the stipulated facts, the trial court found Davis guilty of all charges. Davis then filed this appeal.

Approximately six months after this appeal was docketed, the Supreme Court of Georgia issued its opinion in Williams. As in this case, the DUI defendant in Williams moved to suppress the results of his state-administered blood test, asserting that his alleged consent to that test had resulted solely from the implied consent notice. Thus, Williams contended that his consent was not given freely and voluntarily and that the test therefore violated the Fourth Amendment’s prohibition on warrantless searches. The trial court denied Williams’s motion, and Williams was thereafter convicted of DUI following a bench trial. Relying on the United States Supreme Court’s opinion in Missouri v. McNeely, 569 U. S._(133 SCt 1552, 185 LE2d 696) (2013), the Supreme Court of Georgia vacated both the order denying Williams’s motion to suppress and the judgment of conviction and remanded the case for the trial court to address “whether Williams gave actual consent to the procuring and testing of his blood, which would require the determination of the voluntariness of the consent under the totality of the circumstances.” Williams, 296 Ga. at 823 (emphasis in original).

Decided June 12, 2015.

Head, Thomas, Webb & Willis, J. Lee Webb, Jr., for appellant.

In reaching the conclusion that remand was necessary, our Supreme Court relied on the well-established law that “[a] suspect’s right under the Fourth Amendment to be free of unreasonable searches and seizures applies to the compelled withdrawal of blood, and the extraction of blood is a search within the meaning of the Georgia Constitution.” Williams, 296 Ga. at 819 (citation omitted; emphasis in original). The court then noted that in McNeely, the United States Supreme Court had “rejected a per se rule that the natural metabolization of alcohol in a person’s bloodstream constitutes an exigency justifying an exception to the Fourth Amendment’s search warrant requirement for nonconsensual blood testing in all DUI cases.” Id. at 821. See also McNeely, 569 U. S. at_(II) (B) (133 SCt at 1563) (“while the natural dissipation of alcohol in the blood may support a finding of exigency in a specific case,... it does not do so categorically. Whether a warrantless blood test of a drunk-driving suspect is reasonable must be determined case by case based on the totality of the circumstances.”). Consequently, where a DUI suspect challenges the validity of his consent to chemical blood tests, the State must prove that the suspect gave actual consent — i.e., that the totality of the circumstances show that the suspect acted freely and voluntarily in giving that consent. Williams, 296 Ga. at 821 (“'[w]hen relying on the consent exception to the warrant requirement, the State has the burden of proving that the accused acted freely and voluntarily under the totality of the circumstances’ ”), quoting Cooper v. State, 277 Ga. 282, 291 (VI) (587 SE2d 605) (2003).

In light of Williams, we vacate both the order denying Davis’s motion to suppress and the judgment of conviction. We remand the case for the trial court to consider whether the totality of the circumstances in this case show that Davis’s consent to the blood alcohol test was given freely and voluntarily. See Williams, 296 Ga. at 823.

Judgment vacated and case remanded.

Andrews, P. J., and Miller, J., concur.

Carroll R. Chisholm, Jr., Solicitor-General, Keenan R. Howard, Assistant Solicitor-General, for appellee.

       Ga. Const, of 1983, Art. I, Seo. I, Par. XIII contains language identical to that found in the Fourth Amendment to the United States Constitution with respect to the prohibition against unreasonable searches and seizures. Specifically, Paragraph XIII guarantees “[t]he right of the people to be secure in their persons, houses, papers, and effects against unreasonable searches and seizures.” The Supreme Court of Georgia has held that with respect to this guarantee, Paragraph XIII is applied in accord with the Fourth Amendment. See Brown v. State, 293 Ga. 787, 791 (2) (a), n. 6 (750 SE2d 148) (2013).

       The officer conducted the stop after he observed the car traveling approximately 20 miles per hour over the posted speed limit.

       The applicable implied consent notice for suspects age 21 or over is set forth in OCGA § 40-5-67.1 (b) (2) and states:
      “Georgia law requires you to submit to state administered chemical tests of your blood, breath, urine, or other bodily substances for the purpose of determining if you are under the influence of alcohol or drugs. If you refuse this testing, your Georgia driver’s license or privilege to drive on the highways of this state will be suspended for a minimum period of one year. Your refusal to submit to the required testing may be offered into evidence against you at trial. If you submit to testing and the results indicate an alcohol concentration of 0.08 grams or more, your Georgia driver’s license or privilege to drive on the highways of this state may be suspended for a minimum period of one year. After first submitting to the required state tests, you are entitled to additional chemical tests of your blood, breath, urine, or other bodily substances at your own expense and from qualified personnel of your own choosing. Will you submit to the state administered chemical tests of your (designate which tests) under the implied consent law?”


author: Miller, Judge.

text:
    A15A0580.
    SMITH et al. v. DILL’S BUILDERS, INC.
    (773 SE2d 444)
   Miller, Judge.

Dill’s Builders, Inc. (“DBI”) filed suit against Sharon T. Smith and Meiko A. Camp (collectively, “the Defendants”) to collect the balance due on a contract to build a new home. The trial court granted summary judgment to DBI, finding that Smith’s affidavit in response to DBI’s motion was insufficient to establish genuine issues of material fact. The Defendants appeal, contending that (1) summary judgment was premature as to Camp because the trial court failed to resolve pending jurisdictional issues, and (2) summary judgment was not warranted because genuine issues of material fact remain as to whether DBI adequately performed under the contract. For the reasons that follow, we reverse and remand.

On appeal from a grant of summary judgment, we conduct a de novo review of the evidence to determine if there exists a genuine issue of material fact and whether the undisputed facts, viewed in the light most favorable to the nonmoving party, entitle the movant to judgment as a matter of law.

(Citation omitted.) Capital Color Printing v. Ahern, 291 Ga. App. 101, 102 (661 SE2d 578) (2008).

Viewed in the Defendants’ favor, the evidence shows that on January 21,2006, Smith and her daughter, Camp, executed a written contract with DBI for the construction of a new house. In executing the contract, Smith and Camp approved the drawings and specifications prepared by DBI. The contract price was $167,795, and the contract provided that the house would be completed within six months of the start date. On the same date that the contract was executed, Smith signed a blank change order, which Smith alleged was later completed by DBI.

During construction, Smith complained to DBI about discrepancies between the plans and the usable square footage of the house, as well as the workmanship of the construction. Following completion of the house in October 2006, Smith and DBI conducted a walk-through, and Smith noted several issues that needed to be fixed. DBI promised to have the problems repaired, but failed to do so. After Smith refused to pay the balance on the contract, DBI sent Smith a demand letter requesting payment of $25,049 plus penalties and fees. DBI then filed a lien against the property and, later, this suit.

In their answer, the Defendants generally denied DBFs allegations and raised counterclaims for breach of contract, fraud, and slander of title, based on allegations that DBI did not meet contractual obligations in constructing the house, misrepresented the usable square footage of the house, and filed an invalid lien. In their answer, the Defendants also moved to dismiss the complaint against Camp based on insufficiency of process, alleging that Camp was not personally served with the summons, the summons against Camp was served on Smith, and Camp was not living with Smith at the time.

DBI subsequently moved for summary judgment. In support of its motion, DBI submitted affidavits stating that Smith approved change orders and allowed overages which increased the contract price of the house to $173,044, and that the Defendants failed to pay the final statement. DBI presented evidence showing that Smith approved DBFs construction drawings, the drawings made no representations about the usable space, and Smith understood that she should have the drawings reviewed by a professional architect or engineer before construction started.

In response, Smith submitted her own affidavit averring, inter alia, that DBI reduced the usable square footage of the house, she did not approve changes that increased the cost of the house, and DBI failed to fix issues with the house as contractually required. The trial court granted summary judgment to DBI, concluding that Smith’s affidavit was insufficient to support the Defendants’ general denials, affirmative defenses, and counterclaims.

1. The Defendants contend that the trial court prematurely granted summary judgment to DBI against Camp because it needed to first rule on the service and jurisdictional defenses raised in their answer. We agree.

When the record reflects that a judgment was rendered by a [trial] court which has failed to address a properly preserved jurisdictional issue, this Court... will reverse the judgment and remand the case for consideration of the pending jurisdictional issue.

(Citation omitted.) Rome v. Polyidus Partners LP, 322 Ga. App. 175, 176 (1) (744 SE2d 363) (2013).

Here, Camp raised the defenses of insufficient service of process and lack of personal jurisdiction in her answer and reasserted these defenses in her response to DBFs motion for summary judgment. Consequently, Camp preserved these issues for adjudication. See Shropshire v. Alostar Bank of Commerce, 314 Ga. App. 310, 315-316 (4) (724 SE2d 33) (2012). Compare Rome, supra, 322 Ga. App. at 176-177 (1) (lack of personal jurisdiction not preserved where defendant raised the issue in his answer but failed to reassert or reserve the defense in moving for summary judgment).

The trial court did not rule on Camp’s service and personal jurisdiction defenses, either in its order granting summary judgment to DBI or otherwise. Therefore, the trial court’s grant of summary judgment on the merits of DBFs claims against Camp was premature. See Shropshire, supra, 314 Ga. App. at 316 (4); Baiye v. Gober, 254 Ga. App. 288, 290 (2) (562 SE2d 249) (2002) (it was premature for the trial court to rule on the merits of the case without addressing the defendants’ service and jurisdictional defenses). Accordingly, we reverse the grant of summary judgment against Camp and remand for the trial court to consider her service and jurisdictional defenses. See Shropshire, supra, 314 Ga. App. at 316 (4).

2. The Defendants also contend that the trial court erred in granting summary judgment to DBI against Smith because Smith’s affidavit created genuine issues of material fact as to whether DBI adequately performed under the contract, and whether as a result, DBI was entitled to full payment under the contract. We agree.

“A party opposing a motion for summary judgment, where the moving party has presented evidence of the necessary certitude, must, in [her] opposing affidavits, set forth specific facts showing a genuine issue to be decided.” (Citations and punctuation omitted.) Bogart v. Wisconsin Institute for Torah Study, 321 Ga. App. 492, 495 (3) (739 SE2d 465) (2013). In order to he considered by the trial court, affidavits

opposing summary judgment must be made on personal knowledge and must set forth such facts as would be admissible in the evidence. All hearsay evidence, unsupported conclusions, and the like, must be stricken or eliminated from consideration in a motion for summary judgment. A self-serving, conclusory affidavit not supported by fact or circumstances is insufficient to raise a genuine issue of material fact.

(Footnote omitted.) Liles v. Innerwork, Inc., 279 Ga. App. 352, 353 (1) (631 SE2d 408) (2006).

Here, Smith averred that DBI agreed and was contractually obligated to fix the issues noted during the walk-through, and DBI failed to do so. In addition to her own statements, Smith cited the building contract at issue, which provides that, at the walkthrough,

Decided June 12, 2015.

The Dove Law Firm, Andrew M. Dove, for appellants.

Mixon & Mixon, Warren L. Mixon, for appellee.

[a]ll mutually agreed items shall be listed. The dollar value to be withheld by the Owner for each item shall be mutually agreed upon by the Owner and DBI. These amounts shall be [withheld] from the final payment, then shall be paid to DBI as soon as each individual item has been completed. The final payment, less the withheld amounts, shall be paid immediately and before items are completed.

Moreover, Smith averred that she did not approve the change orders completed by DBI. Whether Smith approved the change orders, and whether any amounts should be withheld from the final payment due to unresolved building issues, are issues that would affect the amount due to DBI.

Since Smith was a party to the building contract and was present during the walk-through, her affidavit is based on personal knowledge. See Ellison v. Hill, 288 Ga. App. 415, 417 (1) (654 SE2d 158) (2007) (“The personal knowledge requirement set forth in OCGA § 9-11-56 (e) is met where the contents of the pleading indicate that material parts of it are statements within the personal knowledge of the affiant, as opposed to being made upon information and belief.”) (footnote omitted). Therefore, contrary to the trial court’s ruling, Smith’s affidavit was sufficient to establish the existence of genuine issues of material fact as to the final payment due to DBI. Consequently, we reverse the grant of summary judgment to DBI on its claims against Smith. Since the trial court also concluded that Smith’s counterclaims failed because her affidavit was insufficient, the trial court also erred in granting summary judgment to DBI on Smith’s counterclaims. Accordingly, we reverse.

Judgment reversed and case remanded.

Andrews, P. J., and Branch, J., concur.


author: MCMILLIAN, Judge.

text:
    A15A0020.
    WHITE v. THE STATE.
    (773 SE2d 448)
   MCMILLIAN, Judge.

In March 1997, Michael Jerome White was convicted by a jury of armed robbery, kidnapping with bodily injury, and burglary. The trial court subsequently granted White’s June 16, 2014 pro se motion for out-of-time appeal, and this appeal followed. White asserts on appeal that the trial court erred in overruling his counsel’s objections to the court’s questioning of the victim and that the evidence was insufficient to support his convictions. We affirm for the reasons set forth below.

Viewed in the light most favorable to the verdict, the evidence showed that on August 16, 1996, at around 9:00 p.m., 63-year-old Jack Morris left his place of business in his truck and drove home after a quick stop at a store. When Morris arrived home, he went inside and placed his briefcase on the living room sofa and turned on lights inside and outside of the house. When Morris went hack outside to retrieve his mail, White confronted him, put a gun to his head, and ordered him to open his truck door. After searching the truck, White forced Morris back inside his house. White grabbed the briefcase off the sofa in the living room and took Morris and his briefcase to the dining room. White opened the briefcase, scattered the papers inside, and kept asking where the money was. At that point, White took Morris’s ring, watch, and a small caliber handgun from the briefcase and put them in his pocket. He also demanded Morris’s wallet and took $40 to $45 and credit cards from inside. White then forced Morris into the kitchen and from there, into the den where he demanded that Morris unlock his gun cabinet. He directed Morris to take the rifles and shotguns out of the cabinet and lay them on the floor, and he told Morris to remove the ammunition and put it in a plastic bag, which Morris did.

Next, White forced Morris into the back bedroom of the house and then into the front bedroom. White ordered Morris to lie down on the bed and then snatched the telephone cord from the wall. White put a pillow over Morris’s head, put the gun next to the pillow, and fired. White left the room, and Morris, who had survived the gunshot, retrieved another gun that he kept under his mattress and followed White out of the bedroom. Morris found White at his front door with a stack of guns in front of him. When White turned to face him, Morris fired his gun. White crawled toward the dining room then got up and ran into the kitchen. Morris then fired a second shot. He heard White drop the bag of ammunition and heard the back door slam. Morris went to the back door and locked it, and after locking the front door, he called police. The gunshot had entered Morris’s left chest, injuring his chest and lung and fracturing multiple ribs. Morris underwent surgery to treat his injuries and to remove the bullet. He remained in intensive care for ten days.

After their arrests, White and his co-defendant, Alvin Jones, told police that they had spotted Morris leaving the mall and followed him to the store and then home in order to rob him. White admitted that he had confronted Morris with a gun outside his house, forced him back inside, walked him around the house, and then forced him to remove the guns from the cabinet. White also admitted to hitting Morris in the head with the gun and to shooting him but said that occurred because they were struggling. Afterward, White and Jones drove to Darien, Georgia, where White hid some guns and threw the shirt he was wearing out the car window. Police later recovered the shirt, and the blood on it was identified as belonging to Morris. White took police to the location where he hid the guns, and one of the guns recovered was identified as the gun used to shoot Morris, and another gun was identified as belonging to Morris. The evidence at trial also showed that White had pawned Morris’s ring at a pawn shop the day after the incident.

White testified at trial and admitted, inter alia, that he was at Morris’s house on the day of the incident with a gun; that he intended to steal something when he went into the house; that he ordered Morris to open the gun cabinet, take the guns out and put the ammunition in the bag; that he took Morris’s ring and pawned it; that he shot Morris; that afterward he went to Darien to hide the guns; and that his shirt was thrown out the window on the way.

1. White asserts that the trial court erred in overruling his counsel’s objection to the court’s own questions posed to Morris at the end of his testimony. The trial judge asked Morris whether he gave White or his accomplice authority to come to his house and enter his house, to which Morris replied in the negative. And the trial court asked whether White or the accomplice exhibited any lawful authority to hold him, to which Morris replied, “No, sir.”

White’s attorney objected to this questioning arguing the State “had failed to elicit material evidence to indicate the elements of the offense.” He stated that he had been planning to raise a motion for directed verdict on this basis. He objected to the court’s asking questions to provide elements that the State had failed to prove in its direct or redirect of Morris.

It is well settled that “[a] trial judge may propound questions to a witness to develop the truth of the case or to clarify testimony, and the extent of such an examination is a matter for the trial court’s discretion.” (Citation omitted.) Finley v. State, 286 Ga. 47, 51 (9) (685 SE2d 258) (2009). See also Dickens v. State, 280 Ga. 320, 323-324 (3) (627 SE2d 587) (2006). And because the transcript demonstrates no improper expression or intimation of opinion by the trial court in violation of OCGA § 17-8-57, we find no error.

2. White also asserts that the evidence was insufficient to support his convictions for armed robbery, burglary and kidnapping. On appeal, this Court “does not weigh evidence or resolve conflicts in trial testimony.” (Citation and punctuation omitted.) Hargrave v. State, 311 Ga. App. 852, 855 (2) (717 SE2d 485) (2011). Rather, this Court “can only review the evidence to determine if there is any evidence to support the verdict.” Drake v. State, 241 Ga. 583, 585 (1) (247 SE2d 57) (1978).

Thus, to the extent that White asserts that his convictions are against the weight of the evidence, we note that “such an argument may only be made to a trial court in a motion for new trial, not to an appellate court on appeal. We do not have the discretion to grant a new trial on these grounds.” (Citations and punctuation omitted.) Hughes v. State, 297 Ga. App. 581, 582 (1) (677 SE2d 674) (2009). See also Drake, 241 Ga. at 585 (1).

(a) Under 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[.]” We find the record contains ample evidence to support White’s conviction for armed robbery. The evidence showed that White and Jones followed Morris home for the express purpose of robbing Morris and that White pointed his gun at Morris’s head and took his ring, his watch, money, credit cards and guns.

(b) At the pertinent time, the burglary statute provided 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. . . OCGA § 16-7-1 (b) (Ga. L. 1980, p. 770, § 1). See also State v. Newton, 294 Ga. 767, 770-771 (755 SE2d 786) (2014). Morris testified that White forced him inside at gunpoint, thus raising an inference that White’s entry into the house was without Morris’s authority, and as noted above, Morris further testified that he had not given White the authority to enter his house. Additionally, White admitted at trial that he entered the house with the intent to steal from Morris. This and other evidence at trial was sufficient to support White’s burglary conviction.

(c) White also asserts that the evidence was insufficient to support his conviction for kidnapping with bodily injury. We disagree.

OCGA § 16-5-40 (a) provides that a person commits the offense of kidnapping when he “abducts or steals away another person without lawful authority or warrant and holds such other person against his or her will.” Additionally, “[k]idnapping with bodily injury... requires that an injury, no matter how slight, occur during the kidnapping.” (Citation and punctuation omitted.) Mayberry v. State, 301 Ga. App. 503, 512 (6) (687 SE2d 893) (2009). See also Phillips v. State, 284 Ga. App. 683, 685 (1) (b) (644 SE2d 535) (2007); Nelson v. State, 278 Ga. App. 548, 551 (3) (629 SE2d 410) (2006).

In considering this argument, we must examine the evidence at trial “in light of the statutory definition of kidnapping that was in force at the time of [White’s] crimes rather than the broader definition of kidnapping established by the [2009] amendment to the kidnapping statute by the General Assembly.” Tate v. State, 287 Ga. 364, 365-366 (1) (a) (695 SE2d 591) (2010). See also OCGA § 16-5-40; Ga. L. 2009, p. 331, § 1; Dixon v. State, 300 Ga. App. 183, 184, n. 3 (684 SE2d 679) (2009) (2009 amendment to the kidnapping statute applies only to crimes committed on or after the revision’s effective date of July 1, 2009).

Accordingly, we must apply the test set out in Garza v. State, 284 Ga. 696, 702 (1) (670 SE2d 73) (2008), for analyzing the asportation, or movement, element of kidnapping. See Wilkerson v. Hart, 294 Ga. 605, 607-608 (2) (755 SE2d 192) (2014); Hammond v. State, 289 Ga. 142, 144 (1) (710 SE2d 124) (2011) (Garza standard applies retroactively to pre-2009 kidnapping charge).

Garza sets out four factors that should be considered in determining whether the asportation element of kidnapping is met: (1) the duration of the movement; (2) whether the movement occurred during the commission of a separate offense; (3) whether such movement was an inherent part of that separate offense; and (4) whether the movement itself presented a significant danger to the victim independent of the danger posed by the separate offense.

Decided June 15, 2015.

Nic L. Roberts, for appellant.

Jacquelyn L. Johnson, District Attorney, Andrew J. Ekonomou, Assistant District Attorney, for appellee.

Hammond, 289 Ga. at 144 (2).

Here, we have no evidence of the duration of the movement, but we find that the last instance of asportation, from the back bedroom to the front bedroom, occurred during the commission of a separate offense and not as an inherent part of another charged offense. When White forced Morris into the second bedroom, the offenses of robbery and burglary were complete. White had already entered Morris’s house with the intent to steal from him and had already forcibly taken his property from him. No evidence exists that White took anything from either of the bedrooms. Instead, he took Morris into the bedroom, forced him to lie down on the bed, pulled the telephone cord out of the wall, put a pillow over Morris’s face, and shot him. Based on this evidence, we conclude that movement itself presented a significant danger to the victim independent of the danger posed by the robbery and burglary. The jury could have inferred that White took Morris into the bedroom and cut off his source of communication with others in order to isolate him and to make it easier to inflict bodily injury. See Upton v. Hardeman, 291 Ga. 720, 722 (732 SE2d 425) (2012); Hammond, 289 Ga. at 145 (2). Compare Sellers v. State, 325 Ga. App. 837, 844 (2) (755 SE2d 232) (2014) (Garza factor not met where act of moving victim to bedroom for the purpose of binding and raping her was an inherent part of the separate offense of rape).

Accordingly, we affirm White’s convictions.

Judgment affirmed.

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

        Jackson v. Virginia, 443 U.S. 307 (99 SCt 2781, 61 LE2d 560) (1979).

       Although White asserts on appeal that this exchange occurred at the close of the State’s case, this exchange actually occurred at the end of Morris’s testimony. Morris was the first of sixteen witnesses presented by the State at White’s two-day trial.

       Although White’s trial counsel did not identify the offense to which he was referring, White identifies the offenses on appeal as burglary and kidnapping.


author: ANDREWS, Presiding Judge.

text:
    A15A0057.
    WATFORD v. THE STATE.
    (773 SE2d 452)
   ANDREWS, Presiding Judge.

Following a jury trial, Andre Craig Watford was convicted of two counts of making a false statement, two counts of forgery in the first degree, giving false information to a law enforcement officer, driving with a suspended license, speeding, andbail jumping. Watford appeals following the denial of his motion for new trial, arguing that the evidence was insufficient to support his convictions and evidence of other crimes or wrongs was improperly admitted at trial. For the reasons that follow, we affirm.

Viewed in the light most favorable to the verdict, Browder v. State, 294 Ga. 188, 191 (1) (751 SE2d 354) (2013), the evidence at trial showed that at approximately 2:00 a.m. on January 16, 2012, an officer with the Cobb County Police Department conducted a traffic stop of a silver 2005 Acura TSX on Interstate 20 after determining with a laser device that the vehicle was traveling 80 miles-per-hour in a 60 mile-per-hour zone. The officer identified Watford at trial as the driver of the vehicle. The driver, who was accompanied by a female passenger, did not have a driver’s license with him, and he identified himself as Jamal Hayes and gave a date of birth of December 4, 1987. The driver stated that he had a driver’s license from Washington D. C. The officer, however, was unable to find a Jamal Hayes with a Washington D. C. driver’s license with the field reporting system in his vehicle, but he found a Jamaal Hayes with a Washington D. C. driver’s license and a December 4, 1987 date of birth. The officer wrote the driver a citation for speeding and a separate citation for not having a license on his person. The driver signed both citations as Jamal Hayes. Although the officer was suspicious, he permitted the driver to leave after he wrote the citations.

On February 22, 2012, the officer received a call from Monica Hayes, who lived in Washington D. C. and stated that her son Jamaal Hayes (“Hayes”) had received paperwork in the mail concerning a traffic citation in Georgia. The officer talked to Hayes on the same day and told Hayes that if he was not the driver of the Acura on the evening in question, he should tell the officer who in Atlanta would be using his name and information. Hayes provided Watford’s name. The officer conducted a search of a database that provides information on other police reports from jurisdictions in the Atlanta area and found an incident report involving Andre Watford, which listed a date of birth. The officer located a driver’s license photograph of Watford and also found a Facebook page for an Andre Watford who lived in the Atlanta area. The officer testified that he had no doubt that the person in the driver’s license photograph and featured in pictures on Facebook was the driver from the January 16, 2012 traffic stop. The officer recognized distinctive blemishes or marks on Watford’s forehead. After finding the photographs of Watford and contacting Watford by telephone, the officer secured a warrant for Watford’s arrest. After viewing a photograph of Hayes at trial, the officer stated that Hayes was not the driver involved in the stop.

Hayes testified at trial that he met Watford in Washington D. C., he lived in Atlanta from 2006 to 2009, and he and Watford were roommates in Atlanta. He testified that he was not in Atlanta on January 16, 2012 and was not stopped for speeding on Interstate 20. Hayes looked at the signatures on the two citations the officer wrote that night and stated that they were not his. Hayes explained that he gave the officer Watford’s name because they were roommates previously and Watford had used his information before. He said that when he was visiting Atlanta in 2011 and riding in a car Watford was driving in the early morning, Watford was pulled over by police and told the officer he was Hayes. Hayes told Watford not to use his information again.

Carlisha Martin testified that she and her ex-husband owned the Acura involved in the traffic stop at issue. She testified that she had known Watford for five years and he was a good friend. Martin stated that Watford used to borrow her car but had recently started driving a red Mercedes he received from his mother, who lived in Maryland. She testified that she was not in the car when it was stopped on January 16, 2012, and that her ex-husband was not driving the car in January 2012. Martin could not recall if Watford was driving the car on the date of the stop but also added “[i]t wouldn’t be anybody but either him or myself.”

A former assistant district attorney who had previously handled the charges against Watford testified that an accusation against Watford was filed and that jury selection for a jury trial took place on February 25, 2013. At the end of the day, the trial judge instructed Watford and counsel to return the next day at 1:30, but Watford, who was out on bond, did not appear. A bench warrant was issued, and a mistrial was declared. A copy of an April 20, 2010 notice of the pending suspension of Watford’s driver’s license and his subsequent November 2010 conviction in Atlanta Municipal Court of driving while his license was suspended were admitted into evidence at trial.

On the first day of trial prior to voir dire, the trial court ruled that the State would be permitted to call an officer with the Atlanta Police Department to present testimony concerning other alleged crimes or wrongs by Watford pursuant to OCGA § 24-4-404 (b). The Atlanta officer testified that on May 23,2013, at 1:00 a.m. he pulled over a red Mercedes after it rolled through a stop sign. The Atlanta officer identified Watford at trial as the man he pulled over that night, and a photograph of Watford as he appeared that night was admitted into evidence. Watford told the Atlanta officer that his name was Stephen McKenzie and that he had a Maryland driver’s license but it was not on him that night. The Atlanta officer could not find a Maryland driver’s license with the name and date of birth the driver gave him. The Atlanta officer asked Watford for his phone number, and Watford gave him a number that was the same as his phone number except for one digit. The Atlanta officer learned that the Mercedes was registered in Maryland to Andrew Craig Watford and Lenora McKenzie Watford. Watford was arrested and taken to the city jail.

1. Watford challenges the sufficiency of the evidence underlying his convictions.

On appeal of a criminal conviction, this Court’s duty is to determine 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. The appellant no longer enjoys the presumption of innocence. Moreover, the Court does not re-weigh the evidence or resolve conflicts in testimony, but rather defers to the jury’s assessment of the weight and credibility of the evidence.

(Citations and punctuation omitted.) Walker v. State, 282 Ga. 406, 406 (651 SE2d 12) (2007).

Watford first maintains that the State failed to present evidence to support his convictions for the charges other than bail jumping because the State did not establish that he was the driver of the silver Acura the Cobb County officer stopped on January 16, 2012. Watford erroneously argues that there was no “positive proof” he was the driver because the State did not provide photographs or video from the night in question, fingerprint evidence or handwriting analysis. In fact, the State presented direct evidence that Watford was the driver because the Cobb County officer testified that when he saw photographs of Watford, he immediately recognized him as the driver and identified Watford at trial as the driver he stopped. “Identity is a question for the trier of fact; where a witness identifies a defendant, the credibility of the witness making that identification is not to be decided by this Court.” (Punctuation and footnote omitted.) Gorman v. State, 318 Ga.App. 535, 537 (1) (a) (734 SE2d 263) (2012). The Cobb County officer’s testimony, alone, was sufficient to allow the jury to conclude that Watford was the driver he pulled over on January 16, 2012. See Morris v. State, 330 Ga. App. 750, 751 (1) (769 SE2d 163) (2015) (officer’s identification of defendant as driver he arrested for DUI less safe was sufficient for jury to conclude defendant was driver). The State presented additional, circumstantial evidence corroborating Watford’s identity. Hayes offered testimony sufficient to explain how Watford would know his date of birth and testified that he was not in Atlanta on January 16, 2012. Hayes testified that Watford had previously identified himself as Hayes when Watford was pulled over by police. In addition, Martin, who owned the silver Acura, testified that Watford sometimes borrowed the vehicle and that she did not know of anyone else besides Watford who would have been driving it when it was stopped on January 16, 2012. As discussed in Division 2, the Atlanta officer’s testimony about a January 2013 traffic stop in which Watford provided a false name and date of birth was also relevant evidence as to Watford’s identity.

With respect to the bail jumping conviction, Watford argues that the State failed to prove that he had notice that he was required to report to court for trial on February 26,2013 at 1:30 p.m. We disagree. The former assistant district attorney who handled the charges testified that Watford was present on February 25, 2013 when the trial court provided instructions to return the following day at 1:30 p.m.

2. Watford argues that the trial court erred in ruling that the State could call the Atlanta officer to testify concerning Watford’s other alleged crimes or wrongs.

Because Watford’s trial was held after January 1,2013, Georgia’s new Evidence Code governs this issue. Bradshaw v. State, 296 Ga. 650, 655 (3) (769 SE2d 892) (2015). Our Supreme Court has stated:

Our new Evidence Code was based in large part on the Federal Rules of Evidence. And where the new Georgia rules mirror their federal counterparts, it is clear that the General Assembly intended for Georgia courts to look to the federal rules and how federal appellate courts have interpreted those rules for guidance.

Parker v. State, 296 Ga. 586, 592 (3) (a) (769 SE2d 329) (2015). Where, however, “conflicts were found to exist among the decisions of the various circuit courts of appeal interpreting the federal rules of evidence, the General Assembly considered the decisions of the 11th Circuit Court of Appeals.” Ga. L. 2011, p. 99, § 1.

The admissibility of evidence of other crimes or wrongs is governedbyOCGA § 24-4-404 (b), which tracks Federal Rule of Evidence 404 (b) and provides: We apply the Eleventh Circuit’s three-part test to determine the admissibility of other crimes and wrongs under OCGA § 24-4-404 (b) as follows:

Evidence of other crimes, wrongs, or acts shall not be admissible to prove the character of a person in order to show action in conformity therewith. It may, however, be admissible for other purposes, including, but not limited to, proof of motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or accident. . . .
(1) the evidence must be relevant to an issue other than defendant’s character; (2) the probative value must not be substantially outweighed by its undue prejudice; (3) the government must offer sufficient proof so that the jury could find that defendant committed the act.

Bradshaw, supra, 296 Ga. at 656 (3), citing United States v. Ellisor, 522 F3d 1255, 1267 (11th Cir. 2008). Watford did not dispute at trial and does not dispute now that he was the driver in the May 23, 2013 stop, so the third prong is not at issue. We review the trial court’s decision to admit evidence under OCGA § 24-4-404 (b) for a clear abuse of discretion. Id.

The trial court determined that the Atlanta officer’s testimony was relevant to the issue of identity. When evidence of other crimes or wrongs

is introduced to prove identity, the likeness of the offenses is the crucial consideration. The physical similarity must be such that it marks the offenses as the handiwork of the accused. In other words, the evidence must demonstrate a modus operandi. The extrinsic act must be a signature crime, and the defendant must have used a modus operandi that is uniquely his.

(Citations and punctuation omitted.) United States v. Whatley, 719 F3d 1206, 1217 (11th Cir. 2013); see also Harper v. State, 330 Ga. App. 561, 566 (2) (b) (768 SE2d 755) (2015). While there are some differences between the January 2012 and May 2013 stops, they are similar in that both stops occurred in the Atlanta area but the driver, who did not have a license, claimed to have a license from the jurisdictions of Washington D. C. or Maryland. Watford has connections with the Washington D. C./Maryland area, as shown by testimony that Watford and Hayes met in Washington D. C. and that Watford’s mother lived in Maryland. In both instances, the driver provided information that was partially accurate. In the January 2012 stop, the driver misspelled Hayes’ first name by one letter. In the second stop, Watford provided a phone number that was accurate except for one digit. With respect to the January 2012 stop, the State sought to prove that Watford used the name of a close friend; in the second stop, Watford provided a name apparently connected with his family. The registration information the Atlanta officer obtained for the red Mercedes showed that the vehicle was registered to two Maryland owners, one of whom was Lenora McKenzie Watford. Based on Martin’s testimony that Watford’s mother lived in Maryland and that his mother gave him a red Mercedes, the jury could infer that the Lenora McKenzie Watford is Watford’s mother and that Watford drew on a family name when he identified himself as Stephen McKenzie. Based on the foregoing, we conclude that the trial court was authorized to conclude that other crimes/wrongs evidence was relevant to the issue of Watford’s identity. See United States v. Vigne, 571 Fed. Appx. 932, 934 (11th Cir. 2014) (in case in which defendant was accused of using fake New York driver’s license to redeem money order and had stolen Bank of America debit card at time of arrest, trial court did not abuse discretion in admitting evidence that defendant previously was convicted of possession of forged instrument after attempting to purchase laptop using stolen Bank of America debit card and fake New York driver’s license).

The determination of whether the probative value of evidence of other wrongs or crimes outweighs its prejudicial effect “lies within the discretion of the [trial] court and calls for a common sense assessment of all the circumstances surrounding the extrinsic offense, including prosecutorial need, overall similarity between the extrinsic act and the charged offense, as well as temporal remoteness.” (Citation and punctuation omitted.) United States v. Perez, 443 F3d 772, 780 (11th Cir. 2006). Watford argued at trial that the prejudicial effect of the other crimes/wrongs evidence outweighed its probative value because the State had other evidence of identity and argues on appeal that admitting the evidence was unnecessary. These arguments are disingenuous, as Watford’s very strategy at trial and on appeal has been to challenge the sufficiency of the evidence regarding Watford’s identity. At trial, for example, Watford’s counsel cross-examined the Cobb officer about why he did not have a functioning video recording system in his vehicle during the stop and his ability to identify Watford by looking at photographs over a month after the stop and argued in his closing argument that the officer’s testimony about recognizing Watford was not credible. Considering all of the circumstances, including the similarities between the traffic stops, the time gap between them (which was not unduly long), and the State’s need for the evidence, we find no abuse of discretion in the trial court’s decision that the probative value of the evidence of the May 2013 stop outweighed its prejudicial effect.

3. To the extent that Watford contends that the trial court erred in ruling that evidence that he was on first offender probation at the time of the crimes was admissible to show his motive for providing false information to the Cobb officer, his claim fails. Permitting the introduction of evidence of Watford’s probationary status for that purpose would not constitute an abuse of discretion. See United States v. Key, 76 F3d 350, 354 (11th Cir. 1996) (in case involving charges of bank fraud and making false statements on loan application, admission of prior judgments against defendant did not contravene Federal Rule of Evidence 404 (b); judgments were evidence that defendant had motive to misrepresent his identity in order to obtain credit). In any event, Watford has not shown by citation to the record that evidence of his probationary status was admitted at trial.

Decided June 15, 2015.

Frederick M. Scherma, for appellant.

D. Victor Reynolds, District Attorney, Daniel J. Quinn, Assistant District Attorney, for appellee.

Judgment affirmed.

Miller and Branch, JJ., concur.


text:
    A15A0748.
    JONES v. THE STATE.
    (773 SE2d 463)
   ANDREWS, Presiding Judge.

On the eve of trial, Jeffery Bernard Jones pled guilty in the Superior Court of Grady County to two counts of sale of cocaine (OCGA § 16-13-30 (b)). Thereafter, Jones filed a notice of appeal to this Court. Jones alleges that he was “never provided an opportunity for the trial court to make a determination on whether he was informed about the ramifications of a guilty plea” and that his guilty plea was not knowingly and voluntarily entered because he was under the influence of marijuana at his guilty plea hearing. Finding no error, we affirm.

As a threshold matter, we note that Jones’ prior counsel timely filed a notice of appeal following the entry of Jones’ sentence. Present counsel then entered an appearance some five months later. Irrespective of this change in counsel, Georgia law is clear that “a criminal defendant does not have an unqualified right to file a direct appeal from a judgment of conviction and sentence entered on a guilty plea; however, where the question on appeal is one which may be resolved by facts appearing in the record, a direct appeal will lie.” (Punctuation omitted.) Kennedy v. State, 319 Ga. App. 498 (735 SE2d 819) (2012). See also Smith v. State, 266 Ga. 687 (470 SE2d 436) (1996); Smith v. State, 253 Ga. 169 (316 SE2d 757) (1984). As a result, “the merits of [Jones’] appeal can be addressed if, and only if, the questions that he seeks to raise on appeal may be resolved by facts appearing in the record, including the transcript of his guilty plea hearing.” Kennedy, 319 Ga. App. at 498-499 (citing Caine v. State, 266 Ga. 421 (467 SE2d 570) (1996)). And

in reviewing a direct appeal from a guilty plea, this Court must evaluate the enumerated errors based solely on the trial court record, including the record of the guilty plea and sentencing as well as any subsequent evidence that was properly presented to the reviewing court, assuming all of that is also properly included in the record on appeal.

(Punctuation omitted.) Kennedy, 319 Ga. App. at 499 (citing Tyner v. State, 289 Ga. 592, 593-594 (2) (714 SE2d 577) (2011)). We therefore look to the issues raised in Jones’ brief and whether those issues may be resolved by the record on appeal.

1. Boiled down to its essence, Jones’ first argument appears to be that he did not make an informed decision about his guilty plea because he was told that “the plea deal would be a straight ten year sentence, but was given a different plea deal with a forty (40) year sentence.” Jones attributes this alleged misunderstanding to unspecified “illegitimate actions” of his prior counsel. Also included in this enumeration is Jones’ allegation that he was under the influence of marijuana at the time of the plea hearing and that, as a result, his plea was not knowingly and voluntarily entered. For the reasons explained in footnote 2, supra, we need not reach any allegation of ineffective assistance of counsel. See OCGA § 5-6-40; Smith v. State, 186 Ga. App. 303, 308 (3) (367 SE2d 573) (1988); Sanders v. Hughes, 183 Ga. App. 601, 604 (4) (359 SE2d 396) (1987). See also Kennedy, 319 Ga. App. at 499 (2). For similar reasons, we do not reach Jones’ remaining arguments.

(a) Sentence. Jones first alleges that his guilty plea was not informed because he thought “the plea deal would be a straight ten year sentence, but was given a different plea deal with a forty (40) year sentence.” To support this allegation, Jones refers to nonenumerated “illegitimate actions” by his prior counsel. The record reveals that Jones entered a negotiated plea of guilty and that his sentences for the two counts of sale of cocaine are to be served concurrently. The effect of his sentence, then, is that Jones was sentenced to serve 20 years in confinement, not 40 as alleged in his brief. Furthermore, the trial court discussed the nature of the plea negotiations with Jones, who stated that he understood the terms of the plea. Nevertheless, even assuming that Jones refers to prior counsel negotiating an earlier plea bargain with the State that differed from the plea he accepted, see Cruz v. State, 315 Ga. App. 843, 845 (1) (729 SE2d 9) (2012), this allegation cannot be evaluated in a direct appeal from a guilty plea absent an evidentiary hearing. See Smith, 266 Ga. at 687; Smith, 253 Ga. at 169; Kennedy, 319 Ga. App. at 498.

(b) Intoxication. Jones next argues that his plea was not knowingly and voluntarily entered because he was under the influence of marijuana during the plea hearing. However, “[i]ssues of mental competency cannot be resolved with reference only to facts appearing in the record of the plea and sentence.” Gray v. State, 273 Ga. App. 441, 442 (1) (a) (615 SE2d 248) (2005). It follows that Jones’ claim of intoxication is not an issue which may be pursued by direct appeal from a guilty plea. See Smith, 266 Ga. at 687; Smith, 253 Ga. at 169; Kennedy, 319 Ga. App. at 498.

2. Second, Jones contends that his guilty plea was not “free and voluntary” because it was “rushed” and because he was misled concerning the nature of his sentence.

When a defendant challenges the validity of his guilty plea, the State bears the burden of showing that the plea was entered voluntarily and intelligently and that the defendant had an understanding of the nature of the charges against him and the consequences of the plea. The State may meet its burden in two ways: (1) showing on the record of the guilty plea hearing that the defendant was cognizant of all the rights he was waiving and the possible consequences of his plea; or (2) filling a silent record by use of extrinsic evidence that affirmatively shows that the guilty plea was knowing and voluntary.

Decided June 15, 2015.

Copeland, Haugabrook & Walker, Roy W. Copeland; Robert R. McLendon IV, for appellant.

Zellmer v. State, 273 Ga. App. 609, 611 (2) (615 SE2d 654) (2005). It is well settled that the proper entry of a guilty plea

involves the waiver of three federal constitutional rights: the privilege against compulsory self-incrimination, the right to trial by jury, and the right to confront one’s accusers, and the trial court has a duty to ensure that the defendant understands the constitutional rights being waived.

State v. Cooper, 281 Ga. 63, 64 (1) (636 SE2d 493) (2006).

Here, the record includes a transcript of the guilty plea hearing as well as a written plea waiver form. In both, Jones confirmed that he was aware of his rights to a trial by jury and to confront his accusers as well as the privilege against self-incrimination, and that he would waive those rights by entering a plea of guilty. Moreover, Jones affirmed that he had “enough time to confer . . . with [his] lawyer about this case” and that he had sufficient time “to subpoena witnesses if [he] desired them.” Finally, Jones stated that he had discussed his case with his counsel; discussed the indictment with his counsel; and reviewed the evidence with his counsel. As a result, the trial court found that Jones’ plea was freely, voluntarily, and knowingly entered. We have already concluded in Division 1 (a), supra, that Jones’ allegation of error concerning the length of his sentence may not be addressed in a direct appeal. As to Jones’ claim that he was “rushed,” the transcript reveals that the trial court specifically asked Jones whether he had sufficient time to discuss his case with his counsel, and Jones replied that he had. Accordingly, any feeling of being “rushed” that Jones experienced “was due to the circumstances in which he found himself.” Zellmer, 273 Ga. App. at 612.

Judgment affirmed.

Miller and Branch, JJ., concur.

Joseph K. Mulholland, District Attorney, Moruf O. Oseni, Assistant District Attorney, for appellee.

       Jones was also charged with a third count of sale of cocaine, two counts of sale of cocaine within 1,000 feet of a housing project (OCGA § 16-13-32.5 (b)), and two counts of sale of cocaine near schools (OCGA § 16-13-32.4 (a)). These charges were disposed of by nolle prosequi in exchange for Jones’ guilty pleas to the two remaining counts of sale of cocaine. The trial court, noting that Jones’ guilty plea was negotiated, sentenced Jones on Count 1 (sale of cocaine) to 30 years, with the first 20 years to be served in confinement followed by 10 years probation. The trial court entered the same sentence on Count 4 (sale of cocaine) to run concurrently with the sentence in Count 1.

       In his statement of jurisdiction, Jones claims, somewhat confusingly, that the present appeal “is an action for an appeal or habeas corpus relief” and that his guilty plea resulted from “incompetent representation by his trial counsel.” In the case of the former, habeas corpus relief is not available in this Court. See OCGA §§ 9-14-41 (Title 9, Chapter 14, Article 2 is “exclusive procedure for seeking a writ of habeas corpus for persons whose liberty is being restrained by virtue of a sentence imposed against them hy a state court of record”); 9-14-43 (petition for writ of habeas corpus “must be filed in the superior court of the county in which the petitioner is being detained”). With regard to Jones’ statement apparently concerning ineffective assistance of trial counsel, we note that Jones filed no enumeration of error on that issue. Therefore, to the extent Jones sought to raise a claim of ineffective assistance of trial counsel, we do not consider it. See OCGA § 5-6-40; Smith v. State, 186 Ga. App. 303, 308 (3) (367 SE2d 573) (1988) (“We have no jurisdiction to consider grounds which, though argued are not enumerated”) (punctuation omitted); Sanders v. Hughes, 183 Ga. App. 601, 604 (4) (359 SE2d 396) (1987) (same); Neal v. State, 160 Ga. App. 834, 836 (1) (288 SE2d 241) (1982) (enumeration of error cannot be enlarged by argument in brief to include issues not made in the enumeration). As a result, Jones’ remaining remedy is a petition for habeas corpus. Morrow v. State, 266 Ga. 3, 4 (463 SE2d 472) (1995); Kennedy v. State, 319 Ga. App. 498, 500 (2) (735 SE2d 819) (2012); Lamb v. State, 282 Ga. App. 756, 758 (639 SE2d 641) (2006).


author: McFadden, Judge.

text:
    A15A0052.
    RAGLAND v. THE STATE.
    (773 SE2d 772)
   McFadden, Judge.

Terrance Devon Ragland appeals his convictions of rape and enticing a child for indecent purposes. Ragland argues that he received ineffective assistance of counsel but has failed to overcome the strong presumption that counsel’s performance fell within the wide range of reasonable professional assistance. He argues that the trial court improperly admitted evidence of a similar transaction but has failed to show that the trial court abused its discretion in admitting that evidence. Finally he argues that the evidence does not support his convictions, but we find the evidence sufficient. We therefore affirm.

1. Sufficiency of the evidence.

In considering whether the evidence is sufficient to support a defendant’s 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.” Jackson v. Virginia, 443 U. S. 307, 319 (III) (B) (99 SCt 2781, 61 LE2d 560) (1979) (citation omitted; emphasis in original). So viewed, the evidence showed that on the evening of June 23, 2010, the 13-year-old victim was walking to her aunt’s house when a man drove up and offered her a ride. She recognized the man because he had spoken with her mother before. She therefore felt safe with him and accepted the ride.

Instead of driving the victim to her aunt’s house, the man drove her behind a vacant apartment building. He locked the doors of the vehicle and climbed into the back seat where the victim was sitting. Then he held her down, removed her pants, and put his penis in her vagina.

At one point, the man got off the victim, returned to the driver’s seat, and began driving. When he slowed down, the victim got out of the car and ran to her aunt’s house. She told her aunt what had happened, and the aunt called the victim’s mother, who came over, as did police.

The victim described the man’s appearance, his clothing, and his car, and told her mother that the man said he knew her. The mother determined that the victim was referring to Ragland and told the police. An officer drove the victim and her mother to the hospital, where, from a photograph, the victim identified Ragland as the perpetrator. The emergency room physician who examined the victim testified that the victim’s hymen had been lacerated and her cervix bruised, injuries that were consistent with the victim having been sexually assaulted.

Ragland testified on his own behalf at trial. He admitted that he had sexual intercourse with the victim. But he testified that the victim had told him that she was 17 years old. He also testified that the sex was consensual.

The evidence was sufficient to authorize a rational trier of fact to find beyond a reasonable doubt that Ragland was guilty of the crimes of which he was convicted. Jackson, supra, 443 U. S. at 319 (III) (B).

2. Effective assistance of counsel.

Ragland argues that he received ineffective assistance of counsel in two regards. Because Ragland failed to call trial counsel to testify at the motion for new trial hearing, however, he has failed to overcome the presumption that counsel’s performance fell within the wide range of reasonable professional assistance.

To prevail on his claim of ineffective assistance of counsel, Ragland is required to show both deficient performance by trial counsel and actual prejudice. Strickland v. Washington, 466 U. S. 668, 687 (III) (104 SCt 2052, 80 LE2d 674) (1984); Smith v. Francis, 253 Ga. 782, 783 (1) (325 SE2d 362) (1985). If Ragland “fails to meet his burden of proving either prong, then we do not need to examine the other prong.” Works v. State, 301 Ga. App. 108, 114 (7) (686 SE2d 863) (2009) (citation omitted).

The first instances about which Ragland complains occurred during the testimony of a police officer. On direct examination, the officer described driving around, looking for Ragland’s vehicle, when he saw the victim’s grandmother. He testified that the grandmother, “asked me what I was doing, was I looking for the guy that raped her granddaughter. . . . And she told who it was and told me about an incident that had happened earlier.” The prosecutor responded, “Sorry, I don’t want you to get into what somebody else said.” Defense counsel did not object.

Then on cross-examination, defense counsel asked the officer whether he was able to determine where Ragland lived. The officer responded, ‘Yeah, I know for a fact that he lived there. I’ve had several cases involving him before.” Defense counsel moved for a mistrial. The trial court denied the motion, and defense counsel declined the offer of a curative instruction. The trial court asked, ‘You’ve reconsidered whether or not that might be advantageous or disadvantageous to your client?” Defense counsel responded, ‘Yes, Your Honor.”

Another instance about which Ragland complains concerns trial counsel’s failure to call as a defense witness a doctor who examined the victim two weeks after the incident and, according to Ragland, would have cast doubt on the testimony of the emergency room doctor who examined the victim on the night of the incident.

None of these instances of allegedly ineffective assistance of counsel entitles Ragland to reversal because he has not overcome the

strong presumption that counsel’s performance [fell] within the wide range of reasonable professional assistance. This presumption is particularly difficult to overcome where, as here, trial counsel [was] not [called] to testify [at the hearing on the motion for new trial] .... [Ragland] made no affirmative showing that the purported deficiencies in his trial counsel’s representation were indicative of ineffectiveness and were not examples of a conscious and deliberate trial strategy. No evidence was presented from which to determine, for example, trial counsel’s assessment of [the benefit of objecting to the officer’s testimony about the victim’s grandmother’s statement, particularly when the prosecutor instructed him to avoid hearsay]. Trial counsel’s decisions relating to strategy and tactics are not judged by hindsight. From the evidence presented in this case, [Ragland] failed to defeat the strong presumption of counsel’s reasonable professional assistance. The Strickland test requires [Ragland] to show both deficient performance of trial counsel as well as prejudice from the deficient performance. Having failed to carry this burden with respect to a showing of deficient performance, we find no error in the trial court’s denial of that portion of [Ragland’s] motion for new trial dealing with these purported deficiencies of counsel.

Jones v. State, 296 Ga. 561, 567 (4) (769 SE2d 307) (2015) (citations and punctuation omitted).

3. Similar transaction evidence.

Ragland argues that the trial court erred by admitting evidence of a similar transaction, which, he claims, was not admissible for any proper purpose, was not sufficiently similar to the crime on trial, and thus served only as improper evidence of his character and propensity to commit the crimes. We disagree.

The similar transaction victim testified at trial that ten months before the incident for which Ragland was on trial, she was walking to the gym one evening when Ragland grabbed her, pulled her across the street to the grounds of a church, and raped her. She was 13 years old at the time. At the time of the commission of the instant crime, Ragland had not been arrested for the similar transaction because the police had not yet received the DNA results from the similar transaction.

Before admitting similar transaction evidence,

the trial court must determine that the [sjtate has affirmatively shown that: (1) the [sjtate seeks to admit evidence of the independent offenses or acts for an appropriate purpose; (2) there is sufficient evidence that the accused committed the independent offenses or acts; and (3) there is sufficient connection or similarity between the independent offenses or acts and the crimes charged so that proof of the former tends to prove the latter.

Pareja v. State, 286 Ga. 117, 119 (686 SE2d 232) (2009) (citation omitted). We review the trial court’s decision to admit similar transaction evidence for an abuse of discretion. Id. at 121.

Here the state sought to introduce the similar transaction evidence for the proper purpose of showing Ragland’s course of conduct, intent, modus operandi, bent of mind, and lustful disposition. Scruggs v. State, 295 Ga. 840, 841 (2) (764 SE2d 413) (2014) (course of conduct, intent, bent of mind, and identity); Gardner v. State, 273 Ga. 809, 810 (2) (546 SE2d 490) (2001) (modus operandi, course of conduct, and bent of mind); Williams v. State, 284 Ga. App. 255, 258 (2) (643 SE2d 749) (2007) (course of conduct, bent of mind, and lustful disposition). The state presented sufficient evidence that Ragland committed the prior act by presenting the testimony of the victim. Dean v. State, 321 Ga. App. 731, 733-734 (1) (a) (742 SE2d 758) (2013). See also Roberson v. State, 327 Ga. App. 804, 807 (2) (761 SE2d 361) (2014) (similar transaction victims’ testimony alone was sufficient to prove that he committed the similar transactions). And the similarities between the former incident and the crime for which Ragland was on trial are striking: in both, Ragland encountered 13-year-old girls walking by themselves on public streets in the evening, took the girls to secluded spots, and raped them. Particularly given that both were sexual crimes against young girls, the two incidents were sufficiently similar:

Decided June 16, 2015.

Steven M. Harrison, for appellant.

K. David Cooke, Jr., District Attorney, Dorothy V. Hull, Assistant District Attorney, for appellee.

When 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. This rule is most liberally extended in cases involving sexual offenses because such evidence tends to establish that a defendant has such bent of mind as to initiate or continue a sexual encounter without a person’s consent.

Pareja, 286 Ga. at 121 (citation omitted).

Ragland has not shown that the trial court abused his discretion in admitting the similar transaction.

Judgment affirmed.

Ellington, P. J., and Dillard, J., concur.

       “Because this case was tried prior to January 1,2013, Georgia’s old Evidence Code applies here.” Bragg v. State, 295 Ga. 676, 677, n. 3 (763 SE2d 476) (2014). In general, the new Evidence Code eliminates bent of mind and course of conduct as permissible purposes for the admission of similar transaction evidence. Algren v. State, 330 Ga. App. 1, 4 (1), n. 13 (764 SE2d 611) (2014). But “in criminal proceedings in which the defendant is accused of a sexual assault] or child molestation], the new Code includes . . . provision[s] for the admission of certain prior sexual assaults or child-molestation offenses for bearing on any matters to which they are relevant. See OCGA §§ 24-4-413; 24-4-414.” Id.


text:
    A15A0076.
    SHEARS v. THE STATE.
    (773 SE2d 776)
   McFadden, Judge.

A jury found Jessen Brett Shears guilty of trafficking in methamphetamine in violation of OCGA § 16-13-31 (e) and possessing a controlled substance in violation of OCGA § 16-13-30 (a). On appeal, Shears argues that he received ineffective assistance of trial counsel, but he has not shown both that his trial counsel performed deficiently and that he was prejudiced. He also argues that the trial court erred in denying his motion to suppress evidence found during a search of his house pursuant to a warrant, but he did not preserve this issue for appellate review. Accordingly, we affirm.

1. Facts.

The evidence, viewed most favorably to the verdict, shows that on October 8, 2008, police officers arrested Zachary Barrett and Dionne Malinasky on outstanding warrants for drug-related offenses. In ensuing interviews, Barrett and Malinasky informed the police that earlier in the day they had been at a house occupied by Jessen Shears and Lisa Petronski (Shears’s co-defendant in this case). Barrett and Malinasky described drug activity, including sales of methamphetamine, at the house.

Later that day, the police obtained and executed a search warrant at Shears’s house. In Shears’s bedroom they found, among other things, a firearm, marijuana, and an unlocked safe containing 39.86 grams of methamphetamine. They also observed cameras outside the house that provided a live video feed to monitors in Shears’s bedroom. As they were executing the search warrant, Shears arrived at the house, and the police arrested him. In a pat-down search they found two bundles of cash, totaling over $2,400, in Shears’s pockets, and in a search of Shears’s vehicle they found another firearm and a ledger. A police officer admitted as an expert in general narcotics investigation testified at trial that the ledger depicted methamphetamine transactions.

At trial, Malinasky testified that she witnessed Shears sell methamphetamine at the house on several occasions, including a day or two before the October 8, 2008 arrest. And Barrett testified that he had purchased methamphetamine at the house on one or two occasions from a person introduced to him by Shears.

2. Ineffective assistance of counsel.

Shears argues that he received ineffective assistance of trial counsel. To prevail on this claim, he must show

that [his] trial lawyer [’s] performance was professionally deficient and that, but for the deficiency, there is a reasonable probability that the outcome of the trial would have been more favorable to [him]. See Strickland v. Washington, 466 U. S. 668, 687, 694 (104 SCt 2052, 80 LE2d 674) (1984).

Bighams v. State, 296 Ga. 267, 270 (3) (765 SE2d 917) (2014). Shears has not met this burden.

(a) Asking a question that led to harmful testimony.

Shears argues that his trial counsel was ineffective because, while cross-examining a police officer, counsel asked a question that led the state to elicit harmful testimony from a subsequent witness. Counsel asked the officer: “No person told you they .. . saw [Shears] sell meth; is that correct?” The truthful answer to this question would have been disagreement with the statement, because Malinasky had told this officer that she had seen Shears selling methamphetamine. Instead, the officer answered, “That is correct.” Outside the jury’s presence he explained that he had answered this way because he did not want to testify to hearsay that might result in a mistrial. To rectify the misperception created by the officer’s testimony, the state called Malinasky and elicited from her testimony that she had seen Shears selling methamphetamine from the house numerous times over the several months before his arrest.

Both at trial and at the hearing on Shears’s motion for new trial, trial counsel stated that he erred in the question he asked the police officer. Even if that question constituted deficient performance, however, Shears did not show prejudice. “He failed to prove that if his attorney had [not asked the question of the police officer], the [s]tate could not have introduced the [damaging testimony of Malinasky].” Mayberry v. State, 301 Ga. App. 503, 509 (4) (c) (687 SE2d 893) (2009). Both the state and Shears’s co-defendant had subpoenaed Malinasky and were entitled to call her as a trial witness. Moreover, Malinasky’s testimony that Shears sold methamphetamine “was relevant to the drug trafficking charge to establish that he was involved in dealing drugs and possessed the drugs with the intent to distribute them.” Evans v. State, 288 Ga. App. 103, 108 (3) (a) (653 SE2d 520) (2007) (citations omitted). Contrary to Shears’s contention, this relevant evidence was “not rendered inadmissible merely because it incidentally place[d Shears’s] character in issue.” Id. (citation and punctuation omitted).

(b) Failing to move to suppress evidence.

Shears argues that his trial counsel was ineffective by not moving to suppress evidence found in the searches of his person and vehicle, which he contends were incident to an illegal arrest. At the hearing on Shears’s motion for new trial, his trial counsel testified that he did not make such a motion because, after consideration, he felt a challenge on that ground had no merit. We agree.

“Probable cause to arrest exists where, based on objective facts and circumstances, a man of reasonable caution would believe that a crime has been or is being committed.” Minor v. State, 298 Ga. App. 391, 396 (1) (b) (680 SE2d 459) (2009) (citation and punctuation omitted). Probable cause existed here — the police officers arrested Shears during a search of his residence, pursuant to a warrant, in which they found illegal drugs in his bedroom. Although Shears argues that the officers did not know who he was when they arrested him, the trial evidence did not support that argument, and Shears offered no evidence on the point at the hearing on his motion for new trial.

Because Shears did not “make a strong showing that the evidence would have been suppressed had a motion to suppress been filed,” Stanley v. State, 283 Ga. 36, 39 (2) (a) (656 SE2d 806) (2008) (citation and punctuation omitted), he has not met his burden of showing that he received ineffective assistance of counsel.

(c) Failing to object to evidence admitted after denial of motion to suppress.

Shears argues that his trial counsel was deficient in waiving appellate review of the trial court’s denial of a motion to suppress evidence obtained in a search of his house pursuant to a warrant. Throughout the trial, Shears’s counsel (possibly under the mistaken impression that he had been granted a continuing objection) affirmatively stated that he had no objection to the admission of evidence found in the search, thereby “waiving] and failing] to preserve his right to contest the admission of the evidence on appeal on the grounds raised in the motion to suppress.” Dyer v. State, 233 Ga. App. 770, 771 (505 SE2d 71) (1998) (citation and punctuation omitted). Nevertheless, Shears has not shown this constituted ineffective assistance because the trial court did not err in denying the motion to suppress, and the failure to raise a meritless objection was not ineffective assistance of counsel. Moore v. State, 293 Ga. 676, 679 (5) (a) (748 SE2d 419) (2013). Shears’s motion to suppress was due to be denied because, in considering such a motion, the trial court is required to accord substantial deference to the magistrate’s decision to issue a search warrant based on a finding of probable cause, State v. Palmer, 285 Ga. 75, 77 (673 SE2d 237) (2009), and the evidence here is sufficient to support the magistrate’s decision. Although Shears challenged the reliability of hearsay statements that were included in the police officer’s warrant affidavit, the contents of the affidavit permitted the trial court to find that the magistrate had probable cause to issue the warrant because the statements were made by named informants against their penal interest.

Our Supreme Court has explained that such statements can support the issuance of a warrant.

[W]hen a named informant makes a declaration against penal interest and based on personal observation, that in itself provides a substantial basis for the magistrate to credit that statement. Accordingly, . . . although a third party’s exculpatory hearsay admissions against penal interest are inadmissible at a criminal trial, inculpatory statements that are made by a known or identified informant can establish probable cause for issuance of a search warrant.

Graddy v. State, 277 Ga. 765, 766 (1) (596 SE2d 109) (2004) (citation, punctuation and emphasis omitted).

In this case the affidavit identified by name the informants, Zachary Barrett and Dionne Malinasky. It indicated that they gave the statements after being arrested pursuant to open warrants, and it specified that Barrett’s warrant involved possession of methamphetamine. The informants’ statements placed them at Shears’s house while marijuana and methamphetamine were being used and sold. To be against penal interest, a statement “does not have to be a formal confession that [declarant] is guilty of the crime in connection with which his statement constitutes probable cause for a search,” but merely must be a statement that the declarant would perceive to be “highly incriminating.” Graddy, 277 Ga. at 766 (2) (citations and punctuation omitted). Given the circumstances in this case, the trial court “correctly characterized the statement^] as against [the informants’] penal interest and, thus, reliable so as to authorize issuance of the warrant to search [Shears’s] house[.]” Id. at 767 (2) (citation omitted). Consequently, Shears has not shown that he received ineffective assistance of trial counsel due to his trial counsel’s failure to preserve for appeal the trial court’s denial of his motion to suppress evidence found during that search.

Decided June 16, 2015

Lucas O. Harsh, for appellant.

Daniel J. Porter, District Attorney, Richard C. Armond, Assistant District Attorney, for appellee.

3. Motion to suppress.

Shears argues that the trial court erred in denying his motion to suppress evidence obtained in the search of his house pursuant to warrant. Because he waived his right to contest the admission of evidence on this ground by affirmatively stating that he had no objection when the evidence was admitted at trial, see Division 2 (c), supra, this claim of error presents nothing for us to review.

Judgment affirmed.

Ellington, P. J., and Dillard, J., concur.


author: MCFADDEN, Judge.

text:
    A15A0097.
    LOPEZ v. THE STATE.
    (773 SE2d 787)
   MCFADDEN, Judge.

After a jury trial, Salvador Lopez was convicted of aggravated stalking for violating a restraining order for the purpose of harassing and intimidating the victim by following her to her home and calling the police to stop her vehicle. He appeals, challenging the admission of testimony from the victim concerning prior acts of violence and the effectiveness of his trial counsel. However, Lopez did not object to the victim’s testimony and thus waived that issue, and he has not shown that his trial counsel’s performance was deficient. Accordingly, we affirm.

At trial, the state presented evidence showing that Lopez and the victim began living together in 1989 and married in 1991. The victim testified about violence throughout their relationship, describing numerous incidents of Lopez beating her, kicking her, pulling her hair, cursing at her, and threatening to kill her with a knife and by strangulation. The couple separated, and after an incident in 2011 when Lopez returned to his estranged wife’s home and beat her, she obtained a protective order against him.

In May 2012, the victim was outside her house when Lopez drove by and yelled, “Hey, whore!” Two days later, the victim was driving in the parking lot of a grocery store when she noticed that Lopez was following her. She left the parking lot and tried to lose Lopez, but he continued to pursue her. The victim could hear other drivers honk their horns at him as he drove erratically behind her. As Lopez followed the victim, he called 911 and made an unsubstantiated report that a person wanted by the police was in his wife’s vehicle. An officer subsequently arrived at the victim’s home, where she explained that she had a protective order against Lopez. Shortly after Lopez was arrested for aggravated stalking, he called his wife from jail and threatened that she would be seeing him again.

1. Prior bad acts evidence.

Lopez complains that the trial court erred in allowing the victim to testify about prior bad acts committed by him because the state failed to give notice of its intent to introduce such evidence as required by OCGA § 24-4-404 (b). However, as Lopez acknowledges in his brief, he failed to raise any such objection at trial. “The failure to make a timely and specific objection is treated as a waiver. Accordingly, [Lopez] has not preserved this issue for appeal.” Heard v. State, 296 Ga. 681, 686 (4) (769 SE2d 917) (2015) (citations and punctuation omitted).

2. Ineffective assistance of counsel.

Lopez claims that his trial counsel was ineffective in failing to raise a lack of notice objection to the prior bad acts evidence mentioned above in Division 1. In order to succeed on his ineffective assistance of counsel claim, Lopez must show, under the standard set forth in Strickland v. Washington, 466 U. S. 668 (104 SCt 2052, 80 LE2d 674) (1984),

both that his trial counsel’s performance was deficient and [prejudicial in] that there is a reasonable probability that the trial result would have been different if not for the deficient performance. If [he] fails to meet his ... burden of proving either prong of the Strickland test, the reviewing court does not have to examine the other prong.

Wright v. State, 291 Ga. 869, 870 (2) (734 SE2d 876) (2012) (citations omitted). Here, Lopez has not shown that counsel’s performance was deficient.

The evidence that Lopez complains of occurred when the victim, while describing the history of violence in their relationship, testified about two incidents when Lopez attacked her after she had tried to break up fights. She testified that Lopez first hit her in the face shortly after they had begun living together when she intervened in a fight between Lopez and his family member or friend whom she did not know. She also described an incident in 1994 when she tried to break up a fight between her brother and Lopez, after which Lopez grabbed her hair, shoved her against a table, threw a knife at her and threatened to kill her.

Contrary to Lopez’s argument, the victim’s testimony was not introduced as evidence of prior bad acts by him against third parties. Rather, the testimony constituted evidence of prior difficulties between Lopez and the victim. “Notice shall not be required” for such evidence of “prior difficulties between the accused and the alleged victim.” OCGA § 24-4-404 (b). And this type of prior difficulties evidence is admissible in an aggravated stalking case, where the state must show that the “indicted act was committed for the purpose of harassment and intimidation, an essential element of stalking.” Benton v. State, 256 Ga. App. 620, 622 (2) (a) (568 SE2d 770) (2002). See OCGA § 16-5-90 (a) (1) (“harassing and intimidating” element of stalking means a knowing and wilful course of conduct directed at a specific person which causes emotional distress by placing such person in reasonable fear for safety); Phillips v. State, 278 Ga. App. 198, 200 (1) (628 SE2d 631) (2006) (evidence of prior incidents of physical violence and threats by defendant against victim supported jury finding that the indicted acts were intended to harass and intimidate the victim, who was reasonably placed in fear for her safety).

Moreover, such “[ejvidence that is otherwise relevant or material to the issues in a criminal case does not become inadmissible simply because it concerns separate offenses, or because it incidentally puts a criminal defendant’s character or reputation in evidence.” Tela v. State, 320 Ga. App. 465, 468 (1) (740 SE2d 204) (2013) (citations and punctuation omitted).

Here, the victim’s testimony about [intervening in Lopez’s fights with others] was part of the res gestae of the prior difficulties evidence and thus was relevant and admissible, even if it incidentally placed [Lopez’s] character in issue. Accordingly, any objection to the victim’s testimony would have been futile, and the failure to make a meritless objection cannot be evidence of ineffective assistance. The trial court therefore committed no error in denying Jones’ motion for a new trial on the asserted ground.

Decided June 16, 2015.

Michael S. Marr, for appellant.

Daniel J. Porter, District Attorney, Lee F. Tittsworth, Assistant District Attorney, for appellee.

Jones v. State, 329 Ga. App. 439, 448 (4) (765 SE2d 639) (2014) (citations and punctuation omitted).

Judgment affirmed.

Ellington, P. J., and Dillard, J., concur.


author: Boggs, Judge.

text:
    A15A0298.
    BALLARD et al. v. NEWTON COUNTY BOARD OF TAX ASSESSORS.
    (773 SE2d 780)
   Boggs, Judge.

This appeal presents an issue of first impression: whether a tax sale qualifies as an “arm’s length, bona fide sale” under OCGA § 48-5-2. The trial court concluded that it does not so qualify. We agree with the trial court and therefore affirm.

“The interpretation of a statute is a question of law. As such, we do not defer to the trial court’s ruling, and we apply the ‘plain legal error’ standard of review.” (Citations, punctuation and footnote omitted.) Clayton County Bd. of Tax Assessors v. City of Atlanta, 299 Ga. App. 233, 234 (682 SE2d 328) (2009). The record reveals that during various months in 2012, W.D. Ballard and Nancy Mock purchased 22 parcels of real property in Newton County at tax sales (“the property”). In April 2013, the county tax assessors’ office sent Ballard and Mock assessments of the 2013 tax value of the property as outlined in its “Appraisal Procedure Manual.” The assessors did not set the 2013 value at the 2012 tax sale purchase price. Ballard and Mock appealed the property tax assessment, but the Board of Tax Assessors (“the Board”) concluded that the value placed on the property represented “fair market value and uniformity.”

Ballard and Mock appealed to the Newton County Board of Equalization (“the BOE”), which agreed with the valuation as determined by the tax assessor. They then appealed to the superior court, claiming that “the one-year purchase price cap established by OCGA § 48-5-2 (3) should apply” to the assessed value of the property. Following the filing of the parties’ cross-motions for summary judgment, the trial court granted summary judgment to the Board.

The court concluded that because the purchaser at a tax sale does not receive fee simple title to the property and does not enjoy the right of possession or the right to collect rents if the right of redemption exists, the property owner has the right to redeem the property and divest the purchaser of any rights, and the owner of the property sold at a tax sale is not a participant in the sale, there is no arm’s length, bona fide sale under OCGA § 48-5-2 (.1). Therefore, the trial court reasoned, the tax sale does not qualify for the one-year purchase price freeze under OCGA § 48-5-2 (3). It is from this order that Ballard and Mock appeal.

“In interpreting statutes, our rules of statutory construction provide that the ordinary signification of words shall apply, ‘except words of art or words connected with a particular trade or subject matter.’OCGA § 1-3-1 (b).” Nat. City Mtg. Co. v. Tidwell, 293 Ga. 697, 698 (1) (749 SE2d 730) (2013). OCGA § 48-5-2 (3) provides in part: “Notwithstanding any other provision of this chapter to the contrary, the transaction amount of the most recent arm’s length, bona fide sale in any year shall be the maximum allowable fair market value for the next taxable year.” (Emphasis supplied.) This amounts to a freeze on the ad valorem tax value of property for one year. See, e.g., Columbus Bd. of Tax Assessors v. Yeoman, 293 Ga. 107, 108 (1) (744 SE2d 18) (2013). For purposes of the Code Section,

“[ajrm’s length, bona fide sale” means a transaction which has occurred in good faith without fraud or deceit carried out by unrelated or unaffiliated parties, as by a willing buyer and a willing seller, each acting in his or her own self-interest, including but not limited to a distress sale, short sale, bank sale, or sale at public auction.

OCGA § 48-5-2 (.1).

Ballard and Mock claim that even though OCGA § 48-5-2 (.1) does not specifically list tax sale as an example of an arm’s length, bona fide sale, their tax sale purchase is entitled to the one-year purchase price freeze set forth in OCGA § 48-5-2 (3), because it was an arm’s length sale at public auction between unrelated parties, a willing buyer and a willing seller, each acting in their own self-interest. But “the cardinal rule in construing a legislative act, is to ascertain the legislative intent and purpose in enacting the law, and then to give it that construction which will effectuate the legislative intent and purpose.” (Citation, punctuation and footnote omitted.) Carringer v. Rodgers, 276 Ga. 359, 363 (578 SE2d 841) (2003). “Moreover, in construing language in any one part of a statute, a court should consider the entire scheme of the statute and attempt to gather the legislative intent from the statute as a whole.” (Citation, punctuation and footnote omitted.) Maxwell v. State, 282 Ga. 22, 23-24 (1) (644 SE2d 822) (2007). Therefore, as certain terms are not defined in OCGA § 48-5-2 (.1), such as “willing seller” and “transaction,” and the examples listed, bank sale, distress sale, and short sale, are distinguishable from a tax sale as the former involve the sale of property by an owner, we look to the legislature’s intent and the Georgia Tax Code as a whole.

OCGA § 48-5-1 provides:

The intent and purpose of the tax laws of this state are to have all property and subjects of taxation returned at the value which would be realized from the cash sale, but not the forced sale, of the property and subjects as such property and subjects are usually sold except as otherwise provided in this chapter.

And OCGA § 48-5-2 (3) provides that the “[f]air market value of property’ from which to determine taxation “means the amount a knowledgeable buyer would pay for the property and a willing seller would accept for the property at an arm’s length, bona fide sale.” Thus, the legislative intent is to place a value upon property that it would receive under a customary sale of property, not an atypical transaction. Foreclosure sales, for example, are forced sales “conducted under conditions that differ from the ordinary market for the property in question, [and] notoriously fail to bring the true market price of the property.” Ga. Ltd. Partners v. City Nat. Bank, 323 Ga. App. 766, 767 (748 SE2d 131) (2013) (physical precedent only); Gutherie v. Ford Equip. Leasing Co., 206 Ga. App. 258, 261 (1) (424 SE2d 889) (1992). Accordingly, the legislature saw fit to remove consideration of foreclosure sales in a 2010 amendment to OCGA § 48-5-2 (3) (B) (iv) (criteria for tax assessor in determining fair market value of property).

In Georgia, when property is sold for unpaid taxes, the tax sale purchaser obtains a deed to the property. This deed, however, does not provide the tax sale purchaser with absolute title to the property, but rather gives the purchaser a defeasible fee interest therein with the title remaining subject to encumbrance for at least one year after purchase due to other interested parties’ statutory rights of redemption.

(Citations and punctuation omitted.) Land USA, LLC v. Ga. Power Co., 297 Ga. 237, 239 (1) (773 SE2d 236) (2015); see also OCGA §§ 48-4-1 (tax sales generally); 48-4-2 (assessment); 48-4-6 (validity of deed). As previously outlined by the Supreme Court of Georgia,

after the tax sale, the delinquent taxpayer or any other party holding an interest in or lien on the property may redeem the property by paying to the tax sale purchaser the purchase price plus any taxes paid[] and interest. If the property is redeemed, the tax sale is essentially rescinded and a quitclaim deed is executed by the tax sale purchaser back to the owner of the property at the time of levy and sale. This right of redemption, however, may be terminated by the tax sale purchaser anytime after one year following the tax sale. After that year has run, the tax sale purchaser may terminate, foreclose, divest, and forever bar all rights to redeem the property by giving notice under OCGA § 48-4-40 et seq., (the barment statutes) to all parties with redemption rights. The barment statutes apply to all persons having any right, title or interest in, or lien upon the subject property.

(Citations and punctuation omitted.) Land USA, supra, 297 Ga. at 239 (1); see also OCGA §§ 48-4-40 (person entitled to redeem; time for redemption); 48-4-42 (amount payable for redemption); 48-4-43 (effect of redemption).

A tax sale is for the purpose of collecting unpaid taxes, see Nat. Tax Funding v. Harpagon Co., 277 Ga. 41, 42 (1) (586 SE2d 235) (2003), and would therefore be a forced sale similar to a foreclosure sale, not a sale under normal conditions. And what the tax sale purchaser receives is not fee simple title, but rather a defeasible fee interest evidenced by a tax deed. See Brown Investment Group v. Mayor of Savannah, 303 Ga. App. 885, 886 (695 SE2d 331) (2010) (tax sale conveys an inchoate or defeasible title subject to the right of the owner). “Fair market value of property” is defined as the amount a willing buyer would pay to purchase the property, and a willing seller would accept for the property, which implies the passing of title as the examples of bona fide sales listed in OCGA § 48-5-2 (.1) demonstrate. Because “fair market value of property” is not defined as the amount a buyer would pay to purchase, and willing seller would accept, for a defeasible interest in property, a tax sale does not qualify as an arm’s length, bona fide sale such that the one-year freeze of OCGA § 48-5-2 (3) would apply. For this reason, the trial court did not err in granting summary judgment to the Newton County Board of Tax Assessors, and in denying Ballard and Mock’s cross-motion on this ground.

Decided June 16, 2015.

Eugene D. Butt, for appellants.

W. Thomas Craig, Andrea P. Gray, for appellee.

While Ballard and Mock also assert as error the trial court’s ruling on the proper assessment of the fair market value, the court expressly limited its ruling to the issue of whether a tax sale is an arm’s length, bona fide sale under OCGA § 48-5-2. The issue of the proper assessment therefore remains pending below.

Judgment affirmed.

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

       While it is true that the title which the tax deed purchaser acquires in consequence of a tax sale is not a perfect, fee-simple title, but is a defeasible title which terminates upon redemption within the time prescribed by statute, until redeemed, the tax deed purchaser acquires an interest in the property even during the time within which it might be redeemed, which is sufficient to render him liable for taxes accruing upon the property.

      (Citation and punctuation omitted; emphasis in original.) Iglesia Del Dios Vivo Columna Y Apoyo De La Verdad La Luz Del Mundo v. Downing, 321 Ga. App. 778, 781 (742 SE2d 742) (2013).