author: Bethel, Judge. McFADDEN, Presiding Judge, McFadden, Presiding Judge.

text:
    A17A0240.
    ATKINS v. THE STATE.
    (803 SE2d 122)
   Bethel, Judge.

Jerome Atkins appeals the denial of his motion for a directed verdict on a statutory rape charge, arguing the trial court erred when it found sufficient corroborating evidence. Atkins further argues that the trial court erred in denying his motion for a new trial because the trial court wrongly applied the Rape Shield Statute. We disagree and affirm the denial of his motions for a directed verdict and for a new trial.

On appeal from a criminal conviction, we view the evidence in the light most favorable to the verdict and an appellant no longer enjoys the presumption of innocence. This Court determines whether the evidence is sufficient under the standard of Jackson v. Virginia, 443 U. S. 307 (99 SCt 2781, 61 LE2d 560) (1979), and does not weigh the evidence or determine witness credibility. Any conflicts or inconsistencies in the evidence are for the jury to resolve. As long as there is some competent evidence, even though contradicted, to support each fact necessary to make out the State’s case, we must uphold the jury’s verdict.

Traylor v. State, 332 Ga.App. 441, 442 (773 SE2d 403) (2015) (citation and punctuation omitted).

So viewed, the evidence shows that in November 2010, A. O.’s mother learned that A. O. was pregnant after taking her to a gynecologist. Following the appointment, A. O.’s mother discussed the pregnancy with A. O., who was thirteen years old at the time. A. O. was asked who fathered the child, and she told her mother that the father was a “boy in the neighborhood.” A. O.’s mother called Leon Surles to inform him about the pregnancy. Surles did not believe A. O.’s explanation and, at some point, threatened to give her a lie detector test.

After returning home from school, A. O. called Atkins and his wife and told them she was pregnant by Atkins. Following this conversation, Atkins called Surles and told him that A. O. had called and that she planned to tell Surles she was pregnant with Atkins’ child so that she could have an abortion. Atkins denied both paternity and sexual contact with A. O. in his conversation with Surles. Surles told A. O.’s mother about the call with Atkins.

Surles then spoke with A. O. and threatened to “beat her” and “take her to the police” if she did not tell the truth about the paternity of her child. A. O.’s mother told A. O. that she knew Atkins had fathered the child, and A. O. said that was true. A. O.’s mother then reported the incident to police.

A. O. was interviewed by law enforcement personnel and reported two alleged incidents with Atkins in which he engaged in sexual acts with her. A. O. stated that Atkins was the only possible father of her child because she had not been sexually active immediately prior to or after the August 2010 incident with Atkins.

A. O. had an abortion on November 27, 2010, and a search warrant for the DNA of the fetus was executed. Results of the DNA test showed that Atkins was not the father of A. O.’s child.

Nevertheless, Atkins was indicted on charges of statutory rape and aggravated child molestation. At trial, Atkins maintained his innocence and argued that A. O. identified him as the father to conceal the child’s true paternity. Atkins sought to question A. O. about the identity of the true father for the purpose of demonstrating A. O.’s motive to falsely accuse Atkins. The trial court, relying on the Rape Shield Statute, did not allow that line of questioning. A jury found Atkins guilty on both counts. Following the verdict, Atkins moved for a new trial, which the trial court denied. This appeal followed.

1. The trial court found there was sufficient evidence from which the jury could conclude beyond a reasonable doubt that Atkins was guilty of statutory rape. However, Atkins contends the trial court erred in denying his motion for directed verdict on the charge of statutory rape because the evidence was insufficient to corroborate A. O.’s allegations. We disagree.

OCGA § 16-6-3 (a) provides that “[a] person commits the offense of statutory rape when he or she engages in sexual intercourse with any person under the age of 16 years and not his or her spouse, provided that no conviction shall be had for this offense on the unsupported testimony of the victim.”

“On appeal, our review is restricted to the legal sufficiency of the evidence, not the weight of the evidence.” Carson v. State, 171 Ga. App. 527, 528 (320 SE2d 382) (1984). “If there is any corroborating evidence, we will not go behind the jury and pass upon its probative value.” McClendon v. State, 187 Ga. App. 666, 668 (371 SE2d 139) (1988) (citation and punctuation omitted).

This Court has held that the quantum of corroboration needed in a statutory rape case is not that which is, itself, sufficient to convict, but only that amount of independent evidence which tends to prove that the incident occurred as alleged. Slight circumstances may be sufficient corroboration and ultimately the question of corroboration is one for the jury In that regard, a victim’s prior consistent statements, in the form of her outcry to others as testified to by them, may constitute sufficient corroboration in a case of statutory rape.

Byrd v. State, 258 Ga. App. 572, 573 (574 SE2d 655) (2002) (citation and punctuation omitted).

In response to Atkins’ motion for directed verdict, the State argued the allegations against Atkins were corroborated by the fact that (1) Atkins called Sur les to tell him that A. O. was going to say Atkins was the baby’s father; and (2) A. O. called Atkins and told him she was pregnant with his baby. We are unpersuaded that either statement provides sufficient corroboration.

Here, the evidence shows that, some time after learning she was pregnant, A. O. called Atkins and his wife and told them she was pregnant with Atkins’ child. That statement — which was proven to be false — cannot be used to corroborate her testimony.

This Court is equally unpersuaded by the argument that Atkins’ call to Surles corroborated A. O.’s allegations because Atkins never admitted guilt. Surles testified that Atkins called him and said, “A. O. was going to tell [Surles] she was pregnant by [Atkins] so she can get an abortion.” Surles also testified that, during that same conversation, Atkins denied A. O.’s allegations. The State’s assertion that by calling Surles and denying the allegations, Atkins implicated himself and corroborated A. O.’s testimony, is nonsensical. The record before this Court is devoid of any evidence wherein Atkins admits to having sexual or intimate contact with A. O. that would meet the corroboration threshold.

In its brief, the State also asserts that A. O.’s trial testimony was consistent with her initial report to police and statements she made in her forensic interview. We agree.

This Court’s decisions hold that a victim’s own prior statements to police, if found to be consistent with her later trial testimony, satisfy the corroboration requirement. Brown v. State, 318 Ga. App. 334, 336 (1) (733 SE2d 863) (2012); Patterson v. State, 233 Ga. App. 776, 776 (1) (505 SE2d 518) (1998). Here, a jury could find that A. O.’s report to the police as well as the statements she made in her forensic interview were consistent with, and corroborated, the testimony she provided at trial. See id.; see also Cobb v. Hart, 295 Ga. 89, 91 (2) (757 SE2d 840) (2014). At trial, A. O. indicated that Atkins had sex with her on August 15, 2010. This was corroborated by a statement she made in her initial report to the police to the same effect. A. O. also made an identical statement in a later forensic interview. These prior consistent statements to police provide sufficient corroboration. See Brown, 318 Ga. App. at 336 (1). Thus, we agree with the trial court that the State introduced sufficient evidence of each element of the statutory rape charge, including sufficient evidence of corroboration, such that the jury was permitted to find Atkins guilty beyond a reasonable doubt on that charge.

2. (a) Atkins argues the trial court erred in denying his motion for a new trial and in ruling that the Rape Shield Statute prohibited him from inquiring about the paternity of A. O.’s baby at trial. We disagree.

On appeal, “[w]e review the denial of a motion for a new trial for abuse of discretion.” Heatherly v. State, 336 Ga. App. 875, 876 (785 SE2d 431) (2016). The Rape Shield Statute, OCGA § 24-4-412, provides in relevant part as follows:

(a) In any prosecution for [sexual offenses including those at issue], evidence relating to the past sexual behavior of the complaining witness shall not be admissible, either as direct evidence or on cross-examination of the complaining witness or other witnesses, except as provided in this Code section. . . .
(b) In any prosecution for [such offenses], evidence relating to the past sexual behavior of the complaining witness may be introduced if the court, following the procedure described in subsection (c) of this Code section, finds that the past sexual behavior directly involved the participation of the accused and finds that the evidence expected to be introduced supports an inference that the accused could have reasonably believed that the complaining witness consented to the conduct complained of in the prosecution.

(Emphasis supplied.) Here, Atkins sought to ask the victim about paternity even though, as the trial court explained, evidence had already been introduced to the effect that “she was pregnant, that the pregnancy was aborted, and that the fetus was tested and your client [was] excluded as the father.” As a result, the trial court held “any logical person” could conclude that the victim had had sex with someone besides Atkins, such that the identity of that other person was both irrelevant and was evidence as to her past sexual behavior and thus inadmissible.

The statute clearly provides that evidence as to a victim’s past sexual history is admissible only if the court “finds that the past sexual behavior directly involved the participation of the accused[.]” OCGA § 24-4-412 (b). As the Supreme Court of Georgia has held, “[t]he defendant’s right to confront and cross-examine witnesses concerning the victim’s past sexual behavior with others must bow to accommodate the [S]tate’s interest in the Rape Shield Statute.” Harris v. State, 257 Ga. 666, 668 (1) (c) (362 SE2d 211) (1987). And this Court has repeatedly held since Harris that a trial court does not err in granting a motion in limine as to a victim’s sexual history with a person other than the defendant. See Snow v. State, 228 Ga. App. 649, 651-652 (4), (5) (492 SE2d 564) (1997) (no error in court’s exclusion of evidence as to how the victim had intercourse with “someone other than” the defendant and as to how her hymen had become perforated); Williams v. State, 257 Ga. App. 54, 55-56 (1) (570 SE2d 362) (2002) (trial court properly excluded evidence as to victims’ past sexual behavior when they testified that they had not had sex with the defendant at any time before the attack at issue).

It is also well settled that the Rape Shield Statute “supersedes all evidentiary exceptions, including the res gestae rule” or any other rule tending to impeach a sex crime victim. See Logan v. State, 212 Ga. App. 734, 735 (1) (a) (442 SE2d 883) (1994) (en banc) (citations and punctuation omitted); Turner v. State, 312 Ga. App. 315, 319 (2) (718 SE2d 545) (2011) (victim’s alleged statement to defendant about her sexual preferences and the lack of sexual activity between her and her boyfriend was properly excluded as “the very type of evidence prohibited by the Rape Shield Statute”); Green v. State, 221 Ga. App. 436, 436-437 (472 SE2d 1) (1996) (defendant could not introduce evidence of victim’s past sexual behavior for purpose of showing she may have been pregnant at the time the allegations were made). Compare Richardson v. State, 276 Ga. 639, 641 (1) (581 SE2d 528) (2003) (defendant was authorized to inquire as to victim’s “nonsexual” relationship with a former boyfriend when her desire to rekindle that relationship could have led her to fabricate a false claim of rape against the defendant to explain the blood and semen stains on the former boyfriend’s jacket).

Atkins’s requested line of inquiry concerned the identity of the father, which could not “involve [Atkins’s] participation.” OCGA § 24-4-412 (b). Rather, the identity of the victim’s former sexual partner, which could be prejudicial to the victim in a number of ways, is precisely the information as to her “past sexual behavior” that the statute is designed to bar. See Cox v. State, 241 Ga. App. 388, 390 (1) (526 SE2d 887) (1999) (evidence regarding identity of victim’s sexual partner goes directly to victim’s past sexual behavior and is inadmissible under Rape Shield Statute). Because the trial court did not err when it granted the State’s motion in limine, we affirm.

(b) While we are satisfied that the evidence sought in this case falls behind the wall erected by the Rape Shield Statute, we note potentially serious concerns regarding the notion that the act is so broad as to exclude all evidence “relating to” a victim’s past sexual behavior with the sole exception being evidence related to activity which included the defendant. In so doing, we contemplate a scenario where the prosecution asserts the Rape Shield Statute to exclude evidence of the DNA results in a fact pattern similar to that in this case (i.e., where the DNA results conclusively refute a claim of the defendant’s paternity) where the evidence would be highly probative of innocence, directly related to the honesty of a witness, yet clearly related to the past sexual behavior of the victim. The possibility of this scenario unfolding in a criminal case raises myriad questions related to the Confrontation Clause and Due Process protections of our constitutions. But this is not the case before us.

Judgment affirmed.

Doyle, Branch, McMillian, Mercier, and Reese, JJ., concur in Divisions 1 and 2 (a) and in judgment only in Division 2 (b). Miller, P J., concurs in judgment only. McFadden, P. J., concurs in Division 1 and dissents in Division 2. Barnes, P. J., concurs in Division 1 and dissents without opinion in Division 2.

McFADDEN, Presiding Judge,

concurring in part and dissenting in part.

Because the trial court excluded evidence relevant to a plausible defense that was not evidence of the victim’s past sexual behavior and therefore not within the scope of the Rape Shield Statute, I respectfully dissent from Division 2. I concur fully in Division 1.

After initially accusing, by name, a boy who lived in her neighborhood of impregnating her, A. O. leveled the same charge against Atkins. Notwithstanding DNA evidence that belied that charge, prosecution of Atkins continued on the theory that Atkins raped and molested her on other occasions.

Atkins filed a motion in limine, arguing that he “should have been allowed to cross-examine [A. O.] regarding her motive to make up a false story that he was the father of the child.” Such evidence, he argued, would “go to her motive . . . [f]or making up this story . . . [if] she’s trying to protect her boyfriend or someone along that nature.” The trial court denied the motion, ruling:

The pertinent evidence that will come out before the jury is that your client was alleged to be the father by the alleged victim; and DNA, the science, showed that he was not. That evidence will be placed before the jury The jury can then conclude — she didn’t impregnate herself. So the jury can then conclude, without knowing who it was or how it happened, that she had sex with somebody else. So the Court doesn’t believe that any specific inquiry of the alleged victim about who, when, where and why is appropriate; and I do believe that it would violate rape shield.

(Punctuation omitted.) So Atkins did not address A. O.’s motive to lie in his closing argument. As Atkins argues on appeal, “In the absence of cross-examination, a closing argument about who the father could have been was inherently speculative and unpersuasive.” (Emphasis in original).

The state, however, did address motive in its closing. The state acknowledged that A. O. had “said [Atkins] raped me and I got pregnant. Not possible — no possibility that it couldbe anyone else’s.” But, the state argued, this falsehood should be attributed to A. O.’s “13-year-old mind” and to “the process of disclosure.” A. O., the state assured the jury, “had no motive to lie.”

The issue before us is whether, under the facts of this case, the identity of the person who impregnated A. O. and his relationship with her falls within the scope of the Rape Shield Statute. It does not.

The fact that A. O. was impregnated was in evidence. Only the identity of the person who impregnated her and the nature of his relationship with her was excluded. In other words, the sexual aspect of the intercourse between A. O and that person was in evidence; the non-sexual aspect was not. See Richardson v. State, 276 Ga. 639, 641 (1) (581 SE2d 528) (2003).

Our Supreme Court addressed the scope of the Rape Shield Statute when it upheld its constitutionality: “a strong legislative attempt to protect the victim-prosecutrix in rape cases by the exclusion of evidence which might reflect on the character of the witness without contributing materially to the issue of the guilt or innocence of the accused.” Harris v. State, 257 Ga. 666, 667 (1) (a) (362 SE2d 211) (1987) (citation and punctuation omitted).

The majority misperceives that scope. The Rape Shield Statute, the majority notes with some dismay, “is so broad as to exclude all evidence ‘relating to’ a victim’s past sexual behavior with the sole exception being evidence related to activity which included the defendant.” Maj. Op. at 428. The majority’s dismay would be warranted if its reading of the statute were correct. But it is not correct. The majority’s reading of the statute is contrary to Harris, supra. And it is contrary to the language of the statute itself — particularly language omitted from its truncated recitation of subsection (a). That omitted language is emphasized here:

(a) In any prosecution for [sexual offenses including those at issue], evidence relating to the past sexual behavior of the complaining witness shall not be admissible, either as direct evidence or on cross-examination of the complaining witness or other witnesses, except as provided in this Code section. For the purposes of this Code section, evidence of past sexual behavior includes, but is not limited to, evidence of the complaining witness’s marital history, mode of dress, general reputation for promiscuity, nonchastity, or sexual mores contrary to the community standards.

OCGA § 24-4-412 (a) (emphasis supplied). The list set out in that language has a purpose. Statutes are to be read so as to avoid a “construction that will render some of the statutory language mere surplusage[.]” Kennedy v. Carlton, 294 Ga. 576, 578 (2) (757 SE2d 46) (2014). It is not, of course, an exclusive list. Its purpose is to illustrate the scope of the Rape Shield Statute. The list, and the term of enlargement with which it begins, must be read in light of the statutory canon of construction, ejusdem generis. Under this principle,

when a statute or document enumerates by name several particular things, and concludes with a general term of enlargement, this latter term is to be construed as being ejusdem generis [i.e., of the same kind or class] with the things specifically named, unless, of course, there is something to show that a wider sense was intended. [Cits.]

Center for a Sustainable Coast v. Coastal Marshlands Protection Committee, 284 Ga. 736, 737-738 (1) (670 SE2d 429) (2008), citing Dept. of Transp. v. Montgomery Tank Lines, 276 Ga. 105, 106 (1) n. 5 (575 SE2d 487) (2003) (punctuation omitted). See also Wilson v. Clark Atlanta Univ., 339 Ga. App. 814, 834 (2) (c) (794 SE2d 422) (2016) (“Under the rule of ejusdem generis, the words ‘including but not limited to’ ordinarily should be construed as referring to [things] of the same kind as those specially named.”) (citations and punctuation omitted). So the evidence excluded by the Rape Shield Statute is evidence of the same kind or class as “evidence of the complaining witness’s marital history, mode of dress, general reputation for promiscuity, nonchastity, or sexual mores contrary to the community standards.” OCGA § 24-4-412 (a). The evidence excluded here is not of that kind or class.

Evidence of the identity of the person who impregnated A. O., of his relationship to her, and of her possible motive to lie to protect him is not “evidence which might reflect on the character of the witness without contributing materially to the issue of the guilt or innocence of the accused.” Harris, supra, 257 Ga. at 667 (1) (a) (citations and punctuation omitted). It is not evidence of A. O.’s “past sexual behavior.” OCGA § 24-4-412 (a). It is not evidence of the same kind or class as the list of examples in the final sentence of OCGA § 24-4-412 (a). It is tangential to evidence of sexual encounters — which the state had introduced into evidence and which was central to its case.

So the issue before us is controlled by Richardson, 276 Ga. at 639. As here, the trial court in Richardson excluded “non-sexual questioning of the victim about her previous relationship” through which Richardson sought to show a motive to lie, id. at 641 (1), and the Supreme Court reversed. It was undisputed that the defendant and victim had had a sexual encounter. Consent was the issue. The defendant had sought to establish that the victim’s hope to rekindle a relationship with another man, and her consequent wish to explain the physical evidence of her encounter with the defendant, motivated her to lie. Here, as in Richardson, the excluded evidence touched on a sexual encounter central to the case; but “[t]he proposed inquiry was confined to the existence of a relationship . . . and whether [a] desire [related to] that relationship was a motive to make a false claim of rape.” Id.

Because the issue before us is the scope of the statute, it is irrelevant that the Rape Shield Statute “supersedes all evidentiary exceptions[.]” Logan v. State, 212 Ga. App. 734, 735 (1) (a) (442 SE2d 883) (1994). And I agree with the majority that the statutory exception for past acts involving the defendant, OCGA § 24-4-412 (b), is also irrelevant.

Application of the Rape Shield Statute is fact intensive. For example, the majority cites Cox v. State, 241 Ga. App. 388 (526 SE2d 887) (1999). We held in that case, “Cox’s stepdaughter told her physician that she was sexually active with her boyfriend. This evidence regarding the identity of her sexual partner goes directly to the stepdaughter’s past sexual behavior and, under the facts of this case, is inadmissible under the Rape Shield Law[.]” Id. at 390 (2). And the trial court in Cox did admit the fact that the victim had been sexually active and excluded only the identity of her boyfriend. So Cox does appear, at first glance, to be on all fours with this case. But when we upheld the trial court’s ruling we emphasized — twice — that we were doing so “under the facts of this case.” Id. at 390, 391 (2). The facts of Cox were that, while the fact that the victim had been sexually active was admitted, apparently as relevant to the defense that the victim’s boyfriend rather than the defendant was the cause of certain physical evidence, the properly-excluded evidence of the identity of her boyfriend would have supported only a rather dubious prior-inconsistent-statement argument. Id. at 390 (2).

So in Cox, evidence of the victim’s boyfriend’s identity was a substantially gratuitous intrusion. It was “evidence which might reflect on the character of the witness without contributing materially to the issue of the guilt or innocence of the accused.” Harris, 257 Ga. at 667 (1) (a) (citation and punctuation omitted). It was not evidence of the kind or class barred by the Rape Shield Statute, OCGA § 24-4-412 (a). In this case, however, evidence of the identity of the person who impregnated A. O. would not materially add to sexual evidence admitted by the state and was essential to Atkins’s defense.

On Motion for Reconsideration.

McFadden, Presiding Judge.

I amend my earlier dissent in light of Atkins’s motion for reconsideration. He makes a sound and responsive argument. In upholding the trial court’s oral ruling, the majority has adopted a construction of the Rape Shield Statute that renders it so broad as to be constitutionally suspect. That construction should be rejected under the canon of constitutional avoidance. See Castillo-Solis v. State, 292 Ga. 755, 760 (2) (740 SE2d 583) (2013); Haley v. State, 289 Ga. 515, 521-522 (2) (712 SE2d 838) (2011); see also Antonin Scalia & BryanA. Garner, Reading Law: The Interpretation of Legal Texts 247-251 (1st ed. 2012). I write again to adopt that argument.

The author of the majority opinion, writing for himself alone, acknowledges in Division 2 (b) that “myriad questions related to the Confrontation Clause and Due Process protections of our constitutions” are raised by “the notion that the act is so broad as to exclude all evidence ‘relating to’ a victim’s past sexual behavior with the sole exception being evidence related to activity which included the defendant.” Maj. Op. at 428. I agree.

Moreover, it’s not a “notion.” It’s a holding. There is no daylight between the so-called notion from which the majority author attempts to distance himself in Division 2 (b) and the authoritative construction of the Rape Shield Statute in Division 2 (a).

The majority author dismisses those constitutional concerns on the basis that “the evidence sought in this case falls behind the wall erected by the Rape Shield Statute.” Maj. Op. at 428. That is a non sequitur. Constitutions trump statutes; statutes don’t trump constitutions.

I also disagree with the majority author’s suggestion that those constitutional concerns may be dismissed by distinguishing this case from one where the evidence is “highly probative of innocence [and] directly related to the honesty of a witness.” Maj. Op. at 428. The rights afforded by the Confrontation and Due Process Clauses are not limited to evidence an appellate court deems particularly persuasive.

And in fact, the evidence at issue here is highly probative of innocence and directly related to the honesty of a witness. It may be that A. O.’s testimony was wholly true. But she’s told three different, stories. It is at least plausible that she falsely accused Atkins in order to protect the person who impregnated her and to dissuade Leon Surles from punishing her and that, when that accusation was belied by DNA evidence, she changed her story again to avoid punishment for lying. The ruling before us hobbled Atkins’s inquiry into that possibility. So the majority’s overbroad reading of the Rape Shield Statute is not merely erroneous and constitutionally suspect. It may well have perpetuated a terrible injustice.

We should be mindful of an observation by then-Justice, later Chief Justice, Weltner. He was addressing the writ of habeas corpus, but his words have broader application.

Too much of our limited judicial resources are consumed in looking for real or imagined errors in the convictions of people who are plainly guilty.... But we must not become so engrossed in the searching out of procedural faults which sometimes intrude in convicting the guilty that we forget the core purpose of the writ — which is to free the innocent wrongfully deprived of their liberty.

Valenzuela v. Newsome, 253 Ga. 793, 796 (4) (325 SE2d 370) (1985).

Decided June 30, 2017

Reconsideration denied July 17, 2017

Christina Cribbs, Bentley C. Adams, for appellant.

Paul L. Howard, Jr., District Attorney, Paige Reese Whitaker, Arthur C. Walton, Assistant District Attorneys, for appellee.

       Leon Surles is not A. O.’s biological father but maintains a father-daughter relationship with A. O.

       Surles testified that in his conversation with Atkins, Atkins stated that A. O. had asked Atkins to have sexual intercourse with her and had asked his wife to perform oral sex on her, but that they had refused A. O.’s requests.

       During her initial interview with police on November 20, 2010, A. O. claimed that on August 15, 2010, while sleeping on the floor of Atkins’ apartment, she awoke to find Atkins on top of her having sex with her. During her later forensic interview, A. O. alleged for the first time that a prior incident occurred in June or July 2010, with both Atkins and his wife at their previous residence.

       At the time of the abortion, the fetus was approximately 11 weeks into gestation, making the time of conception on or around September 11, 2010.

       Atkins’ wife was indicted and tried jointly as a co-defendant on charges of aggravated child molestation and child molestation. She was convicted on both counts. Her case came before us on appeal as Case No. A17A1486.

       Atkins did not challenge the sufficiency of the evidence with respect to the child molestation charge.

       The trial court likewise stated that it did not find the call from A. O. to Atkins to be sufficient corroborating evidence.

       Compare Lewis v. State, 278 Ga. App. 160, 161 (1) (628 SE2d 239) (2006) (although a victim recanted her prior statement, defendant’s admission of a sexual relationship with the victim satisfied the corroboration requirement); Reece v. State, 241 Ga.App. 809, 810 (527 SE2d 642) (2000) (sufficient corroboration where defendant bragged to another witness about the intercourse); Dye v. State, 205 Ga. App. 781, 781 (2) (423 SE2d 713) (1992) (victim’s testimony was corroborated by defendant who admitted that he attempted to have sexual intercourse with the victim but did not believe there was penetration).

       The State also argues that Atkins’ general “access and contact” with A. O. provides the necessary and sufficient evidence to uphold the statutory rape conviction. However, as Brown makes clear, we need not reach this argument because, on their own, A. O.’s prior statements to police, which were consistent with her trial statements, provided sufficient evidence of corroboration. We note that the contact alleged here between Atkins and A. O. is different in kind and of a more general nature than that which this Court addressed in Brown v. State, 318 Ga.App. 334(733 SE2d863) (2012). InBrown, third-party witness testimony indicated that the defendant was with the victim at the time and in the location where the offenses occurred. 318 Ga. App. at 336 (1). Here, the record establishes only that A. O. had been in Atkins’ home and had spent time there on prior occasions. Beyond A. O.’s testimony, the record did not establish that Atkins and A. O. were in contact with each other or in the same location when the offenses were alleged to have occurred. We express no opinion on whether this sort of access can serve as corroborating evidence.

       Although Snow and Williams were decided under the predecessor statute, OCGA § 24-2-3, subsection (b) of that statute was maintained without change in OCGA § 24-4-412 (b). See former OCGA § 24-2-3 (b) (“evidence relatingto the past sexual behavior of the complaining witness may be introduced if the court. .. finds that the past sexual behavior directly involved the participation of the accused . . . .”).


source: Caselaw Access Project

author: Bethel, Judge. McFadden, Presiding Judge,

license: Public Domain

text:
    A17A0586.
    VININGS RUN CONDOMINIUM ASSOCIATION, INC. et al. v. STUART-JONES.
    (802 SE2d 393)
   Bethel, Judge.

Vinings Run Condominium Association, Inc., and Access Management Group, L.P. (collectively, the “appellants”) appeal the denial of their motion for summary judgment. They argue that the plaintiff in the underlying action, Linda Stuart-Jones, had equal or superior knowledge of the allegedly unsafe conditions surrounding an outdoor staircase and that such knowledge should bar her recovery. The appellants further argue that the trial court erred in finding that the necessity rule applies because Stuart-Jones does not have a landlord-tenant relationship with the appellants. We agree and reverse.

Summary judgment is proper “if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law[.]” OCGA § 9-11-56 (c). “In response to a properly supported motion for summary judgment which pierces the pleadings, plaintiffs may not stand upon their allegations, but must come forward with evidence to contravene defendants’ proof or suffer judgment.” Essien v. CitiMortgage, Inc., 335 Ga. App. 727, 727 (781 SE2d 599) (2016) (citations and punctuation omitted).

Summary judgment enjoys no presumption of correctness on appeal, and an appellate court must satisfy itself de novo that the requirements of OCGA § 9-11-56 (c) have been met. In our de novo review of the grant or denial of a motion for summary judgment, we must view the evidence, and all reasonable inferences drawn therefrom, in the light most favorable to the nonmovant.

Id. at 728 (citation and punctuation omitted).

Viewed in this light, the evidence shows that Stuart-Jones had a verbal agreement with the owner of a condominium to lease-purchase the home. Stuart-Jones had been residing in the condominium since 2007. In her deposition, Stuart-Jones testified that she had previously made requests to maintenance regarding the need for lighting and an additional handrail on the concrete stairs leading from the parking lot to her condominium. However, she contends these requests were ignored. Subsequently, after returning home one evening, Stuart-Jones fell while ascending the concrete stairs. She suffered some injuries from that fall.

Stuart-Jones brought suit against the condominium association, Vinings Run Condominium Association, Inc., and the management company, Access Management Group, L.R, seeking recovery for these injuries. Stuart-Jones alleged that the appellants were responsible because they had failed to install adequate lighting and other features necessary to keep the stairway safe. Vinings Run and Access Management moved for summary judgment, arguing that Stuart-Jones could not recover for her injuries because she had equal, if not superior, knowledge of the allegedly unsafe conditions. In response, Stuart-J ones argued that she could still recover because the necessity rule applied, meaning that it was necessary for her to traverse the allegedly unsafe conditions to enter her residence. Vinings Run and Access Management argued that the exception only applies in the context of a landlord-tenant relationship, which did not exist between them and Stuart-Jones. The trial court denied Vinings Run and Access Management’s motion for summary judgment, finding that the necessity rule applied, and this appeal followed.

“It has often been held that the true basis for a landlord’s liability to a tenant for injuries resulting from a defective or hazardous condition existing on the premises is the landlord’s superior knowledge of the condition and of the danger resulting from it.” Richardson v. Palmour Court Apts., 170 Ga. App. 204, 205 (316 SE2d 770) (1984).

In accordance with the superior knowledge principle, it has been held that where a portion of leased premises is dangerously out of repair and such condition is patent and known to the tenant, who continues to use that area, the tenant cannot recover from the landlord for damages resulting from the condition.

Id. (citation and punctuation omitted). See also Flores v. Strickland, 259 Ga. App. 335, 337 (1) (577 SE2d 41) (2003) (“A landlord is not liable for a plaintiff’s injuries caused by a dangerous condition when the plaintiff had equal or superior knowledge of the danger and failed to exercise ordinary care to avoid it.” (footnote omitted)). A tenant is presumed to have knowledge of allegedly dangerous, but static, conditions that he or she has successfully negotiated on a previous occasion. Amerson v. Kelly, 219 Ga. App. 377, 378 (465 SE2d 470) (1995).

However, Stuart-Jones argues that the equal or superior knowledge rule does not bar her recovery because the necessity rule exception applies.

The necessity rule applies in the context of a landlord-tenant relationship where the tenant is required to traverse a known hazard in order to enter or leave his home. Under that exception, when the dangerous area is a tenant’s only access or only safe and reasonable access to his home, the tenant’s equal knowledge of the danger does not excuse the landlord from liability for damages caused by a failure to keep the premises in repair. Thus, the necessity rule exception tempers the equal or superior knowledge rule when there is no other means of safe ingress and egress to the leased premises.

Flores, 259 Ga. App. at 337-338 (2) (punctuation and footnotes omitted). See also Hull v. Mass. Mut. Life Ins. Co., 142 Ga. App. 269, 270 (235 SE2d 601) (1977) (“To hold otherwise, we would make the appellant a captive in her own apartment. . . forcing her to abandon her very means of livelihood until such time as the appellee found it convenient to remedy the dangerous situation.”).

But the necessity rule exception only applies to situations involving landlords and tenants. See Shansab v. Homart Dev. Co., 205 Ga. App. 448, 451 (4) (422 SE2d 305) (1992) (declining to extend the necessity rule to employees of a tenant located in the proprietor’s building); Hart v. Brasstown View Estates, 234 Ga.App. 389, 391 (506 SE2d 896) (1998) (necessity rule does not apply to innkeeper-guest relationship) (physical precedent only); Grier v. Jeffco Mgmt. Co., 176 Ga.App. 158, 159-160 (335 SE2d 408) (1985) (the necessity exception applies in landlord-tenant cases, but not when the parties have a business owner-customer relationship).

Thus, the question for this Court to resolve is whether a landlord-tenant relationship exists here between the parties in this suit. Stuart-Jones fails to point this Court to any evidence in the record to this effect. Rather, Stuart-Jones appears to have an oral lease with the owner of her condominium unit. Because she cannot demonstrate a landlord-tenant relationship with the appellants, the necessity rule does not apply. Further, Stuart-Jones conceded that she was aware of the conditions around the concrete stairs that she contends were unsafe and which allegedly contributed to her fall. Accordingly, because Stuart-Jones had equal knowledge of the allegedly unsafe conditions of which she complains, and because the necessity rule does not apply, the trial court erred in denying summary judgment.

Judgment reversed.

Branch, McMillian and Mercier, JJ., concur. Doyle, J., concurs in judgment only. Barnes, P. J., McFadden, P. J., and Reese, J., dissent. Miller, P. J., concurs in judgment only of the dissent.

McFadden, Presiding Judge,

dissenting.

I disagree with the majority’s holding that the necessity rule is limited to cases involving landlords and tenants and so does not apply here. Whether that rule extends to condominium residents and condominium associations is an issue of first impression. Because the animating principle of the rule applies as well to condominium homes as to rental homes, I would hold that the rule itself likewise extends to condominiums. I therefore respectfully dissent.

It is true that the necessity rule has not been extended beyond the landlord-tenant context.

The necessity rule applies in the context of a landlord-tenant relationship where the tenant is required to traverse a known hazard in order to enter or leave his home. Under that exception, when the dangerous area is a tenant’s only access or only safe and reasonable access to his home, the tenant’s equal knowledge of the danger does not excuse the landlord from liability for damages caused by a failure to keep the premises in repair. Thus, the necessity rule exception tempers the equal or superior knowledge rule when there is no other means of safe ingress and egress to the leased premises.

Flores v. Strickland, 259 Ga. App. 335, 337-338 (2) (577 SE2d 41) (2003) (citations and punctuation omitted).

But when we have rejected past arguments for extension of the necessity rule, we have done so on the basis that it should not be extended beyond its animating principle. That is, a person “cannot be deemed as a matter of law to have freely and voluntarily assumed the risk of injury” if her alternative is to become “a virtual prisoner in her own apartment.” Grier v. Jeffco Mgmt. Co., 176 Ga.App. 158, 159-160 (335 SE2d 408) (1985); accord Shansab v. Homart Dev. Co., 205 Ga. App. 448, 451 (4) (422 SE2d 305) (1992). See Hart v. Brasstown View Estates, 234 Ga. App. 389, 391 (506 SE2d 896) (1998) (necessity rule did not apply when the parties were an innkeeper and a guest); Shansab, supra (declining to extend necessity rule to employees of party located in proprietor’s building); Grier, supra (finding that the necessity exception did not apply when the parties had a business owner and customer relationship). So for the necessity rule, there is no meaningful difference between a rental apartment and a condominium apartment.

Decided June 27, 2017

Reconsideration denied July 17, 2017

Drew, Eckl & Farnham, Brian W. Johnson, for appellants.

The Morrison Law Firm, Stephen D. Morrison, Jr., for appellee.

The evidence before us, construed in favor of Stuart-Jones as the party opposing summary judgment, OCGA § 9-11-56, is that both staircases were insufficiently lit. That is sufficient to avoid summary judgment. See McCullough v. Briarcliff Summit, L.P. II, 237 Ga. App. 630, 632 (2) (516 SE2d 353) (1999) (unlit stairs).

I am authorized to state that Presiding Judge Barnes and Judge Reese join in this dissent and that Presiding Judge Miller concurs in judgment only as to this dissent.

       Stuart-Jones testified that the condominium owner forwards her the mortgage payment information, and Stuart-Jones pays the mortgage note directly with Wells Fargo.


author: Doyle, Judge.

text:
    A17A1058.
    FLOYD v. THE STATE.
    (803 SE2d 597)
   Doyle, Judge.

Following a jury trial, Arnold Alexander Floyd was convicted of two counts of armed robbery, two counts of kidnapping, burglary, and two counts of first degree cruelty to children. Floyd appeals the denial of his motion for new trial, arguing that the evidence was insufficient to support his convictions and that the trial court erred by requiring him to register as a sex offender. For the reasons that follow, we reverse one of Floyd’s convictions for kidnapping, affirm the remaining convictions, and remand the case for resentencing.

On appeal,

[w]e view the evidence ... in the light most favorable to the verdict[ ] and no longer presume the defendant is innocent. We do not weigh the evidence or decide the witnesses’ credibility, but only determine if the evidence is sufficient to sustain the convictions. We construe the evidence and all reasonable inferences from the evidence most strongly in favor of the jury’s verdict.

So viewed, the record shows that on August 3, 2011, 16-year-old V. Y. was at home with her 12-year-old brother, P. Y. V. Y.’s boyfriend, Thaddeus Fowler, arrived at the house for a planned shopping trip, used the restroom, and then returned to the car to wait for V. Y Shortly thereafter, Floyd entered the house, wielding a gun. V. Y, who was on the phone, asked Floyd who he was, and he told her at gunpoint “to shut up and give him the phone,” directing her upstairs. V. Y walked to her room, bypassing her brother’s room where he was sleeping with the door closed, and Floyd demanded that she take off her clothes. After initially refusing, V. Y took off her shirt but then began screaming for her brother when Floyd told her to go faster. Floyd then walked her to P. Y.’s bedroom, still wielding the gun.

P Y awoke, and Floyd grabbed the home phone and threw it downstairs, took P Y.’s phone, and then pointed his gun at P Y, who was sitting on the bed, and demanded that P Y put a video gaming system and shoes in a bag and open a safe located in the room. Floyd also grabbed some toy guns and a poster from his wall. Next, Floyd forced the victims to stand at gunpoint before exiting the room. While Floyd was in P Y.’s room with the victims, Fowler took a television and other items from V. Y.’s bedroom. The two men then left the house and drove away.

Floyd was charged with two counts of armed robbery, two counts of kidnapping, burglary, two counts of first degree cruelty to children, and two counts of aggravated assault. Following a jury trial, he was found guilty on all counts and sentenced to prison. Floyd was also required to register as a sex offender as to his conviction for kidnapping P. Y. The trial court denied his subsequent motion for new trial, and this appeal followed.

1. Floyd contends that the trial court erred by denying his motion for a directed verdict as to the charges of kidnapping, arguing that the State failed to prove the element of asportation beyond a reasonable doubt.

“A person commits the offense of kidnapping when such person abducts or steals away another person without lawful authority or warrant and holds such other person against his or her will.” “For the State to prove the essential element that the defendant has ‘stolen away’ or ‘abducted’ his alleged victim, it must show that an unlawful movement, or asportation, of the person has taken place against the victim’s will.” The kidnapping statute provides:

(1) For the offense of kidnapping to occur, slight movement shall be sufficient; provided, however, that any such slight movement of another person which occurs while in the commission of any other offense shall not constitute the offense of kidnapping if such movement is merely incidental to such other offense.
(2) Movement shall not be considered merely incidental to another offense if it:
(A) Conceals or isolates the victim;
(B) Makes the commission of the other offense substantially easier;
(C) Lessens the risk of detection; or
(D) Is for the purpose of avoiding apprehension.

(a) Count 4. Count 4 charged Floyd with kidnapping V. Y. The evidence shows that Floyd took V. Y.’s phone at gunpoint and forced her to walk upstairs and into her bedroom, where he demanded that she remove her shirt. He then made her walk to P. Y.’s room, where Floyd had P. Y gather multiple items that Floyd then took from the house. In doing so, Floyd moved V. Y from one floor to another and ultimately removed her from her room and had her go into her brother’s room, making it substantially easier for Floyd and Fowler to commit armed robbery including forcing P Y to gather various items in his room.

“As a result, the movement of [V. Y] was not merely incidental to any other charged offense, and [viewed in favor of the verdict,] the evidence was sufficient to establish the asportation element of the kidnapping charge.”

(b) Count 3. Count 3 charged Floyd with kidnapping P Y Floyd forced P Y to stand up from his bed, at gunpoint, and retrieve various items from around the room and place them in a bag for Floyd to take; P Y was never forced to leave his bedroom. Even viewed in favor of the verdict, the evidence shows that the movement simply was incidental to the crime of armed robbery; it did not conceal or isolate P Y, it did not lessen the risk of detection, and it was not done for the purpose of avoiding apprehension. Thus, the State failed to establish the required element of asportation as to P Y. Accordingly, we reverse Floyd’s conviction on Count 3.

2. Floyd further contends that the evidence was insufficient to support the verdict and that the verdict was contrary to the evidence. Floyd offers no specific argument to support this enumeration, instead citing general legal propositions, including that

Decided July 20, 2017.

James E. Bischoff, for appellant.

Benjamin D. Coker, District Attorney, B. Ashton Fallin, Assistant District Attorney, for appellee.

to sustain a conviction in a felony case upon the testimony of an accomplice, there must be corroborating facts or circumstances, which, in themselves and independently of the testimony of the accomplice, directly connect the defendant with the crime, or lead to the inference that he is guilty, and are more than sufficient to merely cast on the defendant a grave suspicion of guilt.

Viewed in favor of the verdict, the evidence, including the testimony of both victims, was sufficient to sustain Floyd’s remaining convictions for kidnapping V. Y. (Count 4), two counts of armed robbery (Counts 1 and 2), burglary (Count 5), two counts of first degree cruelty to children (Counts 6 and 7), and two counts of aggravated assault (Counts 8 and 9).

3. Finally, Floyd argues that the trial court erred by requiring him to register as a sex offender as part of his conviction for kidnapping P. Y. In light of our reversal of Floyd’s conviction for kidnapping P. Y., this enumeration is moot.

Judgment affirmed in part and reversed in part, and case remanded for resentencing.

Miller, P. J., and Reese, J., concur.

       OCGA § 16-8-41 (a).

       OCGA § 16-5-40 (a).

       OCGA § 16-7-1 (b).

       OCGA § 16-5-70 (b). Floyd was also convicted of two counts of aggravated assault (OCGA § 16-5-21 (a) (2) (2011)), but the trial court merged those counts into the two armed robbery convictions.

       (Punctuation omitted.) Frazier v. State, 339 Ga. App. 405, 406 (793 SE2d 580) (2016). See also Jackson v. Virginia, 443 U. S. 307 (99 SCt 2781, 61 LE2d 560) (1979).

       Fowler was charged with multiple crimes. He is not, however, a party to this appeal.

       OCGA § 16-5-40 (a).

       (Punctuation omitted.) Ward v. State, 324 Ga. App. 230, 232 (1) (749 SE2d 812) (2013).

       In 2008, the Supreme Court of Georgia held that the asportation required to support a conviction for kidnapping must be more than “slight” and set forth a four-part test to aid in the determination of whether the asportation element was 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. Garza v. State, 284 Ga. 696, 702 (1) (670 SE2d 73) (2008); see also Bryant v. State, 304 Ga. App. 755, 756-757 (1) n. 1 (697 SE2d 860) (2010). After the Garza decision, the legislature amended the kidnapping statute, effective July 1, 2009, to provide that slight movement is sufficient to establish kidnapping as long as the movement was not incidental to another offense. See Hammond v. State, 289 Ga. 142, 143 (710 SE2d 124) (2011). The 2009 amendment is applicable here [because] the incident occurred in [August 2012].

        Ward, 324 Ga. App. at 232 (1) n. 3.

       OCGA § 16-5-40 (b).

       Again, while Floy d held the victims at gunpoint in R Y.’s room, Fowler took various items from V. Y.’s room.

        Ward, 324 Ga. App. at 233 (1). See also Ray v. State, 338 Ga. App. 822, 826 (1) (a) (792 SE2d 421) (2016).

       See Wilson v. State, 318 Ga. App. 37, 40 (733 SE2d 345) (2012) (applying Garza factors); Goolsby v. State, 311 Ga. App. 650, 653-654 (1) (b) (718 SE2d9) (2011) (applying Garza factors).

       (Punctuation omitted.) Bradford v. State, 261 Ga. 833, 834 (1) (412 SE2d 534) (1992).

       See Harris v. State, 311 Ga. App. 336, 339-340 (1) (715 SE2d 757) (2011) (testimony of robbery victims was sufficient to corroborate accomplice’s testimony).

       See Division 1 (b).


text:
    A17A1344.
    SCOTT v. THE STATE.
    (803 SE2d 600)
   Doyle, Judge.

After a jury trial, Demarri Scott was convicted of hijacking a motor vehicle and two counts of aggravated assault. Scott appeals the trial court’s denial of his subsequent motion for new trial, arguing that insufficient evidence supports his convictions and that a fatal variance exists between the indictment and the proof at trial. For the reasons that follow, we affirm.

When reviewing the sufficiency of the evidence,

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. This familiar standard gives full play to the responsibility of the trier of fact fairly to resolve conflicts in the testimony, to weigh the evidence, and to draw reasonable inferences from basic facts to ultimate facts. Once a defendant has been found guilty of the crime charged, the factfinder’s role as weigher of the evidence is preserved through a legal conclusion that upon judicial review all of the evidence is to be considered in the light most favorable to the prosecution.

So viewed, the evidence shows that on June 22, 2014, Yoni Hernandez borrowed his cousin’s minivan to purchase a used iPhone from Monterio Young. Jose Cruz-Pantoja accompanied Hernandez to Young’s home in Clayton County When they arrived, Cruz-Pantoja noticed that the house had a “bad vibe,” and he did not feel safe going into the house, so he elected to wait in the driveway “just in case something happen[ed].” Hernandez approached the house, and as he climbed the front steps to the home, he was shoved into the front door of the house from behind. Young and another man, both armed with guns, then forced Hernandez to exit the house. Several other men with guns approached Cruz-Pantoja from behind, and the men demanded the victims’ personal items. The assailants took Cruz-Pantoja’s wallet and phone and Hernandez’s phone and keys. Another man then approached Hernandez from behind, hit him in the mouth with a gun, and then fled in a red car with a Hispanic man who ordered Hernandez into the house. Young and another man left in Hernandez’s cousin’s minivan.

Less than 20 minutes later, Petrine Bennett, a former sheriff’s deputy, was at home approximately four miles from the robbery when she heard a loud noise and went outside to see that a minivan had crashed into a tree in her front yard. Bennett went outside to assist and spoke with the two men inside the minivan, one of whom seemed dazed; she identified one of the men as Scott. The driver declined Bennett’s offer to call an ambulance, but she called 911 anyway; the men refused to wait and took off on foot. Bennett then followed them in her car, maintaining contact with police via phone.

In response to Bennett’s call, a police officer located the two men and spoke with them from inside his patrol vehicle; the men identified themselves as Young and Scott. When the officer exited his vehicle, the men fled.

After learning that the minivan that crashed into Bennett’s front yard had been reported stolen in connection with the armed robbery of Hernandez and Cruz-Pantoja, police prepared a lineup with Scott’s photograph. Cruz-Pantoja identified Scott as one of the persons who robbed him; Hernandez was not able to identify anyone in the photographic lineup.

On July 24, 2014, Scott was arrested and questioned. After initially denying any involvement in the robbery, Scott later prepared a written statement indicating that he met Young and some other men on the day of the robbery, and Young “announced that he was about to rob some Hispanics.” Scott stated that he declined to participate, but he rode with some other men to the abandoned house where Young was supposed to meet the victims. Scott saw Young brandish a gun and push the men inside the house, and he saw Young punch one of the victims in the mouth. Scott stated that he left the scene, met Young shortly thereafter, and got into the minivan Young was driving. After someone called and advised Young that there was a tracker on the minivan, he drove it into a fence, and Scott and Young fled.

The jury found Scott guilty of hijacking a motor vehicle (Count 1), aggravated assault of Hernandez (Count 3), and aggravated assault of Cruz-Pantoja (Count 7). The trial court denied his subsequent motion for new trial, and this appeal followed.

1. Scott argues that his conviction for hijacking a motor vehicle must be reversed because there was a fatal variance between the allegations in the indictment and the proof at trial. Count 1 charged that Scott and Young “did, while in possession of a firearm, obtain a motor vehicle . . . from the presence of Yoni Hernandez by force and violence, to wit: he did hit him with a handgun.” Scott contends that there was no evidence that Scott was the person that struck Hernandez. This enumeration presents no basis for reversal.

Our courts no longer employ an overly technical application of the fatal variance rule, focusing instead on materiality. The true inquiry, therefore, is not whether there has been a variance in proof, but whether there has been such a variance as to affect the substantial rights of the accused. It is the underlying reasons for the rule which must be served: 1) the allegations must definitely inform the accused as to the charges against him so as to enable him to present his defense and not to be taken by surprise, and 2) the allegations must be adequate to protect the accused against another prosecution for the same offense.

Here, there is evidence from which the jury could conclude that it was Scott who struck Hernandez with a handgun. Hernandez testified at trial that a black male struck him from behind in the mouth. Shortly thereafter, Young and another man fled in the minivan, while a Hispanic male and the man that struck Hernandez fled in a red car. Thus, there was no fatal variance between the evidence and the indictment.

Moreover, given the evidence and the language of the indictment, “[Scott] was sufficiently informed of the charges against him so that he could prepare a defense [, and] there was no danger that [Scott] would be prosecuted again for the same offense. For these reasons, we conclude there was no fatal variance.”

2. Next, Scott challenges the sufficiency of the evidence, noting that Hernandez did not identify him at trial or in the photographic lineup. Notwithstanding Hernandez’s failure to identify him, there was ample evidence to support Scott’s convictions.

First, Cruz-Pantoja positively identified Scott as one of the assailants. Additionally, Scott was found in the stolen minivan nearby shortly after the robbery; he gave his name to police and then fled, and although he denied participating in the robbery, Scott conceded that he was present when Young spoke about his plan to rob the victims as well as during the robbery itself. Finally, Scott also conceded that he left the scene with another individual in a car and soon thereafter got into the minivan with Young. Based on the foregoing, “[t]he evidence was sufficient to enable a rational trier of fact to find [Scott] guilty beyond a reasonable doubt of the crimes of which he was convicted.”

Decided July 20, 2017.

David E. Clark, for appellant.

Tracy Graham Lawson, District Attorney, Elizabeth A. Baker, Jay M. Jackson, Amy Ferguson, Assistant District Attorneys, for appellee.

Judgment affirmed.

Miller, P. J., and Reese, J., concur.

       OCGA § 16-5-44.1 (b).

       OCGA § 16-5-21 (a) (1) (2011).

       (Citation omitted; emphasis in original.) Jackson v. Virginia, 443 U. S. 307, 319 (III) (B) (99 SCt 2781, 61 LE2d 560) (1979).

       Cruz-Pantoja also identified Scott at trial as one of the men who robbed him.

       Scott was acquitted of two counts of armed robbery (Counts 2 and 6), two counts of possession of a firearm during the commission of a crime (Counts 5 and 9), and two additional counts of aggravated assault (Counts 4 and 8).

       (Punctuation omitted.) Cooper v. State, 286 Ga. 66, 68 (2) (685 SE2d 285) (2009), quoting Delacruz v. State, 280 Ga. 392, 396 (3) (627 SE2d 579) (2006).

       Cruz-Pantoja testified that the assailant struck Hernandez in the mouth with a gun.

        Compare Ford-Calhoun v. State, 327 Ga.App. 835, 836 (1), 839-840 (1) (b) (761 SE2d 388) (2014) (conviction for aggravated assault reversed because the indictment alleged that the defendant assaulted the victim, with intent to rob, by pointing a gun at them, and there was no evidence that a gun was pointed at the victim).

       (Footnote omitted.) Battles v. State, 262 Ga. 415, 417-418 (5) (420 SE2d 303) (1992), citing Glass v. State, 199 Ga. App. 530, 531-532 (1) (405 SE2d 522) (1991).

       See Junior v. State, 282 Ga. 689, 689-690 (1) (653 SE2d 481) (2007).

       Id. at 690 (1). See also Laurel v. State, 278 Ga. App. 147, 147-148 (1) (628 SE2d 208) (2006) (evidence sufficient to support defendant’s convictions for aggravated assault with intent to rob as a party to the crimes); OCGA §§ 16-5-44.1 (b); 16-5-21 (a) (1) (2011); OCGA § 16-2-20 (a) (“Every person concerned in the commission of a crime is a party thereto and may be charged with and convicted of commission of the crime.”).


author: Ray, Judge.

text:
    A15A1282.
    LYMAN et al. v. CELLCHEM INTERNATIONAL, LLC.
    (803 SE2d 375)
   Ray, Judge.

This case is before us on remand from the Supreme Court of Georgia. In the original case, Lyman v. Cellchem Intl., 335 Ga. App. 266 (779 SE2d 474) (2015) (“Lyman I”), husband and wife Dale and Helen Lyman, Tritec International, Inc., and Shekoy Chemicals US, Inc., appealed following a jury verdict awarding nearly $7.4 million, which included $5.1 million in punitive damages to Cellchem International, LLC (“Cellchem”). Cellchem had filed suit alleging, inter alia, computer trespass, computer theft, breach of fiduciary duty, and tortious interference with business relations. In pertinent part, we reversed the judgment against the appellants on Cellchem’s tortious interference claim, id. at 272 (1) (c), and remanded the caseto the trial court for a new trial on punitive damages. Id. at 277 (4). We reasoned that both the unappealed verdict for breach of fiduciary duty, as well as the verdict related to violations of the Georgia Computer Systems Protection Act (“GCSPA”), see OCGA § 16-9-90 et seq., could support a claim for punitive damages. Lyman I, supra at 277 (4). However, because the general verdict form did not delineate the underlying theories upon which the jury based its punitive damages award, we reversed that award, and remanded the case for a new trial on the issue of punitive damages. Id.

The Supreme Court of Georgia granted certiorari to determine whether this Court “erred in holding that the GCSPA can authorize an award of punitive damages.” Lyman v. Cellchem Intl., 300 Ga. 475, 476 (796 SE2d 255) (2017) (“Lyman II”), citing OCGA § 16-9-93 (g), the civil damages provision of the GCSPA. The Supreme Court reversed our decision “with respect to the availability of punitive damages under the GCSPA,” Lyman II at 476, and in doing so overruled the case on which we relied, Automated Drawing Systems v. Integrated Network Svcs., 214 Ga. App. 122 (447 SE2d 109) (1994). See Lyman II, supra at 479. The Supreme Court’s opinion addresses Division 4 of Lyman I. As to the portions of our opinion which the Supreme Court neither addressed nor considered, these remain the law of the case, and we do not address them further. See Shadix v. Carroll County, 274 Ga. 560, 563-564 (1) (554 SE2d 465) (2001).

The Supreme Court’s determination means that, as the case now stands, only the unappealed breach of fiduciary duty verdict could support a punitive damages award. See Bunch v. Byington, 292 Ga. App. 497, 504 (4) (664 SE2d 842) (2008) (breaches of fiduciary duty will support a punitive damages award). However, our original opinion remains intact in that it found that the trial court erred in denying the appellants’ motions for a directed verdict and new trial on Cellchem’s claim of tortious interference with business relations. Lyman I, supra at 267 (1). When the jury rendered its verdict, the tortious interference verdict, now reversed, also could have supported the jury’s award of punitive damages. See Second Continental v. Atlanta E-Z Builders, 237 Ga. App. 304, 307 (4) (514 SE2d 846) (1999) (finding jury award of punitive damages authorized based on tortious interference with business relations). Because of this, it still is unclear, given the general verdict form, whether the jury based its punitive damages award in any part on the now-defunct tortious interference claim, or on the surviving breach of fiduciary duty verdict, or both. Thus, we still must reverse the award of punitive damages and remand the matter to the trial court for a new trial on the issue of punitive damages. This new trial, in accordance with the Supreme Court’s determination, should not involve consideration of any purported award related to violations of the GCSPA. Lyman II, supra at 476.

Decided July 31, 2017.

Richard A. Gordon; Troutman Sanders, Stephen W. Riddell, Gary D. Knopf, Patrick J. Schwedler, for appellants.

Maner, Crumly & Chambliss, Jonathan D. Crumly, Sr., J. William Fawcett, for appellee.

Judgment reversed and case remanded.

Barnes, P. J., and McMillian, J., concur.

       We note that the jury’s punitive damages award is allocated against both Lymans, Tritec International, Inc., and Shekoy Chemicals US, Inc., as was its no-longer-extant tortious interference with business relations verdict. Its surviving breach of fiduciary duty verdict is against only Tritec and both Lymans.


author: MILLER, Presiding Judge.

text:
    A17A0746.
    DANIEL v. THE STATE.
    (803 SE2d 603)
   MILLER, Presiding Judge.

Matthew Clinton Daniel was convicted by a jury of one count of first degree burglary (OCGA § 16-7-1), four counts of entering an auto (OCGA § 16-8-18), twocounts offinancial transaction card theft (OCGA § 16-9-31 (a)), and two counts of identity theft (OCGA § 16-9-121). Daniel was sentenced to 20 years to serve as a recidivist pursuant to OCGA § 17-10-7 (c). Daniel appeals from the denial of his motion for new trial contending that his trial counsel was constitutionally deficient for (a) failing to advise him that if he rejected the State’s plea offer and was convicted at trial the judge would be required to sentence him as a recidivist who would be ineligible for parole, (b) failing to object to the admission of prior felony convictions for sentencing purposes, and (c) failing to request a jury charge on accomplice corroboration. Daniel also alleges plain error in the trial court’s failure to sua sponte charge the jury on accomplice corroboration. For the following reasons, we reverse the trial court’s order and remand this case for proceedings consistent with this opinion.

“On appeal from a criminal conviction, a defendant no longer enjoys the presumption of innocence, and the evidence is viewed in the light most favorable to the guilty verdict.” (Citation and punctuation omitted.) Scarborough v. State, 317 Ga. App. 523 (731 SE2d 396) (2012).

So viewed, the evidence shows that in the late evening of August 9, 2014, after smoking methamphetamine together, Daniel and two women drove to a subdivision in Jackson County, Georgia, for the purpose of breaking into vehicles and a home to steal things. The women, K. S. and D. H., dropped Daniel off at the subdivision and picked him back up after he called them. When they picked Daniel up, he had a bag, a sports jersey, and a wallet. Daniel provided K. S. with a credit card from the wallet, and she used the card to purchase cigarettes from a gas station. K. S. also unsuccessfully attempted to use a credit card at an ATM. Cameras at the gas station and ATM captured K. S.’s image.

K. S. and D. H. testified against Daniel at trial, and the jury found him guilty on all counts. At sentencing, the State introduced evidence of prior felony convictions, and the trial court sentenced Daniel as a recidivist to 20 years to serve under OCGA § 17-10-7 (c). Daniel filed a motion for new trial which the trial court denied, and this appeal followed.

1. Although not enumerated as error by Daniel, we find that the evidence at trial was sufficient to sustain his convictions.

(a) Burglary and, Entering an Auto

To sustain a conviction for first degree burglary, the State was required to prove that Daniel entered a dwelling house without authority with the intent to commit a theft. OCGA § 16-7-1. The State met this burden when it presented testimony that a victim’s wallet was stolen from within the home lived in by two of Daniel’s victims. The evidence also showed that Daniel entered four cars with the intent to commit a theft, which was sufficient to sustain his four convictions under OCGA § 16-8-18.

(b) Financial Transaction Card Theft and Identity Fraud

Daniel was also convicted as a party to the crimes of financial transaction card theft and identity fraud. Jordan v. State, 272 Ga. 395, 396 (1) (530 SE2d 192) (2000) (“every person concerned in the commission of a crime is a party thereto and may be charged with and convicted of commission of the crime”). The evidence was sufficient to sustain these convictions. For the two identity fraud convictions, the State was required to prove that Daniel, without authorization, possessed a victim’s financial transaction card information with the intent to use it fraudulently. OCGA §§ 16-9-120 (5) (financial transaction card numbers included in definition of identifying information), 16-9-121 (a). For the two convictions for financial transaction card theft, the State needed to prove that Daniel obtained a financial transaction card from a victim without the victim’s consent. OCGA § 16-9-31 (a). The State introduced evidence that K. S. used both transaction cards given to her by Daniel as well as receipts evidencing the use and attempted use of the cards, and this evidence was sufficient to sustain the convictions.

2. Daniel argues that his trial counsel was constitutionally deficient for failing to correctly advise him about mandatory recidivist sentencing during plea negotiations and that, had he properly understood sentencing, he would have accepted the State’s plea offer. We agree.

Prior to trial, the State filed a notice of intent to introduce Daniel’s prior convictions and offered him a plea deal of fifteen years to serve six as a recidivist. In response, at Daniel’s request, his trial counsel extended numerous plea offers that included drug treatment and excluded any plea to burglary, all of which the State rejected. During the plea negotiations, Daniel’s trial counsel advised him that the trial court had discretion as to whether to sentence him as a recidivist who was ineligible for parole.

On the day of trial, the State offered Daniel a blind plea to all charges. Although Daniel had previously maintained his innocence with regard to the burglary charge, his trial counsel announced at the start of trial that Daniel would be willing to plead guilty to just that charge. The State rejected Daniel’s offer, and the case proceeded to trial, resulting in Daniel’s conviction on all of the charges against him.

At sentencing, the State introduced evidence of five prior convictions without objection from Daniel’s trial counsel. Daniel testified that he did not burglarize any house and that he had tried to work out a deal with the State, but the State would not drop the burglary charge. Daniel’s counsel argued that it was within the trial court’s discretion to determine whether any portion of Daniel’s sentence would be paroled, but the State countered that this contention misstated the law. Daniel received a sentence considerably longer than the initial plea offered by the State.

To establish constitutionally ineffective assistance of counsel, Daniel must prove that his attorney’s performance was deficient and that the deficiency prejudiced him because there is a reasonable probability that, but for the attorney’s errors, the outcome would have been different. Strickland v. Washington, 466 U. S. 668 (104 SCt 2052, 80 LE2d 674) (1984); Emilio v. State, 263 Ga. App. 604 (1) (588 SE2d 797) (2003). “There is a strong presumption that trial counsel provided effective representation.” (Citation omitted.) Welbon v. State, 278 Ga. 312, 313 (2) (602 SE2d 610) (2004). When trial counsel misunderstands the law, however, a defendant can establish that his trial counsel’s conduct fell below an objective standard of reasonableness. Thomas v. State, 246 Ga. App. 448, 450 (1) (540 SE2d 662) (2000).

“Defendants have a Sixth Amendment right to counsel, a right that extends to the plea-bargaining process.” Lafler v. Cooper, 566 U. S. 156, 162 (II) (A) (132 SCt 1376, 182 LE2d 398) (2012).

(a) Deficient Performance

During plea negotiations, counsel erroneously advised Daniel that the trial court had discretion as to whether or not he would be sentenced as a recidivist. Georgia law, however, provides:

[A]ny person who, after having been convicted under the laws of this state for three felonies . . . commits a felony within this state shall, upon conviction for such fourth offense or for subsequent offenses, serve the maximum time provided in the sentence of the judge based upon such conviction and shall not be eligible for parole until the maximum sentence has been served.

(Emphasis supplied.) OCGA § 17-10-7 (c). Moreover, the Supreme Court of Georgia has made clear that “[wjhen it comes to parole eligibility, ... an attorney’s failure to inform his or her client that he or she would be ineligible for parole as a recidivist for the entirety of a lengthy prison sentence is constitutionally deficient performance.” Alexander v. State, 297 Ga. 59, 65 (772 SE2d 655) (2015). In reaching this conclusion, the Supreme Court of Georgia acknowledged that the recidivist statute has been a long standing feature of our criminal justice system, that it is “succinct, clear and explicit and it applies automatically upon an offender’s conviction as a recidivist.” (Punctuation omitted.) Id.

Here, although trial counsel understood that persons sentenced as recidivists were ineligible for parole, he mistakenly believed that the trial court had discretion to not sentence Daniel as a recidivist. Because trial counsel misunderstood the law in this regard, he did not advise Daniel during plea negotiations that he faced a mandatory sentence as a recidivist and would be ineligible for parole pursuant to OCGA § 17-10-7 (c) if he were convicted at trial. Consequently, we hold that trial counsel’s performance was constitutionally deficient in the plea process, and our inquiry turns to whether Daniel can demonstrate prejudice. Alexander, supra, 297 Ga. at 65; Badger v. State, 310 Ga. App. 157, 160 (712 SE2d 582) (2011).

(b) Prejudice

If a plea bargain has been offered, a defendant has the right to effective assistance of counsel in considering whether to accept it. If that right is denied, prejudice can be shown if loss of the plea opportunity led to a trial resulting in a conviction on more serious charges or the imposition of a more severe sentence.

Lafler, supra, 566 U. S. at 168 (II) (B).

More specifically, to establish prejudice

a defendant must show that but for the ineffective advice of counsel there is a reasonable probability that the plea offer would have been presented to the court (i.e., that the defendant would have accepted the plea and the prosecution would not have withdrawn it in light of intervening circumstances), that the [trial] court would have accepted its terms, and that the conviction or sentence, or both, under the offer’s terms would have been less severe than under the judgment and sentence that in fact were imposed.

Lafler, supra, 566 U. S. at 164 (II) (B). This standard requires Daniel to show that “there is some indication that [he] was amenable to the offer made by the [S]tate.” (Citation and punctuation omitted.) Johnson v. State, 289 Ga. 532, 535 (712 SE2d 811) (2011). In reviewing a trial court’s determination on this issue, we accept the trial court’s factual findings and credibility determinations unless clearly erroneous, but we independently apply the legal principles to the facts. Badger, supra, 310 Ga. App. at 160.

Here, the State timely filed a notice of intent to use five prior convictions for sentencing aggravation under OCGA § 17-10-7 (c). The State offered Daniel a plea deal of fifteen years to serve six, but Daniel rejected the offer. Trial counsel testified at the motion for new trial hearing and stated that he told Daniel that the State had a strong case and that he should accept the plea. Daniel, however, refused to plead guilty to burglary up until the morning of trial, when he eventually offered to plead guilty to a single burglary charge. The State did not accept this offer.

It is undisputed that the sentence under the guilty plea offer was less severe than the sentence Daniel ultimately received. As to the remaining elements of prejudice, the trial court only addressed the likelihood that Daniel would have accepted the State’s plea deal if he had been properly advised, and the trial court found that Daniel did not establish this fact. We disagree.

The trial court based its decision on its finding that Daniel would not have accepted the plea deal in any event because he did not follow his counsel’s advice to accept the State’s offer, he maintained his innocence on the burglary charge, he believed he could win at trial, he believed that if he lost at trial his sentence would not be substantially worse than the State’s offer, and he counteroffered with sentences which were not acceptable to the State.

As set forth above, our deference to the trial court is not absolute. See Badger, supra, 310 Ga. App. at 160. Our review of the record shows that the trial court’s factual findings on this element are clearly erroneous. First, the trial court should not have relied upon Daniel’s decision not to follow his trial counsel’s advice or his beliefs concerning sentencing when trial counsel’s erroneous advice left Daniel without a proper understanding of the sentence he was facing. This circular logic cannot support the trial court’s finding that Daniel would not have taken the plea. Further, although it is undisputed that Daniel initially was reluctant to plead guilty to the burglary charge, he ultimately offered to enter a plea to just that charge, and the trial court’s order disregards this fact. Additionally, although Daniel thought he would win at trial, he did not understand the gravity of the risk of losing at trial given that he was not properly advised that he would necessarily be sentenced as a recidivist and ineligible for parole. Moreover, when asked if he would have accepted the State’s offer had he understood his parole ineligibility after trial, Daniel responded “Yes, ma’am. I believe I would have.” Thus, Daniel has made a showing that he was amenable to the State’s plea offer of fifteen years with six to serve. Johnson, supra, 289 Ga. at 535-536 (despite regularly professing his innocence, defendant demonstrated he was reasonably likely to accept plea offer because, once he learned he was facing mandatory life sentence, he immediately requested counsel attempt to negotiate a plea deal and then attempted to accept State’s prior plea offer). For these reasons, we conclude that the trial court clearly erred in finding that Daniel was not reasonably likely to accept the State’s plea deal.

Decided August 2, 2017.

Donna A. Seagraves, for appellant.

J. Bradley Smith, District Attorney, Michael D. DeTardo, Assistant District Attorney, for appellee.

Given the trial court’s clearly erroneous finding on this element of the prejudice analysis, it did not reach the other elements — namely whether the prosecution would have withdrawn the offer and whether the trial court would have accepted the plea. See Lafler, supra, 566 U. S. at 164 (II) (B). Consequently, we remand this case to the trial court to make the necessary factual determinations concerning the remaining elements of prejudice. See Alexander, supra, 297 Ga. at 65-66 (case reversed and remanded for determination on prejudice).

Nevertheless, while we are reversing the trial court’s denial of Daniel’s motion for new trial, we note that, if the trial court determines on remand that Daniel should be entitled to the opportunity to plead guilty, and he elects not to enter a guilty plea, the State may retry him without violating Double Jeopardy because, as set forth in Division 1 above, there was sufficient evidence at trial to support Daniel’s conviction. See Thompson v. State, 313 Ga. App. 844, 849 (1) (723 SE2d 85) (2012).

3. In light of our holding in Division 2, we need not address Daniel’s remaining enumerations.

Judgment reversed and case remanded.

Doyle and Reese, JJ., concur.

       OCGA § 16-9-31 (d) has been held to be unconstitutional in that it shifted the burden of proof from the State to the criminal defendant, however, the remainder of the statute is constitutional. Mohamed v. State, 276 Ga. 706, 708-709 (1) (583 SE2d 9) (2003).

       Daniel brought his new trial motion after the trial court granted a motion for an out-of-time appeal.

       Although Daniel was engaging in plea negotiations with the State, during a recorded jailhouse telephone call, Daniel repeatedly told D. H. that he was unwilling to accept any plea deal.

       We recognize that the trial court was authorized to discredit this self-serving testimony, but as discussed further above, it was not the only evidence of Daniel’s willingness to accept the State’s plea. See Gomez v. State, 300 Ga. 571, 573 (797 SE2d 478) (2017).

       Compare Cleveland v. State, 285 Ga. 142, 147-148 (674 SE2d 289) (2009) (defendant did not establish it was reasonably likely he would have accepted the plea because he adamantly denied involvement with the crime, chose to stand trial, even after learning that incriminating evidence would be introduced at trial, had additional time to consider the consequences of the evidence due to a suspension of the trial proceedings, and maintained his innocence during his trial testimony and post-conviction statements to the jury).