text:
    A13A0351.
    HOWE v. THE STATE.
    (744 SE2d 818)
   PHIPPS, Presiding Judge.

Following a bench trial, Jarius Howe was convicted of family violence simple battery and reckless conduct. He challenges the sufficiency of the evidence. We affirm.

Following a criminal conviction, we view the evidence in the light most favorable to the verdict, and the presumption of innocence no longer applies; further, an appellate court does not weigh the evidence or judge witness credibility, but rather determines whether the adjudication of guilt is supported by sufficient competent evidence. When the sufficiency of the evidence is challenged, we use the test established by Jackson v. Virginia[] to determine whether the evidence was sufficient for any rational trier of fact to find the defendant guilty of the crimes charged. As long as there is some competent evidence, even though contradicted, to support each fact necessary to make out the state’s case, the jury’s verdict will be upheld. In bench trials, the findings of the trial court will not be set aside unless clearly erroneous.

Viewed in this light, the evidence showed the following. On October 30, 2010, as Howe was driving to a church function with his wife and their eight-week-old son in their minivan, Howe and his wife became involved in a verbal altercation. Members of the wife’s family had come from out of town to help Howe and his wife move, and the wife testified she was “very irritated” that Howe had not secured a truck to facilitate the move. The verbal altercation escalated to a physical one when Howe threw a cell phone at his wife, striking her in the face. The wife testified that as Howe drove and ignored her, she “got in [Howe’s] ear, . . . probably touching [her nose to] his ear,” making comments such as “can you hear me, these people are coming down here.” The wife testified that Howe then “reached over and maybe like pushed me or hit me a couple of times upside of my face.” She testified that she hit Howe back “on that arm.” She stated that Howe pulled into the parking lot of a gas station and parked the van. There, they “were scraping [sic] ... going at it back and forth” in the van.

At some point, Howe “had [his wife’s] head down kind of like between his legs. . . . [H]e was just holding [her] down, and he bit [her],” on what she stated was her shoulder, but photographs admitted in evidence more accurately reflected was her back. Howe’s wife testified that she was “reaching up ... scratching his face, and things like that, trying to get him to release [her].” In an attempt to get Howe to exit the vehicle, his wife removed the keys from the ignition and threw them on the ground. Howe exited the vehicle. His wife recovered the keys and got in the driver’s seat; but before she could drive away, Howe re-entered the vehicle and sat in the back. The wife drove toward the church, but changed her mind and turned around. However, Howe “continued to be very out of hand,” striking his wife in the back of her head “a couple of times” while she was driving. So, she decided that since Howe’s parents were already at the church, she would go to the church after all. She explained: “I thought that maybe if I pulled up on his parents, he would not act that way.”

As Howe’s wife got closer to the church, Howe repeatedly told her to stop the van and to pull over or he would throw the baby out of the vehicle. But his wife continued to drive. Howe took the baby seat off its base, opened the van’s sliding door, and held his son out of the van while the van was in motion. As they arrived at the church, and the van came to a stop, Howe exited the vehicle and left the premises. His wife was taken to a hospital, where she received a shot for the bite on her back.

Howe’s wife testified that subsequent to this incident, she and Howe had had additional difficulties, and Howe had been arrested after one of those events. Her father testified that he, his ex-wife, and their oldest daughter had been driving behind the van, and that he had seen a “commotion” going on inside the van; but he had not realized that something was wrong until he saw “the baby carriage come out the left side of the van.”

Howe testified at trial. He denied throwing a phone at his wife; he testified that he had pushed and bitten his wife after she had bitten and assaulted him. Howe testified that the bite from his wife left a purple mark on his face, and that he applied Neosporin to the injury. Howe stated that he had bitten his wife “to cause her pain,” so that she could feel what it had felt like to him when she had bitten him. When asked whether she had bitten Howe on his face, the wife replied only that she had leaned over and had gotten really close to his face. A family friend, whom Howe called as a witness, testified that she had seen scratches on Howe’s face and arms at the church. Concerning the baby, Howe stated that he had held the baby in the car seat in his lap, opened the van door, and threatened to throw the baby out of the van if his wife did not stop the vehicle; but he denied that he had held the baby out of the moving van.

“A person commits the offense of simple battery when he or she either: (1) Intentionally makes physical contact of an insulting or provoking nature with the person of another; or (2) Intentionally causes physical harm to another.” And when a person commits the offense of simple battery against a spouse or other family member, then the offense constitutes family violence simple battery. The state accused Howe of committing the offense of family violence simple battery by, pertinently, “intentionally causing physical harm to [wife’s name] by striking said victim in the head with his right fist and than [sic] began striking the victim on several parts of the body and biting the victim on her back.”

Howe contends that the evidence was insufficient because he presented overwhelming evidence that he acted in self-defense. Relying on Harrell v. State, he asserts that the trial court erred in refusing to consider his defense of justification. But Howe’s reliance on Harrell is misplaced; indeed, Howe recognizes that in that case, the trial court specifically (and erroneously) ruled that the defense of justification was inapplicable. Here, there was no such ruling by the trial court.

This court has held that “[o]ne who provokes a difficulty may yet defend himself against violence on the part of the one provoked, if the violence be disproportionate to the seriousness of the provocation, or greater in degree than the law recognizes as justifiable under the circumstances.” Moreover,

[a] person is justified in threatening or using force against another when and to the extent that he or she reasonably believes that such threat or force is necessary to defend himself or herself. . . against such other’s imminent use of unlawful force. [] If the amount of force used by a person is excessive, however, it does not qualify as self-defense. Once evidence of self-defense is presented, the burden is on the [s]tate to disprove that defense beyond a reasonable doubt. Whether the defendant acted in self-defense is normally a question for the jury’s determination.

The state presented ample evidence that Howe struck his wife in the head and face and bit her on her back, and that the amount of force that Howe used was not justified. Based upon the evidence, including Howe’s own testimony that he had bitten his wife in retaliation for her alleged actions against him, the trial court was authorized to find that Howe’s act of biting his wife was an excessive and vengeful response; and that Howe’s act of striking his wife upon her head as she drove, while he was seated in the back seat of the van, and after she had tried to get away from him, was committed after any possible danger to him had passed. The trial court, sitting as the trier of fact, was authorized to reject Howe’s version of events in favor of his wife’s testimony. Moreover, evidence that Howe and his wife had subsequent difficulties, and that during the episode in this case, Howe had held his eight-week-old son out of a moving vehicle, authorized the trial court to give little credence to Howe’s self-defense claim. Credibility is an issue to be decided by the trier of fact. Accordingly, the evidence was sufficient to authorize a rational trier of fact to find Howe guilty beyond a reasonable doubt of family violence simple battery.

Decided June 17, 2013.

Tony E. Howard II, for appellant.

Charles Evans, Solicitor-General, Diette K. Barnwell, Assistant Solicitor-General, for appellee.

Although in his sole enumerated error Howe contends that the evidence was insufficient to prove that he committed the “crimes” for which he was convicted, on the first page of his appellate brief, Howe states that he is appealing only his conviction for family violence simple battery, despite the fact that in his purported statement of the case he mentions that he was also convicted of reckless conduct. Howe provides no argument, citation of authority, or citations to the record to support any purported challenge to the sufficiency of the evidence to support his reckless conduct conviction. Accordingly, we deem any challenge to the sufficiency of the evidence to support the reckless conduct conviction abandoned. In any event, the evidence presented was sufficient to authorize a rational trier of fact to find Howe guilty beyond a reasonable doubt of reckless conduct.

Judgment affirmed.

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

        Cook v. State, 314 Ga. App. 289 (723 SE2d 709) (2012) (punctuation and footnotes omitted).

       OCGA § 16-5-23 (a) (l)-(2).

       OCGA § 16-5-23 (f); see generally Futch v. State, 316 Ga. App. 376, 379 (1) (a) (730 SE2d 14) (2012) (“when a defendant commits the offense of battery against a spouse or other family member, then the offense constitutes family-violence battery”).

       205 Ga. App. 378 (1) (422 SE2d 71) (1992).

       Id. at 378-379 (1).

        Norrell v. State, 116 Ga. App. 479, 484-485 (1) (b) (157 SE2d 784) (1967).

       OCGA § 16-3-21 (a).

        Whitley v. State, 307 Ga. App. 553, 556 (707 SE2d 375) (2011) (citations and punctuation omitted); Gray v. State, 257 Ga. App. 393, 395 (1) (a) (ii) (571 SE2d 435) (2002) (whether a person was justified is a matter to be determined by the trier of fact).

       See generally Hill v. State, 310 Ga. App. 695, 698 (1) (713 SE2d 891) (2011) (a defendant’s use of force is not justified if it occurs after the imminent danger has passed or if the amount of force is excessive); Hill v. State, 250 Ga. App. 9, 12 (1) (550 SE2d 422) (2001) (“as a matter of law, it is an essential element that, for justification to apply, the act must be committed under the fears of a reasonable man and not committed in a spirit of revenge. To legally justify the use of force, an accused must truly have acted under the influence of the degree of fear reasonably appropriate to the circumstances and not to have acted in revenge”; whether defendant acted in a retaliatory or vengeful manner or acted in reasonable apprehension of being seriously harmed by victim and victim’s friends were questions for trier of fact to resolve) (punctuation and footnotes omitted); In the Interest of T. T., 236 Ga. App. 46 (1), (2) (510 SE2d 901) (1999) (juvenile court did not err by failing to conclude that juvenile acted in self-defense where juvenile stabbed victim and the two fought each other; although witnesses testified that the victim started the fight by “slamming” the juvenile, the evidence did not demand a finding that the juvenile acted solely in self-defense within the meaning of OCGA § 16-3-21 (a); stabbing had occurred shortly after victim refused to stop laughing at juvenile’s dog); Love v. State, 194 Ga. App. 601, 602 (1) (391 SE2d 447) (1990) (where appellants’ evidence showed only that they had struck the victim in retaliation and not that they had done so in the reasonable belief that striking him was a necessary defensive response to any continuing use of force on his part, the evidence did not authorize a charge on self-defense as to the battery count and the trial court did not err in refusing to give it).

       See Harrell, supra at 379 (1); Jackson v. State, 182 Ga. App. 826 (357 SE2d 143) (1987).

        Jackson v. State, supra.

       See Jackson v. Virginia, supra; Moore v. State, 319 Ga. App. 696, 699 (1) (738 SE2d 140) (2013) (“Where conjunctive pleadings set forth more than one act by which the accused committed the crime, the evidence is sufficient so long as it shows at least one of the acts alleged.”) (citation and punctuation omitted); Hill, supra, 310 Ga. App. at 698 (1); Hill, supra, 250 Ga. App. at 12 (1); In the Interest of T. T., supra; Jackson v. State, supra (viewing the evidence in the light most favorable to the verdict, i.e., preferring the testimony of the appellant’s ex-wife to that of the appellant, the evidence authorized a rational trier to find appellant guilty beyond a reasonable doubt of simple battery); OCGA § 16-5-23 (f).

       The state accused Howe of committing the offense of reckless conduct by consciously disregarding a substantial and justifiable risk that his act of holding his baby out of a moving vehicle would cause harm to the baby.

       See Gartrell v. State, 291 Ga. App. 21, 22 (1) (660 SE2d 886) (2008); Clark v. State, 285 Ga. App. 182, 183 (1) (645 SE2d 671) (2007); Court of Appeals Rule 25 (c) (2).

       See generally Waits v. State, 282 Ga. 1-2, 4 (1), (2) (644 SE2d 127) (2007).


source: Caselaw Access Project

author: ANDREWS, Presiding Judge. McMillian, Judge,

license: Public Domain

text:
    A13A0396.
    WESTMORELAND v. THE STATE.
    (744 SE2d 822)
   ANDREWS, Presiding Judge.

Susan Lee Westmoreland was charged with possession of methamphetamine with intent to distribute after police found methamphetamine during a search of her car after she was stopped for traffic violations. Westmoreland appeals from the trial court’s denial of her pre-trial motion to suppress the methamphetamine alleging that the search violated her Fourth Amendment rights. For the following reasons, we find no Fourth Amendment violation and affirm.

While police were conducting surveillance of a house where the manufacture or sale of methamphetamine was suspected, officers followed a car seen leaving the house at about 1:30 a.m. Observing that the driver was not wearing a seat belt and was improperly weaving, one of the officers stopped the car on the basis of these traffic violations. Westmoreland was the driver. Immediately after the traffic stop was made, an officer from the narcotics division approached the car and smelled what he described as the distinct odor of methamphetamine coming from the interior of the car. The officer testified that he was trained and experienced in recognizing the odor of manufactured methamphetamine and that it was a distinctly recognizable odor. The officers detained Westmoreland at the scene and immediately called for a police canine unit to conduct an open air sniff around the exterior of the car. The canine unit arrived at the scene about 50 minutes after the stop was made, and the dog, trained to alert to narcotics, immediately alerted to the presence of contraband in the car. Immediately after the dog alerted, the officers searched the car and found suspected methamphetamine hidden inside the car.

1. There is no merit to Westmoreland’s claim that the initial stop of her car was an illegal seizure in violation of the Fourth Amendment because the officer used the traffic violations as a pretext to stop her on the hunch that methamphetamine was in the car. Regardless of whether the officer thought methamphetamine might be in the car, when the officer observed the traffic violations, he had probable cause to stop the car for those violations. Soilberry v. State, 282 Ga. App. 161, 162 (637 SE2d 861) (2006). Accordingly, the subsequent search was not the product of an illegal initial stop.

2. There is no merit to Westmoreland’s claim that the search of her car violated the Fourth Amendment because the search occurred after the initial stop for the traffic violations was illegally prolonged.

Immediately after the initial stop, an officer trained and experienced in recognizing the distinct odor of manufactured methamphetamine smelled this odor coming from inside the car. An officer’s detection of an odor associated with the presence of contraband can be used to establish probable cause to search for the contraband if evidence shows that the officer was qualified to know the odor, and the odor is sufficiently distinctive to identify the contraband. O’Keefe v. State, 189 Ga. App. 519, 526 (376 SE2d 406) (1988). Based on qualifications to recognize the distinct odor of methamphetamine, the officer’s detection of this odor coming from the car gave him probable cause (apart from the purpose of the initial traffic stop) to search Westmoreland’s car without a warrant for the presence of methamphetamine. State v. Folk, 238 Ga. App. 206, 208 (521 SE2d 194) (1999); Durham v. State, 320 Ga. App. 81 (739 SE2d 389) (2013); United States v. West, 219 F3d 1171, 1178 (10th Cir. 2000). “The ‘automobile exception’ to the warrant requirement of the Fourth Amendment applies to the search of a vehicle when probable cause exists to believe it contains contraband.” Folk, 238 Ga. App. at 209; Maryland v. Dyson, 527 U. S. 465, 466-467 (119 SCt 2013, 144 LE2d 442) (1999).

Even though the smell of methamphetamine in the car established an objective basis for probable cause to search the car without a warrant, the officer called for a police canine unit to confirm the presence of contraband in the car. It is unclear whether the officer took this step because he had the subjective belief that additional evidence of contraband in the car was needed to establish probable cause to search. Nevertheless, “[a]n action is ‘reasonable’ under the Fourth Amendment, regardless of the individual officer’s state of mind, as long as the circumstances, viewed objectively, justify the action. The officer’s subjective motivation is irrelevant.” (Citation and punctuation omitted; emphasis in original.) Brigham City v. Stuart, 547 U. S. 398, 404 (126 SCt 1943, 164 LE2d 650) (2006). The officer had independent probable cause to search the car immediately after smelling the methamphetamine; the alert by the trained drug-sniffing dog about 50 minutes later simply provided an additional basis for probable cause to search. Jackson v. State, 296 Ga. App. 565, 566 (675 SE2d 301) (2009). It follows that the 50-minute wait for the arrival of the drug-sniffing dog did not prolong the initial traffic stop, but only delayed the warrantless search based on probable cause of criminal conduct independent of the traffic stop. “There is no requirement that the warrantless search of a vehicle occur contemporaneously with its lawful seizure.” United States v. Johns, 469 U. S. 478, 484 (105 SCt 881, 83 LE2d 890) (1985). We find that the warrantless search of the car conducted about 50 minutes after the officer first smelled the methamphetamine, and immediately after the dog alerted, was reasonable under the Fourth Amendment, and that the trial court correctly denied the motion to suppress.

Judgment affirmed.

Dillard, J., concurs. McMillian, J., concurs fully in Division 1 and concurs specially in Division 2.

McMillian, Judge,

concurring fully and specially.

I concur fully with Division 1. However, with respect to Division 2, although I agree that the motion to suppress should have been denied, I would do so for a different reason. Thus, I concur specially in Division 2.

It is axiomatic that a police officer who observes a traffic violation is authorized to conduct a traffic stop of the vehicle in question. Once a valid traffic stop has been effected, the Fourth Amendment prohibits the officer from unreasonably prolonging the stop beyond the time required to fulfill the purpose of the stop without a reasonable articulable suspicion of other illegal activity.

Young v. State, 310 Ga.App. 270, 272 (712 SE2d 652) (2011). Our court has held that once an officer detects the odor of illegal narcotics, there is reasonable articulable suspicion to detain the defendant and investigate possible criminal activity. See Warren v. State, 314 Ga. App. 477, 483 (724 SE2d 404) (2012) (“When the officer smelled marijuana and observed [the defendant’s] appearance and demeanor, he had reasonable articulable suspicion to further detain [the defendant] to investigate possible criminal activity.”); Bailey v. State, 283 Ga. App. 365, 368 (641 SE2d 548) (2007) (odor of marijuana smoke provided reasonable articulable suspicion of criminal activity and justified continued detention of defendant).

On appeal, Westmoreland contends that the traffic stop was illegally prolonged by approximately 50 minutes to await the arrival of a drug dog, citing State v. Thompson, 256 Ga. App. 188 (569 SE2d 254) (2002) and Martin v. State, 316 Ga. App. 220 (729 SE2d 437) (2012). However, the officer who was trained and experienced in recognizing the chemical odors associated with the manufacture of methamphetamine testified that he detected those chemical odors immediately after the initial stop and called for the drug dog. In contrast, in Thompson and Martin and similar cases, this court has found that a traffic stop was unreasonably prolonged to wait for a drug dog when there was no indication that the defendant was or had been engaged in any illegal drug related activity. Thompson, 256 Ga. App. at 189 (nervous behavior and strong smell of laundry detergent or dryer sheets not sufficient to prolong stop for 20 minutes for drug dog); Martin, 316 Ga.App. at 224 (no reasonable articulable suspicion to prolong stop for drug dog when known drug dealer was found sleeping in a car in a parking lot with permission of the owner).

Decided June 17, 2013.

Martin C. Puetz, for appellant.

Ashley Wright, District Attorney, Walter P. Morris, Rex T. Myers, Assistant District Attorneys, for appellee.

Accordingly, the trial court correctly denied the motion to suppress.

       Because the officer was authorized to detain Westmoreland for further investigation based on this reasonable articulable suspicion of criminal activity, I would not reach the issue of whether he also had probable cause to search based solely on the detection of the odors associated with the manufacture of methamphetamine.


author: McFadden, Judge.

text:
    A13A0449.
    BRUNSON v. THE STATE.
    (744 SE2d 801)
   McFadden, Judge.

After a jury trial, Elijah Brunson was convicted of sexual battery of his 15-year-old granddaughter. Brunson appeals, claiming that the state was improperly allowed to use a prior statement to attempt to impeach him and that his trial counsel was ineffective in failing to object to the attempted impeachment. Because there was no objection to the state’s use of the prior statement, that issue was not preserved for appellate review; and the lack of such objection does not constitute ineffective assistance of counsel because it was a matter of trial strategy. Accordingly, we affirm.

1. Impeachment.

Brunson testified at trial. On cross-examination, the prosecuting attorney questioned him about purported differences between his testimony and a prior statement that he had given to police. On appeal, Brunson contends that the trial court erred in allowing the state to attempt to impeach him with the prior statement because its voluntariness had not yet been determined and it had not been admitted into evidence. However, Brunson did not raise these, or any other, objections to the state’s line of questioning in the trial court. “Failing to object to the state’s cross-examination waives this issue on appeal.” (Citation omitted.) Walker v. State, 268 Ga. App. 669, 672 (3) (602 SE2d 351) (2004). See also Willis v. State, 241 Ga. App. 813, 815 (2) (527 SE2d 895) (2000).

Decided June 17, 2013.

Terry M. Taylor, for appellant.

Ashley Wright, District Attorney, Madonna M. Little, Assistant District Attorney, for appellee.

2. Ineffective assistance of counsel.

Brunson claims that his trial counsel was ineffective in failing to object to the prosecutor’s use of the prior statement to attempt to impeach him. The claim is without merit.

To prevail on this claim, [the ajppellant must show that his counsel’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. The reviewing court need not address both components of the inquiry if the [appellant] makes an insufficient showing on one.

(Citations and punctuation omitted.) Durden v. State, 293 Ga. 89, 97 (6) (744 SE2d 9) (2013).

Brunson has not shown that counsel’s performance was deficient. At the motion for new trial hearing, trial counsel explained that she did not object to the state’s line of questioning about Brunson’s prior statement because the statement actually supported the defense theory that there was no criminal intent. Counsel testified that it was a “purely strategic” decision that worked out to the advantage of the defense because “parts of his statement were made a part of the record and I got something great to talk about in closing regarding the [sjtate’s use or misuse of the evidence.”

“The decision of whether to interpose certain objections is a matter of trial strategy and tactics.” (Citation and punctuation omitted.) Abernathy v. State, 299 Ga. App. 897, 903 (3) (a) (685 SE2d 734) (2009). Here, even if we “[presume] for the sake of argument that an objection to the [questioning about a prior statement] would have had merit, trial counsel’s decision not to object was a reasonable trial tactic and strategy which constituted neither deficient performance nor ineffective assistance.” (Citation omitted.) Brockington v. State, 316 Ga. App. 90, 95 (2) (b) (728 SE2d 753) (2012).

Judgment affirmed.

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


author: BARNES, Presiding Judge.

text:
    A13A0003.
    HULL et al. v. WTI, INC.
    (744 SE2d 825)
   BARNES, Presiding Judge.

This appeal involves a discovery dispute about electronic records. The trial court granted the plaintiff’s motion to compel the six defendants to identify which documents they produced responded to each of the plaintiff’s requests to produce. The court also sanctioned the defendants for identifying more than 80 percent of the documents as “Highly Confidential — Outside Attorneys’ Eyes Only” and awarded the plaintiff $7,500 in attorney fees. We granted the defendants’ application for interlocutory appeal, and for the reasons that follow, we affirm the trial court’s order.

Trial courts have broad discretion to control discovery, which is appropriate

because trial judges, through their direct involvement with the case, the parties, and the attorneys, and their familiarity with the actions of the parties in the conduct of discovery in similar cases that are properly brought to their attention, are in the best position to evaluate the parties’ conduct and to determine the appropriate level of sanctions.

(Citations omitted.) Howard v. Alegria, 321 Ga. App. 178, 188 (4) (a) (739 SE2d 95) (2013).

The facts in the underlying business litigation are complicated. WTI, Inc., which develops and sells “marinades, custom blends, water soluble ingredient mixtures and nutraceuticals for the food processing industry,” filed a 13-count complaint against six defendants for breach of contract, trade secret misappropriations and other business tort claims. Some of the defendants, including “food technologist” and former employee Richard S. Hull, filed counterclaims against WTI for breach of contract, trade secret misappropriation, and trademark infringement, among other things.

Massive discovery ensued between the parties and third parties, resulting in massive disputes. The trial court entered a twelve-page stipulated protective order regarding confidential and proprietary issues. Pursuant to the order, the parties could designate documents containing certain information as either “Confidential” or “Highly Confidential — Outside Attorneys’ Eyes Only.” The order defined “confidential” and “highly confidential,” specified the entities with whom the information could be shared, and provided that the lawyers could not review highly confidential information with their clients. Finally, the order provided that any party could request a producing party to re-designate confidential or highly confidential documents, and that if the parties could not agree, the trial court would resolve the categorization dispute.

The defendants subsequently moved the court to compel WTI “to fully and completely respond” to its discovery requests, arguing that WTI had failed to identify with sufficient particularity the trade secrets and confidential information it claims the defendants misappropriated. They also objected to responses that relied on OCGA § 9-11-33 (c), which provides that when the answer to an interrogatory may be derived from business records produced and the burden of deriving the answer is substantially the same for both parties, it is sufficient for the respondent to refer to the records and give the other party an opportunity to examine them and make copies or summaries. After a hearing, the trial court denied the motion. The court reviewed specific discovery requests and responses and found that WTI had sufficiently produced and identified documents containing the information sought, and properly relied in some responses on OCGA § 9-11-33 (c).

A month later, WTI moved the trial court to compel the defendants to identify which documents produced were responsive to which of its requests for production and to withdraw the highly confidential label from all documents that did not qualify for that designation. It also argued that the defendants had so abused the highly confidential label that they should no longer be able to use it at all and should be sanctioned by being required to pay attorney fees for WTI’s trouble and expense.

At a hearing on the motion to compel and for sanctions, WTI asserted that it could not identify from the defendants’ discovery responses the documents on which the defendants would rely to support their answers and counterclaims. It argued that it served about 100 unique requests for production, which were asked of more than one defendant because it did not know which defendants held which documents, but received 156,000 pages of documents from which to glean the information. Additionally, WTI argued that if the documents had been produced as kept in the usual course of business, they were inadequately organized, and that the defendants should be required to provide responsive documents “organized and labeled to correspond to the categories in the requests.” For example, WTI argued, it had no way to identify the documents on which Hull relied for his counterclaim asserting he was entitled to stock options.

Finally, WTI argued that the defendants initially labeled 95 percent of the documents produced as “highly confidential,” which meant counsel could not confer with the clients about whether the documents were useful or not. When WTI objected and gave the defendants examples of documents that did not meet the protective order’s definition of highly confidential, the defendants redesignated those particular documents, leaving 83 percent of them labeled highly confidential as of the hearing.

The defendants responded that they were under no legal obligation to identify which documents correlated to which request to produce. Absent any specific directive in the Georgia Civil Practice Act (“CPA”) regarding electronic records, they relied on Federal Rule of Civil Procedure 34 (b) (2) (E), which provides that a party may produce documents either as kept in the ordinary course of business or organized and labeled to correspond to categories. In response to WTI’s discovery requests, the defendants scanned all of the paper documents in the form and order in which they were kept in filing cabinets, extracted electronic documents from hard drives and e-mail messages from accounts which were then processed into images, and Bates-stamped the documents in the order they were found. Additionally, the defendants argued, they created “load files,” electronic indexes that allow a user to search the data by certain fields such as file name, date sent or created, and e-mail sender and recipient. When asked by the trial court at the hearing how WTI’s counsel would find documents related to Hull’s stock option counterclaim, however, the defendants’ counsel instead explained how to search the fields. For example, counsel searched the “filename” field for a mutual customer’s name, and the load file identified 9,000 documents. WTI noted in reply that the documents themselves were not keywordsearchable; only the data fields were, and thus the index was of limited use for its purposes.

As to the confidential designations, the defendants’ counsel twice confirmed to the trial court that each document had been reviewed by an attorney to determine whether the designation given was appropriate. The defendants took the position that the burden fell on WTI to identify the documents that it did not consider confidential, noting that the defendants had redesignated every document WTI had so far brought to their attention.

In its order granting WTI’s motions to compel and for sanctions, the trial court found that

the production of over 156,000 pages of documents with insufficient organization, coupled with the failure of Defendants to identify which documents are responsive to which of [WTI’s] requests for production of documents, is inconsistent with Defendants’ obligations under the Civil Practice Act.

It ordered the defendants to designate by Bates-stamp number each document responsive to each request for production served on each defendant. It also held that the defendants had failed to comply with the court’s protective order directing them to designate as highly confidential “only those” documents that met certain criteria. Based on the representations by defendants’ counsel that lawyers in his office had reviewed the documents before they were produced to determine their confidentiality designation, the court found that the defendants “have not acted in good faith,” ordered them to relabel the documents properly, and awarded WTI $7,500 attorney fees, approximately half of the sum WTI sought.

1. The defendants first argue that the trial court abused its discretion by requiring them to designate each document that is responsive to each of WTI’s requests for the production of documents, and that this court should review de novo this “clear error of law” or “clear error of judgment.” They frame the first enumeration as

whether, in the absence of Georgia law on point, the Georgia Civil Practice Act [“CPA”] prohibits a party from producing documents “as kept in the usual course of business,” consistent with Federal Rules of Civil Procedure 34 (b) (2) (E), in lieu of the producing party designating by [B]ates-stamp number each document that is responsive to each request for production of documents.

They also argue in the alternative that the trial court abused its discretion by finding that their documents were insufficiently organized, a finding they also characterize as a plain legal error to be reviewed de novo.

But the trial court never held that the Georgia CPA prohibits a party from responding to discovery by producing documents as they are kept in the usual course of business. Rather, the trial court held that in this case, under these circumstances, the production of over 156,000 pages of documents with insufficient organization coupled with the defendants’ failure to identify which documents responded to which requests was “inconsistent with the Defendants’ obligations under the Civil Practice Act.”

The defendants argue eloquently that their method of production was proper under the Federal rules, that Georgia’s rules are based generally on the Federal rules, and that this court may properly consider federal courts’ construction of their rules, as we held in Barnum v. Coastal Health Sucs., 288 Ga. App. 209, 215 (653 SE2d 816) (2007). In Barnum, we considered the federal courts’ definition of “manifest injustice” to address whether a trial court properly held that a plaintiff had to pay the costs of the defendant’s re-deposing the plaintiff’s experts. Id. at 216 (2) (b).

The issue on appeal in this case, however, is quite different. The defendants ask us to hold that the trial court does not have the discretion to order them to identify its discovery responses with particularity because the Federal Rule allows a discovery respondent to produce documents as they were organized in the usual course of business. While the trial court in its discretion could have found that the defendants’ document production was sufficient, the court also acted within the bounds of its permitted discretion by determining that the manner of production was not sufficient.

The defendants also argue on appeal that the trial court abused its discretion by finding that their documents were insufficiently organized, having drawn its errant conclusions from only a small number of irrelevant or out-of-order documents. The defendants have not, however, described the documents’ organization other than to say that the documents were presented as they had been stored on hard drives and in file drawers. They have not argued, for example, that if WTI wanted to know which documents Hull would rely on for his stock option counterclaim, WTI could look at documents contained in a file folder labeled “Stock Options” or “Benefits” or “Compensation.” Further, as illustrated at the hearing, without relevant subject matter data fields, the defendants’ index is of limited usefulness in determining which documents support which claims. Finally, as WTI points out, the defendants have to review individually more than 80 percent of the documents anyway to revise their confidentiality labels in accordance with the consent protective order, so identifying which documents support their claims adds a relatively minor burden.

The trial court did not hold that the Georgia CPA prohibits a party from responding to discovery by delivering its documents as kept in the usual course of business. Rather, the court held that these defendants, in this case, with this document production, did not fulfill their obligations under the CPA. Reviewing the totality of the circumstances in this case, the trial court did not abuse its discretion by so ruling.

2. The defendants also argue that the trial court erred in awarding attorney fees to WTI.

In addition to conferring broad discretion on trial courts in matters of discovery, “determination of the reasonable expenses [of prosecuting a motion to compel] is likewise a matter of discretion.” Mansell 400 Assocs. v. Entex Information Svcs., 239 Ga. App. 477, 481 (5) (519 SE2d 46) (1999). OCGA § 9-11-37 (a) (4) (A) provides that if a trial court grants a motion to compel, it shall require the respondent to pay the movant’s reasonable expenses in obtaining the relief “unless the court finds that the opposition to the motion was substantially justified or that other circumstances make an award of expenses unjust.” OCGA § 9-11-37 (a) (4) (C) permits the trial court to apportion expenses “in a just manner” if it partially grants the motion to compel.

The defendants first argue that the attorney fee award should be reversed because they were substantially justified in defending their method of document organization based on the Federal rules, asserting that the trial court did not “tie the sanction” to the confidentiality designation issue. But regardless of whether the defendants were justified in defending WTI’s motion to compel based on their method of organization, the trial court also found that the defendants had “not acted in good faith” by failing to comply with the court’s protective order directing them to “mark as Highly Confidential ‘only those’ documents that meet the criteria set forth in the Order.” The trial court ordered the defendants to review and redesignate the documents appropriately, noting that further abuse of the confidential designation could result in a waiver of the defendants’ right to use the designation. Further, although the court found that WTI was entitled to attorney fees under OCGA § 9-11-37, it only granted WTI $7,500 of its requested $14,751 in attorney fees.

While the defendants also assert that they are not appealing the trial court’s findings and rulings regarding their designation of confidential documents, they then argue that they were justified in opposing WTI’s motion to compel them to redesignate the documents. They cannot have it both ways. Either they dispute the trial court’s finding that they acted in bad faith in their confidentiality designations or they do not.

Decided June 18, 2013.

Cook, Noell, Tolley & Bates, Edward D. Tolley, for appellants.

Begnaud & Marshall, Andrew H. Marshall, Hulsey, Oliver & Mahar, Jason A. Dean, Abbott S. Hayes, Jr., for appellee.

The defendants marked more than 129,000 discovery documents as so sensitive that WTI’s principals could not assist the company’s attorneys in reviewing them. After confirming that the documents had been reviewed by lawyers before being designated as highly confidential, the trial court concluded that the defendants did not act in good faith compliance with the protective order. Regardless of whether their document production was sufficient, this conclusion supports the trial court’s award to WTI of half of the attorney fees it sought pursuant to OCGA § 9-11-37. Accordingly, we find no abuse of discretion in the trial court’s order of sanctions.

Judgment affirmed.

Miller and Ray, JJ., concur.

       The defendants are Richard S. Hull, GPI USA, LLC, Romeo Toledo, Robert Brooks, Isoage Technologies, LLC, and Triad Resource Technologies, LLC.

       FRCP 34 (b) (2) (E) provides:
      Unless otherwise stipulated or ordered by the court, these procedures apply to producing documents or electronically stored information:
      (i) A party must produce documents as they are kept in the usual course of business or must organize and label them to correspond to the categories in the request.
      (ii) If a request does not specify a form for producing electronically stored information, a party must produce it in a form or forms in which it is ordinarily maintained or in a reasonably usable form or forms; and
      (iii) A party need not produce the same electronically stored information in more than one form.


author: DOYLE, Presiding Judge.

text:
    A13A0273.
    JONES v. THE STATE.
    (744 SE2d 830)
   DOYLE, Presiding Judge.

Following a bench trial, Calvin Jones was convicted of armed robbery for using a knife to steal beer from a gas station. Jones appeals from the denial of his amended motion for new trial, arguing that the trial court erred by rejecting his claim that the six-year delay in the appellate process violated his constitutional due process rights. Because the trial court failed to properly exercise its discretion by addressing the four factors in Barker v. Wingo, we vacate and remand.

In May 2005, Jones was indicted with armed robbery and aggravated assault, which indictment accused him of stealing beer from a gas station and stabbing the store clerk with a knife or similar object during his escape. In November 2005, the trial court held a bench trial, finding him guilty of the robbery and acquitting him of the assault, and entered a recidivist conviction on the robbery charge. In December 2005, Jones’s trial counsel filed a timely motion for new trial.

In the fall of 2006, Stephen Scarborough of the Office of the Public Defender was assigned to represent Jones on appeal. Around the same time, however, Jones filed a pro se motion for appointment of appellate counsel so that he could assert a claim of ineffective assistance of counsel. That motion was granted in March 2007, but it apparently was not sent to appointed counsel.

In April 2007, Scarborough learned of the order granting Jones’s motion, and Scarborough initiated a public defender conflict transfer request form. Two years later, another transfer request form was filled out, but due to funding issues, new counsel was not appointed until February 2010. By that time, trial counsel’s original case file had been lost.

In February 2011, newly appointed appellate counsel filed an amended motion for new trial asserting an ineffective assistance claim, challenging the unavailability of a gas station security video reviewed by police, and arguing that Jones’s right to appeal had been frustrated because of the lost case file and the time taken to appoint appellate counsel. The trial court held a hearing in June 2011 and denied the motion in December 2011, giving rise to this appeal.

Jones argues that the trial court erred by denying his due process claim based on appellate delay. The Supreme Court of Georgia

has addressed the proper resolution of claims asserting due process violations based on inordinate appellate delay, and determined that the appropriate analysis is application of the four speedy trial factors set forth in Barker v. Wingo, which are the length of the delay, the reason for the delay, the defendant’s assertion of his right, and prejudice to the defendant.

These factors are each to be balanced in an exercise of the trial court’s discretion, which we review for abuse. In the Barker v. Wingo context, the Supreme Court has noted that “[i]t is imperative, therefore, that in [such] cases ... the trial court enter findings of fact and conclusions of law consistent with Barker. Absent such findings, there is no exercise of discretion for this Court to review.”

Here, the trial court’s order, which was prepared by the State, makes only a cursory analysis of the Barker factors. The order first states in conclusory fashion that Jones failed to show that ineffectiveness by appellate counsel was the reason for delay, without attributing the delay to any other cause. It next concludes that Jones “has not attempted to show that there is [prejudice] and therefore this claim is without merit” But this is unsupported by the record, which shows that Jones’s appellate counsel had explicitly argued to the court in briefing and at the hearing that the delay had caused the loss of his case file, which frustrated his ability to present his ineffective assistance of counsel claim. Thus, the record clearly shows that Jones did attempt to demonstrate prejudice, and the trial court abused its discretion by basing its ruling in part on a finding that he did not.

Decided June 18, 2013.

Raina J. Nadler, for appellant.

Paul L. Howard, Jr., District Attorney, Peggy R. Katz, Assistant District Attorney, for appellee.

Further, the order makes no findings whatsoever about the remaining two Barker factors — length of the delay and Jones’s assertion of his right to a timely appeal ■— apparently relying on its unsupported finding that Jones made no attempt to show prejudice. But even if the trial court had correctly found that no prejudice existed, “[w]hile a trial court’s findings as to the presence or absence of prejudice are important, they cannot alone establish a defendant’s . . . speedy [appeal] claim without consideration of the other Barker criteria.” In light of this cursory analysis, “we find the limited findings made by the trial court insufficient to provide for proper appellate review.” Accordingly, “[t]he trial court’s order is vacated[,] and the case [is] remanded for the entry of a proper order pursuant to Barker.”

Judgment vacated and case remanded with direction.

McFadden and Boggs, JJ., concur.

       OCGA § 16-8-41 (a).

       407 U. S. 514 (92 SCt 2182, 33 LE2d 101) (1972).

       (Citation and punctuation omitted.) Smith v. State, 292 Ga. 588, 592 (5) (740 SE2d 129) (2013), citing Chatman v. Mancill, 280 Ga. 253, 256 (2) (a) (626 SE2d 102) (2006).

       See, e.g., Glover v. State, 291 Ga. 152, 156 (3) (728 SE2d 221) (2012) (finding no abuse of discretion by trial court).

        Higgenbottom v. State, 288 Ga. 429, 430-431 (704 SE2d 786) (2011).

       (Emphasis supplied.)

       In light of the trial court’s failure to do so, we make no ruling on the merits of Jones’s prejudice argument at this time. We note only that because of Jones’s clear argument on the merits, a ruling based on his failure to make an argument is erroneous.

       We use the term “ ‘speedy appeal’ as a convenient label to encompass all claims of inordinate delay that impair a defendant’s right of access to the courts in post-conviction proceedings arising out of the direct appeal of non-capital cases.” Chatman, 280 Ga. at 257, n. 5.

        Higgenbottom, 288 Ga. at 431.

       Id.

       Id.


author: Doyle, Presiding Judge.

text:
    A13A0356.
    HALL v. THE STATE.
    (744 SE2d 833)
   Doyle, Presiding Judge.

A jury found Brandon Hall guilty of unlawful possession of a destructive device, possession of methamphetamine, possession of a knife during the commission of a felony, possession of a firearm during the commission of a felony, loitering or prowling, possession of an explosive device by a convicted felon, and possession of a firearm by a convicted felon. Following the order granting the withdrawal of his motion for new trial, Hall directly appeals, challenging the sufficiency of the, evidence. For the reasons set forth below, we affirm.

Construed in favor of the verdict, the evidence shows that late one evening, Hall arrived at a diner and remained for six to seven hours, intermittently drinking coffee, eating breakfast, and falling asleep. The night manager had to wake Hall several times throughout the night. After the shift change, the morning manager arrived and noticed that Hall was openly armed with two pistols and a machete at his waistline in open view. The manager called 911 and requested the assistance of the police. The police found Hall standing outside the diner and detained him, recovering two pistols, a bag of methamphetamine, a large serrated knife, a black powder loader, gunpowder, a flare gun, flashlights, BB guns, and a pill bottle.

The police also seized documents, which referenced hate groups and contained the phrases “blow the switch yard at the mothball power plant,” and “you bitches are dead for murdering my family... this should really be an eye opener you suck and chug donkey c[ — ]... f[ — ] off and die and drink some acid.”

The State presented a forensic chemist from the FBI who testified that Hall’s pill bottle contained black powder, “a low explosive.” A detective testified to processing a metallic capsule that contained black powder, a .22 caliber shell, and eight other bullets. An officer with bomb training testified that the police did not discover a .22 caliber weapon in Hall’s possession, indicating that the logical purpose of the shells was to act as a source of secondary shrapnel in an explosive device. Further, the State presented an explosives expert who opined that explosive devices can be as small as a pill bottle and that the threads can and often will result in friction leading to an explosion.

Hall was indicted for multiple counts arising from the weapons and methamphetamine, and a jury found Hall guilty on all but two counts (explosive device and concealed weapon), which were nolle prossed. After he withdrew his motion for new trial, Hall filed this appeal.

Hall challenges the sufficiency of the evidence on the following grounds: (1) with respect to unlawful possession of a destructive device, the State failed to prove that the black powder was intended for the purpose of explosion or that Hall had the knowledge or intent to injure an individual; (2) with respect to the possession of a firearm counts, the State introduced no evidence that the black powder revolvers Hall possessed would or could be converted to expel a projectile by the action of an explosive or electrical charge; and (3) the evidence of loitering and prowling was insufficient because Hall was a customer of the diner.

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 [s] charged, the factfinder’s role as weigher of the evidence is preserved through a legal conclusion that upon judicial review all the evidence is to be considered in the light most favorable to the prosecution.

1. Hall contends that the evidence was insufficient to sustain a conviction of unlawful possession of a destructive device because the State failed to prove that the black powder was intended for the purpose of explosion or with the knowledge or intent to injure an individual. We disagree.

OCGA § 16-7-88 (a) provides in pertinent part that it is illegal for a person to “possess, transport, or receive .. . any destructive device or explosive with the knowledge or intent that it will be used to kill, injure, or intimidate any individual or to destroy any public building.”

It is undisputed that Hall was in possession of an explosive, i.e., the pill capsule containing black powder, “a low explosive.” Further, the police found several letters written by Hall that threatened to kill at least one person and to “blow the switch yard at the mothball power plant.” Additionally, an officer trained in explosives testified that the purpose of the bullets in the pill bottle containing black powder was to provide a secondary source of shrapnel that could cause serious injury. The possession of the powder stored in a container which could ignite it, coupled with Hall’s threatening writings, satisfied the State’s burden.

2. Hall contends that the evidence was insufficient to sustain his conviction of possession of a firearm during the commission of a felony and possession of a firearm by a convicted felon because the State introduced no evidence that the revolvers Hall possessed would or could be converted to expel a projectile by the action of an explosive or electrical charge. We disagree.

In Senior v. State, this Court held as follows:

Georgia law prohibits the possession of a firearm by a convicted felon. The term “firearm” includes “any handgun, rifle, shotgun, or other weapon which will or can be converted to expel a projectile by the action of an explosive or electrical charge.” This Court has previously declined to interpret Georgia’s statute to require proof that a weapon found in the possession of a convicted felon is actually functional when that weapon is one that is enumerated within the statutory definition of a firearm, i.e., a handgun, rifle or shotgun. We also decline to do so now. Thus, in order to support [Hall’s] conviction, the State needed only to prove that [Hall] was a convicted felon and possessed a firearm as defined above.

Decided June 18, 2013.

Quentasha L. Banks, for appellant.

Paul L. Howard, Jr., District Attorney, David K. GetachewSmith, Assistant District Attorney, for appellee.

The officer found Hall outside the diner in possession of two black powder pistols. Hall does not challenge his status as a felon, and under Senior, the pistols he possessed sufficed to support his conviction for possessing firearms during the commission of a felony and possession of a firearm by a convicted felon.

3. Hall contends that the evidence was insufficient to sustain his conviction of loitering or prowling because he was a customer of the diner. We disagree.

Under Georgia law,

[a] person commits the offense of loitering or prowling when he is in a place at a time or in a manner not usual for law-abiding individuals under circumstances that warrant a justifiable and reasonable alarm or immediate concern for the safety of persons or property in the vicinity.

The jury was authorized to find that there was an immediate concern for the safety of persons or property in the vicinity in light of Hall’s prolonged presence over several hours, and the fact that he openly displayed multiple deadly weapons and possessed other dangerous items in his bag. Viewed in the light most favorable to the verdict, we find sufficient evidence to affirm the loitering or prowling conviction.

Judgment affirmed.

McFadden and Boggs, JJ., concur.

       OCGA§ 16-7-88 (a).

       OCGA § 16-13-30 (a).

       OCGA § 16-11-106 (b) (4).

       Id.

       OCGA § 16-11-36 (a).

       OCGA § 16-7-83 (a).

       OCGA § 16-11-131 (b).

       See Heard v. State, 274 Ga. 196, 197 (1) (552 SE2d 818) (2001) (allowing a direct appeal following a court order disposing of defendant’s motion to withdraw his motion for new trial).

       See Short v. State, 234 Ga. App. 633, 634 (1) (507 SE2d 514) (1998).

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

       See Turner v. State, 246 Ga. App. 49, 51 (1) (b) (539 SE2d 553) (2000) (holding that possession of explosive devices combined with handwritten notes indicating potential violent acts is sufficient to support a conviction of manufacturing a destructive device).

       277 Ga. App. 197 (626 SE2d 169) (2006).

       (Citations omitted; emphasis supplied.) Id. at 197-198.

       See id.

       OCGA § 16-11-36.


author: Boggs, Judge.

text:
    A13A0377.
    MICHELMAN et al. v. FAIRINGTON PARK CONDOMINIUM ASSOCIATION, INC.
    (744 SE2d 839)
   Boggs, Judge.

In this discretionary appeal, Aaron Michelman and Monge and Associates, P.C. (collectively “plaintiff’s counsel”) appeal from the trial court’s award of attorney fees against them under OCGA § 9-15-14 (a) and (b). Plaintiff’s counsel contends that the trial court erred by awarding fees under OCGA § 9-15-14. For the reasons explained below, we agree and reverse.

Subsection (a) of OCGA § 9-15-14 “provides for attorney[ ] fees when a party asserts a position for which there is a complete absence of any justiciable issue of law or fact; subsection (b) provides for an award when a party’s position lacks substantial justification.” (Punctuation omitted.) Fulton County Bd. of Tax Assessors v. Boyajian, 271 Ga. 881 (2) (525 SE2d 687) (2000). And the Supreme Court of Georgia has recognized that “[a]s a practical matter, it is difficult to distinguish between these two standards for awarding attorney [ ] fees.” Id. We must “affirm an award under subsection (a) if there is any evidence to support it, while we review subsection (b) awards for abuse of discretion.” (Citations and footnote omitted.) Fox v. City of Cumming, 298 Ga. App. 134, 135 (679 SE2d 365) (2009). With regard to the “any evidence” standard of review for subsection (a), if “evidence relevant to the question of attorney fees consists of the state of the law, we make our own assessment of that evidence and decide for ourselves whether the claim asserted below presented a justiciable issue of law.” (Citations and punctuation omitted.) Renton v. Watson, 319 Ga. App. 896, 904 (4) (739 SE2d 19) (2013). Finally,

we must keep in mind that OCGA § 9-15-14 (a) is intended to discourage the bringing of frivolous claims, not the presentation of questions of first impression about which reasonable minds might disagree or the assertion of novel legal theories that find arguable, albeit limited, support in the existing case law and statutes.

(Citations and punctuation omitted.) Id. at 905 (4).

In this case, the trial court granted attorney fees under subsections (a) and (b) based upon its conclusion that this court’s opinion in Gomez v. Julian LeCraw & Co., 269 Ga. App. 576 (604 SE2d 532) (2004), “is indistinguishable from the case at bar.” In Gomez, the injured plaintiff and her husband were living in an apartment with her cousin. Id. The cousin’s lease with the property owner provided that “the apartment shall be occupied only by the persons named in the resident’s rental application. Substitution or addition of any residents will be allowed only with prior written consent of management.” (Punctuation omitted.) Id. Although the plaintiff was living in the apartment with her cousin, her name did not appear on the lease, and there was no evidence the owner or the management company was aware of or consented to her living in the apartment. Id. We held that the plaintiff was a trespasser, based upon a special contract in which the property owner precluded a person such as the plaintiff from living on the property without prior consent. Id. at 578 (1) (a). We noted that in the absence of such a special contract, “the landlord has no right to forbid a person to go upon the premises in the possession of a tenant, by the latter’s permission and for a lawful purpose.” (Citation, punctuation and footnote omitted.) Id.

In this case, the plaintiff was injured in a common area while visiting his sister, a tenant of the. owner of a unit in Fairington Park condominiums. According to the affidavit of the President of the Fairington Park Condominium Association (“the Condo Association”), “the Association does not own any common areas.” Instead, they are owned by the unit owners as tenants-in-common. Pursuant to the Fairington Park Condominium Declaration, the Condo Association is responsible for maintaining and keeping in good repair the common areas of the condominium complex. The Condominium Declaration also provides that all unit owners, who are members of the Condo Association by virtue of their unit ownership, are obligated to abide by the terms and provisions of the Condominium Declaration. One of these provisions required unit owners to obtain permission from the Condominium Board before leasing a unit. It is undisputed that the unit owner did not obtain permission to lease the unit occupied by the plaintiff’s sister.

Based upon these facts, we conclude that our decision in Gomez, supra, is arguably distinguishable on the ground that the tenant here rented the unit from the property owner and there was no special agreement between the unit owner and the tenant precluding a visitor such as the plaintiff. While the unit owner may have had a separate agreement with the Condo Association to obtain approval for all leases, the Condo Association did not own the property, and there was no special agreement between the Condo Association and the tenant.

Gomez can also be distinguished on the ground that the plaintiff was a visitor, not an unapproved tenant. The general rule stated in Gomez is that a “landlord has no right to forbid a person to go upon the premises in the possession of a tenant, by the latter’s permission and for a lawful purpose.” (Citation, punctuation and footnote omitted.) Id. at 577 (1). Gomez distinguished the general rule because “Gomez was not merely visiting her cousin’s apartment. . . . She lived there and... considered herself to be a tenant.” Id. at 577 (1) (a). When she fell, “she was on the premises as a resident, be it improperly, not as a guest.” Id. at 578 (1) (a).

Based upon these grounds distinguishing our opinion in Gomez, the trial court erred by awarding attorney fees against plaintiff’s counsel for failing to dismiss the plaintiff’s complaint or seek withdrawal immediately after the Condo Association filed a motion for summary judgment relying upon our decision in Gomez, supra. See Renton, supra, 319 Ga. App. at 905-906 (reversing trial court’s award of attorney fees under OCGA § 9-15-14 (a)); Fox, supra, 298 Ga. App. at 136 (same under (a) and (b)).

Decided June 18, 2013.

Turkheimer & Hadden, John D. Hadden, Aaron L. Michelman, Scott G. Monge, for appellants.

Lueder, Larkin & Hunter, John T. Lueder, Elina V. Brim, for appellee.

Judgment reversed.

Doyle, P. J., and McFadden, J., concur.

       Plaintiff’s counsel subsequently dismissed the case without prejudice following a hearing on the motion for summary judgment but before the trial court ruled. While we reverse the trial court’s award of attorney fees under OCGA § 9-15-14, nothing in this opinion should be construed as a ruling on the merits of the plaintiff’s claim. We decide only that the trial court’s award of attorney fees under OCGA § 9-15-14 cannot be sustained.


text:
    A13A0395.
    BATES v. THE STATE.
    (744 SE2d 841)
   BARNES, Presiding Judge.

A jury found Darrin L. Bates guilty of entering an automobile with intent to commit theft, two counts of burglary, aggravated battery, and theft by taking. On appeal, Bates claims that (1) the evidence was insufficient to support the verdict; (2) the trial court erred in denying his motion to change venue; (3) the trial court erred in denying his motions to strike seven prospective jurors for cause; (4) the trial court erred in denying his motion to suppress the pretrial and in-court identifications by the second victim; (5) the trial court erred in overruling his hearsay objection to the introduction of a latent fingerprint card; and (6) he received ineffective assistance of trial counsel. For the reasons that follow, we find that Bates’s claims of error have no merit and affirm.

Following a criminal conviction, the defendant is no longer presumed innocent, and we view the evidence in the light most favorable to the jury’s verdict. See Reese v. State, 270 Ga. App. 522, 523 (607 SE2d 165) (2004). So viewed, the evidence shows that Bates escaped from the Hancock County jail on or about June 27, 2006. That same day in Baldwin County someone entered the pickup truck of the first victim and took a hunting knife. Three days after the escape, the second victim arrived at his Baldwin County lake house and noticed that the doorjamb was broken loose. The second victim entered the house and saw an intruder standing approximately twenty to twenty-five feet away in “plenty of light.” The second victim later identified the intruder as Bates from a photographic lineup and at trial.

After the second victim and Bates looked at each other for between three to five seconds, Bates fled. The second victim found the first victim’s hunting knife lying on top of the washing machine. He discovered that Bates had eaten some of the food in the house. Over the course of time, the second victim also noticed that several things had been taken from his lake house, including a tooth brush, a kitchen knife, and a spoon.

The day after the second victim discovered Bates in his lake house, a man came to the back door of the third victim’s Baldwin County residence. The third victim, an elderly woman who lived alone, identified that man as Bates during her trial testimony. After the third victim cracked the door open, Bates pushed into her home and beat her severely. The trauma from the beating damaged the third victim’s optic nerve and caused her to lose the sight in her left eye. After the beating, Bates tied the third victim up and left the scene in her 1999 Chevrolet Lumina. The third victim’s son found the second victim’s kitchen knife lying on the floor of his mother’s house.

Later that month, the third victim’s Lumina was towed to police headquarters in Philadelphia, Pennsylvania after the Philadelphia police determined that Baldwin County had placed a “hold” on the car. Per Baldwin County’s request, the Philadelphia police processed the Lumina for evidence. The Philadelphia police officer who testified at Bates’s trial observed his partner lift a fingerprint off the car’s rearview mirror and then hand the testifying officer the latent impression card. An expert in fingerprint analysis took Bates’s fingerprints and later testified that the print on the card identified by the Philadelphia police officer matched the right thumb of the known print card that the expert had personally collected from Bates.

Following the trial, the jury found Bates guilty of the charged offenses of entering an automobile, two counts of burglary, aggravated battery, and theft by taking. The trial court later denied Bates’s motion for new trial, and Bates filed this appeal.

1. Bates asserts, without argument or elaboration other than his description of the evidence presented at trial, that the verdict is contrary to the evidence and without support, strongly against the weight of the evidence, and contrary to law and the principles of justice and equity, and that the trial court accordingly erred in failing to grant his motion for new trial. We disagree. When the sufficiency of evidence is challenged, including in a challenge to the overruling of a motion for new trial, the proper test is established by Jackson v. Virginia, 443 U. S. 307 (99 SCt 2781, 61 LE2d 560) (1979). See Short v. State, 234 Ga. App. 633, 634 (1) (507 SE2d 514) (1998). Under Jackson we do not weigh the evidence or determine the credibility of witnesses,-but, viewing the evidence in a light most favorable to the jury’s verdict, determine whether the evidence was sufficient for a rational trier of fact to find the defendant guilty of the charged offense beyond a reasonable doubt. See Williams v. State, 262 Ga. App. 67, 68 (1) (584 SE2d 625) (2003). So viewed, the extensive direct and circumstantial evidence of Bates’s guilt sufficed to sustain his convictions.

2. Bates contends that the trial court erred in denying Bates’s motion for change of venue. We disagree.

Bates filed a pretrial motion for change of venue on the ground that the jury pool had been tainted by extensive pretrial publicity in local newspapers, radio, and television. Following voir dire, the trial court heard argument on the motion and denied it. “A motion for a change of venue based upon pretrial publicity is in the trial court’s discretion and its ruling will not be disturbed absent abuse of that discretion.” (Citation and punctuation omitted.) Phillips v. State, 284 Ga. App. 224, 229 (2) (664 SE2d 153) (2007).

To prevail on a motion to change venue, “the petitioner must show (1) that the setting of the trial was inherently prejudicial or (2) that the jury selection process showed actual prejudice to a degree that rendered a fair trial impossible.” (Citation omitted.) Eckman v. State, 274 Ga. 63, 68 (4) (548 SE2d 310) (2001). Although Bates showed that the events surrounding the escape from the Hancock County jail and the subsequent robbery of the elderly third victim were widely publicized in the Baldwin County area, he failed to show that the trial’s setting “was inherently prejudicial, i.e., that any publicity was factually incorrect, inflammatory, or reflective of an atmosphere of hostility.” Id. Rather, the predominant, if not exclusive, character of the media relied on by Bates consisted of facts which were established by evidence admitted at trial. See Chancey v. State, 256 Ga. 415, 430 (5) (A) (349 SE2d 717) (1986). There was “no evidence of a total inundation of the judicial process by the media at this trial.” (Citation and punctuation omitted.) Id. at 430 (5) (A). Bates did not show that the trial’s setting was inherently prejudicial as a result of pretrial publicity.

Nor did Bates establish that the jury selection process showed actual prejudice. Bates shows that 20 potential jurors (of 43 questioned) had some prior knowledge of the case. However, the determinative issue was not the number of jurors who had heard about the case, but whether the jurors who had heard about the case could set aside their opinions and render a verdict based on the evidence. See Walden v. State, 289 Ga. 845, 849 (2) (717 SE2d 159) (2011). Upon our review of the voir dire transcript, particularly those portions relied on by Bates, “we cannot say that the trial court abused its discretion in qualifying those veniremen who did ultimately testify that they could lay aside their opinions and render a verdict based on the evidence.” Chancey, 256 Ga. at 432 (5) (C). Although, as Bates shows, six potential jurors were struck for cause due to their fixed opinion or independent knowledge of the case, that did not require a finding that the jury selection process showed actual prejudice. See McWhorter v. State, 271 Ga. 461, 462 (2) (519 SE2d 903) (1999) (finding no error in denial of defendant’s motion for change of venue where, although virtually all venire members were familiar with the case, only five jurors were excused for cause for having a fixed opinion about the defendant’s guilt, and the remaining prospective jurors who had been exposed to pretrial publicity indicated they could render a decision based on the evidence); Chancey, 256 Ga. at 432 (5) (C) (even though 40 percent of the venire was excused for cause due to prejudice against the defendants, this did not demand a finding of actual prejudice in the jury selection process). The trial court did not abuse its discretion in denying Bates’s motion for change of venue.

3. Bates also claims that the trial court erred in failing to grant his motions to strike seven prospective jurors for cause. We disagree.

Before a potential juror can be disqualified for cause, the challenger must show that a potential juror’s opinion “is so fixed and definite that the juror will be unable to set the opinion aside and decide the case based upon the evidence or the court’s charge upon the evidence.” (Citation and punctuation omitted.) Mosely v. State, 269 Ga. 17, 19 (2) (495 SE2d 9) (1998). Atrial judge’s decision concerning juror qualification may be reversed only upon a finding of manifest abuse of discretion. Ham v. State, 303 Ga. App. 232, 239 (2) (a) (692 SE2d 828) (2010). However, when the record shows on its face that a potential juror has a compelling interest or bias in the case, “the record must show more than the potential juror’s own statement that he can render a decision based on the evidence in order to support a trial court’s denial of a motion to strike this juror for cause.” Garland v. State, 263 Ga. 495, 497 (1) (435 SE2d 431) (1993). See Lively v. State, 262 Ga. 510, 511 (1) (421 SE2d 528) (1992) (finding that notwithstanding that the prospective juror testified that he could be fair and impartial, where the prospective juror had been the deceased victim’s employer, had served as a pall bearer at her funeral, and he had discussed with the deceased her relationship with the defendant, the record did not support the trial court’s finding that the prospective juror could render an impartial verdict).

(a) Bates contends that the trial court erred in failing to grant his motions to strike prospective jurors W. B., T. G., and T. H. for cause because they knew much about the case and because the trial court accepted the jurors’ testimony that they could be fair and impartial. There is, however, “no requirement that a juror be ignorant of every fact and issue involved in a case. The question is whether the juror can lay aside any impressions he may have and reach a verdict based on the evidence presented at trial.” Robertson v. State, 268 Ga. 772, 774 (6) (493 SE2d 697) (1997). Each of these prospective jurors had some prior knowledge of the case, but they all maintained that they could be fair and impartial, and they did not profess to have a fixed opinion as to Bates’s guilt. Nor were the prospective jurors shown to have such a compelling interest or bias in the case that the record must show more than the potential juror’s own statements that he or she could render a decision based on the evidence. See Garland, 263 Ga. at 497 (1). We find no abuse of discretion.

(b) Bates also contends that the trial court erred in denying his motions to strike prospective jurors R. B., D. S., D. T., and M. B. for cause because they knew much about the case, they knew the victim, and the trial court accepted the jurors’ testimony that they could be fair and impartial. Prospective juror R. B. had read about the case in the local newspaper, and he knew members of the third victim’s family with whom he had attended high school, but he explained that he had not seen them in years and could be fair to both sides in the case. Prospective juror D. S. knew the third victim’s next door neighbor, and he had heard about the case from those neighbors and from reading the newspaper, but he maintained he could be open minded and determine guilt and innocence based strictly on the evidence. Prospective juror D. T. had seen an article about the case in the newspaper, knew members of the third victim’s family to the extent that she could recognize them, and one member of the third victim’s family lived near her, but she did not know any of the victim’s family personally, and she testified that she could be fair to both sides. Prospective juror M. B. lived next door to a family member of the third victim. M. B. had read about the case in the newspaper, and she was concerned that her elderly great-grandmother lived on the same road as the third victim. She also recounted that her aunt, unaware of any trouble, had seen and driven by the third victim on the day of the robbery. But juror M. B. also maintained that she could be fair to both sides and would make any decision based on the evidence.

Notwithstanding their knowledge of some of the facts of the case and their familiarity with the victim’s family or neighbor, the trial court could conclude that these prospective jurors could be impartial and fair to both sides. Even if “a juror knows a victim[, this] does not require dismissal for cause if the juror indicates that he can be fair and impartial and decide the case on the basis of the evidence presented.” Davis v. State, 229 Ga. App. 787, 788 (1) (a) (494 SE2d 702) (1997) (juror’s acquaintance with victim’s father did not render the juror partial as a matter of law where juror represented that he could be fair and impartial to both sides). Prospective jurors R. B., D. S., D. T., and M. B. were not shown to have a compelling interest or bias in the case, and they indicated that they could be fair and impartial. See Garland, 263 Ga. at 497 (1). Accordingly, we find no abuse of discretion in the trial court’s denial of Bates’s motions to dismiss these prospective jurors for cause.

4. Following an evidentiary hearing, the trial court denied Bates’s motion to suppress the pretrial photographic lineup and the subsequent in-court identification of Bates by the second victim, finding the identification sufficient to meet the requirements of Neal v. Biggers, 409 U. S. 188 (93 SCt 375, 34 LE2d 401) (1972). Bates contends that the trial court erred in denying his motion to suppress because the detective who conducted the photographic lineup tainted the identification when he told the second victim “that’s him” after he picked Bates’s photograph from the array. The State acknowledges that the detective should not have affirmed to the second victim that he had picked the correct suspect, but argues that under the totality of circumstances there was no substantial likelihood of irreparable misidentification as would require Bates’s convictions be set aside. We agree with the State.

Our Supreme Court has said that, because it may lead to improper tainting of a later in-court identification, it is not good practice in the course of a pretrial lineup to indicate to a witness that he or she has chosen the “right” person. Dodd v. State, 236 Ga. 572, 573 (224 SE2d 408) (1976). Nevertheless, “whether a subsequent in-court identification is tainted depends on all the circumstances of each case.” Id. And

convictions based on eyewitness identification at trial following a pretrial identification by photograph will be set aside only if the photographic identification procedure was so impermissibly suggestive as to give rise to a very substantial likelihood of irreparable misidentification.

(Citation and punctuation omitted.) Id. See Graham v. State, 273 Ga. App. 187, 188-189 (1) (a) (614 SE2d 815) (2005).

In determining whether there was a very substantial likelihood of irreparable misidentification, factors to be considered include:

(1) the witness’s opportunity to view the accused at the time of the crime; (2) the witness’s degree of attention; (3) the accuracy of the witness’s prior description of the accused; (4) the witness’s level of certainty at the confrontation with the accused; and (5) the length of time between the crime and the confrontation.

(Citations omitted.) McBride v. State, 291 Ga. 593, 594-595 (2) (732 SE2d 757) (2012). The question is ultimately “whether under the totality of the circumstances, the identification is reliable.” (Citations omitted.) Id. at 595 (2). See Neal, 409 U. S. at 199. “[I]n evaluating these factors, the trial court is the trier of fact and must judge the credibility of the witnesses and the weight and conflict in the evidence. Where evidence supports the trial court’s ruling, we will not disturb that ruling.” (Footnote omitted.) Jones v. State, 273 Ga. 213, 216 (2) (539 SE2d 143) (2000).

The evidence shows that when the second victim arrived at his lake house with his son he realized that the door was unlocked and so he immediately pushed his son aside. He also noticed that the doorjamb had been broken loose. After he stepped inside he saw Bates standing approximately 25 feet away. The second victim and Bates stood and looked at each other, face to face, between three and five seconds before Bates turned around and ran. There was “plenty of light,” as it was daytime and there were windows on the side of the house where Bates was standing. The second victim then gave a description of the intruder to police shortly after the burglary. As Bates points out, the second victim picked Bates’s picture from the photographic lineup approximately six months after the burglary. However, the second victim confirmed that he chose Bates’s photograph from observing the intruder at the time of the burglary, explaining that “when you come face to face . . . there’s certain features that . . . stand out in your mind.” The second victim also testified that during the course of his 19 years of work as a banker he had received training, normally twice a year, “to recognize somebody at a snap type situation; height, weight, facial features, hair . . . because it may be important... later on.” Considering the totality of circumstances, including that the second victim had the opportunity to focus on Bates’s face for several seconds in good light and then maintained that his identification was based on this encounter and consistent with his training, the evidence supports the conclusion that, notwithstanding that the detective improperly indicated to the second victim that he had chosen the correct suspect from the photographic array, the pretrial identification procedure did not give rise to a very substantial likelihood of irreparable misidentification. See Johnson v. State, 234 Ga. App. 21, 22 (2) (506 SE2d 189) (1998) (notwithstanding claim of improper pretrial showup procedure, affirming trial court’s decision to allow in-court identification by the victim where, among other things, the victim saw the robber in good light for a second or two and, as a result of his training, was able to focus his attention on the robber’s appearance). Accordingly, the trial court did not err in denying Bates’s motion to exclude the second victim’s pretrial and in-court identifications. See Graham, 273 Ga. App. at 189 (1) (a).

5. Bates further argues that the trial court erred in overruling his •hearsay objection to the entry into evidence of the latent fingerprint card. Again, we disagree.

The officer who lifted the latent fingerprint from the rearview mirror window of the Lumina did not testify at trial. However, a Philadelphia police officer observed his partner take the print from the mirror. When asked to identify the latent impression card, the observing officer testified that “[t]his is the card” that his partner handed to him after lifting the fingerprint off the mirror. He explained that the latent fingerprint card was “the actual card, the actual lift that my partner lifted off the mirror.” Bates contends that the card was inadmissible hearsay because the person who took the latent print was not available at trial. Hearsay is “testimony in court, or written evidence, of a statement made out of court, the statement being offered as an assertion to show the truth of the matters asserted therein, and thus resting for its value upon the credibility of the out-of-court asserter.” Miness v. Miness, 254 Ga. 658, 659 (1) (333 SE2d 574) (1985) (quoting McCormick on Evidence, 2nd ed., § 246, p. 584 (1972)).

Here, the card at issue simply shows an image of part of a window with fingerprints thereon, and it did not contain any representations or conclusions of a third party, nor did it purport to be the fingerprint card of any particular person. Compare Tubbs v. State, 283 Ga. App. 578 (642 SE2d 205) (2007) (affirming the admission under hearsay exception of a copy of an inked fingerprint card bearing the name of the defendant). Although the testifying officer did not actually take the fingerprint impression, he could confirm based on personal observation that the tendered exhibit was “the actual lift” of fingerprint impressions from the Lumina’s rearview mirror. Neither the testimony of the officer, nor the latent fingerprint card, was hearsay. See, e.g., Caldwell v. State, 230 Ga. App. 46, 47 (495 SE2d 308) (1997) (testing printouts produced by a machine during its most recent quarterly inspection was not statement or conclusion of third party and so did not constitute hearsay); Scott v. State, 130 Ga. App. 75, 78 (3) (202 SE2d 201) (1973) (“[b]ecause the [witness’s] testimony was based upon his personal observation it was not hearsay”).

6. Lastly, we consider Bates’s claim that he received ineffective assistance of trial counsel. If not “clearly erroneous, we will uphold a trial court’s factual determinations with respect to claims of ineffective assistance of counsel. A trial court’s legal conclusions in this regard, however, are reviewed de novo.” (Footnotes omitted.) Tyner v. State, 313 Ga. App. 557, 565 (6) (722 SE2d 177) (2012).

To establish ineffective assistance, Bates “must show that counsel’s performance was deficient and that the deficient performance so prejudiced the client that there is a reasonable likelihood that, but for counsel’s errors, the outcome of the trial would have been different.” (Citations and punctuation omitted.) Towry v. State, 304 Ga. App. 139, 143 (2) (695 SE2d 683) (2010). In that respect, “[w]e need not address both the deficient performance and prejudice prongs of the test if the defendant has made an insufficient showing on either prong.” Id. Further, “[t]o establish deficient performance, a person challenging a conviction must show that counsel’s representation fell below an objective standard of reasonableness.” (Citation and punctuation omitted.) Brown v. State, 288 Ga. 902, 907 (5) (708 SE2d 294) (2011). In considering an ineffective assistance claim, a court “must apply a strong presumption that counsel’s representation was within the wide range of reasonable professional assistance.” (Citation and punctuation omitted.) Id.

(a) Bates contends that his trial counsel, having sufficient peremptory strikes to do so, was ineffective in failing to strike jurors W. B. and T. H. after counsel’s motions to strike these jurors for cause was denied. At the hearing on motion for new trial, defense counsel explained that he did not use a peremptory strike on W. B. because although she had some knowledge of the case through exposure to television and newspapers, he did not believe she had a relationship with the family of the third victim, and he wanted to “hang onto” his strikes at that point in the selection process. As to T. H., defense counsel testified that although the juror had “some exposure” to newspaper accounts of the crime, T. H. had no ties to the third victim’s family. Defense counsel could not recall why he did not strike T. H., “unless [he] was still thinking at that point that [he] needed to hold” further strikes in reserve. Given the presumption that counsel’s representation falls within the range of reasonable professional assistance, counsel’s testimony at the hearing on motion for new trial, and our review of the voir dire of W. B. and T. H., Bates has not shown that his trial counsel was deficient. “The use of peremptory strikes is a matter of trial strategy, and [Bates] has failed to carry his burden to show that counsel’s use of his strikes was not reasonable.” (Footnote omitted.) Hardnett v. State, 285 Ga. 470, 475-476 (7) (678 SE2d 323) (2009).

(b) Bates also argues that his trial counsel was ineffective in failing to put forth any mitigation evidence on his behalf. However, defense counsel testified that he did not have any mitigation evidence to present on Bates’s behalf. Defense counsel explained that there were no relatives or local community members who could offer such evidence. And Bates did not proffer any evidence in mitigation that counsel might have presented. Accordingly, “we cannot find that counsel’s failure to present mitigation evidence was deficient or that it prejudiced [Bates’s] case.” (Punctuation and footnote omitted.) Tyner, 313 Ga. App. at 566 (6) (e).

Decided June 18, 2013.

Katherine M. Mason, for appellant.

Fredric D. Bright, District Attorney, Reginald L. Bellury, Assistant District Attorney, for appellee.

(c) Bates further argues that his counsel’s errors, taken together, show a reasonable probability that but for counsel’s unprofessional errors the result of the proceeding would have been different. See Schofield v. Holsey, 281 Ga. 809, 811-812 (II) (642 SE2d 56) (2007). However, Bates fails to show any deficiencies on the part of his trial counsel, much less cumulative deficiencies. Accordingly, he does not show that he received ineffective assistance of trial counsel.

Judgment affirmed.

Miller and Ray, JJ., concur.

       Attached to Bates’s motion, as amended, were articles captioned as “Hancock escapees at large,” “Jail Escapees Sought,” “Stolen Car ditched in Philly,” “Philly cops nab man in [third victim’s] case,” “Notable court trials nearing,” and “Escaped inmate accused of beating elderly woman.”

       One article stated that Bates was wanted on rape charges in Massachusetts, and another article stated that he was wanted on sexual assault and rape charges in Connecticut. These assertions were not the focus of the articles or shown to have been known by the prospective jurors.

       Although the defense did not use all of its peremptory strikes, this did not render these alleged errors necessarily harmless. See Wallace v. State, 275 Ga. 879, 881 (3) (572 SE2d 579) (2002) (finding that in evaluating the harm caused by the refusal to strike an unqualified juror, the defendant’s use of his peremptory strikes no longer plays a role).

       T. H. agreed that because he had some knowledge of the case it would be “difficult” to be fair to both sides, but he denied that he would accordingly lean to one direction. Rather, according to T. H., “it would mean that I would just try to hear all the information that was gathered.” T. H. then confirmed that, setting aside anything he might have heard before, he would make a decision based strictly on the evidence. See Corza v. State, 273 Ga. 164, 166-167 (3) (539 SE2d 149) (2000) (finding that “[a] prospective juror’s doubt as to his or her own impartiality does not demand as a matter of law that he or she be excused for cause”).

       Bates’s counsel objected to the introduction of the card on the grounds of improper bolstering, a lack of a proper chain of custody, and hearsay, but Bates’s claim of error and argument on appeal is that the fingerprint card was improper hearsay.

       At the time of Bates’s trial, former OCGA § 24-3-1 (a) defined hearsay as evidence “which does not derive its value solely from the credit of the witness but rests mainly on the veracity and competency of other persons.” Under the new Evidence Code, effective January 1, 2013, hearsay is defined as “a statement, other than one made by the declarant while testifying at the trial or hearing, offered in evidence to prove the truth of the matter asserted.” OCGA § 24-8-801 (c).)

       There was apparently some writing on the back of the card, although it is not part of the record. According to the testifying witness, he was the one who “filled out the back of the card.” The trial court allowed the fingerprint card into evidence because he agreed with the State that the “face of the card” was admissible, but he indicated that they would “deal with the back side later.” The trial court subsequently directed that the front side of the card be photocopied, and he explained to the jury that they would not have access to the back of the card.