author: Phipps, Chief Judge.

text:
    A14A0289.
    CUPE v. THE STATE.
    (760 SE2d 647)
   Phipps, Chief Judge.

Following a jury trial, a Troup County jury found Walter Charles Cupe guilty of robbery and burglary. On appeal from the judgment of conviction and the denial of his motion for new trial, Cupe claims that the trial court erred in (i) denying his motion to suppress; (ii) denying his motion to sever; and (iii) failing to properly charge the jury. For the reasons set forth below, we find no error and affirm.

Viewed in a light most favorable to the jury’s verdict,* the evidence showed that on August 15, 2003, Angel Fowler, who was visiting a mall in LaGrange, stepped outside the back entrance of a store as she was talking on the phone. Shortly thereafter a man, whom Fowler identified at trial as Cupe, came up from behind her and began “pulling on” her pocketbook. Fowler fought back, but Cupe hit her repeatedly and eventually grabbed her pocketbook and ran.

On the evening of Thanksgiving Day, November 27, 2003, Cupe, a regular customer, came into George Joseph’s convenience store and gas station in Hogansville to buy cigarettes. Cupe did not have enough money to complete the purchase, but Joseph told his wife to “let him go,” so she gave Cupe the cigarettes. After Cupe left, Joseph came out from behind the counter four times to observe Cupe standing outside the store. It was a rainy day, and Cupe’s body was wet. The fifth time Joseph checked, he did not see Cupe. Joseph lived next door to the store, and Cupe lived two houses down from Joseph’s residence.

Joseph closed the store at 7:00 p.m. and went home. When Joseph opened the door he heard a loud sound from the back of the house, and he went to the kitchen and saw that the deadbolt on the back door was “gone” and that there were leaves and water on the floor. In the bedroom, the bed had been pushed to the side, and a cabinet was open. Missing from the home was, according to Joseph, “$15,000 Indian currency,” an indeterminate amount of United States currency, his wallet, a briefcase containing legal documents, a video camera, and jewelry which he valued at over $12,300.

During officers’ investigation of the crime, Joseph named Cupe as a possible burglar “because the way [Cupe] was acting.” The day after the burglary, after dusting Joseph’s home for prints, the chief of the Hogansville Police Department and two officers walked down a path which led from Joseph’s home to the back of Cupe’s house with the intent of performing a “knock and talk.” Parked in Cupe’s back yard between where the police were walking and Cupe’s back door was a Buick automobile in which an officer saw two brown briefcases and a piece of paper with Joseph’s name printed on it. After speaking with Cupe, the chief informed him that he was going to go and obtain a search warrant for the car and warned him not to approach the vehicle because there was evidence inside. An officer remained at the scene and shortly thereafter placed Cupe under arrest after Cupe grabbed a set of keys and a large garbage bag and then touched the car. After being transported to the police station, Cupe told an officer that he does his “burglaries in the rain because ... police won’t come out of their cars and get wet,” and that “if you said I done this burglary; I done this burglary.”

After police obtained a search warrant for Cupe’s home and the car, they recovered two briefcases from the car. They contained personal effects of Joseph and his wife. Police also recovered a bag which contained Fowler’s checkbook, her gym membership card, her daughter’s social security card, and Joseph’s identification documents. Police found cash in Cupe’s house and returned $6,000 to Joseph, who identified the currency by the bands he used to bundle the money together.

At Cupe’s trial, Officer Michael Smith of the Hogansville Police Department testified that on November 28, 2003, after Cupe had been transported to the police station and he was filling out the warrants for the burglary, Cupe told Smith that he “would find out where [Smith] lived and come to [his] house and tie [his] wife to the bed and **** her brains out.”

In a three-count indictment, Cupe was charged with the crime of burglary by entering Joseph’s home with intent to commit theft, robbery by taking Fowler’s purse and other property by the use of force, and terroristic threats by threatening to rape and falsely imprison Officer Smith’s wife. Cupe filed pre-trial motions to suppress the evidence seized from Cupe’s car and residence and to sever the three counts for purposes of trial. The trial court denied the motions.

Following a trial, the jury found Cupe guilty of burglary and robbery, and the trial court sentenced him to serve 20 years on each count to run concurrently. The jury found Cupe not guilty of terroristic threats. The trial court later denied Cupe’s motion for new trial, and Cupe appeals.

1: Cupe claims that the trial court erred in denying his motion to suppress. We disagree.

In reviewing a trial court’s ruling on a motion to suppress, the appellate court must follow three principles:

First, when a motion to suppress is heard by the trial judge, that judge sits as the trier of facts. The trial judge hears the evidence, and his findings based upon conflicting evidence are analogous to the verdict of a jury and should not be disturbed by a reviewing court if there is any evidence to support them. Second, the trial court’s decision with regard to questions of fact and credibility must be accepted unless clearly erroneous. Third, the reviewing court must construe the evidence most favorably to the upholding of the trial court’s findings and judgment. These principles apply equally whether the trial court ruled in favor of the State or the defendant.

To the extent that “the evidence at a suppression hearing is uncontroverted and the credibility of witnesses is not in question, we conduct a de novo review of the trial court’s application of the law to the undisputed facts.”

Cupe contends that the police officers were not authorized to be on his property when they approached his house without a warrant and saw the two briefcases inside the Buick. Therefore, he argues, the police discovered the incriminating evidence during an illegal search and the evidence seized from the car should have been suppressed. The state responds that the briefcases were in the plain view of officers and were not found by police during a search.

Construed most favorably to support the trial court’s findings and judgment, the evidence showed the following. After Joseph identified Cupe as the person he suspected had broken into his house, the chief decided to go from Joseph’s house, where he had been investigating the crime, directly to Cupe’s house to talk with Cupe. The chief decided to walk rather than going back out to the street and taking his car. Cupe’s house was “two houses up” from Joseph’s house, and the chief knew of a path that led from Joseph’s property to Hutcheson Moody Road, which was adjacent to Cupe’s home. Another officer testified that a path ran “right close to” Cupe’s back door. The chief testified that they proceeded from “Mr. [Joseph’s] path to Mr. Cupe’s path,” and when defense counsel asked on cross-examination if the path was “just the open ground in a back yard,” the chief responded “[i]t’s a commonly known path that I have observed the public using in the past.”

The chief also testified that he had been to Cupe’s residence at least four or five times previously and that he always went to the back door. When asked about the last time, prior to this occasion, he had been to Cupe’s residence, the chief testified that he had parked his patrol car in the back yard and gone to the back door. Photographs of Cupe’s residence were entered into evidence; the back part of Cupe’s property was not enclosed and there were no signs warning a guest against entry.

On this occasion, using a path, the chief and two officers walked directly from Joseph’s house to Cupe’s house. It was approximately 7:00 in the evening, and they used flashlights to illuminate their way. In order to reach Cupe’s back door using the route from Joseph’s house taken by the police, it was “necessary,” according to the testimony of a defense investigator, to walk past a Buick automobile parked between five and ten feet from Cupe’s house. And as they passed the Buick, one of the officers looked into the car’s rear door window with the assistance of his flashlight and saw two briefcases. One of the cases was open, and within not “more than a second or two,” the officer saw “some paperwork ... that had the name George Joseph printed in bold black letters on it.” The chief then obtained a warrant for the search of the car and Cupe’s residence.

As a general rule, “a warrant is required to search the curtilage. The yard immediately surrounding one’s dwelling is well within the curtilage.” However, the plain view exception to the search warrant requirement recognizes that

[o]bjects within the plain view of an officer who is in a lawful position are subject to seizure and may be introduced into evidence. The plain view rule applies only if (1) the initial intrusion which afforded the plain view was lawful, (2) the discovery of the evidence was inadvertent, and (3) the incriminating nature of the evidence was immediately apparent.

Here, the chief and the two officers entered Cupe’s property in order to knock on the door and talk with Cupe. “Where a police officer enters upon private property only to the extent of knocking on outer doors, the Fourth Amendment is not violated.” Further, “if police utilize normal means of access to and egress from the house for some legitimate purpose, such as to make inquiries of the occupant..., it is not a Fourth Amendment search for the police to see or hear or smell from that vantage point... .” Here, although the police had elected to talk with Cupe at his back door, as opposed to walking around to the front door, a trier of fact could conclude that the rear of Cupe’s property and the back door were normal means of access to and egress from the house. Thus, “the particular set of circumstances . . . justified the officers’ approach to the back door,” and the initial intrusion which afforded the view of the briefcases was lawful.*

Although the officer who saw the briefcases had to look into the car in order to see them, this did not, in itself, constitute an unlawful search. “Law enforcement officers simply have the right to look into automobiles, so long as they have a legitimate reason and are looking from a place in which they have a right to be (e.g., a street or roadside).” Thus, we have found that an officer did not violate the Fourth Amendment by looking into a window of a van parked in the defendant’s driveway along a route any visitor would follow to the front door. Here, as the chief and the two officers entered Cupe’s property to talk with Cupe, walked directly to the back door for that purpose, and the briefcases, albeit inside the vehicle, were in view as they passed the car, the officer’s inadvertent discovery of the immediately incriminating evidence was not a violation of Cupe’s Fourth Amendment rights. Rather, as the discovery of the briefcases came within the plain view exception to the search warrant requirement, the trial court did not err in denying Cupe’s motion to suppress.

2. Cupe claims that the trial court erred in failing to sever the burglary count from the robbery count, and both of those counts from the terroristic threats count. We disagree.

“[A] defendant has a right to severance where the offenses are joined solely on the ground that they are of the same or similar character because of the great risk of prejudice from a joint disposition of unrelated charges.” But “ where the joinder is based upon the same conduct or on a series of acts connected together or constituting parts of a single scheme or plan, severance lies within the sound discretion of the trial judge since the facts in each case are likely to be unique.” Further, “where evidence of one charge would be admissible in the trial of another, a trial court does not abuse its discretion by denying a motion for severance.” If severance is not mandatory, “the court must then decide whether severance would promote a just determination of guilt or innocence as to each offense.”

As for the robbery and burglary charges, physical evidence of both crimes was found in the Buick, and the same witnesses would be required to testify as to how the evidence was discovered. Thus, the two crimes were intertwined such “that some of the same evidence would be required at separate trials on each charge.” It cannot be said that the burglary and robbery offenses were joined solely because they were of the same or similar character, and severance was not required.

The terroristic threats charge arose from a statement allegedly made by Cupe to Officer Smith, one of the officers who went to Cupe’s residence and discovered the evidence in the Buick. As the Buick contained physical evidence incriminating Cupe in both the burglary and the robbery, Officer Smith was a state’s witness to both crimes. “[E]vidence of an act by an accused, intended to obstruct justice or avoid punishment for the crime for which he or she is on trial, is admissible if the act constitutes an admission by conduct.” Accordingly, evidence of Cupe’s threat against Officer Smith was admissible in a separate robbery or burglary trial. Thus, we cannot conclude that Cupe was entitled to severance of the terroristic threats count from either the burglary or the robbery charges.

Although the offenses were not joined for trial solely because they were of the same or similar character, “severance may still be appropriate, although not mandated, because the trial court must determine whether the trier of fact will be able to fairly and intelligently judge each offense.” In exercising its discretion, “a trial court must look to the number and complexity of the offenses charged and determine whether a trier of fact can parse the evidence and apply the law with regard to each charge.” Here, given the limited complexity of the evidence, the trial court could conclude that a trier of fact could fairly and intelligently assess the evidence and the law as to the three counts. Nor was there any showing that the jury, which acquitted Cupe on the terroristic threats charge, was confused or misled by the combined trial. Accordingly, the trial court did not abuse its discretion in denying the motion to sever.

3. Last, Cupe contends that the trial court erred in failing to charge the jury on the principles of then OCGA § 24-4-6, which provided: “To warrant a conviction on circumstantial evidence, the proved facts shall not only be consistent with the hypothesis of guilt, but shall exclude every other reasonable hypothesis save that of the guilt of the accused.” Cupe acknowledges that he did not request that the trial court give the charge. “Where, as here, the State’s case is based upon direct, [] as well as circumstantial, evidence, the trial court does not err by failing to ... sua sponte” charge on the standard of proof necessary to convict an accused on circumstantial evidence. Accordingly, we find no error.

Decided June 19, 2014.

Jennifer A. Trieshmann, for appellant.

Peter J. Skandalakis, District Attorney, Kevin T. McMurry, Assistant District Attorney, for appellee.

Judgment affirmed.

Ellington, P. J., and McMillian, J., concur.

        See Drammeh v. State, 285 Ga. App. 545, 546 (1) (646 SE2d 742) (2007).

       Cupe filed a timely motion for new trial on July 9,2004, but the trial court took no action on the motion until after Cupe filed an amended motionfor new trial on February 13,2013, after which the trial court denied the motion in an order filed May 9, 2013.

        Brown v. State, 293 Ga. 787, 802-803 (3) (b) (2) (750 SE2d 148) (2013) (citations and punctuation omitted).

        Jones v. State, 291 Ga. 35, 36-37 (1) (727 SE2d 456) (2012) (citation omitted).

       Although Cupe argues on appeal that the Buick was covered by a shed, the evidence does not show that the car was covered while it was on Cupe’s property. Rather, according to the chief, the car was later “parked under a shed in [the] impound lot.”

        Galbreath v. State, 213 Ga. App. 80, 82 (2) (443 SE2d 664) (1994) (emphasis omitted).

        Robinson v. State, 312 Ga. App. 736, 746 (4) (a) (719 SE2d 601) (2011).

        State v. Zackery, 193 Ga. App. 319 (387 SE2d 606) (1989). See State v. Tye, 276 Ga. 559, 564 (3) (580 SE2d 528) (2003) (holding that “questioning [defendant] on his own porch in connection with a murder investigation did not violate his constitutional rights”); Gilreath v. State, 247 Ga. 814, 820 (1) (279 SE2d 650) (1981) (noting “underlying premise that the officer’s approach to the outside door, even though it be within the curtilage, is unobjectionable”); Herring v. State, 279 Ga. App. 162, 164 (630 SE2d 776) (2006) (officer engaged in permissible “knock and talk” procedure when he approached and knocked on appellant’s door).

       1 LaFave, Search & Seizure, A Treatise on the Fourth Amendment, § 2.3 (c) (5th ed.) (punctuation and footnotes omitted).

       See, e.g., United States v. Garcia, 997 F2d 1273, 1279-1280 (B) (1) (9th Cir. 1993) (“If the front and back of a residence are readily accessible from a public place, like the driveway..., the Fourth Amendment is not implicated when officers go to the back door reasonably believing it is used as a principal entrance to the dwelling.”).

        King v. State, 289 Ga. App. 461, 465 (657 SE2d 570) (2008) (finding that it was reasonable for officers to approach defendant’s back door to make inquiries in furtherance of their investigation).

        State v. O’Bryant, 219 Ga. App. 862, 863(467 SE2d 342) (1996) (citation and punctuation omitted).

       See Galloway v. State, 178 Ga. App. 31, 34 (342 SE2d 473) (1986). Compare O’Bryant, supra at 865 (where officers had knocked on both doors and occupants of the home did not answer, and an officer then walked over to a truck parked by the side of the house and peered through its tinted windows, the trial court correctly determined that “the agents had no authority to extend their presence on defendant’s private property from knocking on outer doors, to looking inside of the vehicle parked on the premises”) (punctuation omitted).

       We note that “[t]he use of a flashlight to see what would otherwise be in ‘plain view’ falls within the ‘plain view’ standard.” Redd v. State, 240 Ga. 753, 754 (1) (243 SE2d 16) (1978).

       See, e.g., Galbreath, supra at 83 (2) (“[t]he evidence authorized the determination that the contraband... [was] in plain view and [was] discovered without resort to an investigatory search, while the officer was in a lawful vantage point”).

        Carruth v. State, 290 Ga. 342, 346 (4) (721 SE2d 80) (2012).

       id.

        Simmons v. State, 282 Ga. 183, 185 (4) (646 SE2d 55) (2007) (citation omitted).

        Stewart v. State, 277 Ga. 138, 139 (587 SE2d 602) (2003).

        Johnson v. State, 257 Ga. 731, 733 (2) (c) (363 SE2d 540) (1988) (citation and punctuation omitted). See Moment v. State, 157 Ga. App. 40, 41 (276 SE2d 97) (1981) (finding no error in failing to sever the charges for trial where “[t]he evidence of identity, though relating to different victims, was inextricably intertwined in all the various offenses charged” and that “it would be almost impossible to present to a jury evidence of one of the crimes without also permitting evidence of the others”) (punctuation omitted).

       See Stewart, supra (noting that “offenses have not been joined solely because they are of the same or similar character” where evidence of one offense is admissible upon the trial of another); Dingler v. State, 233 Ga. 462, 463 (211 SE2d 752) (1975) (providing that a defendant has the right to severance “[wjhenever two or more offenses have been joined for trial solely on the ground that they are of the same or similar character”) (citation and punctuation omitted); Brown v. State, 230 Ga. App. 190, 194 (2) (495 SE2d 858) (1998) (noting that “[ujnder the evidentiary standard for joinder, the state must show similarity of conduct only to the extent that the sole purpose of joinder is not because the offenses are of a like character”) (citation and punctuation omitted).

       Although the jury found Cupe not guilty of terroristic threats, his claim of error regarding the trial court’s failure to sever the offense from the trial of the robbery and burglary was not rendered moot. See generally Carter v. State, 261 Ga. 344, 345 (1) (404 SE2d 432) (1991).

        Moss v. State, 245 Ga. App. 811, 813 (2) (538 SE2d 876) (2000) (citations and punctuation omitted). See, e.g., Dukes v. State, 290 Ga. 486, 488 (3) (722 SE2d 701) (2012) (evidence of a defendant’s attempt to influence or intimidate a witness can serve as circumstantial evidence of guilt).

       See Payne v. State, 152 Ga. App. 471, 473 (3) (263 SE2d 251) (1979) (evidence of defendant’s threat against a state witness was admissible as an admission by conduct).

       See Moss, supra (finding that in any separate trial on the theft charges, evidence of the phone calls and obstruction would be admissible, and therefore the trial court did not abuse its discretion in denying motion to sever the counts).

        Stewart, supra.

       Id. (citation omitted). See, e.g., Coats v. State, 234 Ga. 659, 662 (4) (217 SE2d 260) (1975) (holding that in determining whether severance is necessary to achieve a fair determination of defendant’s guilt or innocence of each offense, the “court should consider whether in view of the number of offenses charged and the complexity of the evidence to be offered, the trier of fact will be able to distinguish the evidence and apply the law intelligently as to each offense.”) (citation and punctuation omitted).

       See, e.g., Perry v. State, 317 Ga. App. 885, 886 (733 SE2d 57) (2012) (holding that “the charged offenses were neither so numerous nor so complex that the jury was unable to parse the evidence and correctly apply the law with regard to each charge”).

        See Heard v. State, 287 Ga. 554, 559(4) (697 SE2d 811) (2010) (finding that the trial court did not abuse its discretion in denying appellant’s motion for severance, noting that “the verdict itself, including [appellant’s] acquittal for some of the charges, shows that the jury fully understood the law and evidence”) (citation and punctuation omitted).

       Effective January 1, 2013, this provision appears at OCGA § 24-14-6.

       As noted above, evidence adduced at trial included that Fowler identified Cupe as the person who robbed her, and Cupe admitted to an officer, “if you said I done this burglary; I done this burglary.”

        Hill v. State, 276 Ga. 220, 221 (2) (576 SE2d 886) (2003). See Russell v. State, 319 Ga. App. 472, 477 (3) (b) (735 SE2d 797) (2012) (finding that given that the state adduced direct and circumstantial evidence, “the trial court was not required to charge the jury on circumstantial evidence pursuant to [former] OCGA § 24-4-6, absent a request”).


source: Caselaw Access Project

author: ANDREWS, Presiding Judge.

license: Public Domain

text:
    A14A0341.
    HAL WRIGHT, ESQ., P.C. v. GENTEMANN.
    (760 SE2d 654)
   ANDREWS, Presiding Judge.

Hal Wright, Esq., P.C. (the “PC.”), the professional corporation for the law practice of Howell Franklin Wright, filed an action against Gerald Gentemann in the trial court to collect an unpaid invoice for attorney fees under a contract for legal services. Following a bench trial, the trial court entered a judgment for the P.C. in the amount of $19,715.70, which included an award of attorney fees and expenses the P.C. incurred in retaining outside counsel to represent it in the action. The PC. appeals, arguing that the trial court also should have awarded it attorney fees for professional services Wright rendered in the action before the P.C. engaged outside counsel. We conclude that the trial court refused to award the P.C. fees for Wright’s services on an erroneous legal ground, and we therefore reverse the trial court’s judgment in part and remand for the trial court to determine whether the P.C. proved that the fees in issue are reasonable.

In an appeal from a bench trial, we apply a de novo standard of review to questions of law decided by the trial court. Antonios v. Gwinnett Clinic, 294 Ga. App. 101, 102 (1) (668 SE2d 531) (2008).

The evidence at trial showed that in or around June 2011, three of Gentemann’s former business associates, who resided in Japan, asserted that Gentemann had defrauded them, and Gentemann contacted Wright about these allegations. On or around July 1, 2011, Wright sent Gentemann a contract for legal services. Although Gentemann had not yet executed the contract for legal services, Wright corresponded with the attorney in Japan representing Gentemann’s business associates regarding evidence she provided to support the fraud allegations. On August 10, 2010, Wright sent the attorney in Japan a final response to the fraud allegations. On the same date, Gentemann executed the contract for legal services. The contract provided that Gentemann would pay an hourly rate of $260 for legal services, that a delinquency charge of one and a half percent interest per month would apply to statements that were unpaid after 30 days, and that “[the P.C.] is entitled to attorney’s fees and costs if collection activities are necessary.”

On October 25, 2011, Wright sent Gentemann a letter stating that the P. C. had concluded its representation of Gentemann and that Gentemann owed attorney fees of $12,168. No payment was forthcoming, and the P.C. commenced its action against Gentemann. Wright initially represented the P.C. in the action, but the P.C. eventually retained outside counsel. Wright testified at trial that Gentemann owed the P.C. the fees specified in the October 25 letter and $3,723 in interest. According to an itemization of damages entered into evidence, the P.C. sought to recover a total of $19,239.92 in fees and expenses associated with bringing the action against Gentemann, broken down as follows: $12,189 in attorney fees and $497.72 in expenses for Wright’s representation of the P.C. and $4,840 in attorney fees and $1,713.20 in expenses in hiring outside counsel. A timesheet detailing Wright’s work on the matter and a detailed invoice from outside counsel were attached to the itemization, and Wright testified that in his opinion, the fees incurred were reasonable.

At the conclusion of the bench trial, the trial court stated that it would enter judgment in the P.C.’s favor for $12,168 for legal services to Gentemann, $3,024 in interest, and $4,523.70 in attorney fees and costs for hiring outside counsel. The trial court excluded fees and expenses for Wright’s representation of the P.C., stating: “I’m not awarding any attorneys fees to Mr. Wright for his own work... in this case.” Regarding outside counsel’s fees and expenses, the trial court explained that it was excluding fees for leaving telephone messages and those associated with a motion for reconsideration that was ultimately withdrawn, stating there “wasn’t a reason for it.” Judgment was entered consistent with these rulings.

The P.C. thereafter filed a motion for reconsideration, arguing that the trial court erred in excluding attorney fees and expenses associated with Wright’s legal services in the action against Gentemann. The P. C. filed its notice of appeal before the trial court ruled on the motion. The trial court then entered an order and amended judgment denying the motion with regard to recovery of additional attorney fees but awarding the P.C. an additional $497.72, representing Wright’s expenses in the action against Gentemann.

1. The P.C. argues that the trial court erred in concluding that the attorney fee provision in the contract for legal services did not authorize an attorney fee award for Wright’s professional services in the action against Gentemann.

“Generally an award of attorney fees is not available unless supported by statute or contract.” (Citation omitted.) Cason v. Cason, 281 Ga. 296, 299 (3) (637 SE2d 716) (2006). The parties’ contract in this case expressly authorized an award of attorney fees, stating that “[the PC.] is entitled to attorney’s fees and costs if collection activities are necessary.” When a contract for legal services contains a provision like this one, an award of attorney fees is available with respect to a firm or attorney’s self-representation in an action to collect fees owed by a client. Abrams v. Putney, 304 Ga. App. 626, 628-629 (1) (697 SE2d 269) (2010) (evidence was sufficient to support fee award to attorney for his partial handling of collection action against former client); Vaughters v. Outlaw, 293 Ga. App. 620, 623 (2) (668 SE2d 13) (2008) (attorney who filed suit to recover attorney fees from former client was entitled to attorney fees even though she did not retain outside counsel); Sprewell v. Thompson & Hutson, South Carolina, LLC, 260 Ga. App. 312, 315 (3) (581 SE2d 322) (2003) (trial court did not err in determining that law firm was entitled to recover attorney fees and expenses associated with its work in collection action).

Nonetheless, when it verbally announced its judgment, the trial court stated that it was excluding fees and expenses for Wright’s own work in the case. It gave no indication at the time that the fees were excluded as unreasonable. By contrast, when it addressed the fees and expenses for outside counsel, the trial court explained that it was excluding certain amounts as unwarranted or unreasonable. Based on the trial court’s remarks, we conclude that the trial court declined to award any attorney fees for Wright’s work in the action against Gentemann on the erroneous ground that the fee shifting clause in the contract for legal services did not allow a fee award for Wright’s own services. See Infinite Energy v. Cottrell, 295 Ga. App. 306, 311 (5) (671 SE2d 294) (2008) (“[A] court’s oral pronouncements on the record may provide insight on the intent of [its] judgment”) (punctuation and footnote omitted). As such, we must reverse the trial court’s judgment in part and remand the case for the trial court to apply the proper standard. See Hill v. Clarke, 310 Ga. App. 799, 800 (714 SE2d 385) (2011) (reversing and remanding when trial court denied statutory attorney fees based on erroneous legal theory).

Decided June 19, 2014.

Gillen Withers & Lake, Anthony C. Lake, for appellant.

Gerald Gentemann, pro se.

While there is no per se rule that disallows the P.C.’s contractual claim for attorney fees for Wright’s services, “[i]t is well-settled that an award of attorney fees is to be determined upon evidence of the reasonable value of the professional services which underlie the claim for attorney fees.” Southern Cellular Telecom v. Banks, 209 Ga. App. 401, 403 (1) (433 SE2d 606) (1993). Thus, on remand, the trial court must determine whether the P.C. met its burden of proving the value and reasonableness of the fees for Wright’s work. See Vaughters, supra, 293 Ga. App. at 624 (2).

2. In its order on the P.C.’s motion for reconsideration, the trial court concluded that the attorney fees at issue in this appeal were unreasonable, noting that, if awarded, the P.C. would recover a total of $16,712.98 in fees and expenses, an amount that would exceed Gentemann’s original debt.

Georgia law is clear that the filing of the notice of appeal operates as a supersedeas and deprives the trial court of the power to affect the judgment appealed, so that subsequent proceedings purporting to supplement, amend, alter or modify the judgment, whether pursuant to statutory or inherent power, are without effect.

(Citation and punctuation omitted.) Lowe v. Center Neurology Assoc., P.C., 288 Ga. App. 166, 168 (1) (653 SE2d 318) (2007); OCGA § 5-6-46 (a). As such, the trial court’s order granting in part and denying in part the motion for reconsideration is void and of no effect. See Screven v. Drs. Gruskin & Lucas, P.C., 227 Ga. App. 756, 757 (1) (490 SE2d 422) (1997).

Judgment reversed in part and case remanded with direction.

McFadden and Ray, JJ., concur.

       Gentemann, who represented himself in the trial court, has not filed an appellee’s brief.


text:
    A14A0453.
    TAYLOR et al. v. McGRAW et al.
    (760 SE2d 657)
   ANDREWS, Presiding Judge.

Garrett McGraw, the 13-year-old child of Kimberly Ann McGraw, suffered serious burn injuries from a fire at a marshmallow roast at the residence of Randy and Kristy Taylor. Acting individually and as next friend of her minor child, McGraw sued the Taylors alleging that one of the Taylors’ minor children threw sawdust on the fire which caused the fire to explode or flare up and burn Garrett. McGraw contends that the Taylors caused Garrett’s injuries by negligently providing their minor child with unsupervised access to the fire and the combustible sawdust. We granted the Taylors’ application for an interlocutory appeal from the trial court’s denial of their motion for summary judgment. For the following reasons, we find that the Taylors were entitled to summary judgment and reverse.

To prevail on a motion for summary judgment, “the moving party must demonstrate that there is no genuine issue of material fact and that the undisputed facts, viewed in the light most favorable to the nonmoving party, warrantjudgmentasamatteroflaw. OCGA § 9-11-56 (c).” Lau’s Corp. v. Haskins, 261 Ga. 491, 491 (405 SE2d 474) (1991). Construed in favor of McGraw, the evidence showed the following: Garrett, accompanied by his step-grandfather, was invited by the Taylors to their residence for a marshmallow roast in their back yard. Marshmallows were roasted over a wood fire in a 55-gallon metal barrel. The barrel was situated equidistant between two sheds, about five feet from each shed. A pile of sawdust was located at the back of one of the sheds about ten feet from the barrel. According to Garrett, after he and two of the Taylors’ children had been roasting marshmallows for about ten minutes, Mr. Taylor told “one of his kids to get a handful of the dust and put it in the fire and for us to stand back.” Garrett said that, when the Taylor child put the sawdust in the fire, “it kind of exploded” and caused “a flareup.” At that point, Mr. Taylor and Garrett’s step-grandfather went inside the Taylor residence, leaving Garrett and two of the Taylor children outside alone with the fire and the sawdust. Garrett said that he then watched as the Taylor children repeatedly threw sawdust in the fire, and that he threw sawdust in the fire “once or twice.”

Garrett was questioned at his deposition as to how he was burned by the fire.

Q: So, tell me about how you got burned.
A: Well, after they started throwing little bits of handfuls of it into the fire, they went inside the shed and there’s a window right there at the [barrel], and they were . . . grabbing big—like big handfuls of it and throwing it out the window into the fire.
Q: Okay, they were inside the shed?
A: Uh-huh.
Q: Did you ever go inside the shed?
A: Yes.
Q: Did you go inside with them while they were doing this?
A: Yes.
Q: Did you ever pick up any of these big handfuls and do that also?
A: No.
Q: So tell me how you got burned.
A: Well, after — they just kept on doing that for a while, and I just basically stood there at the fire and just watched it, and I wasn’t really paying attention, and for just a while, I was doing that. Then I heard [one' of the Taylor children] yell, “Watch out,” and it was when a big pile of it came out the window and then the fire exploded in my face.
Q: How close to the fire were you at that point... [h]ow close were you to the [barrel]?
A: Probably about as far as the length from here to there.
Q: Like the distance across this table?
A: Yes.
Q: A couple of feet?
A: Yes.
Q: How long had you been standing there while they were throwing things out the window? Had you been there for a while? Had you been there at all while they were throwing the stuff out the window into the fire?
A: Yes, I was there.
Q: Each time it was flaring up?
A: Yes.
Q: And so I guess this time it was just an extra large heapful that got thrown out?
A: Yes.

Garrett testified that he knew fire would burn him. One of the Taylor children also testified in his deposition that, after the adults went inside the residence, he, along with his brother and Garrett, threw sawdust in the fire, which “made the fire shoot up,” and that Garrett was burned because “he was too close to the fire and the fire shot up and it got on him.”

McGraw concedes that the gravamen of her complaint was that the Taylors caused Garrett’s burn injuries by negligently allowing their minor children unsupervised control of the dangerous combination of the fire in the barrel and the combustible sawdust. In support of this claim, McGraw pointed to evidence that Mr. Taylor showed the children how to use the sawdust to flare up or explode the fire contained in the barrel, and that, immediately after doing so, the Taylors allowed their children to have unsupervised control over these dangerous substances. Under these facts, McGraw contends that a duty was imposed on the Taylors to anticipate injury to another through their children’s misuse of the dangerous substances in the manner they had just been shown. See Corley v. Lewless, 227 Ga. 745, 748 (182 SE2d 766) (1971); Jackson v. Moore, 190 Ga. App. 329, 329 (378 SE2d 726) (1989). We find that, even if a jury could reasonably conclude that the Taylors were negligent on this basis, their negligence was not a proximate cause of the injuries suffered by Garrett. Rather, the undisputed facts show as a matter of law that Garrett assumed the risk of being burned when sawdust was thrown into the fire.

Assumption of the risk is a complete defense and arises when, even if defendant is negligent, plaintiff himself is negligent in such a way that his own negligence is the sole proximate cause. Although issues of negligence, lack of care in avoiding the negligence of others, lack of care for one’s own safety, and assumption of the risk are ordinarily not susceptible to summary adjudication, where the evidence shows clearly and palpably that the jury could reasonably draw but one conclusion the issue of assumption of risk may be determined on summary judgment.

Sayed v. Azizullah, 238 Ga. App. 642, 644 (519 SE2d 732) (1999) (citation and punctuation omitted).

The affirmative defense of assumption of the risk bars recovery when it is established that a plaintiff, without coercion of circumstances, chooses a course of action with full knowledge of its danger and while exercising a free choice as to whether to engage in the act or not. In Georgia, a defendant asserting an assumption of the risk defense must establish that the plaintiff (1) had actual knowledge of the danger; (2) understood and appreciated the risks associated with such danger; and (3) voluntarily exposed himself to those risks. Knowledge of the risk is the watchword of assumption of the risk, and means both actual and subjective knowledge on the plaintiff’s part. The knowledge that a plaintiff who assumes a risk must subjectively possess is that of the specific, particular risk of harm associated with the activity or condition that proximately causes injury.

Muldovan v. McEachern, 271 Ga. 805, 807-808 (523 SE2d 566) (1999) (citations and punctuation omitted).

Moreover, as to a child between the ages of seven and fourteen,

“there is no presumption that the child did or did not exercise due care or does or does not have sufficient capacity to recognize danger or to observe due care.” (Citations and punctuation omitted.) Jackson v. Young, 125 Ga. App. 342, 343-344 (187 SE2d 564) (1972). For children between these ages, these issues hinge on the circumstances of the case and the capacity of the particular child. Id. at 344. Nevertheless, there is no bar to applying assumption of the risk, as a matter of law, to the conduct of a child between these ages when the evidence shows that the danger was obvious, that the child knew of the danger and was able to appreciate the risks associated with it, and the child voluntarily chose to run the risk. Abee v. Stone Mountain Mem. Assn., 252 Ga. 465, 466 (314 SE2d 444) (1984), affirming 169 Ga. App. 167 (312 SE2d 142) (1983). Generally, the dangers of fire, water and falling from heights are considered to be understood even by a young child absent factors creating additional risks which could not be appreciated by the child. Riley v. Brasunas, 210 Ga. App. 865, 867 (438 SE2d 113) (1993).

Goodman v. City of Smyrna, 230 Ga. App. 630, 632 (497 SE2d 372) (1998) (physical precedent only); Kensington Place Owners Assn. v. Thomas, 318 Ga. App. 609, 613 (734 SE2d 445) (2012); Garner v. Rite Aid of Ga., 265 Ga. App. 737, 740 (595 SE2d 582) (2004) (physical precedent only); Stewart v. Harvard, 239 Ga. App. 388, 396-397 (520 SE2d 752) (1999); Abee, 252 Ga. at 465-466.

In the present case, undisputed evidence shows that Garrett, age 13, watched as the Taylor children repeatedly threw handfuls of sawdust into the fire, causing the fire to explode and flare. He initially watched this activity (and participated in it) at a safe distance from the fire. He went into the adjacent shed with the Taylor children and watched as they continued to throw “big handfuls” of sawdust out of the shed window into the fire, each time seeing that the sawdust caused the fire to explode or flare up. But then he left the safety of the shed, and stood at the fire. He admitted that, while he stood at the fire, he watched the Taylor children continue to throw sawdust out of the window into the fire. In explaining how he got burned, Garrett said that “I just basically stood there at the fire and just watched it, and I wasn’t really paying attention” until one of the Taylor children yelled, “Watch out,” as more sawdust came out the window into the fire, “and then the fire exploded in my face.” He admitted that he was standing only a couple of feet from the barrel when he was burned. One of the Taylor children confirmed that Garrett was burned by the sawdust-caused flareup because “he was too close to the fire and the fire shot up and it got on him.”

Decided June 19, 2014.

Brown, Readdick, Bumgartner, Carter, Strickland & Watkins, John E. Bumgartner, Eric L. Bumgartner, for appellants.

William J. Edgar, for appellees.

The undisputed facts show that Garrett had actual and subjective knowledge of the specific risk of being burned by standing next to the fire while sawdust being thrown into the fire caused it to explode and flare up; that he understood and appreciated the risk; and that he voluntarily exposed himself to the risk by standing next to the fire knowing sawdust was being thrown into the fire, and admitting that “[he] wasn’t really paying attention.” On these facts, the Taylors asserted the affirmative defense of assumption of the risk in their answer to the complaint, and in their motion for summary judgment. The trial court erred by failing to grant the motion for summary judgment on this basis.

Judgment reversed.

McFadden and Ray, JJ., concur.


author: McFadden, Judge.

text:
    A14A0511.
    WRIGHT v. THE STATE.
    (760 SE2d 661)
   McFadden, Judge.

A jury found Cecil Ray Wright guilty of one count of child molestation, and he appeals his conviction. Wright argues that he received ineffective assistance of trial counsel because counsel failed to object to testimony of the victim’s aunt. He argues that the testimony was bolstering, commented on the ultimate issue, and contained hearsay. We hold that the testimony was neither bolstering nor improperly commented on the ultimate issue. We also hold that the failure to object to hearsay was harmless, given that the testimony was cumulative of the victim’s own testimony. We therefore affirm Wright’s conviction.

1. Facts.

On appeal from a criminal conviction,

the evidence must be viewed in the light most favorable to the verdict, and the defendant no longer enjoys the presumption of innocence; moreover, an appellate court does not weigh the evidence or determine witness credibility but only determines whether the evidence is sufficient under the standard of Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560) (1979).

Cordy v. State, 315 Ga. App. 849 (1) (729 SE2d 13) (2012) (citation omitted).

Viewed in this light, the evidence shows that a group of adults and children, including Wright, the victim, and S. A., the daughter of the victim’s father’s fiancée, gathered to help the victim’s aunt move to another residence. At one point, S. A. told the aunt that she needed to speak with her. The aunt spoke with S. A. and the victim in the bathroom. In the victim’s presence, S. A. told the aunt that the victim had said that Wright put his hand in the victim’s pants. The victim was crying and could not speak, but said “yeah” when the aunt asked whether Wright had done that.

The victim, who was nine years old at the time of trial, testified at trial that while she was helping Wright find his beer, he grabbed her arm, covered her mouth, put his hand in her pants, and touched her private. A video recording of the victim’s interview at a child advocacy center was played for the jury. In the video recording, the victim related that Wright grabbed her, covered her mouth, put his hand down her pants, and rubbed her private. Wright testified, denying that he touched the victim.

Wright does not dispute that the evidence is legally sufficient to sustain his conviction, and we conclude that the evidence adduced at trial was sufficient to authorize a rational trier of fact to find beyond a reasonable doubt that Wright was guilty of the crime of which he was convicted. Jackson, supra, 443 U. S. at 319 (III) (B).

2. Ineffective assistance of counsel.

Wright argues that trial counsel was ineffective for failing to object to certain portions of the aunt’s testimony, which, he contends, amounted to improper bolstering, commented on the ultimate issue of the case, and contained hearsay. He also argues that even if these incidents of ineffectiveness are not individually prejudicial, cumulatively they are.

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

The testimony of which Wright complains occurred during the direct examination of the aunt, while she was describing the conversation in the bathroom with S. A. and the victim:

Q: Try to tell us the best you can what happened once you entered the bathroom.
A: When I got them to where I was in the bathroom, because the bathroom is separated, she — I said: What is it? And [S. A.] said: [The victim] told me that Cecil put his hand down her pants. And [the victim] was just — she was crying. She couldn’t even talk. And [S. A.] was — her eyes were real big and she was shaky and she was so scared.
Q: Did [the victim] enter into the conversation any at the point early in the bathroom?
A: When I asked her what — he really done that, she said yeah. But it was like — she was crying. And I knew.
Q: Can you try to describe for the jury what it was you saw and heard, anything that helped you know how you knew?
A: [The victim’s] been my world since she was born and I know her manners and I know how she is normal.... I could not believe he done that.
Q: During the ride [from the aunt’s house to the victim’s house], did you and the girls discuss what happened further?
A: I don’t remember. All I remember is thinking I can’t believe he done this. . . .
Q: And based on the children’s statements to you, what image was in your mind about what had happened?
A: I could see him doing it. I could see him sticking his hand down her pants and her little innocent face not understanding what’s going on.
Q: Now, when he reached [the victim’s house], what did you find when you got there?
A:... And, so, then, I just told [the victim’s father’s fiancée]: Cecil touched [the victim].

(a) The aunt’s testimony was not bolstering.

Wright argues that the aunt’s responses to the prosecutor’s questions impermissibly bolstered the credibility of the victim, and that trial counsel was ineffective for failing to object or to take other corrective action. “It is erroneous ... for a witness, even an expert, to bolster the credibility of another witness by expressing an opinion that the witness is telling the truth.” Noe v. State, 287 Ga. App. 728, 730 (1) (652 SE2d 620) (2007) (citation omitted). “What is forbidden is ... opinion testimony that directly addresses the credibility of the victim, i.e., £I believe the victim; I think the victim is telling the truth. ...’” Odom v. State, 243 Ga. App. 227, 228 (1) (531 SE2d 207) (2000) (citations and punctuation omitted) (discussing an expert witness’s allegedly bolstering testimony).

None of the aunt’s testimony “directly addresse[d] the credibility of the victim.” Rather, the aunt was describing the circumstances of the outcry and the victim’s demeanor. Her testimony that she “knew” after hearing about the outcry is vague and ambiguous, and she never elaborated what she knew. Because the aunt did not directly comment on the veracity of the victim, her testimony was not improper. See Roebuck v. State, 261 Ga. App. 679, 684-685 (5) (583 SE2d 523) (2003) (testimony did not directly comment on the veracity of the victim and thus was not objectionable), overruled in part on other grounds, Reynolds v. State, 285 Ga. 70, 72 (673 SE2d 854) (2009). See also Bridges v. State, 293 Ga. App. 783, 785 (2) (668 SE2d 293) (2008) (testimony about child victim’s demeanor was relevant and did not constitute improper bolstering). Compare Gaston v. State, 317 Ga. App. 645, 647-648 (1) (731 SE2d 79) (2012) (father’s affirming that he believed the victim when she told him that she had been molested by the defendant was improper); Walker v. State, 296 Ga. App. 531, 534-535 (1) (b) (675 SE2d 270) (2009) (aunt’s testimony in child molestation case that “this child is telling me the truth” was improper); Cline v. State, 224 Ga. App. 235, 236-237 (2) (480 SE2d 269) (1997) (statement of witness in child molestation case that she “felt [the victim] was very credible” was improper); Lagana v. State, 219 Ga. App. 220, 221-222 (1) (464 SE2d 625) (1995) (grandmother’s affirming that she had not “ ‘ever had any problems with [(the victim’s)] telling stories’ ” was improper).

Because this testimony was not bolstering, counsel’s failure to object was not deficient. See Hayes v. State, 262 Ga. 881, 884-885 (3) (c) (426 SE2d 886) (1993) (“Failure to make a meritless objection cannot be evidence of ineffective assistance.”).

(b) The aunt’s testimony did not comment on the ultimate issue.

Wright argues that the aunt’s testimony was also improper because it commented on the ultimate issue of Wright’s guilt. It is true that, under our former Evidence Code, “generally speaking, a trial witness [could] not give opinion testimony on ultimate matters within the jury’s province. . . Dubose v. State, 294 Ga. 579, 587 (6) (b) (755 SE2d 174) (2014) (citation and punctuation omitted). But here, the aunt was not giving her opinion as to Wright’s guilt. See Carter v. State, 320 Ga. App. 454, 461 (4) (b) (740 SE2d 195) (2013). Rather, she was testifying as a fact witness, describing the circumstances of the outcry and her reaction to it. See Dubose, 294 Ga. at 587 (6) (b). The testimony did not impermissibly comment on the ultimate issue, and counsel’s failure to object was not deficient. See Hayes, supra, 262 Ga. at 884-885 (3) (c).

(c) Any improper hearsay testimony was merely cumulative.

Wright argues that trial counsel was ineffective for failing to object to the aunt’s hearsay testimony regarding what S. A. told her. Specifically, he complains about the aunt’s testimony that “[S. A.] said: [The victim] told me that Cecil put his hand down her pants.” Any error in the admission of this testimony was harmless. S. A. herself testified about the victim’s outcry to her, and that testimony was admissible under the child hearsay statute. And although the aunt’s testimony about what S. A. told her may have been hearsay, the testimony was cumulative of the victim’s own testimony and was not harmful. Clemmons v. State, 282 Ga. App. 261, 263 (1) (638 SE2d 409) (2006). Accordingly, counsel’s failure to object did not prejudice Wright.

Decided June 19, 2014.

David L. Smith, for appellant.

Jack Browning, Jr., District Attorney, Charles E. Rooks, Assistant District Attorney, for appellee.

3. Cumulative errors.

Wright further argues that his counsel’s alleged errors, taken together, show a reasonable probability that but for counsel’s errors the result of the proceeding would have been different. See Schofield v. Holsey, 281 Ga. 809, 811-812 (II) (642 SE2d 56) (2007). But, as described above, two of the alleged errors were not deficient performance and the third alleged error was not harmful. Accordingly, Wright has not shown that he received ineffective assistance of trial counsel. Bates v. State, 322 Ga. App. 319, 329 (6) (c) (744 SE2d 841) (2013).

Judgment affirmed.

Andrews, P. J., and Ray, J., concur.

       Former OCGA § 24-9-65 provided: “Where the question under examination, and to be decided by the jury, shall be one of opinion, any witness may swear to his opinion or belief, giving his reasons therefor. If the issue shall be as to the existence of a fact, the opinions of witnesses shall be generally inadmissible.” OCGA § 24-7-704 (a) of Georgia’s new Evidence Code, which took effect on January 1,2013, almost two years after Wright’s trial, says that “testimony in the form of an opinion or inference otherwise admissible shall not be objectionable because it embraces an ultimate issue to be decided by the trier of fact.”

       Former OCGA § 24-3-16, the child hearsay statute applicable at the time of trial, provided:
      A statement made by a child under the age of 14 years describing any act of sexual contact or physical abuse performed with or on the child by another or performed with or on another in the presence of the child is admissible in evidence by the testimony of the person or persons to whom made if the child is available to testify in the proceedings and the court finds that the circumstances of the statement provide sufficient indicia of reliability.
      The statute was modified and adopted in the new Evidence Code at OCGA § 24-8-820, effective January 1, 2013.


author: MCFADDEN, Judge.

text:
    A14A0655.
    CHAMBERS v. THE STATE.
    (760 SE2d 664)
   MCFADDEN, Judge.

After a jury trial, Richard Chambers was convicted of robbery and theft by taking, among other offenses. He challenges the sufficiency of the evidence and argues that the trial court erred in preventing him from asking a voir dire question. We find, however, that the evidence was sufficient to support the convictions and the trial court did not abuse its discretion in ruling that the voir dire question was improper. Accordingly, we affirm.

1. Sufficiency of the evidence.

On appeal from a criminal conviction,

the evidence must be viewed in the light most favorable to the verdict, and the defendant no longer enjoys the presumption of innocence; moreover, an appellate court does not weigh the evidence or determine witness credibility but only determines whether the evidence is sufficient under the standard of Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560) (1979).

Cordy v. State, 315 Ga. App. 849 (1) (729 SE2d 13) (2012) (citation omitted).

So viewed, the evidence showed that around 6:00 a.m. on November 10,2012, Hubert Dowdy was driving home from work in his black Jeep when an SUVbegan following him closely, flashing its lights and honking. Believing that he was being pulled over by law enforcement, Dowdy stopped. A woman from the SUV approached Dowdy and insisted that the Jeep belonged to her and that it used to be painted blue. Dowdy replied that the Jeep was his and got out of the Jeep to open the hood and show the woman that the Jeep previously had been painted silver, not blue. At that point, a man from the SUV got into the Jeep and the woman told him to drive away. Dowdy asked if he could retrieve personal items from the Jeep, but the woman refused. Another man from the SUV — whom at trial Dowdy identified as Chambers — grabbed Dowdy from behind, pulled him backward, placed him in a headlock, and hit him twice, injuring his nose. Dowdy was afraid and did not fight back. The first man then drove away in the Jeep, which contained a handgun belonging to Dowdy, and Chambers and the woman drove away in the SUV Later, the J eep was located in front of the woman’s apartment, bearing a new license tag that the woman had put on it. Law enforcement officers found Chambers asleep inside the apartment, with Dowdy’s gun resting on his stomach.

Chambers argues that this evidence was insufficient to support his convictions for robbery of the Jeep and theft by taking of the gun. We disagree. Pertinent to this appeal, a person commits the offense of robbery “when, with intent to commit theft, he takes property of another from the person or the immediate presence of another... [b] y use of force[,]” OCGA § 16-8-40 (a) (1), and the offense of theft by taking “when he unlawfully takes... any property of another with the intention of depriving him of the property, regardless of the manner in which the property is taken[.]” OCGA § 16-8-2. The evidence authorized the jury to find that Chambers was part of a group which, by use of force, stopped Dowdy and took both his J eep and his gun. See OCGA § 16-2-20 (a), (b) (3) (person who intentionally aids or abets in the commission of a crime may be charged with and convicted of the commission of the crime as a party thereto). Chambers argues that he did not intend to commit these offenses but believed the Jeep belonged to the woman in the SUV A factfinder, however, “may find such intention upon consideration of the words, conduct, demeanor, motive, and all other circumstances connected with the act for which the accused is prosecuted,” OCGA § 16-2-6, and it was for the jury in this case to gauge the credibility of Chambers’s testimony and evidence regarding his intent. See Powell v. State, 291 Ga. 743, 745 (1) (733 SE2d 294) (2012). The evidence in this case supported a finding that Chambers possessed the necessary intent to commit robbery of the Jeep and theft by taking of the gun contained within the Jeep.

2. Voir dire.

Chambers argues that the trial court erred in a ruling during voir dire. As defense counsel asked follow-up questions of a prospective juror, the following exchange occurred:

[DEFENSE COUNSEL]:... Once a person has admitted to breaking the law in any way, and it could have been years ago or whatever, can that person ever be trusted again?
THE JUROR: I think if they can prove themselves to be trusted, I think so.
[DEFENSE COUNSEL]: So you think if something happened in the past that they admitted to, whether it be a violation of the law in some way or a broken trust —
[PROSECUTOR]: Judge, I’m going to have to object on prejudicing the credibility of witnesses.
[DEFENSE COUNSEL]: Judge, I am just asking about a general pattern of human behavior in this case. Not at all going to the witnesses in this case.
THE COURT: Sustain the objection.

The trial court explained that he sustained the objection because he viewed the question to improperly ask the prospective juror to prejudge the evidence.

“Georgia law allows both the [s]tate and the defense in criminal cases the right to an individual examination of prospective jurors from which the jury is to be selected.” Alexander v. State, 294 Ga. 345, 347 (2) (751 SE2d 408) (2013) (citing OCGA § 15-12-133). Nevertheless,

the single purpose for voir dire is the ascertainment of the impartiality of jurors, their ability to treat the cause on the merits with objectivity and freedom from bias and prior inclination. Questions of a technical legal nature and questions that call for prejudgment are improper in a voir dire examination.

Id. at 346-347 (2) (citation and punctuation omitted). Prejudgment questions are those “that require a prospective juror to assume facts that are yet to be proved and to prejudge the case based on those assumed facts.” Ellis v. State, 292 Ga. 276, 280 (2) (736 SE2d 412) (2013) (citation omitted). “Hypothetical questions involving evidence or requiring a response from a juror which might amount to a prejudgment of the case are improper and should be excluded from the examination of prospective jurors.” Pinion v. State, 225 Ga. 36, 37 (4) (165 SE2d 708) (1969) (citation omitted). “Since there is often a fine line between asking potential jurors how they would decide the case and questions that merely seek to expose bias or prejudice, the scope of the voir dire examination, of necessity, must be left to the sound discretion of the trial court.” Alexander, 294 Ga. at 347 (2) (citation omitted).

Decided June 19, 2014.

William D. Hoffer, H. Bradford Morris, Jr., for appellant.

LeeDarragh, District Attorney, Shiv Sachdeva, Assistant District Attorney, for appellee.

The trial court did not abuse his discretion in sustaining the state’s objection. At the time of the objection, Chambers’s counsel was posing a hypothetical question about the trustworthiness of a person who previously had violated the law or broken a trust. That question could be construed to ask the prospective juror to prejudge the case based on assumed facts not yet proved, namely Chambers’s past criminal history, which the state intended to introduce as similar transaction evidence and for impeachment purposes. Moreover, the trial court already had allowed some inquiry into the prospective juror’s thoughts on the trustworthiness of a person who had admitted to breaking the law. See Alexander, 294 Ga. at 347-348 (2) (finding no abuse of discretion in trial court’s restriction of follow-up voir dire question where trial court did not preclude questioning about the entire subject matter and counsel’s other inquiries were sufficiently specific to allow panel members to answer questions so as to reveal any potential bias). Cf. Ellis, 292 Ga. at 281 (2) (even assuming defendant was entitled to ask voir dire question, finding no reversible error in trial court’s limitation of questioning where trial court permitted other inquiry on the specific topic). Although Chambers suggests on appeal that the trial court’s ruling limited his ability to rehabilitate the prospective juror on the issue, the prospective juror’s answer to the earlier voir dire question on the issue — that she thought a person could “prove themselves to be trusted” notwithstanding prior criminal history •— did not reveal a bias requiring rehabilitation.

Judgment affirmed.

Andrews, P. J., and Ray, J., concur.

       The jury also found Chambers guilty of robbery of the Jeep under OCGA § 16-8-40 (a) (2) and of theft by taking of the Jeep, but for purposes of sentencing his convictions on these offenses were merged into his conviction for robbery of the Jeep under OCGA § 16-8-40 (a) (1).


author: RAY, Judge.

text:
    A14A0682.
    BODDIE v. THE STATE.
    (760 SE2d 668)
   RAY, Judge.

The State indicted Kenneth Wayne Boddie for eight counts of sexual offenses against two of his four children. Ajury convicted him of incest (OCGA § 16-6-22 (a) (1)), child molestation (OCGA § 16-6-4 (a) (1)), and three counts of aggravated child molestation (OCGA § 16-6-4 (c)) for crimes committed against one of his daughters, S. B. He appeals from the denial of his particularized motion for a new trial contending that he received ineffective assistance of counsel. For the reasons that follow, we affirm.

On appeal, we view the evidence in the light most favorable to the verdict. Jackson v. Virginia, 443 U. S. 307 (99 SCt 2781, 61 LE2d 560) (1979).

At trial, S. B. testified that her father raped, sodomized, had oral sex with her, and “sexually abused” her with his hands, penis, or mouth on “my vagina, my breasts, and my butt” in an ongoing course of conduct occurring approximately “twice a week” when she was in sixth and seventh grades. Testimony showed that the last time she had sexual intercourse with her father was in January 2009, about two weeks before she made outcry to school counselors on February 3,2009. The police officer who interviewed S. B. testified that she told him her father had been forcing her to have sexual encounters with him for about a year prior to the interview date of February 3, 2009. The indictment charged that the crimes occurred between August 9, 2007, and January 19, 2009.

Boddie testified in his own defense. He denied sexual conduct with S. B., but repeatedly stated that she asked him for sex and that he walked around the house naked after she did so. He acknowledged that when interviewed by police, he first denied having sex with S. B., then admitted to molesting her. He testified that this was not a voluntary statement and that he confessed only because “I felt like if I hadn’t, that they would arrest my wife and my daughter.” He did not explain why he believed that the police might arrest his underage daughter.

On appeal, Boddie argues that he received ineffective assistance of counsel. In raising ineffective assistance, Boddie

was required to show both that his counsel’s performance was professionally deficient and that but for counsel’s unprofessional conduct, there is a reasonable probability [that] the outcome of the proceedings would have been different. . . . The likelihood of a different result must be substantial, not just conceivable.

(Citations and punctuation omitted.) Hill v. State, 291 Ga. 160, 164 (4) (728 SE2d 225) (2012).

In the instant case, the trial court in a detailed order found that Boddie had received effective assistance of counsel.

The trial judge, who oversaw the trial and heard the evidence presented at the hearing on the motion for new trial, makes the findings on whether the performance was deficient and whether it prejudiced the defendant, findings that this Court does not disturb unless clearly erroneous.

(Footnote omitted.) Sarratt v. State, 299 Ga. App. 568, 569 (2) (683 SE2d 10) (2009). “[W] e independently apply the legal principles to the facts.” (Citation and punctuation omitted.) Hill, supra.

1. Boddie argues that his trial lawyer was ineffective in failing to file a special demurrer requiring the State to allege specific dates for the child molestation and three aggravated child molestation charges. Boddie argues that greater specificity would have allowed him to provide an alibi defense.

“To succeed on his ineffective assistance claim, [Boddie] was required to show that his trial counsel’s failure to specially demur materially impacted his ability to present a defense, thereby creating a reasonable probability that counsel’s deficiency changed the outcome of the case.” (Citation and punctuation omitted.) Chalk v. State, 318 Ga. App. 45, 47 (1) (a) (733 SE2d 351) (2012). He additionally was required to show that counsel’s performance fell below the broad range of reasonable professional assistance presumed to be rendered by members of the bar. Id. at 46 (1).

Here, the indictment provided a range of dates for the four charges, alleging that they occurred between August 9, 2007, and January 19, 2009, “the exact date of the offense[s] being unknown to the Grand Jury[.]” The indictment did not specifically allege that the dates were material. “For this reason, the date[s] alleged [were] not... material element[s] to be proven with specificity by the State.” (Citation omitted.) Chalk, supra at 47 (1) (a).

At the hearing on his motion for new trial, Boddie testified that he was away from S. B. at certain times between August and December, but in most instances did not testify as to specific dates or years, or whether he was out of town or just absent for a few hours. The most specific instance of his testimony showed that his wife was hospitalized on November 24, 2008, and that he spent time with her. There was no testimony as to whether he spent the night at the hospital or was only away from S. B. for a few hours. He also testified that his wife’s birthday is September 28, and that on that date in both 2007 and 2008 he spent time with her, but did not travel away from home. Finally, he testified that between December 28 and January 4, he was testifying in a trial involving a woman with whom he was having an affair. He did not indicate in what year the trial occurred, nor did he state whether he was out of town for those days or merely gone for some hours. He also stated that once school started, he only spent about four hours a day with the children.

Boddie “did not proffer any evidence showing that he had a possible defense” for the series of offenses that recurred approximately twice weekly between August 9, 2007, and January 19, 2009. (Citation omitted.) Chalk, supra at 47 (1) (a). “Consequently, [Boddie] has failed to demonstrate that he was surprised or unable to present a defense due to the [range of dates] in the indictment; therefore, his claim of ineffective assistance of counsel on this ground affords no basis for reversal.” (Citation omitted.) Id. See Eberhardt v. State, 257 Ga. 420, 421 (2) (359 SE2d 908) (1987) (where State shows a pattern of ongoing occurrence of abuse, defendant cannot claim surprise if “every date of alleged abuse was not specified in the indictment”). See also Adams v. State, 288 Ga. 695, 699 (2) (707 SE2d 359) (2011) (where approximate dates for the commission of crimes may be determined by the evidence presented, the evidence is sufficient to support the allegations in the indictment).

[I] t is well established that where the exact date is not stated as a material allegation of the time of commission of the offense in the indictment, it may be proved as of any time within the statute of limitation [ ]. An exception exists where the evidence of the [S]tate proving that the offense was committed at a time substantially different from that alleged in the indictment surprises and prejudices the defense in that it deprives the defendant of a defense of alibi or otherwise denies him his right to a fair trial.

(Citation omitted.) Lewis v. State, 304 Ga. App. 831, 834 (2) (698 SE2d 365) (2010). Here, the State proved that the crimes took place within the range of dates in the indictment, not at “substantially different” times. Further, at the motion for new trial hearing, Boddie’s trial counsel testified that alibi was not a viable defense. She stated that because the crimes which Boddie was accused of committing took place as an ongoing pattern of conduct occurring approximately twice a week over a 13-month “timeframe, alibi didn’t really fit into that. He just denied that it even had happened. So I don’t think alibi was the appropriate defense in that... he said it didn’t happen.” Trial counsel testified that she did not typically consider an alibi defense in cases involving allegations of ongoing conduct, but in Boddie’s case, “[h]e gave us lists and lists of people, family members, things like that, that he wanted us to interview. And to the best of our ability we interviewed or attempted to contact everybody” but found no basis for a viable alibi defense. Given this, counsel testified that she saw no basis for filing a demurrer.

“Of course, tactics and strategy provide no talismanic protection against an ineffective assistance of counsel claim. There are sometimes decisions that no reasonable trial counsel would make under the circumstances.” (Citations and punctuation omitted.) Bufford v. State, 320 Ga. App. 123, 126 (3) (739 SE2d 421) (2013). This case does not demonstrate that type of unreasonable decision. In the instant case, trial counsel’s

testimony demonstrates that [her] failure to seek greater specificity in the indictment was a strategic decision made after consideration of the ... likelihood of success. Counsel’s calculation was not based on a legal error, and such strategic decisions do not amount to deficient performance.

(Footnote omitted.) Allen v. State, 318 Ga. App. 531, 533-534 (1) (734 SE2d 260) (2012). Further, “because a defendant can be re-indicted after the grant of a special demurrer, a failure to file such a demurrer generally will not support a finding of ineffective assistance of counsel.” (Citation omitted.) Moore v. State, 319 Ga. App. 766, 776 (8) (d) (738 SE2d 348) (2013).

Boddie has shown neither deficient performance nor prejudice. The trial court did not err.

2. Boddie next argues that trial counsel was ineffective in “not adequately discussing the case with [him] with regard to the range of dates alleged in the indictment.”

At trial, Boddie was represented by two attorneys. He called only one to testify at the motion for new trial hearing. At that hearing, Boddie repeatedly testified that he did, in fact, talk with trial counsel about dates when he was away from S. B., but “not in any great detail[.]”

The trial attorney who testified at Boddie’s motion for new trial hearing stated that she discussed the date range in the indictment with him but did not recall any specific conversations. She also testified that she did not discuss narrowing the date range with him via a demurrer, and that she could not specifically recall whether she and Boddie discussed filing a demurrer. She did recall discussing two instances when Boddie was absent from S. B.’s home because he was meeting other women, but she supplied no dates.

Decided June 19, 2014.

Matt A. Kirsch, Schenk Smith, William F. Smith III, for appellant.

Robert D. James, Jr., District Attorney, Leonora Grant, Assistant District Attorney, for appellee.

As we discussed in Division 1, trial counsel testified that she did not believe alibi was the appropriate defense because Boddie denied that anything untoward had happened with S. B. She testified that, given her determination after interviewing Boddie’s list of potential alibi witnesses that he did not have a viable alibi defense to an accusation involving a repeating pattern of conduct over a range of dates, she saw no basis for filing a demurrer.

Trial counsel testified that she was prepared to try the case and had the opportunity to discuss the case thoroughly with Boddie. Her testimony as cited above clearly indicates that she was aware of Boddie’s absences from the home and investigated his alibi witnesses. His testimony shows that he had some discussions of dates with this attorney, although perhaps not with the level of detail he now desires. However, at the motion for new trial hearing, Boddie did not ask this trial attorney whether any lack of discussion of the date range contributed to her failure to file a demurrer. Thus, the only evidence in the record indicates that she did discuss the date range with him and that her decision not to demur was a strategic one backed by legitimate reasoning. “[T]here exists no magic amount of time which counsel must spend in actual conference with [her] client.” (Citation and punctuation omitted.) Ruffin v. State, 283 Ga. 87, 91 (12) (d) (656 SE2d 140) (2008). Further, trial counsel stated that her co-counsel had more contact and discussions with Boddie than she did. Boddie did not call this other attorney to testify. See Bufford, supra at 126 (3), citing Morgan v. State, 276 Ga. 72, 77 (9) (575 SE2d 468) (2003) (affirming trial court’s denial of motion for new trial on ineffectiveness claim where trial counsel’s action could have been part of reasonable trial strategy and trial counsel did not testify at motion for new trial hearing). The trial court did not err.

Judgment affirmed.

Andrews, P. J., and McFadden, J., concur.

       The same indictment also charged his wife, Kathleen Boddie, with one count of cruelty to children in the second degree (OCGA § 16-5-70 (c)), to which she entered a guilty plea. She testified for the State at her husband’s trial in this case hut is not otherwise apart of this appeal.


author: Boggs, Judge.

text:
    A14A0633.
    WARE v. THE STATE.
    (761 SE2d 89)
   Boggs, Judge.

Gregory Ware appeals, pro se, from the trial court’s order denying his motion for an out-of-time appeal. In related enumerations of error, he contends that the trial court erred by failing to inquire into whether his right to an out-of-time appeal was lost due to ineffective assistance of counsel, that his claims can be resolved by facts contained in the record, and that his plea counsel’s performance was deficient in failing to challenge the validity of the indictment. For the reasons explained below, we reverse and remand this case with direction.

The record shows that Ware pleaded guilty to kidnapping, aggravated assault, and terroristic threats, and his sentence was entered on August 9, 2004. On September 2, 2004, Ware filed a pro se notice of appeal in which he asserted ineffective assistance of counsel in the trial court and asked for an appointed appellate attorney because he was indigent. For reasons unknown, the Richmond County Superior Court Clerk’s office did not transmit the notice of appeal and record to this court.

While the pro se notice of appeal may not have been perfect in form, see OCGA § 5-6-37, it sufficiently identified the judgment appealed from and should have been acted upon. See Brumby v. State, 264 Ga. 215, 217-218 (2) (443 SE2d 613) (1994); OCGA § 5-6-48 (f) (“Where it is apparent from the notice of appeal, the record, the enumeration of errors, or any combination of the foregoing, what judgment or judgments were appealed from or what errors are sought to be asserted upon appeal, the appeal shall be considered in accordance therewith notwithstanding that the notice of appeal fails to specify definitely the judgment appealed from or that the enumeration of errors fails to enumerate clearly the errors sought to be reviewed.”). Additionally, there is no indication in the record that the appeal was dismissed or withdrawn. Instead, Ware has attempted to obtain a review of alleged error in the trial court through two motions for an out-of-time appeal and a habeas corpus proceeding. The appeal presently before us involves the denial of Ware’s second motion for an out-of-time appeal.

As held by the Supreme Court of Georgia in a case involving similar facts, the timely direct appeal that was never acted upon by the trial court clerk “remains pending.” Wetherington v. State, 295 Ga. 172 (758 SE2d 299) (2014). “That pending appeal acts as a supersedeas, depriving the trial court of the power to effect the judgment appealed.” (Citation and punctuation omitted.) Id. The trial court therefore “lacked jurisdiction to rule” on Ware’s motion for an out-of-time appeal, because it involves the same judgment of conviction that was challenged in his September 2, 2004 notice of appeal. Id. In accordance with the Supreme Court’s opinion in Wetherington, we reverse the trial court’s order denying Ware’s motion for an out-of-time appeal because it “is a mere nullity.” (Citation omitted.) Id.

Decided June 20, 2014.

Gregory L. Ware, pro se.

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

Upon receipt of the remittitur in this case, the trial court should rule upon Ware’s September 2, 2004 request for appointed appellate counsel, order the defendant to serve the September 2, 2004 notice of appeal upon the State, and require the clerk’s office to act upon the September 2, 2004 notice of appeal.

Judgment reversed and case remanded with direction.

Branch, J., concurs. Barnes, P. J., concurs in judgment only.

       While the notice of appeal lacked a certificate of service, the failure to include a certificate of service does not subject an appeal to dismissal. See OCGA § 5-6-48 (a) (“Failure of any party to perfect service of any notice or other paper hereunder shall not work dismissal; but the trial and appellate courts shall at any stage of the proceeding require that parties be served in such manner as will permit a just and expeditious determination of the appeal....”); Ward v. Ward, 115 Ga. App. 778, 781 (1) (156 SE2d 210) (1967) (failure to serve copy of notice of appeal is not a ground of dismissal). The General Assembly enacted the Appellate Practice Act of 1965 to “trend away from highly technical rules of practice,” In re Norris, 154 Ga. App. 173, 174 (1) (267 SE2d 788) (1980), and the Act expressly provides that it “shall be liberally construed so as to bring about a decision on the merits of every case appealed and to avoid dismissal of any case. . . .” (Emphasis supplied.) OCGA § 5-6-30. To the extent the Supreme Court of Georgia’s opinion in Bull v. Bull, 243 Ga. 72, 73 (4) (252 SE2d 494) (1979), may conflict with OCGA § 5-6-48 (a), the statute controls. Ga. Investment Co. v. Norman, 229 Ga. 160, 162 (190 SE2d 48) (1972) (on motion for rehearing). We therefore conclude that the lack of a certificate of service does not preclude this court from considering the September 2, 2004 notice of appeal as still pending based upon the Supreme Court’s recent decision in Wetherington, supra.