text:
    A12A2396.
    DENNIS v. THE STATE.
    (739 SE2d 78)
   Branch, Judge.

On appeal from his conviction for aggravated assault, Dwight Dennis argues that trial counsel was ineffective when he failed to move for a change in venue, to interview certain witnesses, and to assert a defense of involuntary intoxication. We affirm.

“On appeal from a criminal conviction, we view the evidence in the light most favorable to the verdict, with the defendant no longer enjoying a presumption of innocence.” (Citation omitted.) Reese v. State, 270 Ga. App. 522, 523 (607 SE2d 165) (2004). We neither weigh the evidence nor judge the credibility of witnesses, but determine only whether, after viewing the evidence in the light most favorable to the prosecution, a “rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt.” (Citation omitted.) Jackson v. Virginia, 443 U. S. 307, 319 (III) (B) (99 SC 2781, 61 LE2d 560) (1979).

So viewed, the record shows that on September 28, 2005, Dennis was working for a Coffee County mobile home manufacturer when he became involved in an argument with another worker. A supervisor told Dennis to return to ground level from the elevated position where he was working on a mobile home under construction. Just after Dennis did so, he accidentally knocked his own hat off his head. The worker he had been arguing with began to laugh. When the supervisor on duty said that the supervisor would be leaving in 30 minutes, Dennis asked him where he was going. As the supervisor turned toward Dennis to respond, Dennis struck him in the head with a wooden tool box. The victim fell to the floor with a cut to the head. He required hospitalization for a fractured skull and brain swelling. Witnesses heard Dennis say that people had been laughing at him and that “there was only so much a man could take.”

After a jury found Dennis guilty of aggravated assault, he was convicted and sentenced to 20 years with 15 to serve. His motion for a new trial was denied. This appeal followed.

To show ineffective assistance of counsel, a defendant must show that counsel’s performance was deficient and that the deficient performance prejudiced the defense. Suggs v. State, 272 Ga. 85, 87-88 (4) (526 SE2d 347) (2000), citing Strickland v. Washington, 466 U. S. 668 (104 SC 2052, 80 LE2d 674) (1984). As to deficient performance, “every effort must be made to eliminate the distorting effects of hindsight,” and a reviewing court “must indulge a strong presumption that counsel’s conduct falls within the wide range of reasonable professional assistance.” (Citation and punctuation omitted.) White v. State, 265 Ga. 22, 23 (2) (453 SE2d 6) (1995). As to prejudice, a defendant need only show “a reasonable probability of a different outcome” due to trial counsel’s deficient performance. (Punctuation and footnote omitted.) Cobb v. State, 283 Ga. 388, 391 (2) (658 SE2d 750) (2008). Finally, the question of ineffectiveness is a mixed one of both law and fact: “we accept the trial court’s factual findings and credibility determinations unless clearly erroneous, but we independently apply the legal principles to the facts.” (Footnote omitted.) Suggs, supra at 88 (4).

1. Dennis first argues that trial counsel was ineffective when he failed to move for a change in venue. We disagree.

Under OCGA § 17-7-150 (a) (1), a defendant facing a jury trial may move for a change in venue “whenever, in the defendant’s or defense counsel’s judgment, an impartial jury cannot be obtained in the county where the crime is alleged to have been committed.” In a motion for a change of 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.” (Citations and punctuation omitted.) Edmond v. State, 283 Ga. 507, 508 (2) (661 SE2d 520) (2008). The trial court has discretion to grant a change of venue, and its decision on the matter will not be disturbed absent abuse. Id.

On the basis of a local newspaper story about the assault, Dennis asked his trial counsel to file a motion for a change of venue. At the hearing on the motion for new trial, counsel testified that as a result of Dennis’s request, he asked each juror in voir dire “whether they had any prior knowledge of the case, if they had seen the . .. article, [or] if they had known about the incident,” but that no juror responded in the affirmative. Because, as counsel testified, “none of the prospective jurors indicated that they were aware of the case,” counsel told Dennis that a motion for a change in venue would not succeed and did not file such a motion.

Voir dire in this case was not transcribed, such that the only evidence of what transpired came from testimony at the hearing on Dennis’s motion for new trial. Thus Dennis has “made no showing that the setting of the trial was inherently prejudicial, i.e., that any publicity was factually incorrect, inflammatory, or reflective of an atmosphere of hostility,” or that “he could not receive a fair trial due to the prejudice of individual jurors[,] since no potential jurors were excused for having a fixed opinion” as to Dennis’s guilt. (Citation and punctuation omitted.) Edmond, supra at 508 (2). It follows that the trial court did not clearly err when it concluded that counsel was not ineffective when he failed to move for a change in venue. See Walker v. State, 223 Ga. App. 21, 24 (476 SE2d 801) (1996) (where defendant had “made no showing that the jury in [his] case was in fact not impartial,” the trial court did not clearly err in rejecting his claim of ineffective assistance arising from counsel’s failure to move for a change in venue) (citation omitted).

2. Dennis also argues that trial counsel was ineffective when he (a) chose to interview only eyewitnesses to the case and not other workers, and (b) failed to interview Dennis’s doctor about a possible involuntary intoxication defense. Again, we disagree.

(a) Trial counsel testified that his strategy was to attempt to impeach the eyewitnesses to the case rather than to present any witnesses of his own, but that all the eyewitnesses “testified consistently’ and could not be impeached. “Trial tactics and strategy, however mistaken they may appear with hindsight, are almost never adequate grounds for finding trial counsel ineffective unless they are so patently unreasonable that no competent attorney would have chosen them.” (Citation and punctuation omitted.) Abernathy v. State, 278 Ga. App. 574, 587 (3) (b) (v) (630 SE2d 421) (2006).

For his part, moreover, Dennis failed to proffer any specific evidence from any witness at the hearing on his motion for new trial not called to testify at trial, let alone show that such evidence would likely have affected the outcome of his trial, particularly in light of his admission at the hearing on the motion for new trial that he hit the victim in the head with a toolbox. Because Dennis “was required to offer more than mere speculation” that any particular witness’s evidence would have assisted his defense at trial, his claim of ineffective assistance must fail. Dickens v. State, 280 Ga. 320, 323 (2) (627 SE2d 587) (2006), citing Goodwin v. Cruz-Padillo, 265 Ga. 614, 616 (458 SE2d 623) (1995).

(b) At the hearing on the motion for new trial, counsel testified that Dennis told him that at the time of the assault, he had not taken his prescribed psychotropic drugs for two months. Counsel thus concluded that because there was no evidence of Dennis’s substance use or abuse at that time, an involuntary intoxication defense was not feasible. Just as counsel was entitled to believe what Dennis told him before counsel made the strategic decision not to present this defense, the trial court was justified in believing counsel’s account of the matter. See Johnson v. State, 279 Ga. App. 182, 186 (3) (d) (630 SE2d 778) (2006) (trial court was entitled to judge the credibility of defendant’s claim that he had not been consulted adequately, and thus to reject his ineffective assistance claim made on that basis). Finally, to the extent Dennis is asserting that any underlying psychological condition was the cause of his behavior, he proffered no expert evidence concerning such a condition at the hearing on his motion for new trial. See Haygood v. State, 289 Ga. App. 187, 193 (2) (a) (656 SE2d 541) (2008) (defendant could not show either deficient performance nor prejudice when “nothing in the trial record” suggested that he was denied a fair trial because counsel did not investigate his competency and when he failed to show a reasonable probability that the outcome of trial would have been different but for counsel’s failure to investigate).

Decided March 1, 2013.

Wendell R. Adams, for appellant.

Richard E. Currie, District Attorney, John A. Rumker, Assistant District Attorney, for appellee.

It follows from all we have said above that the trial court did not clearly err when it concluded that Dennis’s trial counsel was not ineffective.

Judgment affirmed.

Miller, P. J., and Ray, J., concur.


source: Caselaw Access Project

author: MILLER, Presiding Judge.

license: Public Domain

text:
    A12A2476.
    EZEOKE v. FIA CARD SERVICES, N.A.
    (739 SE2d 81)
   MILLER, Presiding Judge.

FLA Card Services, N.A. (“FLA”) filed suit against Pat Ezeoke to recover an unpaid debt on a credit card account. Appearing pro se, Ezeoke filed an answer that did not deny liability. FIA filed a motion for judgment on the pleadings, which the trial court granted. Ezeoke appeals that ruling, contending that the trial court erred in concluding that the documents attached to FIA’s complaint were sufficient to prove liquidated damages. Since the pleadings do not confirm FIA’s calculations of its purported damages, we vacate and remand.

On appeal, we review de novo the trial court’s decision on a motion for judgment on the pleadings, and we construe the pleadings in a light most favorable to the appellant, drawing all reasonable inferences in her favor. All well-pleaded material allegations of the opposing party’s pleading are to be taken as true, and all allegations of the moving party which have been denied are taken as false.

(Citations, punctuation and footnotes omitted.) Alexander v. Wachovia Bank, Nat. Assn., 305 Ga. App. 641 (700 SE2d 640) (2010).

So viewed, the pleadings show that in 2006, Ezeoke entered into a credit card agreement with FIA. Ezeoke received a credit card with an account number ending in 9498 (“Account 9498”) and began making charges against that account. After Ezeoke failed to make payments, FIA brought the instant action to recoup the outstanding balance on the account, which FIA claimed to be $16,855.32.

Appearing pro se, Ezeoke filed an answer in which she did not deny her liability on the credit card account. Rather, Ezeoke asserted that FIA’s predecessor had offered to settle the credit card debt for $6,000 to be paid in full, and that she was unable to make such a payment.

FIA moved for judgment on the pleadings, based on the fact that Ezeoke’s answer did not deny liability. Ezeoke filed no response to FIA’s motion. The trial court granted FIA’s motion and entered an order of judgment against Ezeoke and in favor of FIAfor $16,855.32 (the entire amount requested in FIA’s complaint), plus costs. Ezeoke now appeals from that order.

Ezeoke contends that the trial court erred in granting a judgment on the pleadings since FIA’s documents in the record were insufficient to prove liquidated damages. We agree.

To establish it was entitled to judgment as a matter of law against Ezeoke on a credit card account, FIA was required to show that Ezeoke entered into an agreement or established an account with FIA, accumulated a balance, and failed to pay. See Melman v. FIA Card Svcs., 312 Ga. App. 270, 272 (2) (718 SE2d 107) (2011). Furthermore, “[t]o be entitled to judgment on the pleadings on the issue of damages,... a movant must show either liquidated damages or evidence demonstrating the method by which it calculated the specific damages sought.” (Citations and footnotes omitted.) Alexander, supra, 305 Ga. App. at 642; see also Tucker Nursing Center v. Mosby, 303 Ga.App. 80,82 (1) (692 SE2d 727) (2010) (“[w]hereaparty sues for damages, he has the burden of proof of showing the amount of loss in a manner in which . . . the trial judge . . . can calculate the amount of the loss with a reasonable degree of certainty’) (punctuation omitted).

Here, FIA did not provide sufficient information for the trial judge to calculate the damages sought with a reasonable degree of certainty. Although Ezeoke’s answer did not deny liability and did not dispute the allegations as to the amount she owed, her failure to do so did not entitle FIA to a judgment on the pleadings. “[A]verments in a pleading as to the amount of damage are not admitted when not denied in the responsive pleading[.]” (Citation and punctuation omitted.) Travelers Ins. Co. v. Johnson, 118 Ga. App. 616 (2) (164 SE2d 926) (1968); see also OCGA § 9-11-8 (d).

FIA’s complaint did not explain the basis for computing the $16,855.32 in damages sought on Account 9498. FIA attempted to establish the debt owed on Account 9498 through documents attached to its complaint. On a motion for judgment on the pleadings, a trial court may consider exhibits attached to and incorporated into the pleadings. See Lewis v. Turner Broadcasting System, 232 Ga. App. 831, 832 (2) (503 SE2d 81) (1998). Nevertheless, the attached documents were not part of the pleading because they were not listed as exhibits and were not incorporated by reference in the complaint. OCGA § 9-11-10 (c); Morrell v. Wellstar Health System, 280 Ga. App. 1, 2 (1) (633 SE2d 68) (2006) (document was not incorporated into the complaint, nor was a copy of the document attached as an exhibit to the complaint, so it was clearly a matter outside of the pleadings). Compare Shreve v. World Championship Wrestling, 216 Ga. App. 387, 388 (1) (454 SE2d 555) (1995) (document attached to pleading was part of pleading when it was incorporated by reference).

Even if we were to consider the documents, the attached documents were insufficient to establish damages with a reasonable degree of certainty. “[FIA] was required to attach to the affidavit copies of the records relied upon and referred to therein that were pertinent to [Ezeoke’s] debt.” (Footnote omitted; emphasis in original.) Melman, supra, 312 Ga. App. at 272-273 (2). FIA failed to do so as the affidavit stated that Ezeoke owed $16,855.32 on an account ending with the numbers 2163, while the attached credit card agreement and billing statement are associated with Account 9498. See Taquechel v. Chattahoochee Bank, 260 Ga. 755, 756 (2) (400 SE2d 8) (1991) (“Where records relied upon and referred to in an affidavit are neither attached to the affidavit nor included in the record and clearly identified in the affidavit, the affidavit is insufficient.”) (citation omitted). Moreover, the July 2010 billing statement was insufficient to establish the amount of damages, even though it showed a balance of $16,855.32 on Account 9498, because it indicated that only $2,840 was due as a minimum payment. See Jackson v. Cavalry Portfolio Svcs., 314 Ga. App. 175, 177 (723 SE2d 475) (2012) (the billing statement attached to record custodian’s affidavit was insufficient to establish damages because the statement showed abalance of $10,029.61 with only $2,463 due as a minimum payment). Since the documents provided do not establish the amount owed on Account 9498 with certainty, the amounts are unliquidated and must be established. See Alexander, supra, 305 Ga. App. at 643 (“[Although the debt may in fact be clear, certain, manifest and ascertained, the pleadings do not show it, and so for the purposes of judgment on the pleadings, [the debt] must be considered unliquidated^]”) (citation and punctuation omitted). Accordingly, we vacate and remand the trial court’s order.

Decided March 1, 2013.

William R. Carlisle, for appellant.

Spencer G. Freeman, Salvatore L. Schiappa III, for appellee.

Judgment vacated and case remanded.

Ray and Branch, JJ., concur in judgment only.

       FIA submitted the following documents: a certificate from FIA’s Assistant Secretary-purporting to show FIA’s acquisition of the credit card account; an affidavit from FIA’s records custodian indicating that Ezeoke owed $16,855.32 on a different account number ending in 2163; the credit card agreement for Account 9498; and the July 2010 monthly account statement for Account 9498 addressed to Ezeoke showing a balance of $16,855.32 with a $2,840 due as a minimum payment.


author: MCFADDEN, Judge.

text:
    A12A2549.
    HAFER v. LOWRY.
    (739 SE2d 84)
   MCFADDEN, Judge.

The father of a minor child appeals from a trial court order terminating his parental rights and granting a petition for stepparent adoption of the child. Because the trial court violated the father’s right to be heard and show cause why his parental rights should not be terminated, we vacate the order and remand for further proceedings.

Appellant Michael Hafer and Tara Hafer Lowry were formerly married. During the marriage, in November 2007, Tara gave birth to the couple’s child, M. Q. H. The couple divorced in September 2008, and the divorce decree awarded sole custody of the child to Tara. In August 2011, Tara married Terry Lowry, Jr. A month later, in September 2011, Terry Lowry filed a petition for stepparent adoption pursuant to OCGA § 19-8-10 (b), claiming, among other things, that Hafer’s parental rights should be terminated because for more than a year he had failed to communicate with the child or provide for the child’s care and support as required by the divorce decree. Hafer filed an objection to the petition.

On March 22,2012, the trial court held a hearing on the petition. Lowry’s attorney called Hafer as the first witness for purposes of cross-examination. Hafer was questioned by opposing counsel and his own attorney. Then, while he was on re-cross-examination, the trial judge intervened, stopped all presentation of the evidence, and announced his ruling. As Hafer’s counsel was in the midst of an evidentiary stipulation, the trial judge interrupted him and declared, “At any rate, though, regardless of all that, I think I’ve heard enough of this case and I’m ready to make a ruling in the case.” The judge then ruled that Hafer had lost his parental rights and granted the stepparent adoption. Counsel for Hafer immediately objected, stating, “I have not been able to present my case fully and just for the record I object to that. There’s other witnesses I was going to call; there’s other evidence. I’ve been cut short all day today.” The trial judge disregarded the objection, moved on to other matters and subsequently entered its final order granting the stepparent adoption.

Generally, a stepparent may adopt his or her spouse’s child only if the biological parent whose rights will end with the adoption voluntarily and in writing surrenders all of his or her rights to the child to the stepparent for the purpose of enabling the stepparent to adopt the child. If the biological parent refuses to surrender his or her parental rights, OCGA § 19-8-10 (b) provides that the court may still grant the stepparent’s petition to adopt the child if it finds, inter alia, that there is clear and convincing evidence that the parent, for a period of one year or longer immediately prior to the filing of the petition for adoption, without justifiable cause, has significantly failed: (1) To communicate or to make a bona fide attempt to communicate with that child in a meaningful, supportive, parental manner; or (2) To provide for the care and support of that child as required by law or judicial decree.

(Citation and punctuation omitted.) Weber v. Livingston, 309 Ga. App. 665, 666 (710 SE2d 864) (2011).

In such a case, it is the stepparent petitioner’s burden to prove that termination of the biological parent’s parental rights is warranted. In re Marks, 300 Ga. App. 239, 242 (684 SE2d 364) (2009). And OCGA § 19-8-10 (c) further provides that the biological parent must be served with a copy of the petition and that such parent “may appear in the pending adoption action and show cause why such parent’s rights to the child sought to be adopted in that action should not be terminated by that adoption.” Smallwood v. Davis, 292 Ga. App. 173, 176-177 (2) (664 SE2d 254) (2008).

In this case, Hafer was properly served with a copy of the petition, objected to it and appeared at the hearing to show cause why his parental rights to M. Q. H. should not be terminated. However, during the presentation of the petitioner’s evidence, the trial court sua sponte ended the matter and refused to allow Hafer to present his witnesses and other evidence to show cause why his parental rights should not be terminated. “It is well settled that adoption laws must be strictly construed in favor of natural parents. [Cit.]” McKinney v. Jennings, 246 Ga. App. 862, 863 (2) (542 SE2d 580) (2000). Moreover, “ ‘[t]he fundamental idea of due process is notice and an opportunity to be heard.’ [Cit.]” Gottschalk v. Gottschalk, 311 Ga. App. 304, 312 (5) (715 SE2d 715) (2011). Here, by foreclosing Hafer’s right to show cause why his parental rights should not be terminated, the trial court deprived him of a meaningful opportunity to be heard. See generally Thorne v. Padgett, 259 Ga. 650, 651-652 (386 SE2d 155) (1989) (finding that former termination statute deprived parent of meaningful opportunity to be heard and thus denied due process). Accordingly, we vacate the decree of stepparent adoption and remand the case to the trial court to conduct a hearing consistent with this opinion. See McKinney, supra.

Decided March 1, 2013.

Tisinger Vance, Kenneth B. Crawford, for appellant.

Diane M. Sternlieb, for appellee.

Judgment vacated and case remanded with direction.

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


author: Ellington, Chief Judge.

text:
    A12A1848, A12A1953.
    REESE et al. v. FORD MOTOR COMPANY; and vice versa.
    (738 SE2d 301)
   Ellington, Chief Judge.

Following Mary Reese’s death from an automobile accident, Reese’s children and the executor of her estate (“the plaintiffs”) filed suit against the Ford Motor Company (“Ford”) in the State Court of Cobb County. Ajury found in favor of Ford, andinCaseNo. A12A1848, the plaintiffs appeal from the judgment on the verdict. Before the appeal was docketed, however, the plaintiffs filed an extraordinary motion for new trial, which the trial court granted. Following the grant of an application for interlocutory appeal, Ford appeals this ruling in Case No. A12A1953. For reasons that follow, we affirm in Case No. A12A1953 and dismiss Case No. A12A1848 as moot.

Case No. A12A1953

1. The relevant facts show that, in November 2002, Mary Reese was driving a Ford Tempo when her car was struck from behind by a dump truck traveling at a high rate of speed. Reese, who sustained a broken back in the collision, died several weeks later. The plaintiffs filed suit against Ford and, in 2003, served discovery requests, which included the following request to produce:

Please provide true, accurate, and complete copies of any and all insurance, indemnity, joint defense, hold harmless, cooperative, or other agreements by whatever name called, entered into by or on behalf of you and by or on behalf of any other party to this matter.

Ford provided the following response:

Ford states that it has sufficient resources to cover any reasonable judgment that could be expected to be awarded as damages in this action, if any. Ford objects to this request on the grounds that it (a) is overly broad, (b) seeks documents that are neither relevant to the subject matter of this action nor reasonably calculated to lead to the discovery of admissible evidence, and (c) seeks the discovery of confidential or proprietary information or documents.

The case proceeded to trial, and a jury found in favor of the plaintiffs awarding $3 million in compensatory damages. Ford appealed, and this Court reversed based upon an improper jury instruction. See Ford Motor Co. v. Reese, 300 Ga. App. 82, 83-88 (1) (684 SE2d 279) (2009).

Following a second trial, the jury rendered a defense verdict, and the trial court entered judgment on November 5, 2010. After judgment was rendered, the plaintiffs’ lawyers learned of another case against Ford, Young v. Ford Motor Co., which was also being tried in the State Court of Cobb County. In that case, the trial court sanctioned Ford for a similar discovery response after it was discovered that Ford had excess liability insurance coverage.

On July 1, 2011, the plaintiffs filed an extraordinary motion for new trial. The crux of the motion was that Ford misled them by failing to identify its insurance carriers in response to their discovery request. Because Ford failed to identify those carriers, the jurors had not been qualified as to their relationship with the insurance carriers.

The trial court granted the plaintiffs’ extraordinary motion for new trial, finding that Ford’s discovery response was designed to be misleading. The trial court interpreted the discovery response as meaning that Ford was entirely self-insured. Ford argued that its response was accurate because it showed the company was responsible for paying any “reasonable judgment.” As the trial court noted, however, Ford’s self-insurance was limited. When the plaintiffs initially filed suit, Ford was self-insured for damages of up to $25 million. In 2009, the self-insured limit decreased to $2 million. Given that the jury verdict following the first trial exceeded $2 million, the trial court noted that Ford’s excess insurance would have to be utilized. In addition, the trial court castigated Ford for failing to disclose the insurance providers in the consolidated pre-trial order so that jurors could be fully qualified as to any relationship with the insurance providers. Because the court found that the plaintiffs were entitled to qualify jurors as to Ford’s insurance and given Ford’s concealment of the information, the trial court granted the plaintiffs’ extraordinary motion for new trial. Ford challenges this ruling on appeal.

“OCGA § 5-5-41 (a) gives the trial judge the discretion to allow the filing of an extraordinary motion for new trial after the expiration of the 30-day period where some good reason is shown why the motion was not made during such period.” (Punctuation omitted.) Mountain Creek Hollow v. Cochran, 270 Ga. App. 612, 613 (1) (607 SE2d 210) (2004). Although such motions are generally predicated on newly discovered evidence, the grant of such a motion may be based on circumstances other than new evidence. See id. In ruling on an extraordinary motion for new trial, the trial court serves as fact-finder. See Cade v. State, 107 Ga. App. 30 (1) (129 SE2d 405) (1962). We will not disturb a trial court’s ruling on such a motion “unless it affirmatively appears that the court [manifestly] abused its discretion.” (Punctuation omitted.) Davis v. State, 283 Ga. 438, 440 (2) (660 SE2d 354) (2008).

Here, the trial court found that Ford intentionally provided misleading discovery responses, which resulted in the jury not being properly qualified. The court thus granted the plaintiffs’ extraordinary motion for new trial. Under these circumstances, we cannot say that the trial court abused its discretion. See, e.g., Gilpin v. Swainsboro Ice & Fuel Co., 75 Ga. App. 574, 576 (44 SE2d 168) (1947) (“An extraordinary motion for a new trial is addressed to the sound discretion of the trial judge, and the discretion of the trial judge in overruling an extraordinary motion for a new trial will not, unless manifestly abused, be interfered with by this court.”) (punctuation omitted).

Decided February 7, 2013

Reconsideration denied March 4, 2013

Daughtery, Crawford, Fuller & Brown, Peter J. Daughtery, Dustin T. Brown, Law & Moran, Peter A. Law, Ernest M. Moran, Albert H. Dallas, for appellants.

Owen, Gleaton, Egan, Jones & Sweeney, Philippa V. Ellis, Richard J. Baker, Balch & Bingham, Christopher S. Anulewicz, Michael J. Bowers, for appellee.

King & Spalding, Susan M. Clare, amicus curiae.

Case No. A12A1848

2. In light of our ruling in Case No. A12A1953, this appeal is dismissed as moot. See Elgin v. Swann, 315 Ga. App. 809, 810 (1) (728 SE2d 328) (2012) (mootness serves as basis for the dismissal of an appeal).

Judgment affirmed in Case No. A12A1953. Appeal dismissed as moot in Case No. A12A1848.

Barnes, P. J., and Phipps, P. J., concur.

       In Young v. Ford Motor Co., Ford was sanctioned for responding to a request to produce insurance information with the statement that it had sufficient resources to pay for any judgment. Unlike the case at bar, Ford did not include any objection in its response.

       In Georgia, the right to an impartial jury mandates that the jury be qualified as to any insurers with a financial interest in the case. See Smith v. Crump, 223 Ga. App. 52, 53-56 (1) (476 SE2d 817) (1996).


author: DOYLE, Presiding Judge.

text:
    A12A1893.
    DURHAM v. THE STATE.
    (739 SE2d 389)
   DOYLE, Presiding Judge.

Angela Durham appeals from the denial of her motion for new trial following her conviction for violating the Georgia Controlled Substances Act by manufacturing methamphetamine. She contends that the trial court erred by denying her motion to suppress evidence found during a search of her residence. Discerning no error, we affirm.

On review of the denial of a motion to suppress, we consider all the evidence of record, including evidence introduced at trial. Where the evidence at a hearing on a motion to suppress is uncontroverted and no question of credibility is presented, we review the trial court’s application of the law to these undisputed facts de novo. As to questions of fact and credibility, however, we construe the evidence in favor of the trial court’s findings and judgment, which must be accepted unless clearly erroneous.

So viewed, the record shows that a drug investigation officer with the Georgia Bureau of Investigation (“GBI”) received information from the United States Drug Enforcement Administration (“DEA”) that a nearby police department had arrested Durham the night before and that a DEA informant had said that there “was possibly” a methamphetamine lab at Durham’s residence. The GBI officer went with five other officers to the residence to do a “knock and talk” and request consent to search the residence.

When the officers arrived at the home, they knocked on the door, and no one answered. The GBI officer went into a neighbor’s yard and looked into Durham’s garage from that vantage point. In the garage, the officer spotted a can of Coleman camping fuel, and he smelled “the odor of methamphetamine that would be cooking or had been cooked in that garage. . . .”

Based on this information, the officers decided to seek a warrant to search the premises. The GBI officer waited, alone, while the others left the scene to obtain the warrant. While the GBI officer waited, Durham arrived at the residence with her brother, who was briefly questioned by the officer and then allowed to leave. As the GBI officer spoke with Durham, an officer from the local police department arrived, and the GBI officer asked Durham for consent to search the residence. She replied that he could search the residence when he got a warrant. The GBI officer said that he had sent others to obtain the warrant, and he explained that based on his observations she was not going to be allowed to go in the house while they waited. Because of Durham’s “attitude” and “irate” demeanor, as well as his information, observations, and belief that the location was used for manufacturing methamphetamine, the officer elected to detain Durham in the back of the police car to avoid escalating the situation while he maintained the security of the residence.

After approximately 25 minutes, Durham requested to speak with the GBI officer and stated that she would consent to a search of her residence. The GBI officer read Durham the consent form, emphasizing to her that he could not promise any favorable treatment in exchange for her consent, and Durham signed the form, providing her house key to the officers. The GBI officer called the other officers to tell them a warrant would not be needed, and they returned to the scene to search the premises. In the garage, officers found materials commonly used to manufacture methamphetamine, including several bottles of pseudoephedrine and ephedrine pills, hydrogen peroxide, alcohol, empty Coleman fuel cans, a large quantity of matches and matchbooks, an empty muriatic acid bottle, plastic tubing, a hand made “gasser,” lye, jars, and scales.

Based on these materials, Durham was charged with manufacturing methamphetamine and attempted manufacture of methamphetamine. Prior to trial, Durham moved to suppress the evidence found in the search, and the trial court denied the motion, specifically finding that the GBI officer had authority to detain her and that her consent was voluntary. Following a jury trial, Durham was found guilty on both counts, which merged into a conviction on the single manufacturing count. After denying her motion for new trial, the trial court granted this out-of-time appeal.

Durham contends that the trial court erred by denying her motion to suppress, arguing that her consent was invalid because it was involuntary.

It is well-settled that the prosecution has the burden of proving that the consent was, in fact, freely and voluntarily given. In determining whether the consent was voluntary, we will look to the totality of all the surrounding circumstances. These factors include the fluency of the consenting person regarding the language being used by the police, the age, education and intelligence of the consenting person, the length of and basis for the duration of detention until the consent was obtained, whether the accused was advised of his relevant constitutional rights including his right to refuse to consent, the prolonged nature and intensity of any questioning, the use of threats or physical punishment, and the psychological impact of all these factors on the consenting person.

“[T]he trial court’s factual determinations on such matters will be upheld unless clearly erroneous.”

At the outset, we note that the officer had authority to detain Durham and secure the scene while a warrant was obtained, even construing her detention as an arrest, as opposed to a temporary investigatory detention. “Probable cause [to arrest] exists if the arresting officer has knowledge and reasonably trustworthy information about facts and circumstances sufficient for a prudent person to believe the accused has committed an offense.” At the heart of this determination “is the question of whether the totality of the circumstances lend themselves to a reasonable ground for belief of guilt.” The GBI officer’s training, personal experience with “dozens and dozens” of illegal methamphetamine labs, his knowledge of her recent arrest for a methamphetamine offense, and his observation of Coleman fuel and the odors associated with methamphetamine “cooking” at the garage where Durham resided, gave him a reasonable ground for belief of her guilt. Therefore, Durham’s consent was not based on an unauthorized detention.

With respect to whether Durham’s consent was otherwise involuntary, the record shows that during her detention she was not interrogated or questioned, and the duration of the detention was not overly long. Durham did not appear intoxicated, and she spoke fluent English. She was not being punished or threatened, and her consent came after she spontaneously sought out the officer to talk to him. After that, the officer explicitly clarified that her consent would not benefit her in any resulting investigation, and he read to her the consent form before she signed it. Under these circumstances, we discern no clear error in the trial court’s conclusion that the consent was voluntarily given. Accordingly, the trial court did not err hy denying Durham’s motion to suppress.

Decided March 4, 2013.

Jennifer E. Hildebrand, for appellant.

Herbert E. Franklin, Jr., District Attorney, Kay Baker, Assistant District Attorney, for appellee.

Judgment affirmed.

Andrews, P. J., and Boggs, J., concur.

       OCGA § 16-13-30 (b). A second count based on attempt to manufacture was merged with the manufacturing violation.

       (Citations omitted.) Wilson v. State, 308 Ga. App. 383 (708 SE2d 14) (2011).

       (Citations and punctuation omitted.) Mallarino v. State, 190 Ga. App. 398, 402 (2) (379 SE2d 210) (1989).

        Stevens v. State, 286 Ga. 692, 694 (2) (690 SE2d 816) (2010).

         (Punctuation omitted.) Simpson v. State, 289 Ga. 685, 687 (2) (715 SE2d 142) (2011).

       (Punctuation omitted.) Id.

       See Newton v. State, 313 Ga. App. 889, 894 (2) (723 SE2d 95) (2012) (knowledge of prior methamphetamine activity combined with odor of methamphetamine ingredients supported probable cause to obtain search warrant); Minor v. State, 298 Ga. App. 391,396 (1) (b) (680 SE2d 459) (2009) (detention authorized by probable cause based on odor and other facts while warrant was obtained); O'Keefe v. State, 189 Ga. App. 519, 526 (3) (376 SE2d406) (1988) (“Odor as well as sight, hearing, taste[,] or touch can be used in establishing probable cause.”).

       Compare Pledger v. State, 257 Ga. App. 794, 800 (572 SE2d 348) (2002) (reversing denial of motion to suppress because consent was given pursuant to illegal entry into defendant’s home and seizure of her person).

       See Mallarino, 190 Ga. App. at 402 (2) (33-minute detention during traffic stop did not render consent involuntary).

       See generally State v. Poppell, 277 Ga. 595, 598 (3) (592 SE2d 838) (2004).


author: Boggs, Judge.

text:
    A12A1948.
    PRICE v. THE STATE.
    (738 SE2d 289)
   Boggs, Judge.

Sean Price was indicted on four counts of child molestation, and one count each of invasion of privacy and furnishing alcohol to a minor for conduct involving his fourteen-year-old stepdaughter. A jury found him guilty of invasion of privacy and acquitted him of the remaining charges. Following the denial of his amended motion for new trial, Price appeals, enumerating several errors. Having reviewed these claims, we discern no error and affirm.

The evidence showed that Price’s wife discovered a videotape hidden in a pack of cigarettes (a brand Price smoked) in a toolbox in the garage. The videotape reveals Price setting up the video camera while his 14-year-old stepdaughter H. Y. showered. The videotape showed the stepdaughter walk into her room with a towel wrapped around her and then shows her naked before she got dressed. H. Y. testified that she did not give Price permission to videotape her and that she was unaware that he had recorded her.

Price testified in his own defense that he set up the video camera to record H. Y.’s activities at the request of his wife who was concerned because H. Y. was “starting to like boys,” had lied to her mother, and had taken a change of clothes to school. He explained that his wife directed him to record H. Y.’s activities to “see where the drugs are hidden, maybe see just what is going on, just normal teenage stuff, make sure she wasn’t doing anything that she wasn’t supposed to be doing.” Price stated that after he recorded H. Y. that day, he turned off the video recorder and gave the videotape to his wife. He stated further that he was unaware of what was recorded until the videotape was played at trial.

1. Price first argues that the trial court erred in denying his pre-trial motion to sever offenses. But Price has failed to include a transcript of the hearing on the motion to sever or a statutorily authorized substitute (see OCGA § 5-6-41 (g)). In the absence of a transcript of the hearing on the motion, we must assume that after hearing the evidence, the trial court correctly exercised its discretion in denying the motion. Glass v. State, 289 Ga. 542, 546 (3) (712 SE2d 851) (2011).

2. Price contends that the State failed to prove that the video was taken without the consent of all persons observed in that H. Y.’s younger sister “did not testify at trial that the video was taken without her consent even though she was observed on the video.” OCGA § 16-11-62 provides in part: “It shall be unlawful for: ... (2) Any person, through the use of any device, without the consent of all persons observed, to observe, photograph, or record the activities of another which occur in any private place and out of public view[.]” Price argues that because the videotape briefly shows H. Y.’s younger sister, and the younger sister did not testify at trial, the State failed to prove that the recording was made “without the consent of all persons observed.”

Price’s reading of the statute is incorrect. The statute does not require the State to show that each individual person observed did not give consent for the recording; rather, it requires evidence that the recording was made without the consent of all persons. Because the evidence showed that H. Y. did not give her consent to be recorded, Price clearly did not have the consent of all persons. The evidence was therefore sufficient to sustain Price’s conviction for invasion of privacy. See, e.g., Kelley v. State, 233 Ga. App. 244,247 (2) (503 SE2d881) (1998) (invasion of privacy charge based upon photographing victim while she was passed out nude).

3. In two enumerations, Price argues his sentence was illegal because the trial court sentenced him to a “Men’s Detention Center program” for 48 months as a condition of probation. He contends that the sentence “usurp[s] the power of the Department of Pardons and Paroles” and was “intended for punishment purposes only.”

Former OCGA § 42-8-35.4, applicable to Price’s sentence in 2010, provided:

(a) In addition to any other terms and conditions of probation provided for in this article, the trial judge may require that a defendant convicted of a felony and sentenced to a period of not less than one year on probation . . . shall complete satisfactorily, as a condition of that probation, a program of confinement in a probation detention center. Probationers so sentenced will be required to serve the period of confinement specified in the court order.

Because Price was convicted of a felony, see OCGA § 16-11-69, and sentenced to five years of confinement, all of which was probated, Price’s condition of probation requiring him to complete a detention center program for forty-eight months was authorized by former OCGA § 42-8-35.4. See Johnson v. State, 283 Ga. App. 425, 427 (2) (641 SE2d 655) (2007) (condition of probation requiring defendant to serve 20 to 24 months in probation detention center authorized by OCGA § 42-8-35.4). And the trial court was authorized to impose a sentence within the limits of the law. See, e.g., Harris v. State, 272 Ga. App. 650, 653 (5) (613 SE2d 170) (2005) (sentencing judge authorized by statute to set conditions of probation) ;B. J. L. v. State, 173 Ga.App. 317, 319 (4) (326 SE2d 519) (1985) (no error committed where court authorized by statute to set condition of probation). And “[t]his court will not disturb a sentence within the statutory limits.” (Citation and punctuation omitted.) Clark v. State, 279 Ga. 243, 248 (8) (611 SE2d 38) (2005).

4. Price contends that the trial court was without authority to impose sex offender conditions of probation. He argues that he was not convicted of a “criminal offense against a victim who is a minor” or “dangerous sexual offense” as defined in OCGA § 42-1-12 and therefore could not be subject to sex offender conditions of probation. The record reveals that in sentencing Price, the trial court ordered that Price, as an additional condition of probation, be “assigned to Sex Offender Supervision” and imposed 21 special conditions.

It is well settled that the probation and suspension statutes in Georgia vest broad discretion in trial judges. In the absence of express authority to the contrary, we see no logical reason why any reasonable condition imposed for probation or suspension of a sentence by a trial court should not be approved.

(Citation and punctuation omitted.) State v. Pless, 282 Ga. 58, 60 (646 SE2d 202) (2007); see Stephens v. State, 305 Ga. App. 339, 347-348 (5) (c) (699 SE2d 558) (2010), aff'd, Stephens v. State, 289 Ga. 758 (2) (716 SE2d 154) (2011). And while OCGA § 42-8-35 vests the sentencing court with the general power to impose reasonable conditions of probation, those provisions are not exclusive and “the court has authority to impose restrictions not specifically listed therein.” (Citation and punctuation omitted.) Pless, supra, 282 Ga. at 61.

Former OCGA § 42-8-35 (b) applicable to Price’s sentence provided:

(b) In determining the terms and conditions of probation for a probationer who has been convicted of a criminal offense against a victim who is a minor or dangerous sexual offense as those terms are defined in Code Section 42-1-12, the court may provide that the probationer shall be:
(1) Prohibited from entering or remaining present at a victim’s school, place of employment, place of residence, or other specified place at times when a victim is present or from loitering in areas where minors congregate, child care facilities, churches, or schools as those terms are defined in Code Section 42-1-12;
(2) Required to wear a device capable of tracking the location of the probationer by means including electronic surveillance or global positioning systems. The department shall assess and collect fees from the probationer for such monitoring at levels set by regulation by the department;
(3) Required, either in person or through remote monitoring, to allow viewing and recording of the probationer’s incoming and outgoing e-mail, history of websites visited and content accessed, and other Internet based communication;
(4) Required to have periodic unannounced inspections of the contents of the probationer’s computer or any other device with Internet access including the retrieval and copying of all data from the computer or device and any internal or external storage or portable media and the removal of such information, computer, device, or medium; and

Decided February 7, 2013

Reconsideration denied March 5, 2013.

Larry B. Hill, for appellant.

(5) Prohibited from seeking election to a local board of education.

(Emphasis supplied.) In short, the trial court was authorized to impose those additional conditions listed in former OCGA § 42-8-35 (b) (l)-(5) if Price was convicted of a “criminal offense against a victim who is a minor” or a “dangerous sexual offense” as defined in OCGA § 42-1-12 (a) (9) (B) and (a) (10) (B). While Price’s conviction does not constitute a criminal offense under the majority of the offenses listed in those subsections, both subsections include “[a]ny conduct which, by its nature, is a sexual offense against a victim who is a minor.” OCGA § 42-1-12 (a) (9) (B) (xi) and (a) (10) (B) (xix). And “criminal offense against a victim who is a minor” also includes “criminal sexual conduct toward a minor.” OCGA § 42-1-12 (a) (9) (B) (iii).

“In determining whether the conduct toward the minor was sexual in nature, courts must look to the underlying facts of the conviction in question. This inquiry may include looking to the underlying facts as set forth in the indictment or accusation.” (Citations omitted.) Rogers v. State, 297 Ga. App. 655, 656 (678 SE2d 125) (2009). Under the facts here, the trial court was authorized to conclude that Price’s conduct of secretly videotaping his stepdaughter while she was nude was by its nature a sexual offense against a minor or criminal sexual conduct toward a minor. See Brown v. State, 270 Ga. App. 176, 180 (2) (605 SE2d 885) (2004) (trial court authorized to determine that act of public indecency in presence of minor fell within purview of OCGA § 42-1-12 as criminal sexual conduct toward a minor); see also Morrell v. State, 297 Ga. App. 592, 593 (677 SE2d 771) (2009) (cruelty to children conviction involved touching minor victim’s breast and buttocks and was therefore “conduct which, by its nature, is a sexual offense against a victim who is a minor” pursuant to OCGA § 42-1-12 (a) (9) (B) (xi)). The court therefore did not err in exercising its broad discretion to impose upon Price special conditions of probation for sex offenders.

Judgment affirmed.

Doyle, P. J., and Andrews, P. J., concur.

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

       H. Y. also testified that Price kissed her and put his tongue in her mouth, touched her vagina, put her hand on his penis, gave her a pornographic magazine, a vibrator, and lingerie, and furnished her with wine coolers. These allegations formed the basis of the charges against Price for four counts of child molestation and one count of furnishing alcohol to a minor. The jury acquitted Price on these counts.

       We note that the legislature amended this Code section in 2012 to provide that a program of confinement not exceed 180 days.

       We note that while the caption of these additional conditions of probation reads “Special Conditions of Probation — Sex Offenders,” only four of the twenty-one conditions fall explicitly within the terms of OCGA § 42-8-35 (b) as conditions that a court may require of a probationer who has been convicted of a “criminal offense against a victim who is a minor” or “dangerous sexual offense.”

       This Code section was amended in 2011 and 2012, but the relevant subsections here were not affected.


text:
    A12A2110.
    KING v. THE STATE.
    (739 SE2d 654)
   DOYLE, Presiding Judge.

Following a jury trial, Michael Rossini King was convicted of aggravated sodomy. He appeals the subsequent denial of his motion for new trial, arguing that (1) the State failed to prove venue; (2) the evidence was insufficient to support his conviction; (3) the trial court erred by failing to strike the jury panel; and (4) he received ineffective assistance of counsel.

Construed in favor of the verdict, the record shows that on December 31, 2008, four-year-old T. E. told his great-aunt, B. B., that his “butt hurt[ ].” T. E.’s mother, N. E., examined him and saw that his butt was red and had “a bump” on it. T. E. told her that “Pawpaw kept messing with me in my butt when we go to Cordele in the green truck to take Ty’s four-wheeler back. . . .” B. B. then examined T. E., and saw that his “butt... was red and... standing open and... looked like it was irritated.” T. E. told her that “Pawpaw hurt my butt. . . . [H]e stuck his penis in my butt, he hurt my butt.”

B. B.’s son, D. D., also examined T. E., and he observed that the child’s anus “was wide,” “wasn’t normal,” and had a “wide ring around it.” D. D. also heard T. E. say that “Pawpaw” “messed with him ... in his green truck” on the way to Cordele. T. E.’s father arrived shortly thereafter, and he observed the child’s swollen, red “behind.”

T. E.’s family took him to the hospital, and on January 5, 2009, they took him to the Crescent House, a child advocacy center that conducts physical examinations and interviews of purportedly sexually abused children. Pediatric nurse practitioner Allison Butler examined T. E. using a culpascope, which is a lighted magnifying glass that has a digital camera and can project the magnified images onto a computer screen. Butler observed that T. E.’s anus was red, inflamed, swollen, and contained a “significant” anal fissure. According to Butler, her observations were consistent with T. E.’s allegation of anal penetration. Butler recommended that T. E. return for a follow-up visit to see if his anus had healed to rule out the possibility of a genetic abnormality. T. E. returned on January 13, 2009, and Butler’s examination indicated that his anus had normal tone, the fissure was healing and smaller, and the swelling had decreased, which findings indicated that T. E.’s injury resulted from acute trauma and sexual abuse.

Dr. Debbie West, the director of the Crescent Center, reviewed the photographs and notes from Butler’s examination of T. E. Dr. West observed “a fairly significant tear with a fair amount of swelling and discoloration” in T. E.’s anus in the photographs during the initial examination. The photographs from the subsequent examination indicated healing, which was inconsistent with a birth defect.

At trial, T. E. explained that he used to live with King, his “Pawpaw,” in Dooly County. T. E. testified that King “put his worm in” T. E.’s “booty” in King’s green truck during a ride home following a trip to Cordele. T. E. stated that he cried and asked King to stop, but King continued. According to T. E., he and King were alone in the truck.

King’s wife (T. E.’s grandmother), Lizzie King, testified that T. E. lived with her and King in Dooly County. Lizzie testified that King was in Atlanta during the months leading up to New Year’s Eve; when he arrived home that evening, Lizzie, King, and T. E. drove to Cordele in King’s truck to retrieve her son’s four-wheeler, and that at no time during that day did King sexually abuse T. E.

King’s mother, Bernice King Lundy, testified that T. E. was at her house during the day on December 31. At one point, T. E. cried because he slipped and hurt himself while playing with a seesaw he made in her back yard from cross boards and two-by-fours. T. E. then got back on the seesaw and hurt himself again.

Nurse Butler testified on cross-examination that she was not aware at the time of her examination of T. E. that he had been diagnosed with pinworms. According to Butler, pinworms could cause itching, resulting in the child scratching his rectum, but that such would not cause the type of trauma she observed during T. E.’s examination. Butler conceded that constipation could cause an anal fissure. When asked whether a straddle injury could cause swelling in a child’s rectal area, she answered, “Not in the actual rectum. When the child has a straddle injury, it’s usually more in the perineum. It would have to be that he straddled a blunt object that went in his rectum to cause swelling in that particular area.”

During cross-examination, Dr. West testified that she could not exclude all the possible causes of T. E.’s anal trauma and that fissures can result from diarrhea, “significant constipation,” inflammatory bowel disease, or trauma. According to Dr. West, pinworms cause itching and redness, causing children to scratch themselves, but T. E. had “a lot of trauma [, which] would have hurt in order to have caused this[,] and even with pinworms, when a kid scratch [es], they are not going to inflict that much self-injury.” Finally, Dr. West testified that “it would be a little bit unlikely” that falling off of a seesaw could create a fissure and that “[i]t would depend on if the child had clothes on or not, it would depend on whether the child impaled like a nail or something like that”; because the anus is protected by the buttocks, “it would have to be something that penetrated fairly much ... to hit the anus and go through it.”

The jury found King guilty of aggravated sodomy. He filed a subsequent motion for new trial, which the trial court denied, and this appeal followed.

1. King argues that there was insufficient evidence that venue was proper in Dooly County. This enumeration is without merit.

Georgia law provides that “[c]riminal actions shall be tried in the county where the crime was committed, except as otherwise provided by law.”

[T]he State may establish venue by whatever means of proof are available to it, including direct and circumstantial evidence. As an appellate court, we view the evidence in a light most favorable to support the verdict and determine whether the evidence was sufficient to permit a rational trier of fact to find beyond a reasonable doubt that the crime was committed in the county where the defendant was indicted.

Pursuant to OCGA § 17-2-2 (e),

[i]f a crime is committed upon any . . . vehicle . . . traveling within this state and it cannot readily be determined in which county the crime was committed, the crime shall be considered as having been committed in any county in which the crime could have been committed through which the ... vehicle . . . has traveled.

In this case, King lived in Dooly County, and there was evidence that the sodomy occurred in King’s truck during a trip to Cordele. “[T]he evidence established that the vehicle in which the aggravated sodomy occurred traveled through [Dooly] County, and thus, the [S]tate proved venue as to this crime beyond a reasonable doubt.”

2. King challenges the sufficiency of the evidence. This enumeration is without merit.

When reviewing the sufficiency of the evidence,

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

Here, T. E. testified that King put his “worm” in T. E.’s “booty,” causing him to cry, multiple witnesses testified that T. E. told them that King hurt his bottom, family members testified about the injuries to T. E.’s anus, the jury saw photographs of his injuries, and a nurse practitioner and a doctor testified about the injuries to T. E.’s anus, which were consistent with trauma. Thus, King’s assertion that the sole evidence that King sodomized T. E. was the child’s testimony is belied by the record. Further, “[t]he victim’s testimony alone was sufficient to support the conviction.” “Resolving evidentiary conflicts and inconsistencies, and assessing witness credibility, are the province of the factfinder, not [the appellate courts].” The evidence was sufficient to support King’s conviction.

3. King contends that the trial court erred by failing to strike the entire jury panel after a prospective juror’s response to questioning during voir dire. We disagree.

After the panel was advised that the case involved an allegation of aggravated sodomy on a child, a prospective juror indicated that he had heard people talking about the case and indicated that he was “not sure” whether he could set aside his knowledge about the case and deliberate based solely on the evidence. The juror stated: “I understand that a person is innocent until proven guilty but some of the stuff that I’ve heard, I don’t know that I can put it aside.” The juror also said that it was “very possible]” that he had been influenced by what he had heard, but that he could follow the trial court’s instructions. The trial court then excused the juror from the case, and voir dire continued.

Defense counsel then made a motion to strike the entire panel on the ground that the juror intimated that King was guilty and that his comments infected the entire panel. The trial court stated that it did not believe that the juror had expressed his opinion about King’s guilt or innocence and denied the motion. The court offered to instruct the jury to disregard any extrajudicial statements and to confine their consideration to the evidence, but defense counsel declined, stating that, “There’s no way to unring the bell[,] and so we will just leave it alone.”

On appeal, King argues that the trial court erred by failing to strike the panel because the juror’s comments were inherently prejudicial.

The inquiry is whether the remarks were inherently prejudicial and deprived the appellant of his right to begin his trial with a jury free from even a suspicion of prejudgment or fixed opinion. If so, failure to excuse the entire panel constituted an abuse of the trial court’s discretion. Of course, where the facts establish only “gossamer possibilities of prejudice,” prejudice is not inherent.

As the trial court noted, however, the juror’s comments “did not necessarily imply guilt of the offense under consideration Neither did they link [King] to other criminal violations [,] which were complete and separate from the offense for which he was being tried.” Taken together with trial counsel’s failure to accept the trial court’s offer to give curative instructions, “we find no abuse of discretion in refusing to disqualify the entire panel on the basis of the juror’s comments.”

4. King further argues that the trial court erred by denying his motion for new trial because trial counsel was ineffective. We disagree.

The effectiveness of trial counsel’s assistance is evaluated under the standard in Strickland v. Washington, [] which requires a criminal defendant to demonstrate both that his trial counsel’s performance was deficient and that there is a reasonable probability that the trial result would have been different if not for the deficient performance. There is a strong presumption that the performance of trial counsel falls within the wide range of reasonable professional assistance. The reasonableness of the conduct is viewed at the time of trial and under the circumstances of the case. If an appellant fails to meet his burden of proving either prong of the Strickland test, the reviewing court need not examine the other prong. In reviewing the trial court’s decision, we accept the trial court’s factual findings and credibility determinations unless clearly erroneous, but we independently apply the legal principles to the facts.

(a) King contends that trial counsel was ineffective by failing to accept the trial court’s offer for a curative instruction following the prospective juror’s purportedly prejudicial comment during voir dire, as discussed in Division 3, supra. Trial counsel considered the trial court’s offer, including the court’s caution that it might draw more attention to the comments, and declined, noting that there was “no way to unring the bell.” Thus, trial counsel’s refusal of the offer for curative instructions was a reasonable strategic decision, and such “strategic decisions do not amount to deficient performance.”

(b) King argues that trial counsel was ineffective for failing to submit photographs of the two-by-four boards on which Lundy testified T. E. was playing and fell. At the motion for new trial, trial counsel testified that he did not think that the jury would believe that the boards depicted in the photograph could have caused T. E.’s injury.

An attorney’s decisions on which witnesses to call, what evidence to introduce[,] and which defenses to pursue are matters of trial tactics that do not amount to ineffective assistance of counsel. Such tactical decisions provide no grounds for reversal unless they are so patently unreasonable that no competent attorney would have chosen them.

Trial counsel’s strategic decision not to introduce photographic evidence “was not patently unreasonable, and this claim of ineffectiveness fails.”

(c) King also argues that trial counsel was ineffective for failing to call certain witnesses.

(i) King contends that trial counsel was ineffective for failing to call Michael J. King, Jr., Lundy’s son, to corroborate her testimony that T. E. injured himself while playing on the seesaw. We have previously held, however, that the “failure to present cumulative evidence through additional witness testimony does not amount to ineffective assistance of counsel.”

(ii) Officer John Taliaferro wrote a report following his visit to Crisp Regional Hospital in response to T. E.’s injury and allegations, and he indicated therein that Dr. Lawson, who examined T. E., “stated that there was a ‘pimple’-like area at the six o’clock area of his anus. She stated that there was also some redness around the area. She stated that she did not see any torn tissue that would appear to have been from a sexual assault.” King argues that trial counsel’s failure to call Taliaferro or Dr. Lawson as witnesses constituted ineffective assistance of counsel.

At the motion for new trial hearing, trial counsel acknowledged the report and that he did not call either Taliaferro or Dr. Lawson. He did not testify regarding his reason for not calling them as witnesses, and in the absence of such testimony, “[w]e must presume that his counsel acted strategically.” Trial counsel could have reasonably decided not to call witnesses to testify that T. E.’s anus was red and had a bump on it the night he reported his allegations regarding King to his family in an effort to avoid introducing additional evidence of trauma to the child’s anus. Thus, we cannot conclude that trial counsel’s decision not to call Taliaferro or Lawson as witnesses “had a reasonable probability of affecting the result of the trial,” particularly given the testimony of the family witnesses and the witnesses from the Crescent House regarding T. E.’s injuries.

(d) Finally, King argues that trial counsel was ineffective for failing to question T. E.’s mother about a letter from the Department of Family and Children Services indicating that she failed to follow up with the Department although the abuse had been substantiated. Trial counsel testified at the motion for new trial hearing that he decided not to question the mother about the letter because it would further establish King’s abuse of T. E. and that it would appear to be an attempt to discredit her, which would not help King’s case. “Decisions about what questions to ask on cross-examination are quintessential trial strategy,” and trial counsel’s decision not to cross-examine the mother about the letter did not constitute ineffective assistance.

Judgment affirmed.

Andrews, P. J.; and Boggs, J., concur.

Decided February 14, 2013

Reconsideration denied March 5, 2013.

Bernadette C. Crucilla, for appellant.

Denise D. Fachini, District Attorney, Deshala Dixon, Assistant District Attorney, for appellee.

       OCGA § 16-6-2 (a) (2).

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

       T. E. referred to Ring, his maternal step-grandfather, as “Pawpaw.”

       T. E.’s pediatrician testified that he was treated for pinworms in October 2008.

       OCGA § 17-2-2 (a).

       (Citation omitted.) Chapman v. State, 275 Ga. 314, 317 (4) (565 SE2d 442) (2002), citing Jones v. State, 272 Ga. 900, 903-904 (3) (537 SE2d 80) (2000).

       Although she asserted that no sexual assault occurred during the trip, Lizzie testified that she, King, and T. E. left King and Lizzie’s home, which was in Dooly County and went to Cordele.

        Prudhomme v. State, 285 Ga. App. 662, 665 (2) (647 SE2d 343) (2007). See Withman v. State, 210 Ga. App. 159, 160 (435 SE2d 519) (1993).

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

        Cobb v. State, 254 Ga. App. 48 (1) (561 SE2d 124) (2002).

        Odett v. State, 273 Ga. 353, 353-354 (1) (541 SE2d 29) (2001).

       See OCGA § 16-6-2 (a) (1) (“A person commits the offense of sodomy when he or she performs or submits to any sexual act involving the sex organs of one person and the mouth or anus of another.”); OCGA § 16-6-2 (a) (2) (“Aperson commits the offense of aggravated sodomy when he or she commits sodomy with force and against the will of the other person or when he or she commits sodomy with a person who is less than ten years of age.”). See also Morgan v. State, 226 Ga. App. 327, 328-329 (2) (486 SE2d 632) (1997) (affirming conviction for aggravated sodomy based on six-year-old victim’s testimony that the defendant rubbed his penis on her leg and buttocks and the evidence of bruising and scarring of victim’s anus).

       King also argues that trial counsel’s failure to require a curative instruction constituted ineffective assistance of counsel. That argument is addressed in Division 4, infra.

       (Citations and punctuation omitted; emphasis in original.) Callaway v. State, 208 Ga. App. 508, 511-512 (2) (431 SE2d 143) (1993).

       (Citations and punctuation omitted.) Id. at 512 (2) (affirming denial of motion to disqualify the jury panel where a prospective juror indicated that he was familiar with the defendant and did not think he could be fair). See also Stafford v. State, 271 Ga. 620, 622 (4) (523 SE2d 307) (1999) (affirming denial of motion for mistrial and to strike jury panel because defense counsel failed to seek curative instructions or question the other jurors following a prospective juror’s comments that he was part of the rescue unit that responded to the crime and that it would be hard to be fair and impartial given what he saw); Hash v. State, 248 Ga. App. 456, 458-459 (2) (546 SE2d 833) (2001) (affirming denial of mistrial following prospective juror’s comment that the defendant looked like a patient and that her deliberations would be affected if the defendant had a repeat admission for substance abuse, concluding that the remarks were not inherently prejudicial and the defendant failed to question the remainder of the panel regarding lingering effects of the juror’s comments and failed to request a more adequate curative instruction).

        Callaway, 208 Ga. App. at 512 (2).

       466 U. S. 668 (104 SC 2052, 80 LE2d 674) (1984).

       (Punctuation and footnotes omitted.) Allen v. State, 318 Ga. App. 531, 533 (1) (734 SE2d 260) (2012).

       Id. at 533-534 (1). See Bright v. State, 292 Ga. 273, 275 (2) (b) (736 SE2d 380) (2013).

       (Punctuation and footnotes omitted.) Davis v. State, 311 Ga. App. 699, 701 (2) (716 SE2d 710) (2011) (trial counsel’s strategic decision not to introduce physical evidence did not constitute ineffective assistance).

       Id.

        Gibbs v. State, 316 Ga. App. 431,432 (729 SE2d 563) (2012), citing Johnson v. State, 257 Ga. App. 30, 31 (1) (570 SE2d 344) (2002).

        Payne v. State, 289 Ga. 691, 696 (3) (a) (715 SE2d 104) (2011). See also Brown v. State, 288 Ga. 902, 909 (5) (708 SE2d 294) (2011) (when trial counsel cannot recall specifics about the trial, including the reasons for his failure to make certain objections during the trial, we must presume that his decisions not to raise the objections “were a matter of strategy and trial tactics”); Dickens v. State, 280 Ga. 320, 321 (2) (627 SE2d 587) (2006) (“It is well established that the decision as to which defense witnesses to call is a matter of trial strategy and tactics; tactical errors in that regard will not constitute ineffective assistance of counsel unless those errors are unreasonable ones no competent attorney would have made under similar circumstances”) (citation omitted).

        Payne, 289 Ga. at 697 (3) (a).

       Id. at 697 (3) (b).


author: Ray, Judge.

text:
    A12A1688.
    BANKS v. THE STATE.
    (739 SE2d 414)
   Ray, Judge.

On May 11, 2009, the State filed an accusation against Kevin Eugene Banks charging him with the sale of methamphetamine. Banks entered a plea of guilty to this charge pursuant to North Carolina v. Alford. Banks was subsequently indicted for the offenses of manufacturing methamphetamine, conspiracy to commit the manufacture of methamphetamine, possession of marijuana (less than one ounce), and two counts of possession of methamphetamine. Banks filed a plea in bar, arguing that his guilty plea and the subsequent indictment arose from the same conduct, and, accordingly, that the subsequent indictment subjected him to procedural double jeopardy under OCGA § 16-1-7 (b). Banks appeals the trial court’s denial of his plea in bar, and finding no error, we affirm.

“The appellate standard of review of a grant [or denial] of a double jeopardy plea in bar is whether, after reviewing the trial court’s oral and written rulings as a whole, the trial court’s findings support its conclusion.”

The record shows that on February 19, 2009, the West Georgia Drug Task Force, using a confidential informant, purchased methamphetamine from Banks at 18 Bitter Sweet Lane in Newnan. This event led to the State’s initial accusation against Banks for sale of methamphetamine (case no. 2009-R-445).

A few days prior to the events that led to the first accusation, the Coweta County Crime Suppression Unit began conducting an independent investigation of Banks at a residence on Price Road in Newnan because of complaints of smells and heavy traffic at that location. On February 17,2009, when Banks’ truck was stopped by an officer, the officer noticed items consistent with the manufacture of methamphetamine in the back of his truck. The crime suppression unit instructed the officer to allow Banks to drive away, but used the observations from the stop to obtain a search warrant for a different residence on Price Road connected with Banks.

On February 19, 2009, the crime suppression unit was informed that Banks had sold methamphetamine from a residence on Bitter Sweet Lane earlier that day. After receiving this information, the crime suppression unit served an arrest warrant for unpaid child support on Banks at Bitter Sweet Lane on the same day. While serving the arrest warrant, officers observed items used to smoke methamphetamine in plain view, and a search warrant was obtained to search the premises and the outbuildings. When executing the search warrant, officers found bottles used in the manufacture of methamphetamine in one of the outbuildings. The search warrant was issued five hours after Banks sold methamphetamine to the confidential informant, and the house was not kept under surveillance between the sale and the execution of the search warrant based on unpaid child support (case no. 2010-R-0243).

The sale of methamphetamine case file was received by the Coweta County District Attorney’s Office from the West Georgia Drug Task Force on March 19,2009. On May 11,2009, the State filed an accusation in case no. 2009-R-445 against Banks on the charge of sale of methamphetamine, and Banks entered a guilty plea pursuant to Alford on August 17, 2009. On September 18, 2009, the Coweta County District Attorney’s Office received a second case file, arising from the execution of the search warrant at Bitter Sweet Lane. On March 1, 2010, Banks was indicted on charges arising from the execution of the search warrant.

In his sole enumeration of error, Banks argues that the events giving rise to his guilty plea and the subsequent indictment arose from one continuous course of conduct and, thus, subjected him to two prosecutions in violation of his constitutional and statutory right to be free from double jeopardy. Accordingly, Banks argues, the trial court erred in denying his double jeopardy plea in bar.

Georgia’s statutory bar to successive prosecutions, the procedural aspect of double jeopardy, is codified in OCGA § 16-1-7 (b), which requires the State to prosecute crimes in a single prosecution “[i]f the several crimes arising from the same conduct are known to the proper prosecuting officer at the time of commencing the prosecution and are within the jurisdiction of a single court.” Thus, OCGA § 16-1-7 (b) prohibits successive prosecutions for crimes “(1) arising from the same conduct, (2) known to the proper prosecuting officer, and (3) subject to jurisdiction in the same court.” For procedural double jeopardy to attach, all three prongs outlined above must be satisfied. This provision was “designed to protect an accused against the harassment of multiple prosecutions arising from the same conduct.”

We first address whether the prosecuting attorney had knowledge of the charges arising from the execution of the search warrant at the time of Banks’ plea. The Supreme Court of Georgia in Baker v. State held that OCGA § 16-1-7 (b) applies “only to such crimes which are actually known to the prosecuting officer actually handling the proceedings.” “Under Baker, the appellant bears the burden of showing that further prosecution is barred by the previous prosecution, including ‘a showing that the proper prosecuting attorney had actual knowledge of all the charges.’ ”

The Coweta County District Attorney’s Office prosecuted Banks in both cases. The district attorney’s office received the case file of the sale of methamphetamine case on March 19, 2009, an accusation charging Banks with that offense was filed on May 11, 2009, and Banks pled guilty to that charge on August 17, 2009. The district attorney’s office did not receive the case file regarding the execution of the search warrant until September 18, 2009, after the plea hearing had already taken place.

Appellant points to the transcript of Banks’ plea hearing as affirmative proof that the prosecuting attorney was aware of the events giving rise to the subsequent indictment. This transcript, a portion of which was read aloud during the plea in bar hearing, however, indicates only that the prosecuting attorney had knowledge that Banks could face other charges, not that he had knowledge that the events giving rise to these other charges took place on the same day or at the same location as the sale of methamphetamine charge. The State explained that the delay in receiving this file probably was due to the district attorney’s policy of not accepting a case file “without it being complete [,] including crime lab reports and things of that nature which take a little while to obtain.” Accordingly, we find that

Decided March 5, 2013.

Jennifer A. Trieshmann, for appellant.

Peter J. Skandalakis, District Attorney, Philip D. Henderson, Assistant District Attorney, for appellee.

[a]t most, the evidence relied on by [Banks] shows the prosecutor’s subjective knowledge of the other crimes. [] We therefore are compelled to uphold the trial court’s denial of [Banks’] double jeopardy plea in bar on the basis that [Banks] did not affirmatively show the prosecutor actually knew of the other crimes when he prosecuted the [first offense].

In light of this ruling, we need not reach the issue of whether the crimes charged against Banks arose from the same conduct.

Judgment affirmed.

Miller, P. J., and Branch, J., concur.

       400 U. S. 25 (91 SC 160, 27 LE2d 162) (1970).

        State v. D’Auria, 222 Ga. App. 615, 616 (475 SE2d 678) (1996).

       Supra.

       (Emphasis supplied.)

        Wilson v. State, 229 Ga. App. 455, 456 (494 SE2d 267) (1997).

       Id.

       (Citation and punctuation omitted.) Dean v. State, 309 Ga. App. 459, 460 (711 SE2d 42) (2011).

       (Citation and punctuation omitted; emphasis in original.) Baker v. State, 257 Ga. 567, 569 (361 SE2d 808) (1987).

       (Citations and punctuation omitted.) Zater v. State, 197 Ga. App. 648, 649 (1) (399 SE2d 222) (1990).

       Although the State informed the trial court that it would supplement the record with the transcript of Banks’ plea hearing in case no. 2009-R-445, it does not appear that this was done. Accordingly, this transcript is not in the record properly before us.

       Further, whatever the prosecutor knew about these other pending charges, nothing in the record shows when the prosecutor learned of such facts, which is important since the statute requires that the prosecutor join all such claims known to the prosecutor at the time of commencing the prosecution. If the prosecutor learned of new charges after indictment, double jeopardy under this Code section would not apply.

       (Citations omitted.) Turner v. State, 238 Ga. App. 438, 440 (518 SE2d 923) (1999) (denial of plea in bar affirmed where court rejected argument that accident report supplied actual knowledge of other crimes to prosecutor where report did not include facts supporting all crimes charged). Compare Etienne v. State, 298 Ga. App. 149, 150-151 (679 SE2d 375) (2009) (reversing denial of plea in bar where it was apparent from the record, including the hearing transcript on the plea in bar, the hearing transcript, and the bond document signed in magistrate court, that the prosecuting officer knew that defendant had been charged with both offenses).

        Barlowe v. State, 286 Ga. App. 133, 134, n. 6 (648 SE2d 471) (2007).


author: Miller, Presiding Judge.

text:
    A12A1987.
    THOMAS v. THE STATE.
    (739 SE2d 417)
   Miller, Presiding Judge.

Following a jury trial, Jeremiah Frank Thomas was convicted of kidnapping (OCGA § 16-5-40 (a)). Thomas appeals from the denial of his motion for new trial, contending that the evidence was insufficient to sustain his conviction because there was no asportation of the victim. Thomas also contends that the circumstances of the offense, including evidence of his mental illness, established that he did not have the criminal intent to commit the offense. After a thorough review of the record, we conclude that Thomas’s movement of the victim was sufficient to establish asportation, and that the jury was authorized to find that he had the requisite criminal intent to commit the offense based on the facts and circumstances of the case. Accordingly, we affirm.

On appeal from a criminal conviction, we view the evidence in a light most favorable to the verdict, and Thomas no longer enjoys a presumption of innocence. See Bryant v. State, 304 Ga. App. 755, 755 (1) (697 SE2d 860) (2010). “We do not weigh the evidence or resolve issues of witness credibility, but merely determine whether the evidence was sufficient to find [Thomas] guilty beyond a reasonable doubt.” (Citation and punctuation omitted.) Id.

So viewed, the evidence shows that in December 2010, the then six-year-old victim was playing with other children in the fenced back yard of her aunt’s house. Thomas lived in the same neighborhood as the victim’s aunt and was out walking. Thomas went to the fence and began speaking to the victim, whom he did not know. Thomas offered money to the victim, opened the gate, and entered the aunt’s back yard. When the victim approached Thomas, he grabbed her, lifted her, carried her out of the back yard, and ran into the back alley The victim did not want Thomas to pick her up, and she began screaming, biting, and hitting Thomas as he carried her away. Thomas carried the victim past three houses before putting her down. The victim then ran back to her aunt’s front yard.

By this time, the other children informed the aunt that the victim had been snatched. The victim’s aunt saw Thomas running down the alley and ran after him. Thomas attempted to hide in some bushes, and when the victim’s aunt discovered him, he fled down the street. Police officers patrolling the area were alerted to the incident, and they arrested Thomas. Thomas was subsequently charged with and convicted of kidnapping.

1. Thomas contends that the evidence was insufficient to sustain his conviction for kidnapping since there was no asportation. We disagree.

“A person commits the offense of kidnapping when [he] abducts or steals away another person without lawful authority or warrant and holds such other person against his ... will.” OCGA § 16-5-40 (a). “For the State to prove the essential element that the defendant has ‘stolen away’ or ‘abducted’ his alleged victim, it must show that an unlawful movement, or asportation, of the person has taken place against [the victim’s] will.” (Citation and footnote omitted.) Brashier v. State, 299 Ga. App. 107, 109 (2) (681 SE2d 750) (2009). Under the kidnapping statute, “slight movement shall be sufficient; provided, however, that any such slight movement of another person which occurs while in the commission of any other offense shall not constitute the offense of kidnapping if such movement is merely incidental to such other offense.” (Emphasis supplied.) OCGA § 16-5-40 (b) (l). “Movement shall not be considered merely incidental to another offense if it: (A) Conceals or isolates the victim; (B) Makes the commission of the other offense substantially easier; (C) Lessens the risk of detection; or (D) Is for the purpose of avoiding apprehension.” (Emphasis supplied.) OCGA§ 16-5-40 (b) (2).

Here, the evidence shows that Thomas picked up the victim and carried her out of her aunt’s back yard and into the alley. To the extent Thomas cites to inconsistencies or conflicts in the evidence, “[a] jury is authorized to believe or disbelieve all or any part of the testimony of witnesses, and it serves as the arbiter of conflicts in the evidence before it.” (Citation and punctuation omitted.) Bray v. State, 294 Ga. App. 562, 563 (1) (669 SE2d 509) (2008).

Thomas argues that the movement of the victim did not constitute kidnapping because it occurred during the commission of and was merely incidental to another offense, namely simple battery. While Thomas was not charged with simple battery for grabbing the victim and lifting her against her will, the plain language of OCGA § 16-5-40 (b) (1) does not require that Thomas have been charged with the separate offense. Nevertheless, the circumstances of the case show that the movement of the victim was not merely incidental to the offense of simple battery. Significantly, the movement of the victim took place after Thomas grabbed the victim and lifted her. See Bryant, supra, 304 Ga. App. at 757 (1) (holding that under the kidnapping statute existing prior to 2009 amendment, movement of the victim was not incidental to aggravated assault on the victim since the movement occurred after the assault). Additionally, Thomas moved the victim from the aunt’s back yard and down the alley, passing at least three houses. Thomas’s action concealed and isolated the victim from her aunt and others. See OCGA § 16-5-40 (b) (2) (A); see also Bryant, supra, 304 Ga. App. at 757 (1) (the defendant placed the victim in additional danger by isolating the victim from rescue and exercising further control over the victim when the defendant forced the victim from the back yard to inside the house); Brower v. State, 298 Ga. App. 699, 707 (2) (680 SE2d 859) (2009) (holding that movement from one part of the building to another was not merely incidental to another offense because such movement enhanced defendant’s control over the victims and isolated them from protection or rescue). As a result, the movement of the victim was not merely incidental to any other offense, and the evidence was sufficient to establish asportation since only slight movement is necessary. OCGA § 16-5-40 (b) (1).

2. Thomas also contends that the circumstances of the offense, including evidence of his mental illness, demonstrated his lack of criminal intent to commit the offense. Again, we disagree.

“A person will not be presumed to act with criminal intention but the trier of facts 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. The presence or lack of criminal intent is for the jury to decide based on the facts and circumstances proven at trial. Harris v. State, 222 Ga. App. 56, 59 (2) (473 SE2d 229) (1996).

Here, the jury was authorized to find that Thomas had the requisite criminal intent from the circumstances of the case. Significantly, the evidence showed that Thomas approached the victim, whom he did not know, while she was playing in her aunt’s back yard and offered the victim money. Upon approaching the victim, Thomas grabbed her, lifted her, and carried her away from her aunt’s back yard against her will. The evidence shows that upon being picked up, the victim began hitting and biting Thomas and asked that he put her down. After releasing the victim, Thomas attempted to flee from the aunt by running away and hiding in some bushes, and his flight from the scene presents evidence of consciousness of guilt. See Amaechi v. State, 306 Ga. App. 333, 336 (1) (702 SE2d 680) (2010). While Thomas refers to testimony, including his own, that purportedly shows a lack of criminal intent, the jury was authorized to reject all or any of this testimony, as it serves as the arbiter of any conflicts in the evidence. See Bray, supra, 294 Ga. App. at 563 (1).

Thomas further contends that he lacked the criminal intent to kidnap the victim based on evidence showing that he was suffering from Schizoaffective Disorder and Borderline Intellectual Functioning, and that he had not been taking his medications at the time of the offense. However, Thomas conceded that the evidence did not support a defense of not guilty by reason of insanity, see OCGA § 16-3-2, and “mental abnormality, unless it amounts to insanity, is not a defense to a crime.” (Citation and punctuation omitted.) State v. Abernathy, 289 Ga. 603, 607-608 (4) (a) (715 SE2d 48) (2011); see also Wallin v. State, 285 Ga. App. 377, 383 (b) (646 SE2d 484) (2007) (noting that “a person is not legally insane simply because he suffers from schizophrenia or a psychosis”) (citation omitted). There is no medical evidence that Thomas’s mental illness prevented him from forming the intent to kidnap. Rather, the forensic psychiatrist who examined Thomas soon after his arrest testified that Thomas was not exhibiting any symptoms consistent with psychosis at the time. The psychiatrist opined that at the time of the incident, Thomas knew the difference between right and wrong, and that his actions during the offense were purposeful and were not caused by any mental illness. Moreover, Thomas’s mental illness, by itself, did not establish his inability to form a criminal intent. See Freeman v. State, 132 Ga. App. 742, 744 (1) (209 SE2d 127) (1974); cf. Anthony v. State, 317 Ga. App. 807, 811 (2) (732 SE2d 845) (2012) (in light of defendant’s failure to raise an insanity defense, evidence of the defendant’s mental illness was properly excluded since it was not relevant to the issue of criminal intent). As a result, the jury was authorized to find proof of Thomas’s criminal intent based upon the testimony of the psychiatrist, as well as his conduct and other circumstances associated with the offense. See Fuss v. State, 271 Ga. 319, 320 (1) (519 SE2d 446) (1999).

Decided March 5, 2013.

Troy E. Golden, for appellant.

Gregory W. Edwards, District Attorney, Cania Brown-Gordon, Assistant District Attorney, for appellee.

Judgment affirmed.

Ray and Branch, JJ., concur.

       In 2008, the Supreme Court of Georgia held that the asportation required to support a conviction for kidnapping must be more than “slight,” and set forth a four-part test to aid in the determination of whether the asportation element was met: (1) the duration of the movement; (2) whether the movement occurred during the commission of a separate offense; (3) whether such movement was an inherent part of that separate offense; and (4) whether the movement itself presented a significant danger to the victim independent of the danger posed by the separate offense. Garza v. State, 284 Ga. 696, 702 (1) (670 SE2d 73) (2008); see also Bryant, supra, 304 Ga. App. at 756-757 (1), n. 1. After the Garza decision, the legislature amended the kidnapping statute, effective July 1, 2009, to provide that slight movement is sufficient to establish kidnapping as long as the movement was not incidental to another offense. See Hammond v. State, 289 Ga. 142, 143 (710 SE2d 124) (2011). The 2009 amendment is applicable here since the incident occurred in December 2010.

       Evidence that defendant’s touching of the victim was nonconsensual and unwelcome, as displayed by victim’s traumatic reaction to the touch, was sufficient to establish offense of simple battery. See Miller v. State, 230 Ga. App. 73 (495 SE2d 329) (1997).

       OCGA § 16-5-40 (b) (2) is worded in the disjunctive. Therefore, only one statutory factor needs to be satisfied. Cf. Fair v. State, 245 Ga. 868, 872 (3) (268 SE2d 316) (1980) (where a criminal statute is worded in the disjunctive, only one disjunctive phrase needs to be satisfied); Padgett v. City of Moultrie, 229 Ga. App. 500, 504 (1) (494 SE2d 299) (1998) (a statutory list divided by semicolons and concluding with “or” is disjunctive, and the statute is satisfied if only one item of list is present). Similarly, under the Garza test, satisfaction of all four Garza factors is not required to establish that asportation has occurred. Hammond, supra, 289 Ga. at 144-145.

       A forensic psychiatrist testified that Thomas’s primary mental health diagnosis was Antisocial Personality Disorder, which did not include symptoms of hallucination or delusions. The psychiatrist also testified that Thomas’s secondary mental health diagnosis was Schizo-affective Disorder, which the psychiatrist described as a “combination of some of the symptoms of Schizophrenia,” like hallucinations and delusions, along with symptoms of depression and mania. As for Thomas’s tertiary diagnosis of Borderline Intellectual Functioning, the psychiatrist stated that Thomas appeared to have a below-average I.Q., but that he was not mentally retarded.