text:
    A12A1958.
    HINTON v. THE STATE.
    (738 SE2d 120)
   BARNES, Presiding Judge.

Taylor Ann Hinton was charged by accusation with driving under the influence of alcohol to the extent that it was less safe to drive (“DUI — less safe”). Following a bench trial, the trial court found her guilty of the charged offense. Hinton now appeals, contending that there was insufficient evidence to support her conviction. We disagree and affirm.

“On appeal from a criminal conviction that follows a bench trial, the defendant no longer enjoys a presumption of innocence, and we view the evidence in a light favorable to the trial court’s finding of guilt[.]” (Citation omitted.) Hickman v. State, 311 Ga. App. 544, 545 (716 SE2d 597) (2011). So viewed, the evidence showed that on the night of January 13, 2007, a sergeant with the City of Atlanta Police Department was on patrol within the city limits, traveling down Piedmont Road in Fulton County. The sergeant had over 17 years of experience with the police department and was certified in the administration of field sobriety evaluations. He also was a member of the police department’s DUI task force and had made approximately 600 DUI arrests during the course of his seven-and-a-half years as a task force member.

Around 11:50 p.m., the sergeant observed an orange BMW traveling toward him that appeared to be speeding. Based on his visual observation and laser speed detection device, the sergeant determined that the vehicle was traveling at 51 miles per hour in a posted 35 mile-per-hour zone.

The sergeant initiated a traffic stop. The vehicle pulled over but, in the process, drove onto the sidewalk. Once the vehicle stopped, the sergeant approached the driver, later identified as Hinton, who was 17 years old. During their initial encounter at the car window, the sergeant noticed an odor of alcohol coming from Hinton and asked her about it. Hinton denied having consumed any alcoholic beverages that night.

The sergeant had Hinton exit her vehicle so that he could perform a series of field sobriety tests. As he spoke with Hinton, the sergeant noticed that her speech was slurred. Hinton claimed that she smelled of alcohol because someone had spilled a drink on her clothing, but the sergeant determined that the odor of alcohol was coming from her breath. The sergeant further noted that Hinton’s eyes were glassy and her pupils were dilated. When asked about her dilated pupils, Hinton claimed to be on medication but did not elaborate. Hinton also stated that she was nervous and felt like she was going to vomit.

The sergeant asked Hinton if she would perform the horizontal gaze nystagmus (“HGN”) field sobriety test, and she agreed. Hinton exhibited six out of six clues of impairment on the HGN test. The sergeant asked Hinton if she would submit to a preliminary alcosensor breath test, but she replied that she would not do any further tests without first consulting with her parents. According to the sergeant, Hinton then went “haywire,” which included crying, cursing at him, arguing with him, and accusing him of profiling her because she drove an orange BMW. The sergeant suspended any further field sobriety tests because he felt “it wasn’t safe for [him] to continue asking her to do something she didn’t want to do.”

At that point, the sergeant concluded, based on his training and years of experience, that Hinton was under the influence of alcohol to the extent that she was a less safe driver and placed her under arrest. After placing Hinton under arrest, the sergeant read her the Georgia implied consent warning for drivers under the age of 21. He requested that Hinton take a State-administered breath test, but she refused.

During a subsequent inventory search of the interior of Hinton’s vehicle, the sergeant discovered several unopened cans of beer in the car and one open can behind the passenger seat. There was spilled beer in the front cup holder, as well as spilled beer underneath the passenger seat, consistent with Hinton having moved the open beer can from the cup holder to behind the passenger seat in an effort at concealment. No medications were found in the vehicle during the inventory search.

Hinton was charged by accusation with DUI — less safe, and she agreed to a bench trial. The sergeant who stopped Hinton and arrested her testified to his observations as set out above, and he also gave his opinion, based on his “experience and training and over 600 DUI arrests,” that she had been under the influence of alcohol that night. Hinton chose not to testify and did not present any evidence on her own behalf. After hearing from the sergeant, the trial court found Hinton guilty, leading to this appeal.

In her sole enumeration of error, Hinton contends that the evidence was insufficient to sustain her conviction for DUI — less safe. In reviewing a conviction for evidence sufficiency, we do not weigh the evidence or determine witness credibility, but instead construe the evidence, and all reasonable inferences drawn therefrom, in the light most favorable to the verdict. Sheehan v. State, 314 Ga. App. 325 (723 SE2d 724) (2012). Construing the evidence in this manner, we must uphold the factfinder’s verdict “if any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt.” (Citation omitted.) Barnett v. State, 275 Ga. App. 464 (1) (620 SE2d 663) (2005).

OCGA § 40-6-391 (a) (1) provides that “[a] person shall not drive or be in actual physical control of any moving vehicle while... [u]nder the influence of alcohol to the extent that it is less safe for the person to drive.” To sustain a conviction under this statutory provision, the State must prove that the defendant was “(1) driving, (2) under the influence of alcohol, (3) to the extent that it was less safe for the person to drive.” (Footnote omitted.) Jaffray v. State, 306 Ga. App. 469, 471 (1) (702 SE2d 742) (2010).

Hinton does not dispute that she was driving or that she was doing so in a manner less safe. Rather, her sole contention on appeal is that the State failed to establish beyond a reasonable doubt that she was under the influence of alcohol. We are unpersuaded and instead conclude that the evidence presented by the State was sufficient for any rational trier of fact to have found Hinton guilty of DUI — less safe beyond a reasonable doubt. See Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560) (1979).

“The testimony of a single witness is generally sufficient to establish a fact.” OCGA § 24-4-8. Here, the sergeant testified regarding Hinton’s speeding and driving onto the sidewalk, the smell of alcohol on her breath, her argumentative and belligerent behavior toward him, her slurred speech, her watery eyes with dilated pupils, her failure of the HGN test, her refusal to submit to the alco-sensor breath test or to the State-administered breath test, and the open beer can inside her vehicle (some of which had spilled into the front cup holder). Additionally, the sergeant opined that, based upon his training, experience, and observations, Hinton had been under the influence of alcohol.

The sergeant’s testimony was sufficient to prove beyond a reasonable doubt that Hinton was under the influence of alcohol. See Corbin v. State, 305 Ga. App. 768, 769-770 (1) (700 SE2d 868) (2010) (evidence supporting DUI — less safe conviction included defendant’s erratic driving, his odd and belligerent behavior, the odor of alcohol on his breath and his person, his watery eyes, his refusal to submit to an alco-sensor breath test or State-administered breath test, and an open container found in his truck); Matheson v. State, 249 Ga. App. 200, 201 (1) (547 SE2d 774) (2001) (noting that the “refusal to submit to an alco-sensor test and to a later chemical test of her breath is circumstantial evidence of [the defendant’s] guilt”); Lee v. State, 280 Ga. App. 706, 707 (634 SE2d 837) (2006) (evidence supporting DUI — less safe conviction included driver’s speeding, his odd behavior, the odor of alcohol on his breath, his glassy eyes, his slurred speech, his refusal to submit to field sobriety tests, the two open containers in his vehicle, and the officer’s opinion that the driver was under the influence of alcohol); Drogan v. State, 272 Ga. App. 645, 647 (1) (b) (613 SE2d 195) (2005) (proof in DUI — less safe case can include officer’s observations of defendant and resulting opinion testimony).

Hinton, however, argues that her conviction must be reversed because the evidence presented by the State allegedly failed to exclude every alternative, reasonable hypothesis of her innocence. See OCGA § 24-4-6. Specifically, she contends that the evidence also supported the alternative, reasonable hypothesis that she was under the influence of the medication that she was taking rather than alcohol. We conclude that Hinton’s reliance on the reasonable hypothesis rule is unavailing for two reasons.

First, the reasonable hypothesis rule applies only when all of the evidence against the defendant was circumstantial. See Meeks v. State, 281 Ga. App. 334, 337 (636 SE2d 77) (2006). But the sergeant’s opinion testimony that Hinton was under the influence of alcohol was direct evidence of her guilt. See Jaffray, 306 Ga. App. at 471 (1); Yglesia v. State, 288 Ga. App. 217, 218 (653 SE2d 823) (2007); Waits v. State, 232 Ga. App. 357, 359 (2) (501 SE2d 870) (1998). Accordingly, the reasonable hypothesis rule is inapplicable under the circumstances of this case. See Meeks, 281 Ga. App. at 337.

Second, even if the evidence against Hinton had been entirely circumstantial, “it is well settled that DUI may be proved solely by circumstantial evidence.” (Punctuation and footnote omitted.) Jaffray, 306 Ga. App. at 471 (1).

Furthermore, where the defendant offers an explanation of circumstantial facts or an alternative hypothesis of events, the reasonableness of that explanation is for the factfinder. Because the factfinder has heard the witnesses and observed them testify, it is considered more capable of determining the reasonableness of the hypothesis produced by the evidence or lack thereof than is an appellate court.

Decided February 5, 2013.

Head, Thomas, Webb & Willis, William C. Head, for appellant. Carmen D. Smith, Solicitor-General, R. Leon Benham, Assistant Solicitor-General, for appellee.

(Footnote omitted.) Wells v. State, 297 Ga. App. 153, 157-158 (1) (b) (676 SE2d 821) (2009). In light of the sergeant’s testimony about the odor of alcohol on Hinton’s breath, her refusal to submit to the alco-sensor breath test or to the State-administered breath test, and the open beer can in her vehicle that had partially spilled into the front cup holder, the trial court was authorized to reject the defense’s theory that Hinton was under the influence of some unidentified medication rather than alcohol.

Nevertheless, Hinton emphasizes that during cross-examination, the sergeant conceded that dilated pupils can indicate that someone is under the influence of some type of drug, and he also conceded that there was a “50/50” chance, based on Hinton’s manifestations before her arrest, that she was under the influence of a medication rather than alcohol. But, as discussed above, there was evidence that Hinton did not simply have dilated pupils; most notably, her breath also smelled of alcohol. Furthermore, read in context, the sergeant’s concession about the “50/50” chance of Hinton being under the influence of a medication concerned her manifestations that the sergeant observed before her arrest. After her arrest, the sergeant’s inventory search of her car revealed several unopened cans of beer, plus an open can of beer that had spilled in the front cup holder, which, of course, provided additional evidence that Hinton was under the influence of alcohol rather than some unidentified medication.

For these reasons, contrary to Hinton’s argument, the limited concessions made by the sergeant on cross-examination did not render the verdict of guilty unsupportable as a matter of law. See O’Connell v. State, 285 Ga. App. 835, 837 (1) (a) (648 SE2d 147) (2007) (“[W]hen the trier of fact rejects an alternative hypothesis in favor of the State’s evidence of guilt, this Court is not authorized to reweigh the evidence, and we will not reverse unless the verdict of guilty is unsupportable as a matter of law.”) (citation, punctuation and emphasis omitted). Hinton’s conviction for DUI — less safe, therefore, is affirmed.

Judgment affirmed.

McFadden and McMillian, JJ., concur.

       Hinton also was charged with and convicted of possession of an alcoholic beverage by an underage person, failure to obtain a Georgia driver’s license, speeding, and possession of an open container of an alcoholic beverage. She does not challenge the sufficiency of the evidence regarding these convictions. Additionally, Hinton was charged with but acquitted of reckless driving.

       OCGA § 24-4-6 provides: “To warrant a conviction on circumstantial evidence, the proved facts shall not only be consistent with the hypothesis of guilt, but shall exclude every other reasonable hypothesis save that of the guilt of the accused.”


source: Caselaw Access Project

author: MILLER, Presiding Judge.

license: Public Domain

text:
    A12A2139.
    JONES v. THE STATE.
    (738 SE2d 130)
   MILLER, Presiding Judge.

Following a bench trial, Conrad Jones was convicted of trafficking in cocaine (OCGA § 16-13-31 (a) (1)) and failure to maintain lane (OCGA § 40-6-48). Jones appeals, contending that (i) the trial court erred in denying his motion to suppress the cocaine found during the search of his car, and (ii) the evidence was insufficient to sustain the cocaine trafficking conviction since the cocaine substance was wet when tested. We discern no error and affirm.

1. Jones first challenges the denial of his motion to suppress, arguing that the drug evidence was obtained as a result of an unlawful search conducted without probable cause.

On reviewing a trial court’s ruling on a motion to suppress, evidence is construed most favorably to uphold the findings and judgment, and the trial court’s findings on conflicting evidence should not be disturbed if there is any evidence to support them, and its decisions regarding questions of facts and credibility must be accepted unless clearly erroneous.

(Citation and punctuation omitted.) Warren v. State, 314 Ga. App. 477, 481 (3) (724 SE2d 404) (2012). So viewed, the evidence shows that on July 28, 2010, at approximately 1:50 a.m., a City of Social Circle police officer observed the car driven by Jones on an interstate highway in Walton County. The officer observed Jones’s car failing to maintain its lane and “nearly running off the roadway[.]” After observing the traffic violation, the officer stopped Jones’s car.

Upon approaching Jones’s car, the officer smelled the odor of burnt and raw marijuana emitting from the car. The officer testified that he was able to recognize the smell of marijuana based upon his training and experience in law enforcement. The officer asked Jones about the odor that he had detected, and Jones admitted that he had smoked a marijuana blunt earlier that day.

Based upon these facts, the officer decided to search Jones’s car for marijuana. Although the officer continued to smell the odor of raw marijuana, he was unable to locate any marijuana inside the car. The officer then proceeded to search the car’s trunk. During the search of the trunk, the officer found the package containing cocaine.

Jones argues that the cocaine evidence should have been suppressed because the officer lacked probable cause to conduct the warrantless search of his car. We disagree. “The ‘automobile exception’ to the warrant requirement of the Fourth Amendment applies to the search of a vehicle when probable cause exists to believe it contains contraband.” (Citation and punctuation omitted.) State v. Folk, 238 Ga. App. 206, 209 (521 SE2d 194) (1999). The fact that the officer detected the odor of marijuana emitting from Jones’s car provided probable cause to believe that the car contained drug contraband, which authorized the search of the car. See Warren, supra, 314 Ga. App. at 483 (3); Williams v. State, 273 Ga. App. 637, 638-639 (1) (615 SE2d 789) (2005); see also Durden v. State, 199 Ga. App. 397, 398-399 (405 SE2d 50) (1991) (applying the automobile exception and ruling that “[pjrobable cause authorized the agent to search every part of the vehicle which might have concealed [the drug contraband], including the trunk and closed containers”) (citations, punctuation and footnote omitted).

Jones argues that the officer’s uncorroborated claim that he smelled marijuana was merely pretextual, and he points to inconsistencies in the officer’s testimony as to whether the odor detected was of burnt or raw marijuana. This challenge to the officer’s credibility is meritless. The alleged inconsistencies in the officer’s testimony at the preliminary and motion to suppress hearings presented a matter of the officer’s credibility. See, e.g., Leach v. State, 143 Ga. App. 598, 600 (2) (239 SE2d 177) (1977). Notwithstanding the attempted impeachment and the absence of corroboration of the officer’s testimony, it was for the trial court, sitting as finder of fact in ruling on the motion to suppress, to determine the credibility of the officer’s testimony. See, e.g., id. (“Where there is an attempt to impeach a witness by proof of contradictory statements, the [finder of fact] may believe his evidence notwithstanding attempted impeachment and in absence of corroboration.”) (citation and punctuation omitted); Warren, supra, 314 Ga. App. at 482 (3). Accordingly, the trial court was authorized to find that the officer gave credible testimony that he smelled both burnt and raw marijuana emitting from the car, which provided probable cause for the search.

2. Jones also argues that the evidence was insufficient to sustain his cocaine trafficking conviction. In this regard, Jones contends that the evidence failed to establish that the substance was 28 grams or more of cocaine since the substance was wet when tested. Again, Jones’s argument is unavailing.

Decided February 5, 2013.

Shari S. Gunnin, John M. Petty, Jr., for appellant.

Layla H. Zon, District Attorney, Marie E. Greene, Assistant District Attorney, for appellee.

A forensic chemist with the Georgia Bureau of Investigation crime lab testified that the substance in the package had a net weight of approximately 37.79 grams, and contained cocaine having a purity of 34.6 percent. The forensic chemist noted that the solid cocaine substance was mixed with a wet liquid, which could have been water or excess solvent from the manufacturing of the cocaine. She further explained that the testing process would take into account the liquid mixture, which affected the purity of the cocaine substance. The forensic chemist confirmed that upon testing, the mixture included cocaine with a purity of 34.6 percent.

OCGA § 16-13-31 (a) (1) provides that a person commits the offense of trafficking in cocaine when he knowingly possesses “28 grams or more of cocaine or of any mixture with a purity of 10 percent or more of cocaine[.]” (Emphasis supplied.) Since the evidence showed that the mixture in Jones’s possession weighed 37.79 grams and had a purity of 34.6 percent of cocaine, Jones’s conviction was authorized. See Godett v. State, 205 Ga. App. 545, 546 (2) (423 SE2d 34) (1992) (explaining that the cocaine trafficking statute makes it illegal to possess any mixture containing cocaine with a purity greater than 10 percent); see also Quinn v. State, 171 Ga. App. 590, 593 (8) (a) (320 SE2d 827) (1984).

Judgment affirmed.

Ray and Branch, JJ., concur.


text:
    A12A2229.
    BROWN v. THE STATE.
    (738 SE2d 132)
   MILLER, Presiding Judge.

Following a jury trial, Rolando Brown was convicted of two counts of rape (OCGA § 16-6-1 (a) (1)) and one count of child molestation (OCGA § 16-6-4 (a) (1)). Brown appeals from the denial of his motion for new trial, contending that the trial court erred (1) in not directing a verdict on the two rape counts; (2) in failing to charge the jury that they could consider the offense of statutory rape as a lesser included offense of rape; and (3) in limiting Brown’s closing argument. For the reasons that follow, we affirm.

“On appeal from a criminal conviction, a defendant no longer enjoys the presumption of innocence, and the evidence is viewed in the light most favorable to the guilty verdict.” (Punctuation and footnote omitted.) Goss v. State, 305 Ga. App. 497 (699 SE2d 819) (2010).

So viewed, the evidence shows that Brown began living in Gwinnett County with the victim and her mother when the victim was eight years old. The victim testified at trial that in the summer of 2009, Brown came into her bedroom, took off both his and the victim’s pants and underwear, and touched the inside of the victim’s vagina with his penis, hurting her and causing her to bleed. The victim testified that Brown engaged in sexual intercourse with her on five or six occasions, and on the second occasion, it hurt “a little bit.” The victim described that in each incident, Brown entered her room when she was alone and her mother was not at home, took off her clothes and put his penis inside her vagina. The victim stated that she was afraid of Brown, did not want these incidents to happen, and wanted Brown to stop. However, the victim did not tell anyone about the incidents at that time because she was afraid of Brown and did not want to break up her family or end up homeless.

In October 2009, the victim went to a clinic because she was vomiting and feeling sick. A pregnancy test confirmed that the victim was pregnant. The victim reported that Brown was the father of the unborn child. The victim later terminated the pregnancy. The fetus was sent to the Georgia Bureau of Investigation crime lab, where a DNA test revealed that there was a 99.9999 percent probability that Brown was the father.

Brown was charged with and convicted of two counts of rape and one count of child molestation. The trial court denied Brown’s motion for new trial.

1. Brown contends that the trial court erred in failing to grant a directed verdict as to the rape counts, because there was no evidence of force. We disagree.

“It is well-settled in Georgia that there is no error in denying a defendant’s motion for a directed verdict of acquittal where the evidence is sufficient to authorize a rational jury to find the defendant guilty beyond a reasonable doubt.” (Citations and punctuation omitted.) Davis v. State, 292 Ga. App. 782, 783-784 (1) (666 SE2d 56) (2008).

“A person commits the offense of rape when he has carnal knowledge of a female forcibly and against her will. . . .” OCGA § 16-6-1 (a) (1). [This] language requires the State to show not only that the act was performed without the consent of the female but also that it was performed forcibly, which refers to “acts of physical force, threats of death or physical bodily harm, or mental coercion, such as intimidation.”

(Citations, punctuation and footnote omitted.) Bradberry v. State, 297 Ga. App. 679, 680-681 (1) (678 SE2d 131) (2009).

Only minimal evidence of force is required in order to prove rape of a child, and intimidation may substitute for force. Lack of resistance, induced by fear, is force, and may be shown by the victim’s state of mind from her prior experience with the defendant and subjective apprehension of danger from him.

(Citations and punctuation omitted.) Matlock v. State, 302 Ga. App. 173, 174 (690 SE2d 489) (2010). Furthermore, “the state need not show that a victim was physically injured to prove rape.” (Citation, punctuation and footnote omitted.) Pendley v. State, 308 Ga. App. 821, 823 (1) (b) (709 SE2d 18) (2011); see also Harvey v. State, 295 Ga. App. 458, 460 (671 SE2d 924) (2009).

Here, the victim testified that during the first incident of sexual intercourse, Brown hurt her and caused her to bleed. She further stated that it hurt “a little bit” the second time Brown had sex with her. The victim also testified that she did not consent to having sexual intercourse with Brown, she was afraid of Brown, and she was afraid her family would break up and she would end up homeless if she reported the sexual abuse. “The testimony of a single witness is generally sufficient to establish a fact.” OCGA § 24-4-8. In this case, the victim’s testimony provided evidence of force necessary to support Brown’s rape convictions. See Matlock, supra, 302 Ga. App. at 174 (holding that victim’s testimony that it hurt when defendant pushed his penis in her vagina and that he threatened to evict her family from his house was sufficient evidence of force); Pendley, supra, 308 Ga. App. at 823 (1) (b) (evidence of forcible rape established by victim’s testimony that it hurt when defendant pushed his penis partly into her vagina, that she did not want him to do so, and that defendant threatened her to keep quiet). Thus, the trial court did not err in denying Brown’s motion for a directed verdict on the rape charges.

Decided February 5, 2013.

2. Brown contends that the trial court erred in failing to charge the jury that they could consider the offense of statutory rape as a lesser included offense of rape. We discern no error.

Rape and statutory rape are separate offenses, requiring proof of different elements. See Grayer v. State, 176 Ga. App. 248, 249 (335 SE2d 483) (1985). A statutory rape conviction requires proof that the victim was under the age of 16 years. See OCGA § 16-6-3 (a). A rape conviction requires proof of force, regardless of the victim’s age, unless the victim is under age 10. See OCGA § 16-6-1 (a); see also Grayer, supra, 176 Ga. App. at 249. The trial court did not err in failing to give the requested charge, because statutory rape is not a lesser included offense of forcible rape. See, e.g., Mangrum v. State, 285 Ga. 676, 680 (5) (681 SE2d 130) (2009).

3. Brown contends that the trial court erred in limiting his closing argument by refusing to allow him to argue that the jury could not consider statutory rape because that offense had not been charged. We disagree.

“[T]he scope of closing argument is broad, [but] it is not unlimited, and the trial court has discretion to determine the range of proper closing argument.” (Citation, punctuation and footnote omitted.) Lipsey v. State, 287 Ga. App. 835, 838 (3) (652 SE2d 870) (2007). It is well established that closing argument must be derived from evidence properly before the factfinder. See Morgan v. State, 267 Ga. 203, 206 (3) (476 SE2d 747) (1996); Williams v. State, 279 Ga. 600, 601-602 (2) (619 SE2d 649) (2005). Moreover, in determining the scope of closing argument, “attorneys for the parties should not be allowed to supplement the court’s charge by quoting law during closing argument which is not going to be charged by the court.” (Citations and punctuation omitted.) Robinson v. State, 215 Ga. App. 125, 127 (3) (449 SE2d 679) (1994). In limiting Brown’s closing argument, the trial court correctly determined that it is the court’s responsibility to charge the law. The trial court also properly determined that it would be inappropriate to allow Brown to argue in closing about a separate offense or indictment that was not before the jury for consideration.

Judgment affirmed.

Ray and Branch, JJ., concur.

Clegg & Daniels, Thomas S. Clegg, for appellant.

Daniel J. Porter, District Attorney, Jennifer G. Hendee, Assistant District Attorney, for appellee.

       Brown relies on Hill v. State, 295 Ga. App. 360 (671 SE2d 853) (2008), which this Court specifically overruled in Stuart v. State, 318 Ga. App. 839 (734 SE2d 814) (2012).


text:
    A12A2275.
    RHODES v. THE STATE.
    (738 SE2d 135)
   MILLER, Presiding Judge.

Following a jury trial, Earnest Rhodes was convicted of child molestation (OCGA § 16-6-4 (a)) and incest (OCGA § 16-6-22). Rhodes appeals from the denial of his motion for new trial, contending that (1) the trial court erred in failing to suppress the DNA evidence; (2) the trial court erred in charging the jury on similar transaction evidence; and (3) he received ineffective assistance of counsel. For the reasons that follow, we affirm.

“On appeal from a criminal conviction, a defendant no longer enjoys the presumption of innocence, and the evidence is viewed in the light most favorable to the guilty verdict.” (Footnote omitted.) Goss v. State, 305 Ga. App. 497 (699 SE2d 819) (2010).

So viewed, the evidence shows that the victim was born in 1985. Rhodes married the victim’s mother in 1991. When the victim was approximately eight years old, Rhodes made her come into her mother’s room and watch pornography while he sat there, played with his penis and ejaculated. When the victim was approximately ten years old, Rhodes started penetrating her vagina with his fingers and penis. After the first time, Rhodes forced the victim to perform oral sex and had sexual intercourse with her several times per week. Rhodes threatened to punish the victim if she refused to do what he wanted or reported him to anyone. Rhodes also told the victim that he would say she was a bad child, was out of control and was lying if she told anyone about the sexual abuse.

In 1998, when she was 13 years old, the victim gave birth to a full-term baby. The victim subsequently reported that Rhodes had been molesting her and that he was the father of her child. Several years later, a Richmond County Crime Scene Unit investigator obtained a search warrant for DNA buccal swabs from Rhodes for the purposes of DNAcomparison and paternity testing. Subsequent DNA testing confirmed that there was a 99.99 percent probability that Rhodes fathered the victim’s child. Rhodes was subsequently arrested and indicted for child molestation (OCGA § 16-6-4 (a)) and incest (OCGA § 16-6-22).

At trial, the State presented similar transaction evidence showing that Rhodes watched pornographic movies with the victim’s sister, and had sexual intercourse with her several times a month beginning when she was 12 years old, and continuing until she was 18 years old. Following the presentation of evidence, the jury found Rhodes guilty of child molestation and incest.

1. Rhodes contends that the trial court erred in denying his motion to suppress the DNA evidence since there was insufficient probable cause to support the warrant to extract buccal swabs from his person for the DNA testing. We disagree.

In reviewing the trial court’s grant or denial of a motion to suppress, we apply the well-established principles that the trial court’s findings as to disputed facts will be upheld unless clearly erroneous and the trial court’s application of the law to undisputed facts is subject to de novo review, keeping in mind that a magistrate’s decision to issue a search warrant based on a finding of probable cause is entitled to substantial deference by a reviewing court.

(Citations and punctuation omitted.) State v. Palmer, 285 Ga. 75, 78 (673 SE2d 237) (2009).

In determining whether probable cause exists for the issuance of a search warrant, the magistrate’s task is simply to make a practical, common-sense decision whether, given all the circumstances set forth in the affidavit before him, . . . there is a fair probability that contraband or evidence of a crime will be found in a particular place.

(Citation and punctuation omitted.) Flewelling v. State, 300 Ga. App. 505, 509 (2) (685 SE2d 758) (2009).

Rhodes argues that the search warrant affidavit was insufficient because it omitted the fact that the victim had previously made inconsistent and contradictory claims regarding who fathered her child, the omitted information was material, and omission of this information was deliberately misleading.

[I]f a court determines that an affidavit submitted contains material misrepresentations or omissions, the false statements must be deleted, the omitted truthful material must be included, and the affidavit must be reexamined to determine whether probable cause exists to issue a warrant. Even doubtful cases should be resolved in favor of upholding a magistrate’s determination that a warrant is proper.

(Citations and punctuation omitted.) Flewelling, supra, 300 Ga. App. at 512 (2) (b).

Assuming that the omitted information was material, and considering the affidavit as if the information had been included, the magistrate nevertheless had probable cause for issuing the search warrant. The affidavit in support of the search warrant stated that Rhodes had possibly fathered the victim’s child, Rhodes began a sexual relationship with the victim when she was ten years old, the sexual relationship continued until the victim was fifteen years old, the victim’s son was conceived during that time period, and the son’s father had not been scientifically identified. The information contained in the affidavit clearly implied the possibility that Rhodes was not the father of the victim’s child.

Therefore, the original affidavit showed a substantial basis for the magistrate to conclude that a crime had been committed and that evidence of that crime would be found in [Rhodes’s blood, and] the information that [Rhodes] claims was improperly omitted [did] not alter the basis for the issuance of the search warrant.

(Citations and punctuation omitted.) Farris v. State, 293 Ga. App. 674, 676 (1) (667 SE2d 676) (2008).

2. Rhodes contends that the trial court erred in charging the jury on similar transaction evidence. We find no error.

During the sister’s testimony regarding similar transactions, the trial court charged the jury that they could consider evidence of Rhodes’s similar transactions for the limited purpose of showing his state of mind, knowledge or intent in the charged crimes. The trial court gave a nearly identical instruction in its final jury charge, except that the trial court stated that the jury could consider the similar transaction evidence for the limited purpose of showing Rhodes’s bent of mind or course of conduct in the charged crimes. The trial court’s initial and final similar transaction charges were taken nearly verbatim from the pattern charge on similar transaction which both the State and Rhodes submitted at the beginning of trial.

Rhodes did not object to the trial court’s similar transaction charges; however, he belatedly attempted to reserve objections on the record after the trial court sent the jury out for deliberations.

When a party fails to object to a jury charge or the omission of a charge during trial but raises the issue on appeal, this Court reviews the charge for plain error. The proper inquiry is whether the instruction was erroneous, whether it was obviously so, and whether it likely affected the outcome of the proceeding.

(Citations and punctuation omitted.) Simmons v. State, 291 Ga. 705, 712 (9) (b) (733 SE2d 280) (2012).

Rhodes failed to show plain error. Contrary to Rhodes’s argument, the charge in this case is not virtually identical to the charge in Rivers v. State, 236 Ga. App. 709 (513 SE2d 263) (1999). The similar transaction charge in Rivers impermissibly expanded the limited purposes for which similar transaction evidence can be used by informing the jury that it could consider the similar transaction evidence for the “purpose of showing the crimes charged in the case, and in considering an element of the offense charged in this indictment.” Id. at 712 (1) (b). The charge in this case properly instructed the jury that similar transaction evidence may be considered for the limited purpose of showing the defendant’s bent of mind or course of conduct in the charged crimes. See Jordan v. State, 230 Ga. App. 560, 561-562 (497 SE2d 48) (1998) (holding that trial court properly charged jury that it could consider similar transaction for limited purpose of showing defendant’s state of mind, lustful disposition or course of conduct).

3. Rhodes contends that his trial counsel was constitutionally deficient.

To prevail on a claim of ineffective assistance of counsel, a defendant must show that counsel’s performance was deficient and that the deficient performance so prejudiced the defendant that there is a reasonable likelihood that, but for counsel’s errors, the outcome of the trial would have been different. [See] Strickland v. Washington, 466 U. S. 668, 687 (104 SC 2052, 80 LE2d 674) (1984). If an appellant fails to meet his or her burden of proving either prong of the Strickland test, the reviewing court does not have to 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. Furthermore, there is a strong presumption that the performance of counsel was within the wide range of reasonable professional lawyering, and we cannot reach a contrary conclusion unless defendant successfully rebuts the presumption by clear and convincing evidence. Judicial scrutiny of counsel’s performance must be highly deferential.

(Citations and punctuation omitted.) Davenport v. State, 316 Ga. App. 234, 239 (3) (729 SE2d 442) (2012).

(a) Rhodes contends that his trial counsel was ineffective for failing to properly object to the admissibility of the DNA evidence. We discern no error.

Rhodes argues that trial counsel’s objection to the DNA results and conclusions, based on a gap in the chain of custody of the evidence, was incomplete because the buccal swabs were not handled in a routine manner. However, he does not point to any evidence supporting his claim.

The chain of custody rule concerns itself with fungible evidence [.] To show a chain of custody adequate to preserve the identity of fungible evidence, the State must prove with reasonable certainty that the evidence is the same as that seized and that there has been no tampering or substitution.

(Citations and punctuation omitted.) Hines v. State, 307 Ga. App. 807, 809 (2) (706 SE2d 156) (2011). Here, the State established the chain of custody of the DNA evidence. The investigator who collected and sealed the buccal swabs (“samples”) from the victim, the victim’s son and Rhodes, testified that he took the sealed DNA samples to the state crime lab. The investigator identified the samples at trial, and the State admitted the samples into evidence without objection. A forensic biologist from the state crime lab stated that he received the sealed samples. The samples for each individual were submitted in separate envelopes sealed with tamper-proof tape. The envelopes were marked by the agency that collected them, and each envelope received a unique bar code and case number upon arrival at the crime lab. The forensic biologist identified the samples at trial as the sealed samples he received, opened and tested, and he stated that there was no evidence of tampering with the samples. Consequently, there is no evidence to support Rhodes’s claim that the DNA evidence was handled in an irregular manner.

Decided February 5, 2013.

Peter D. Johnson, for appellant.

R. Ashley Wright, District Attorney, Falin R. Syms, Assistant District Attorney, for appellee.

Moreover, trial counsel did not testify at the hearing on Rhodes’s motion for a new trial. Where trial counsel does not testify at the motion for a new trial hearing, it is extremely difficult to overcome the presumption that his performance was reasonable. See Fields v. State, 311 Ga. App. 528, 530 (1) (716 SE2d 587) (2011). Because counsel did not testify at the new trial hearing, Rhodes has not overcome the presumption that trial counsel’s failure to interpose a more complete objection or further objections to the chain of custody of the DNA evidence did not fall outside the wide range of reasonable professional conduct. See id. at 531 (1).

(b) Rhodes also contends that trial counsel was deficient for failing to request and receive expert assistance with the State’s DNA evidence, and for failing to move for independent testing of the DNA evidence. Again we discern no error.

Notwithstanding Rhodes’s argument that he would have been acquitted if trial counsel had requested independent testing of the DNA evidence, he presented no evidence showing that the State’s DNA evidence was defective. See Lanier v. State, 288 Ga. 109, 111 (3) (a) (702 SE2d 141) (2010). Furthermore, the DNA evidence in this case was not the sole link between Rhodes and the crimes at issue. See Williams v. State, 284 Ga. 849, 852 (3) (672 SE2d 619) (2009). Notably, the victim testified that Rhodes forced her to perform oral sex and had sexual intercourse with her several times per week, and the victim reported that Rhodes had been molesting her and that he was the father of her child. Rhodes’s baseless speculation regarding the potential for a different DNA test result than the one which the State introduced at trial did not constitute a showing of professionally deficient performance by trial counsel. For these reasons, the judgment is affirmed.

Judgment affirmed.

Ray and Branch, JJ., concur.

       The trial court held a hearing pursuant to Uniform Superior Court Rule 31.3 (B), found that the State met its burden of proof pursuant to Williams v. State, 261 Ga. 640 (409 SE2d 649) (1991), and granted the State’s request to present the similar transaction evidence for the appropriate purpose of showing Rhodes’s course of conduct and bent of mind.

       The State’s request to charge stated that the jury could consider the evidence for the limited purposes of showing the defendant’s bent of mind, and course of conduct in the charged crimes. Rhodes’s request to charge stated that the jury could consider the evidence for the limited purpose of showing the defendant’s state of mind, e.g., knowledge or intent in the charged crimes.


author: BARNES, Presiding Judge.

text:
    A12A2339.
    THOMAS v. THE STATE.
    (738 SE2d 149)
   BARNES, Presiding Judge.

A jury convicted Fariena Thomas of forgery in the first degree, and the trial court sentenced her under the First Offender Act. On appeal she contends that the trial court erred by admitting into evidence a photocopy of only the front of the forged check and by denying her motion for a directed verdict. We disagree, and for the following reasons, we affirm.

We construe the evidence on appeal in the light most favorable to the verdict and Thomas is no longer presumed to be innocent. McKenzie v. State, 300 Ga. App. 469 (685 SE2d 333) (2009). So viewed, the evidence established that Thomas went to SunTrust Bank and presented a check made out to her for $17,450.10, drawn on the SunTrust account of the Atlanta Athletic Club. The bank teller testified that Thomas wanted to obtain cash for the check, so he attempted to verify it because there would be no hold on it, since it was drawn on a SunTrust account. If Thomas had merely wanted to deposit the check without obtaining cash, the teller testified that he would not have attempted to verify it. When he reviewed the check with his supervisor, they discovered that it did not look like previous checks from the club. Further, Thomas had no affiliation with the club, no reason to expect money from the club, and no permission from the club to deliver the check to the bank. Per its fraud policy, the bank kept the check, and its branch manager faxed a copy of it to Sun-Trust’s corporate security department.

The bank also faxed the check to the club, which confirmed it was fraudulent and reported the incident to the police. Thomas was subsequently arrested and tried for forgery in the first degree in violation of OCGA § 16-9-1.

1. Thomas makes several arguments related to the photocopy of the front of the check which the State used during trial to prove its case. Under former OCGA § 24-5-26, a photocopy admitted as a business record must be an accurate representation of the original, and Thomas argues that the State’s copy was not an accurate representation because it showed only the front of the check and not the back.

Thomas did not argue to the trial court that the photocopy was not a proper business record, however. She argued only that the State should be required to produce the original check rather than use a photocopy. Accordingly, she waived this ground by failing to raise it in the trial court. See Thorpe v. State, 285 Ga. 604, 609 (4) (678 SE2d 913) (2009). Even if she had raised the issue before the trial court, however, Thomas has not shown that the State’s failure to introduce a copy of the back of the check was harmful. No witnesses testified that Thomas had endorsed the check. Accordingly, we find this enumeration of error to be without merit.

2. Thomas argues that the trial court erred in allowing the State to use a photocopy of the check to prove the forgery count against her because it failed to call as a witness the last person to have custody of the original document to make a complete showing that the original was nonexistent, inaccessible, or lost, citing Mulkey v. State, 155 Ga. App. 304 (270 SE2d 816) (1980).

Under the best evidence rule as it existed during this trial, primary evidence “is such as in itself does not indicate the existence of other and better proof,” and “[secondary evidence is such as from necessity in some cases is substituted for stronger and better proof.” Former OCGA § 24-5-1. Former OCGA § 24-5-2 provided that “to admit secondary evidence, it shall appear that the primary evidence for some sufficient cause is not accessible to the diligence of the party. This showing shall be made to the court, who shall hear the party himself on the question of diligence and the inaccessibility of the primary evidence.”

Here, a bank supervisor testified that she gave the check to her branch manager, who then faxed a copy of the check to SunTrust corporate security. The State presented evidence that the original would have been stored at the branch where it was presented or in the bank’s loss prevention storage facility, and the supervisor testified she had checked with the bank manager and searched the branch location but could not locate the original at the bank branch. Another bank employee testified that he unsuccessfully searched the bank’s loss prevention storage facility for the check.

The trial court overruled Thomas’s objection to the State’s motion to admit the copy into evidence, finding that the State had made a reasonable effort to locate the original check and had made a prima facie showing that the original had been lost or misplaced. The court further held that the absence of a copy of the back of the check went to its weight rather than its admissibility.

Thomas argues that to show sufficient diligence, the State was required to call as a witness the branch manager, who was the last person known to have custody of the original check, relying on language in Mulkey, 155 Ga. App. at 307. The court in Mulkey reversed an arson conviction, holding that the trial court should have allowed the defendant to testify about a letter he had received from someone who implicated himself in the crime, even though he could not locate the letter, because he had shown diligence in attempting to do so. Id. While the court also said that the last person who had custody of the letter had to make the required showing of “nonexistence or inaccessibility or loss” of the document, this language does not limit the category of evidence that will prove diligence, but only addresses one kind of evidence that will do so. Id.

In ruling on a “best evidence” objection, “[t]he trial court decides only whether the secondary evidence is offered in the best form which is accessible.” Spead v. State, 187 Ga. App. 359, 360 (2) (370 SE2d 213) (1988). Whether the party seeking to introduce secondary evidence has been sufficiently diligent in looking for the primary evidence and whether that evidence is inaccessible “is a determination within the discretion of the trial judge... and his decision will not be overturned unless that discretion is abused.” Mulkey, 155 Ga. App. at 306; Meeker v. State, 249 Ga. 780, 783 (5) (294 SE2d 479) (1982).

Here, the trial court did not abuse its discretion in determining that the original check was inaccessible or lost and that the State’s search was sufficiently diligent to allow the State to introduce into evidence a copy of the check.

3. Finally, Thomas contends that the evidence against her was insufficient for a rational trier of fact to find beyond a reasonable doubt that she was guilty of forgery in the first degree. The offense as set forth in the statute applicable here provided that a person committed the offense of forgery in the first degree when she, with intent to defraud, delivered any writing that “purports to have been made... by authority of one who did not give such authority.” Former OCGA § 16-9-1 (effective until July 1, 2012). Thomas argues the State failed to present sufficient evidence that she presented the check at issue with the intent to defraud.

“[T]he knowledge element of a violation of a criminal statute can be proved by demonstrating either actual knowledge or deliberate ignorance.” (Punctuation omitted.) Taylor v. State, 293 Ga. App. 551, 553 (667 SE2d 405) (2008). Thomas received a $17,450.10 check from an entity with whom she had no connection or expectation of payment, and presented it to a bank teller in an attempt to obtain cash. She never asked the teller whether “the check was good or not.” “Based on the foregoing, we find that the evidence presented was sufficient for a reasonable jury to determine that, at the very least, [Thomas] remained deliberately ignorant of the fraudulent nature of the checks.” Id. Accordingly, we affirm the judgment of conviction.

Decided February 5, 2013.

Wayne L. Burnaine, for appellant. Daniel J. Porter, District Attorney, Robby A. King, Assistant District Attorney, for appellee.

Judgment affirmed.

McFadden, J., concurs. McMillian, J., concurs in judgment only.

       As of January 1, 2013, the best evidence rule in former OCGA § 24-5-1 et seq. has been replaced by OCGA § 24-10-1001 et seq. Specifically, OCGA § 24-5-26 et seq. has been replaced by OCGA § 24-10-1003, which provides: “A duplicate shall be admissible to the same extent as an original unless: (1) A genuine question is raised as to the authenticity of the original; or (2) A circumstance exists where it would be unfair to admit the duplicate in lieu of the original.”


text:
    A12A2364.
    LOMAX v. THE STATE.
    (738 SE2d 152)
   BARNES, Presiding Judge.

A Jackson County jury found Billy Bay Lomax, Jr., guilty of aggravated assault, terroristic threats, and possession of a gun during the commission of a felony, and he was sentenced to twenty-five years with ten to serve in prison. Following the denial of his motion for new trial, Lomax appeals, contending that the evidence was insufficient to sustain his convictions. Following our review, we affirm.

When a criminal defendant challenges the sufficiency of the evidence supporting his conviction, “the relevant question is whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt.” (Citation omitted; emphasis in original.) Jackson v. Virginia, 443 U. S. 307, 319 (III) (B) (99 SC 2781, 61 LE2d 560) (1979). It is the duty of the jury, not this Court, to resolve conflicts in the testimony, weigh the evidence, and draw reasonable inferences from the evidence. Id. “As long as there is some competent evidence, even though contradicted, to support each fact necessary to make out the State’s case, the jury’s verdict will be upheld.” (Citation and punctuation omitted.) Miller v. State, 273 Ga. 831, 832 (546 SE2d 524) (2001).

So viewed, the evidence demonstrates that the victim was in his back yard when he heard a car horn. A man and a woman were sitting in a black Lincoln Navigator in front of his house. The victim approached the vehicle, and the man introduced himself as Lomax and asked the victim if he knew the woman. The victim replied that he did not, although he and the woman, Lomax’s wife, had a sexual encounter after meeting at a bar several months earlier. Lomax, who was holding a gun, got out of the vehicle and “trie[d] to swing” at the victim. As the victim ran for his front door, he heard a gunshot and saw blood running down his side. Lomax continued to confront the victim near the front door, and when the victim told him, “You shot me,” Lomax responded, “I don’t care. I’ll kill you.”

A neighbor testified that he saw a black SUV drive up and down the street “going slow like it was looking for something.” A short time later, the witness heard a gunshot and a woman scream, “Billy, you shot him.” After several neighbors began to gather in response to the gunshot and other commotion, Lomax got into his car and drove away.

One of the responding police officers testified that there was blood on the victim’s porch and in his yard, but that they could not recover any shell casings. He surmised that the projectile “passed from front to back or back to front through [the victim’s] arm and went clean through.”

The day after the incident, the victim identified Lomax from a photo array as the man who shot him. He also positively identified him at the trial.

Lomax contends on appeal that the evidence was insufficient to sustain his convictions for aggravated assault and terroristic threats. He maintains that the alternative theory raised at the trial — that the victim shot himself — was also supported by the evidence, and that the victim had a motive to lie because of his “adulterous conduct.” Lomax asserts that because of these factors, the case was equivalent to a circumstantial evidence case. We do not agree.

1. Regarding the aggravated assault, the testimony of the victim, standing alone, was sufficient to sustain the conviction. See former OCGA § 24-4-8 (“The testimony of a single witness is generally sufficient to establish a fact.”); Obeginski v. State, 313 Ga. App. 567, 569 (1) (722 SE2d 162) (2012). It was the role of the jury, not this Court, “to determine the credibility of the witnesses and to resolve any conflicts or inconsistencies in the evidence.” (Citation and punctuation omitted.) Farris v. State, 290 Ga. 323, 324 (1) (720 SE2d 604) (2012). The victim testified that Lomax had a gun when he got out of the car, that when he turned and ran he heard a gunshot and discovered that he had been shot, and that when he told Lomax that he had shot him, Lomax responded that he did not care. The victim also identified Lomax from a photo array as the man who shot him. A witness’s testimony that she heard a woman scream out “Billy, you shot him” also corroborated the victim’s account of the incident.

Although Lomax contends that the circumstantial evidence presented was insufficient to support the jury’s verdict, the law regarding the sufficiency of circumstantial evidence does not apply to this case because his conviction was supported by both direct and circumstantial evidence. See former OCGA § 24-4-6; State v. Canup, 300 Ga. App. 678, 682 (2), n. 3 (686 SE2d 275) (2009) (The “reasonable hypothesis” rule codified in OCGA § 24-4-6 “applies only when the evidence against the accused was entirely circumstantial.”) (citation and punctuation omitted; emphasis in original).

Decided February 5, 2013.

Donna A. Seagraves, for appellant.

2. Pursuant to OCGA § 16-11-37, a person makes a terroristic threat “when he or she threatens to commit any crime of violence ... with the purpose of terrorizing another . . . .” OCGA § 16-11-37 (a); Nassau v. State, 311 Ga. App. 438, 441 (715 SE2d 837) (2011). The determination of whether a defendant has made a terroristic threat “focuses solely on the conduct of the accused and is completed when the threat is communicated to the victim with the intent to terrorize.” (Punctuation and footnote omitted.) Nassau, 311 Ga. App. at 441. However, “[n]o person shall be convicted ... on the uncorroborated testimony of the party to whom the threat is communicated.” OCGA § 16-11-37 (a). Lomax argues that there was no evidence of a threat, and that there was no corroboration of the victim’s account of the incident.

In this case, evidence of injury to the victim’s arm that appeared to be a gunshot, blood on his front porch, and witness testimony that he heard a gunshot and a woman say “Billy, you shot him” was sufficient corroboration of Lomax’s threat to kill the victim. See Nelson v. State, 277 Ga. App. 92, 97 (1) (c) (625 SE2d 465) (2005) (evidence that victim had been injured in the eye during the incident and witnesses’ testimony as to her frightened state was sufficient corroborative evidence of terroristic threat). “[T]he question of corroborationis one solely for the jury.” Martin v. State, 219 Ga. App. 277, 283 (10) (464 SE2d 872) (1995).

In this case, any rational trier of fact could have found Lomax guilty of the crimes of aggravated assault and terroristic threats beyond a reasonable doubt.

Judgment affirmed.

McFadden and McMillian, JJ., concur.

J. Bradley Smith, District Attorney, Samuel E. Skelton, Assistant District Attorney, for appellee.

       “To warrant a conviction on circumstantial evidence, the proved facts shall not only be consistent with the hypothesis of guilt, but shall exclude every other reasonable hypothesis save that of the guilt of the accused.”


text:
    A12A2419.
    MOORE v. THE STATE.
    (738 SE2d 140)
   BARNES, Presiding Judge.

Following a bench trial, the trial court found Robert Lee Moore guilty of enticing a child for indecent purposes, sexual battery against a child under the age of 16, and child molestation. On appeal from the denial of his motion for new trial, Moore challenges the sufficiency of the evidence supporting his conviction for enticing a child for indecent purposes and contends that his trial counsel rendered ineffective assistance. For the reasons discussed below, we affirm.

“On appeal from a criminal conviction, we view the evidence in the light most favorable to the verdict[.]” Vadde v. State, 296 Ga. App. 405 (674 SE2d 323) (2009). So viewed, the evidence showed that in

2007, the 14-year-old female victim began living with Moore, her biological father, at his apartment in Clayton County, Georgia. The victim often would sleep in the living room of the residence, while other family members slept in the bedrooms. When the victim was asleep, Moore would lie down behind her and touch her breasts and vagina with his hands and rub his penis against her vagina. If she resisted, Moore would engage in “fist fighting” with her or would discipline her.

According to the victim, the sexual abuse occurred about “[e] very other week” at the apartment until Moore moved to Lorain, Ohio in

2008. The victim never told anyone in Georgia about the abuse because Moore had threatened to kill himself and the victim if she ever reported it.

In March 2009, the victim moved to Ohio to live with Moore. Two days after moving in with Moore, the victim, barefoot and coatless, fled to her grandmother’s house located nearby and disclosed to her that Moore had sexually abused her in Georgia. She was scared that Moore would begin sexually abusing her again. The grandmother called the police after the victim disclosed the abuse to her.

A detective from the City of Lorain Police Department interviewed the victim on two separate occasions about the sexual abuse. The detective also interviewed Moore after advising him of his rights under Miranda v. Arizona, 384 U. S. 436 (86 SC 1602, 16 LE2d 694) (1966). Moore told the detective that he thought there was “something wrong with him” and admitted that he had engaged in “inappropriate acts” with the victim. He also stated that he had paid the victim for “sexual favors” to keep her from “selling herself sexually on the streets.” Moore indicated that these incidents had occurred in Georgia.

During the interview, Moore asked the detective to deliver a letter to the victim in which he wrote, “I have a mental problem” and “I loved you too much 2 where it got outta hand.” He further wrote that he had wanted the victim to stop “messing up” in school and “in the streets” and that he “did everything that [he] could to stop [her] from messing up.” Moore also stated in the letter, “People in jail don’t like the fact that a father had sex with his daughter & I may not make it out [of] jail.”

The Ohio police detective provided the information he had gathered from his investigation to the Clayton County Police Department. A Clayton County grand jury subsequently returned an indictment charging Moore with enticing a child for indecent purposes, sexual battery against a child under the age of 16, and child molestation. He waived his right to a jury trial. At the ensuing bench trial, the victim, the victim’s grandmother, the Ohio police detective, and the Clayton County police detective assigned to the case testified on behalf of the State.

Moore chose to testify, admitting that “some of the things [the victim] did say were true” and that there were times when he would make a “pass” at her. He further testified that while the victim lived with him in Georgia, she was a chronic runaway. According to Moore, “[s]he would run away and wouldn’t come back for weeks, sometimes days” and would not always “come home from school,” and he tried to ‘break her” of her “unruly” behavior and “adult attitude.” He testified that he “did everything [he] could” to change her behavior, and he admitted that sometimes he would “whoop” the victim when she ran away. Additionally, Moore testified, “That is my daughter, [and] no one can tell me what I can do with my daughter,” “I am [the] law, myself,” and “I am allowed to love my daughter and support my daughter however I want to.”

The trial court found Moore guilty of the charged offenses. Moore filed a motion for new trial, contending that he received ineffective assistance from his trial counsel. Following an evidentiary hearing, the trial court denied the motion for new trial, resulting in this appeal.

1. Moore contends that there was insufficient evidence to support his conviction for enticing a child for indecent purposes, arguing that the State failed to prove the essential element of asportation. We disagree.

When a criminal defendant challenges the sufficiency of the evidence supporting his or her conviction, the relevant question is whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt. It is the function of the jury, not this Court, to resolve conflicts in the testimony, weigh the evidence, and draw reasonable inferences from the evidence. As long as there is some competent evidence, even though contradicted, to support each fact necessary to make out the State’s case, the jury’s verdict will be upheld.

(Citations, punctuation and emphasis omitted.) Staib v. State, 309 Ga. App. 785, 789-790 (2) (711 SE2d 362) (2011). See Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560) (1979).

“A person commits the offense of enticing a child for indecent purposes when he or she solicits, entices, or takes any child under the age of 16 years to any place whatsoever for the purpose of child molestation or indecent acts.” OCGA § 16-6-5 (a). Because asportation is an essential element of the offense, a conviction for enticing a child cannot be sustained without evidence of movement of the victim. See Rollins v. State, 318 Ga. App. 311 (733 SE2d 841) (2012); Heard v. State, 317 Ga. App. 663, 665 (731 SE2d 124) (2012). However, asportation does not require “abduction” of the victim; while movement of the victim can be the result of physical force, it also can be the result of mere persuasion, enticement, or temptation. Cimildoro v. State, 259 Ga. 788, 789 (1) (387 SE2d 335) (1990). Moreover, any evidence, no matter how slight, is sufficient to establish asportation. Hicks v. State, 254 Ga. App. 814, 816 (3) (563 SE2d 897) (2002).

The indictment alleged that Moore enticed the victim to his Clayton County residence for the purpose of child molestation by “givfing] her money and not punish [ing] her for poor behavior.” “Where conjunctive pleadings set forth more than one act by which the accused committed the crime, the evidence is sufficient so long as it shows at least one of the acts alleged.” Straker v. State, 259 Ga. App. 904, 905-906 (a) (578 SE2d 568) (2003). Thus, the State could establish asportation through evidence that Moore enticed the victim to his Clayton County residence for the purpose of child molestation either by (1) giving her money or (2) not punishing her for bad behavior.

When viewed in the light most favorable to the verdict, the trial testimony and all reasonable inferences drawn from it were sufficient to support a finding that Moore enticed the victim to his residence for purposes of child molestation by giving her money. The victim’s testimony clearly established that Moore molested her at his Clayton County residence; Moore testified that the victim ran away from the residence on repeated occasions and that he “did everything [he] could” to change her behavior; and the Ohio police detective testified that Moore told him that he paid the victim for sexual favors to keep her from living on the streets as a prostitute. This combined testimony, when construed in favor of the verdict, would support a finding that Moore enticed the victim to return to his residence by offering her money for sexual favors when she would run away and was having to support herself on the streets. Consequently, the essential element of asportation, as alleged in the indictment, was satisfied. See Kelley v. State, 301 Ga. App. 43, 45-46 (1) (686 SE2d 810) (2009) (asportation established through evidence that defendant offered money to the victim for sexual intercourse and arranged for her to come to his house to have sex with him).

2. Moore also contends that the trial court erred in denying his motion for a new trial because his trial counsel was ineffective for failing to object and move for a mistrial in response to improper bolstering testimony by the victim’s grandmother. Because Moore cannot show that he was prejudiced by his counsel’s failure to object and move for a mistrial, he cannot succeed on his ineffective assistance claim.

In order to succeed on his claim of ineffective assistance, [Moore] must prove 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. Strickland v. Washington, 466 U. S. 668 (104 SC 2052, 80 LE2d 674) (1984). If [Moore] fails to meet his burden of proving either prong of the Strickland test, the reviewing court does not have to 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.

(Citations and punctuation omitted.) Lynch v. State, 291 Ga. 555, 556 (2) (731 SE2d 672) (2012).

During her direct examination, the State asked the victim’s grandmother several questions about the victim’s initial outcry to her in Ohio in March 2009. The State then asked the grandmother whether the victim “gave ... any details of what happened to her” to the Ohio police officers who responded to the grandmother’s house after the outcry was made. The grandmother testified, in a nonresponsive manner, that she told one of the police officers that she “believed” the victim “because of the way she was acting.”

Moore contends that the grandmother’s unresponsive comment reflecting that she believed the victim constituted improper bolstering of the victim’s veracity and that his trial counsel was ineffective for failing to object to it and move for a mistrial. See Strickland v. State, 311 Ga. App. 400, 403 (a) (715 SE2d 798) (2011) (“It is well established that credibility of a witness is a matter for the jury, and a witness’s credibility may not be bolstered by the opinion of another witness as to whether the witness is telling the truth.”) (punctuation and footnote omitted). We conclude that even if Moore’s trial counsel was deficient, the grandmother’s testimony was not so significant that there was a reasonable probability that the outcome at trial would have been different if counsel had objected and moved for a mistrial.

As an initial matter, absent a strong showing to the contrary, we presume that in a bench trial, the “judge has sifted the wheat from the chaff and selected the legal testimony from that which is illegal and incompetent.” (Citations and punctuation omitted.) Jacobs v. State, 299 Ga. App. 368, 375 (2) (d), n. 5 (683 SE2d 64) (2009). See Bazin v. State, 299 Ga. App. 875, 878 (3) (683 SE2d 917) (2009). Moore has failed to make that type of strong showing in this case.

Decided February 5, 2013.

Benjamin D. Goldberg, for appellant.

Tracy Graham-Lawson, District Attorney, Elizabeth A. Baker, Assistant District Attorney, for appellee.

Furthermore, the grandmother’s improper testimony consisted of a single, unresponsive comment during the course of a trial with several witnesses. The victim testified at trial about the sexual abuse, and Moore had a full opportunity to test her credibility during cross-examination. Additionally, Moore confessed to the Ohio detective that he committed inappropriate sexual acts with the victim and paid her money for sexual contact; the State introduced into evidence the letter that Moore wrote to the victim in which he admitted sexually abusing her; and Moore testified at trial that some of the victim’s testimony about the molestation was true.

Under these circumstances, and particularly in light of his own admissions to the police detective, in the letter he wrote to the victim, and on the stand at trial, Moore cannot establish prejudice resulting from the grandmother’s unresponsive comment. See Thomas v. State, 318 Ga. App. 849, 854 (4) (a) (734 SE2d 823) (2012) (pointing out that “where the bolstering testimony is not the only evidence linking the defendant to the crime, it is highly probable that the admission of such evidence did not contribute to the jury’s verdict”) (citation and punctuation omitted); Cline v. State, 224 Ga. App. 235, 237 (2) (480 SE2d 269) (1997) (bolstering testimony in child molestation case was harmless, where defendant admitted to improperly touching the victim). The trial court, therefore, did not err in denying Moore’s motion for new trial.

Judgment affirmed.

McFadden and McMillian, JJ., concur.

       The trial court merged the sexual battery conviction into the child molestation conviction for sentencing purposes.

       Because his motion for new trial had not been filed within the 30-day period prescribed by OCGA § 5-5-40 (a), Moore moved for leave to file an out-of-time motion for new trial when he filed his motion for new trial. Although the trial court did not expressly grant Moore leave to file an out-of-time motion for new trial, the court implicitly granted him leave by holding an evidentiary hearing on the merits of the motion for new trial and by denying the motion on its merits. “Because the trial court permitted [Moore] to file an out-of-time motion for new trial, we conclude [that] we have appellate jurisdiction of the appeal and address the merits.” Washington v. State, 276 Ga. 655, 656 (1) (581 SE2d 518) (2003).

       Moore also contends that any enticement that occurred took place in Lorain, Ohio rather than in Clayton County, Georgia. But the victim testified that “everything happened” in Georgia. In addition, the Ohio police detective testified that when asked about the “activities in Georgia,” Moore admitted that he did “inappropriate acts” with the victim and paid her for sexual favors to keep her from “selling herself sexually on the streets.”


author: PHIPPS, Presiding Judge.

text:
    A12A2040.
    ANDERSON v. THE STATE.
    (738 SE2d 285)
   PHIPPS, Presiding Judge.

Tiffany Anderson appeals her conviction for criminal trespass. She contends that the trial court erred in refusing to give her requested jury charge on voluntary intoxication. We affirm.

Atrial court’s refusal to give a requested jury charge is not error unless the request is entirely correct and accurate; is adjusted to the pleadings, law, and evidence; and is not otherwise covered in the general charge. And we review a trial court’s refusal to give a requested jury charge under an abuse-of-discretion standard.

The evidence pertinently showed that on April 25, 2010, police officers responded to a call of suspicious activity at a place of business. When they arrived, they observed a damaged vehicle in the middle of the roadway. They observed that a door to the business was open and that a window pane next to another door was broken. They found Anderson inside the building; she was lying on the floor, holding a bottle of an alcoholic beverage.

The police questioned Anderson, from whose person an odor of alcohol emanated; Anderson could communicate, although with slurred speech. The police determined that Anderson was the owner of the vehicle, and a blood test later revealed that her blood alcohol content was 0.241 grams, more than three times the legal limit to drive or be in actual physical control of a vehicle. The police interviewed near the scene Anderson’s friend, whose home Anderson had recently left.

Anderson’s testimony at trial was as follows. On April 25, 2010, she and her ex-boyfriend went to a party at the home of a friend. The two met beforehand and agreed that the ex-boyfriend would drive Anderson’s vehicle to the friend’s home and take Anderson home at the end of the evening. The ex-boyfriend stopped at a store and purchased alcohol; Anderson consumed an alcoholic beverage in the vehicle on the way to the party. When they arrived, Anderson drank two or three more alcoholic beverages. Anderson testified that her ex-boyfriend began behaving badly toward her, and she wanted to leave. Anderson asked her ex-boyfriend to take her home as he had earlier agreed to do. She asked him whether he was “okay” to drive. According to Anderson, her ex-boyfriend said he had drunk only two beers; so, he drove.

Anderson testified that she was tired and believed she had fallen asleep in the vehicle; but then something “j arred [her] kind of awake.” When she awoke, the vehicle was in a ditch. The friend whose home she and her ex-boyfriend had recently left arrived at the scene of the incident. Anderson testified that she was very angry with her ex-boyfriend about the condition of her vehicle, that she did not want to leave her vehicle, and that her ex-boyfriend left the scene. She then walked to the parking lot of a church to see whether anybody was there. When asked whether she remembered entering the business in which the police found her, which was not a church, Anderson replied, “No.” Anderson testified that she had not intended to break into the business. She testified: “I feel terrible. I mean, I feel really bad about that and doing that to her. It’s not the kind of person that I am.”

The owner of the business where Anderson was found testified that she did not know Anderson. She testified that the incident occurred on a Saturday, and that the following Monday, Anderson went back to the business and apologized to her.

Anderson requested the following jury charge with respect to intoxication as a defense to criminal trespass:

If the influence of alcohol (drugs or narcotics) impairs a person’s mind to the extent that the person is not able to form the intent to do the act charged, that person would not be criminally responsible for the act. Whether that is true is a question for you, the jury, to decide. Whether the defendant in this case was voluntarily intoxicated, at or during the times alleged in this indictment, is a matter solely for you, the jury, to decide.

The trial court did not give this charge; rather, as it concerned intoxication as a defense to the charged crime, the trial court charged the following:

Georgia law provides that voluntary intoxication shall not be an excuse for any criminal act. It further provides that if a person’s mind when not affected by intoxicants is capable of distinguishing between right and wrong as well as of reasoning and acting rationally and the person voluntarily deprives herself of reason by consuming intoxicants and commits a criminal act while under the influence of such intoxicants, the person is criminally responsible for such acts to the same extent as if the person were sober. Whether or not the defendant in this case was voluntarily intoxicated at or during the time alleged in this accusation is a matter solely for you, the jury, to determine.

“[I]t has long been solidly established that voluntary intoxication shall not bean excuse for any criminal act or omission, [] except in the extreme situation where the intoxication has resulted in the alteration of brain function so as to negate intent, and even then, the brain function alteration must be more than temporary.”

OCGA § 16-3-4 pertinently provides:

(a) A person shall not be found guilty of a crime when, at the time of the act, omission, or negligence constituting the crime, the person, because of involuntary intoxication, did not have sufficient mental capacity to distinguish between right and wrong in relation to such act.
(b) Involuntary intoxication means intoxication caused by:
(1) Consumption of a substance through excusable ignorance; or
(2) The coercion, fraud, artifice, or contrivance of another person.
(c) Voluntary intoxication shall not be an excuse for any criminal act or omission.

OCGA § 16-3-2 provides: “Aperson shall not be found guilty ofacrime if, at the time of the act, omission, or negligence constituting the crime, the person did not have mental capacity to distinguish between right and wrong in relation to such act, omission, or negligence.”

OCGA§ 16-3-4 limits the reach of OCGA § 16-3-2 so that the inability to distinguish between right and wrong is not a defense if the inability is a consequence of voluntary intoxication (but remains a defense if the inability is a consequence of involuntary intoxication). Neither [C]ode section speaks of an inability to form an intent to commit the act. Persons are not excused from criminal liability under either of these [C]ode sections because they are incapable of forming criminal intent. . . . Lack of intent is a defense, but it is not implicated by either OCGA § 16-3-2 or OCGA § 16-3-4.
“The law . . . excuses the young and the insane, out of tenderness towards an infirmity which is involuntary, and at the same time, to guard against the possibility that [persons] might make the same excuse whenever there is the same infirmity of reason, the law takes special care to exclude drunken [persons] from the excuse, because their infirmity is voluntary.”

Accordingly, it has been held that a charge similar to the one requested by Anderson is “misleading to the extent that it implies that voluntary intoxication in and of itself may be a defense to a crime.” The evidence showed that Anderson voluntarily consumed alcohol; and her ability after the night of the incident to recall events from that evening, as evidenced by her apology to the business owner two days later and by her testimony at trial, shows that any alteration of Anderson’s brain function that night was not more than temporary. “[T]he trial court is not obligated to give requested jury instructions that do not accurately state the law or that are not adjusted to the evidence.” Accordingly, the trial court did not err in refusing to give Anderson’s requested charge.

Anderson’s reliance on Pope v. State, Ely v. State,* and Johnson v. State is misplaced. In Pope, the Supreme Court of Georgia referred to a jury charge similar to the one Anderson requested, but such reference was merely to address an alleged contradiction in the instructions given to the jury, and was not an approval ofthe charge. In fact, in Pope, the Court observed that a person can be capable of forming an intent to commit a crime but incapable of understanding the difference between right and wrong. In Ely, the issue was not whether the court correctly charged the jury on the issue of intoxication but whether the evidence showed that the defendant was so intoxicated he could not form the specific intent necessary to convict him of the crimes charged; although giving passing approval to a charge similar to the one at issue, the court found sufficient evidence to support the jury’s verdict. And in Johnson, the issue was whether the defendant was entitled to a charge like that at issue based on his theory of defense that drug use resulting from reliance on a physician’s prescription could constitute “excusable ignorance” — an element pertinent to the defense of involuntary intoxication, which is not involved here. Thus, none of the cases upon which Anderson relies supports the proposition that the trial court erred in refusing to charge as she requested.

Decided February 6, 2013.

Sean J. Lowe, for appellant.

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

Judgment affirmed.

Ellington, C. J., and Dillard, J., concur.

        Jones v. State, 318 Ga. App. 26, 33 (3) (733 SE2d 72) (2012) (punctuation and footnotes omitted).

       See OCGA § 40-6-391 (a) (5).

       See OCGA § 16-3-4 (e).

        Guyse v. State, 286 Ga. 574, 578 (2) (690 SE2d 406) (2010) (punctuation omitted), citing Horton v. State, 258 Ga. 489, 491 (371 SE2d 384) (1988); see Bright v. State, 265 Ga. 265, 273-274 (2) (e) (455 SE2d 37) (1995) (viable voluntary intoxication defense requires evidence of “permanent brain function alteration”).

        Carsner v. State, 190 Ga. App. 141 (378 SE2d 181) (1989) (punctuation omitted), citing Foster v. State, 258 Ga. 736, 744 (374 SE2d 188) (1988), overruled in part on other grounds by State v. Patillo, 262 Ga. 259, 261, n. 1 (417 SE2d 139) (1992).

        Foster, supra at 745 (10) (citation omitted).

        Williams v. State, 180 Ga. App. 854, 855 (2) (350 SE2d 837) (1986), citing Gilreath v. State, 247 Ga. 814, 831 (279 SE2d 650) (1981); see Foster, supra.

       See Guyse, supra at 574-576 (1), 578 (2); Horton, supra at 489, 491 (8); Bright, supra.

        Williams, supra (citation and punctuation omitted); Thomas v. State, 285 Ga. App. 290, 292 (1) (645 SE2d 713) (2007) (a trial court must charge the jury on a defendant’s sole defense if the circumstances support the charge).

       256 Ga. 195 (345 SE2d 831) (1986), overruled on other grounds by Nash v. State, 271 Ga. 281, 283-284 (519 SE2d 893) (1999).

       159 Ga. App. 693 (285 SE2d 66) (1981).

       235 Ga. 486 (220 SE2d 448) (1975).

        Pope, supra at 208 (16); see McEver v. State, 258 Ga. 768, 768, n. 2 (373 SE2d 624) (1988).

        Pope, supra; see Foster, supra at 744-745 (10).

        Ely, supra; see Williams, supra.

        Johnson, supra at 489 (1); see Swenson v. State, 196 Ga. App. 898, 899-900 (1) (397 SE2d 211) (1990).


author: Boggs, Judge. MCFADDEN, Judge,

text:
    A11A0218.
    MOSES v. JORDAN.
    (738 SE2d 297)
   Boggs, Judge.

In Division 1 of Moses v. Jordan, 310 Ga. App. 637 (714 SE2d 262) (2011), we reversed the trial court’s grant of summary judgment to Randall Jordan on Mary Helen Moses’ claim for wrongful dissolution of their law partnership. Id. at 639-642 (1). In Jordan v. Moses, 291 Ga. 39 (727 SE2d 460) (2012), the Supreme Court reversed our decision in Division 1 on the ground that we included in our recitation of the applicable law the phrase “the new prosperity of the partnership” from our opinion in Arford v. Blalock, 199 Ga. App. 434 (405 SE2d 698) (1991), rather than the Supreme Court’s subsequent formulation of the standard as “the prosperity of the partnership” in Wilensky v. Blalock, 262 Ga. 95 (414 SE2d 1) (1992).* The Supreme Court held that “[t]he gravamen of a wrongful dissolution claim is a partner’s attempt to appropriate, through the dissolution, the assets or business of the partnership, which may include prospective business, without adequate compensation to the remaining partners.” Jordan, supra, 291 Ga. at 43. Accordingly, we vacate Division 1 of our opinion and adopt the Supreme Court’s decision as our own as to that division.

The Supreme Court also remanded the case to this court “for proceedings consistent” with its opinion because this court “cited the disapproved language regarding ‘new prosperity.’ ” Jordan, supra, 291 Ga. at 44. According to the Supreme Court, it was unclear whether we considered a conflict in the evidence

as indicative solely of Jordan’s state of mind at the time he decided to dissolve the partnership, with a coincident intent to deprive Moses of some unidentified prospective business opportunity of the partnership, or whether the Court of Appeals considered the above evidence as showing that Jordan intended, through the dissolution, to retain a fee that was misappropriated from partnership funds.

Id. Accordingly, we hereby clarify that the record before us demonstrates a genuine issue of material fact as to whether Jordan attempted “to appropriate, through the dissolution, the assets or business of the partnership . . . without adequate compensation to the remaining partner[ ]” — Moses. Jordan, supra, 291 Ga. at 43.

Judgment reversed.

Dillard, P. J., concurs. McFadden, J., concurs fully and specially.

MCFADDEN, Judge,

concurring fully and specially.

I concur fully in the majority opinion. I agree that the Supreme Court’s disapproval of our use of the expression “new prosperity” does not alter the remainder of our analysis of the wrongful dissolution claim. And the remaining divisions of our earlier opinion, which were not addressed or considered by the Supreme Court, remain the law of the case. See Shadix v. Carroll County, 274 Ga. 560, 563 (1) (554 SE2d 465) (2001).

I write separately to emphasize that the parties and the trial court should not be misled by the Supreme Court’s judgment line, which indicates reversal. That reversal does not reflect acceptance of Jordan’s argument on certiorari. Jordan argued that this court had failed to sufficiently consider the issue of new or future prosperity. He argued that the firm’s clients had been his clients before the partnership formed and remained his clients after it dissolved. Consequently, according to Jordan, Moses had no claim on the firm’s new or future prosperity and therefore no claim for wrongful dissolution. The Supreme Court granted Jordan’s petition for certiorari in order to determine whether this court applied the proper legal analysis in reversing the grant of summary judgment on the wrongful dissolution claim. Jordan v. Moses, 291 Ga. 39 (727 SE2d 460) (2012).

Decided February 7, 2013.

Martenson, Hasbrouck & Simon, Peter V. Hasbrouck, Robinson & Associates, Mark E. Robinson, for appellant.

Blasingame, Burch, Garrard & Ashley, Gary B. Blasingame, Killian & Boyd, Robert P. Killian, for appellee.

The Supreme Court did find fault with our analysis of that claim. But it was not persuaded by Jordan’s argument. On the contrary, it found that this court’s error was using language that provided the foundation for his argument. The Supreme Court adopted Moses’s argument that we had erred in using the expression “new prosperity.” “The gravamen of a wrongful dissolution claim,” the Supreme Court held, “is a partner’s attempt to appropriate, through the dissolution, the assets or business of the partnership, which may include prospective business, without adequate compensation to the remaining partners.” Jordan, 291 Ga. at 43.

       The Supreme Court graciously acknowledged in Jordan, supra, that it failed to “amplify the distinction between the terms ‘the prosperity of the partnership’ and ‘the new prosperity of the partnership’ when discussing wrongful dissolution” in its opinion in Wilensky, supra. Jordan, supra, 291 Ga. at 42.

       The Supreme Court did not address the remaining divisions of our opinion, and our rulings in those divisions are not inconsistent with the Supreme Court’s decision.