text:
    A16A1224.
    JOHNSON v. THE STATE.
    (790 SE2d 291)
   PHIPPS, Presiding Judge.

Following a jury trial, Andre William Johnson was convicted of trafficking in cocaine and possession of drug-related objects. Johnson appeals from the denial of his motion for new trial. He challenges the sufficiency of the evidence supporting his trafficking conviction. Finding no error, we affirm.

When reviewing a defendant’s challenge to the sufficiency of the evidence, we view the evidence in the light most favorable to the jury’s verdict, and the defendant no longer enjoys the presumption of innocence. We do not weigh the evidence or determine witness credibility, but only determine if the evidence was sufficient for a rational trier of fact to find the defendant guilty of the charged offense beyond a reasonable doubt.

Viewing the evidence in the light most favorable to the jury’s verdict, it shows that on February 7, 2012, the Glynn-Brunswick Narcotics Enforcement Team executed a search warrant at a residence located at 3412 Lee Street in Brunswick. Officers knocked on the door. When no one answered, the officers proceeded to break down the door.

Meanwhile, another officer approached the back door, walking to the right of the house, past a vehicle parked in the driveway As the team at the front of the house attempted to gain entry, the officer walking around to the back of the house could see people inside, playing video games. As the officer made his way to the back corner of the house, he heard people scrambling and moving around. Then the officer observed at least five men, including Johnson, jump out of a window at the back of the house and start running. As the men ran, a few of them had their hands up in the air, and the officer observed cocaine going in all directions, with crack cocaine falling onto the back deck and in the back yard. The officer described the deck as “covered in crack cocaine.”

From the deck, the men ran to a chain-link fence at the edge of the back yard, climbed over the fence, and continued running. The officer yelled at the men to stop and gave chase. The officer jumped the fence and observed Johnson, who had fallen on the ground. The officer apprehended Johnson, who said, “I give up.” While handcuffing Johnson, the officer noticed a bag of crack cocaine within Johnson’s arm’s reach, less than two feet away. The officer frisked Johnson and located his identification. At trial, the officer identified Johnson as the man he arrested, and another officer who had been at the scene also identified Johnson.

After entering the house, police walked into the kitchen, which opened into the living room and led into a back bedroom. When police entered the kitchen, they discovered a large beaker on the stove “actively cooking” powder cocaine, water, and baking soda to make crack cocaine. Officers also seized two baggies, each containing approximately thirty grams of powder cocaine, and individual baggies of crack cocaine from the kitchen. Officers also discovered gloves, a digital scale and additional baggies to package the cocaine for distribution, and two hand-held radios, which are often used to alert drug dealers to the presence of police.

Police also observed crack cocaine in the doorway between the living room and the back bedroom, on and underneath the back deck, and in the back yard. Officers retrieved just over 25 grams of cocaine from the back yard. The drugs seized from the house were tested by the Georgia Bureau of Investigation (“GBI”). One package of cocaine weighed 23 grams, and another weighed 4.34 grams. A third package weighed 64.57 grams; GBI tested it for purity and determined it to be 59 percent cocaine.

Following his apprehension at the scene, police interviewed Johnson, who waived his Miranda rights. Although Johnson gave police a different home address, he admitted that he had been staying at the house on Lee Street and had some belongings in the front room. Police found personal belongings, including a laptop computer and items of clothing, in the front bedroom of the house.

Johnson contends that the state failed to establish that he had either actual or constructive possession of the cocaine as required to support his conviction for trafficking.

Where, as here,

the conviction is based 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. Whether or not in a given case circumstances are sufficient to exclude every reasonable hypothesis save the guilt of the accused is primarily a question for determination by the jury.

In order to prove the trafficking charge, the state was required to prove that Johnson had possessed at least twenty-eight grams of cocaine, with a purity of ten percent or more. “Where the state provides no direct evidence of actual possession, a conviction may be sustained with proof of constructive possession.” “[A] finding of constructive possession must be based upon some connection between the defendant and the contraband other than mere spatial proximity.”

Constructive possession exists where a person though not in actual possession, knowingly has both the power and the intention at a given time to exercise dominion or control over a thing. If the [sjtate presents evidence that a defendant owned or controlled premises where contraband was found, it gives rise to a rebuttable presumption that the defendant possessed the contraband. Although this presumption may be rebutted by showing that others had access to the premises, the equal access doctrine applies to rebut the presumption of possession only where the sole evidence of possession of contraband found on the premises is the defendant’s ownership or possession of the premises.

Furthermore, although “[m]ere presence at the scene is not sufficient to convict one of being a party to a crime, . . . criminal intent may be inferred from conduct before, during, and after the commission of a crime.”

Johnson argues that the state failed to produce any evidence that he resided at 3412 Lee Street, but this argument is without merit. Essentially, Johnson challenges the credibility of the officer’s testimony that Johnson admitted he had been staying there, but “[i]t was for the jury to determine the credibility of the witnesses and to resolve any conflicts or inconsistencies in the evidence.” Although Johnson’s mother testified that he spent his nights at her home and Johnson gave police an alternate home address, he also told police that he had been staying at the house on Lee Street, and the evidence showed that he was keeping some of his belongings in the front bedroom. Thus, the evidence was sufficient for the jury to find that Johnson was staying at the house.

Johnson also argues that there was no evidence that he had physical control over any of the contraband found in the house and that the mere fact that he was arrested outside of the house, with drugs within his arm’s reach, is insufficient to establish possession. Although Johnson cites to several cases to support his position, his argument is unavailing. This is not a case in which the sole evidence of drug possession was the fact that Johnson was present at or near a house where drugs were discovered.

Rather, the evidence showed that Johnson had been staying at the house on Lee Street, and, when police arrived, Johnson was inside the house during an active cook of crack cocaine. Johnson fled, along with several other people, some of whom were throwing cocaine in the air during their escape. Police apprehended Johnson immediately after he jumped the back yard fence and found drugs within his arm’s reach, and Johnson made an inculpatory statement. Thus, the evidence in this case was sufficient to establish that Johnson had constructive possession of the large quantity of cocaine found in the house. Accordingly, the jury was permitted to exclude every other reasonable hypothesis save that of guilt, and the evidence was sufficient to sustain Johnson’s conviction for trafficking.

Decided August 9, 2016.

Brown, Readdick, Bumgartner, Carter, Strickland & Watkins, Sean K. Scally, for appellant.

Jacquelyn L. Johnson, District Attorney, Andrew J. Ekonomou, Assistant District Attorney, for appellee.

Judgment affirmed.

Dillard and Peterson, JJ., concur.

       OCGA §§ 16-13-31 (trafficking in cocaine); 16-13-32.2 (possession of drug-related objects). The jury also found Johnson guilty of possession of cocaine with intent to distribute (OCGA § 16-13-30 (b)), but the trial court merged this count with the trafficking conviction for sentencing purposes.

        Pye v. State, 322 Ga. App. 125, 126 (1) (742 SE2d 770) (2013) (footnote omitted). See also Jackson v. Virginia, 443 U. S. 307, 319 (III) (B) (99 SCt 2781, 61 LE2d 560) (1979).

       See Miranda v. Arizona, 384 U. S. 436 (86 SCt 1602, 16 LE2d 694) (1966).

        Howard v. State, 291 Ga. App. 386, 388 (662 SE2d 203) (2008) (citation and emphasis omitted).

       See OCGA § 16-13-31 (a).

        Johnson v. State, 282 Ga. App. 52, 54 (1) (637 SE2d 775) (2006) (footnote omitted).

        O’Neill v. State, 285 Ga. 125, 128 (674 SE2d 302) (2009) (citation omitted).

        Taylor v. State, 303 Ga. App. 88, 90-91 (693 SE2d 118) (2010) (citation and punctuation omitted).

        Buruca v. State, 278 Ga. App. 650, 652 (1) (629 SE2d 438) (2006).

        Pye, supra at 127 (1) (punctuation and footnote omitted).

       See Lott v. State, 303 Ga. App. 775, 779 (1) (694 SE2d 698) (2010) (evidence showed that the defendants were staying on premises where drugs were found even though they did not own or rent the premises).

       Cf. Holland v. State, 334 Ga. App. 600, 604 (1) (780 SE2d 40) (2015) (physical precedent only) (finding insufficient evidence of possession where the defendant did not live in the house where hidden drugs were discovered and evidence showed, at most, that the defendant “had momentary access to the master bedroom just before contraband was found there”); Stewart v. State, 328 Ga. App. 78, 80 (761 SE2d 497) (2014) (where the defendant rented a hotel room where drugs were found, but others had access to the room, she left the room before drug sales occurred, and she was not otherwise connected with any contraband, the evidence was insufficient to support her conviction for drug possession); Scott v. State, 326 Ga. App. 115, 118 (1) (756 SE2d 220) (2014) (evidence was insufficient to support conviction for trafficking where the defendant was merely standing in the yard of the house where drugs were found, but nothing linked the defendant to the house or the drugs found there); Brown v. State, 285 Ga. App. 330, 332 (646 SE2d 273) (2007) (same). See also Cobarrubias-Garcia v. State, 316 Ga.App. 787, 790-791 (730 SE2d 455) (2012) (physical precedent only) (finding insufficient evidence of possession where it was “undisputed” that the defendant did not live in the house and no evidence linked the defendant to the drugs hidden there).

       Cf. Aquino v. State, 308 Ga. App. 163, 167 (1) (706 SE2d 746) (2011) (finding insufficient evidence of possession where the defendant had earlier opened the door to a house which contained large quantities of methamphetamine and was later discovered in the driveway, but was not an occupant of the house and “[h]e was never seen in proximity to the drugs or drug-making equipment”).

       Although Johnson asserts that he was arrested in the back yard — where lots of contraband had been thrown — the evidence shows that Johnson was not arrested in the back yard, but on the other side of the fence, and there is no indication that there was any additional contraband found there, aside from that found within his arm’s reach.

       See Glass v. State, 304 Ga. App. 414, 419 (3) (696 SE2d 140) (2010) (finding sufficient evidence of possession where defendant had rented a hotel room, kept personal belongings in the room, was walking to the room where a “great quantity” of drugs were “in open view,” and then tried to turn around and walk away when he saw police); Kirby v. State, 275 Ga. App. 216, 217 (620 SE2d 459) (2005) (where the defendant leased the house and was present during widespread methamphetamine manufacturing, evidence was sufficient to establish possession). See also Lott, supra (finding sufficient evidence of constructive possession where defendant was staying in the house where drugs were found and screamed when the police raided the house, and police found a large amount of cash in her wallet).

        See Glass, supra; Lott, supra; Blue v. State, 275 Ga. App. 671, 672, 674(2) (621 SE2d 616) (2005) (finding sufficient evidence to support trafficking conviction where, when police arrived to execute a search warrant after observing drug sales, police heard people running, stove was warm, the defendant and his wife were leaving the bathroom, and toilet pipes contained a large quantity of crack cocaine); Kirby, supra.


source: Caselaw Access Project

author: Boggs, Judge.

license: Public Domain

text:
    A15A0279.
    THE STATE v. ZILKE.
    (790 SE2d 300)
   Boggs, Judge.

In Zilke v. State, 299 Ga. 232 (787 SE2d 745) (2016), the Supreme Court reversed our opinion in State v. Zilke, 333 Ga. App. 344 (773 SE2d 489) (2015) (physical precedent only). We therefore vacate our earlier opinion and adopt the opinion of the Supreme Court as our own.

Judgment affirmed.

Doyle, C. J., and Phipps, P. J., concur.

Decided August 10, 2016.

Barry E. Morgan, Solicitor-General, Mimi A. Scaljon, Assistant Solicitor-General, for appellant.

Bimal Chopra, Jr.; Steven A. Cook, for appellee.


author: MERCIER, Judge.

text:
    A16A1048.
    JONES v. THE STATE.
    (790 SE2d 301)
   MERCIER, Judge.

A jury found Christopher Jones guilty of distribution of cocaine (two counts). He appeals the conviction and the denial of his motion for new trial, contending in his sole enumeration of error that the trial court abused its discretion by failing to strike a potential juror for cause. Finding no error, we affirm.

Under Georgia law, there is a presumption that potential jurors are impartial, and the burden of proving partiality lies with the party seeking to have the juror disqualified. Furthermore, whether to strike a juror for cause lies within the sound discretion of the trial court, and a trial court is not obligated to strike a juror for cause in every instance in which the potential juror expresses doubts about his or her impartiality or reservations about his or her ability to set aside personal experiences. Indeed, the trial judge is uniquely positioned to observe a potential juror’s demeanor and thereby to evaluate his or her capacity to render an impartial verdict. But the trial court must excuse a potential juror for cause based on the juror’s partiality, if an opinion held by the potential juror is so fixed and definite that the juror will be unable to set the opinion aside and decide the case based upon the evidence or the court’s charge upon the evidence.

Wheeler v. State, 327 Ga. App. 313, 314-315 (1) (758 SE2d 840) (2014) (punctuation and footnotes omitted); see Simon v. State, 320 Ga. App. 15, 22 (3) (739 SE2d 34) (2013).

OCGA § 15-12-164 (a) sets out the test for disqualification for cause in felony cases. If a juror answers any of the questions so as to render [him] incompetent or if [he] is found to be incompetent by the judge, [he] shall be set aside for cause. The court shall also excuse for cause any juror who from the totality of [his] answers on voir dire is determined by the court to be substantially impaired in [his] ability to be fair and impartial. . . . The law presumes that potential jurors are impartial, and the burden of proving partiality is on the party seeking to have the juror disqualified.

Simon, supra (footnotes omitted).

During voir dire in this case, defense counsel posed the following to the prospective jurors: “This is a case about drugs. Has . . . anyone here themselves or a close friend or relative been negatively impacted by drugs in general?” One of the jurors raised his hand. Defense counsel asked the juror to explain his response, whereupon the following colloquy transpired:

[JUROR]: Well, my brother got hooked on crack cocaine and it’s definitely changed the whole dynamics of my family and we’ve been struggling with that dynamic for a long time. . . . And so, you know, I’d like to think that I would be fair and impartial but, you know, there’s probably some bias there.
[DEFENSE COUNSEL]: So, you would have some bias if you sat in this case?
[JUROR]: Well, I would like to think I wouldn’t.
[DEFENSE COUNSEL]: Is it possible that you could?
[JUROR]: It’s possible.
[DEFENSE COUNSEL]: Okay
[PROSECUTOR]: My question of you would be .. . [c]an you just set everything else aside . . . and just listen to the testimony of th[e] witnesses and judge their credibility — And then the Judge is going to tell you what the law in this case is and say what it takes for us to prove these different charges. Can you just clear your mind or set all that aside and listen just to the evidence, and listen to what the judge tells you, and be fair and impartial to both sides, regardless of your brother’s situation?
[JUROR]: I believe I could.
[PROSECUTOR]: You believe you could. Okay.
[DEFENSE COUNSEL]: I have a follow-up to that.... [Y]ou indicated earlier that you would have a bias given the nature of the charge and it being cocaine; is that correct?
[JUROR]: I’m saying that there’s a possibility. I’m not saying that there would be. I’m just saying that the whole psychology of the thing and just, you know, because like I said, that changed the whole dynamics of my family. And I — I would like to think that I’m the type of man that could listen to everything that’s before me, and make a fair and impartial decision.
[DEFENSE COUNSEL]: But given that this has been a long, dynamic change for your family, do you think it’s possible that there could be a bias in this case since it does relate to the actual drug of cocaine? And there is no wrong or right answer.
[JUROR]: Like I said, it’s a possibility But I’m not — I think being the person that I am and that I put God before everything, so I believe that I could make that fair and impartial judgment. But I just wanted to bring it up and let you know that the whole psychology of the thing is that, you know, when you’ve got that going on within your family dynamic, you know, there’s the possibility that, you know, that could enter.
[DEFENSE COUNSEL]: Right, things trigger.
[JUROR]: Yeah.
[DEFENSE COUNSEL]: Okay. So, at this point, it could be a possibility, but you’re not quite sure.
[JUROR]: Yes.

Defense counsel moved to strike the juror for cause, citing the juror’s remark that his brother’s use of cocaine had changed the family dynamics, and asserting that the juror “would never commit. . . one way or the other” when asked about his bias. The trial court noted that the juror had not indicated that he could not be fair and impartial, and denied the motion.

On appeal, Jones contends that the trial court erred by not excusing the juror for cause based on the juror’s statement that “there’s probably some bias,” and his remark that he would put “ ‘God before everything[,]’ instead of the law of the State of Georgia and the instructions” from the trial court. There was no abuse of discretion.

The fact that a potential juror may have some doubt as to his impartiality, or complete freedom from all bias, does not demand as a matter of law that the juror be excused for cause. We will not hold, as a matter of law, that a juror who has fear of, or some trepidation to, or some particular abhorrence to, a specific crime, is per se disqualified for cause as a juror in a trial of that type criminal case.

Harris v. State, 178 Ga. App. 735, 736-737 (1) (344 SE2d 528) (1986) (citations omitted). In this case, the juror expressed “possibl[e]” bias given the nature of the charges. Thus, the fear and doubt he expressed went to the particular offense, not the particular offender. See id.; see also Ellis v. State, 292 Ga. 276, 284 (4) (b) (736 SE2d 412) (2013).

Decided August 10, 2016.

McMillan & Rawlings, Aaron S. Palmer, for appellant.

Moreover, when questioned further, the juror stated that he believed he could base his decision on the evidence and the judge’s instructions, and believed that he could be fair and impartial.

[A] prospective juror’s doubt as to his or her own impartiality does not demand as a matter of law that he or she be excused for cause. For instance, when a potential juror testifies that he or she will “try” to decide the case based upon the court’s instructions and the evidence, excusing that prospective juror for cause is not mandated.

Ellis, supra at 284 (4) (b) (citations and punctuation omitted); see Greenway v. State, 207 Ga. App. 511, 513 (3) (428 SE2d 415) (1993). It is “not an abuse of discretion to seat a juror who questions [his] ability to set aside biases so long as the juror indicates [he] has no unalterable fixed prejudices.” Wheeler, supra at 316 (1) (punctuation and footnote omitted). There was no showing that the juror in this case held an opinion of Jones’s guilt or innocence so fixed and definite that he would be unable to set the opinion aside and decide the case based on the evidence and the court’s charge upon the evidence. See generally Wheeler, supra.

Finally, the juror’s remark that “I put God before everything” cannot reasonably be interpreted as showing a disregard for Georgia law. Rather, when considered in the context in which it was made, and given the presumption that potential jurors are impartial (see Simon, supra; Wheeler, supra), the remark is more reasonably construed as the juror’s attempt to explain his willingness to set aside his possible bias (related to the impact of his brother’s drug use on his family) so that he “could make [a] fair and impartial judgment” in this case.

Accordingly, the trial court did not abuse its discretion in denying Jones’s challenge for cause as to this prospective juror. See Wheeler, supra at 316-317 (1).

Judgment affirmed.

Ellington, P. J., and Branch, J., concur.

L. Craig Fraser, District Attorney, Cheryl A. Banks, Chad A. Pritchett, Assistant District Attorneys, for appellee.


text:
    A16A1058.
    JACKSON v. THE STATE.
    (790 SE2d 295)
   Boggs, Judge.

William Jackson appeals the trial court’s denial of his motion to correct a void sentence, contending that the trial court erred when it (1) failed to impose split sentences on his convictions for child molestation, as required by OCGA § 17-10-6.2 (b), and (2) failed to consider and impose sentences below the statutory minimums, as permitted by OCGA § 17-10-6.2 (c). Because Jackson’s sentences are void for failure to comply with the OCGA § 17-10-6.2 split-sentence requirement, we are constrained to vacate them and remand this case for resentencing.

In 2013, Jackson pled guilty to three counts of child molestation and ten counts of sexual exploitation of a minor. The trial court imposed concurrent 20-year prison sentences on each of the child molestation counts and concurrent sentences of 20 years’ probation on each of the sexual exploitation counts, to be served consecutively to the prison terms. The record contains no indication that Jackson directly appealed his judgment of conviction. In July 2015, Jackson filed a motion to correct a void sentence, which the trial court denied. This appeal followed.

Jackson argues that his sentences are void because the trial court (1) failed to impose split sentences on his child molestation convictions, as required by OCGA § 17-10-6.2 (b), and (2) failed to exercise and “cast upon the record” its discretion to deviate below the statutory minimum sentences, under OCGA § 17-10-6.2 (c). We agree with the first of these contentions and further conclude that Jackson’s sentences for sexual exploitation of children also are void, for the reasons discussed below.

The interpretation of a statute is a question of law, which we review de novo on appeal. State v. Hammonds, 325 Ga. App. 815, 815 (755 SE2d 214) (2014). Atrial court generally may modify a sentence only during the year after its imposition or within 120 days after remittitur following a direct appeal, whichever is later. See OCGA § 17-10-1 (f); Frazier v. State, 302 Ga. App. 346, 348 (691 SE2d 247) (2010). However, “a sentencing court retains jurisdiction to correct a void sentence at any time.” (Punctuation omitted.) McCranie v. State, 335 Ga. App. 548, 554 (4) (782 SE2d 453) (2016). “A sentence is void if the court imposes punishment that the law does not allow.” (Punctuation omitted.) Jones v. State, 278 Ga. 669, 670 (604 SE2d 483) (2004). “When the sentence imposed falls within the statutory range of punishment, the sentence is not void . . . Id.

A person over the age of eighteen who is convicted of a first offense of child molestation is subject to a split sentence, which must include a mandatory-minimum five-year prison term, to be followed by at least one year of probation. OCGA §§ 16-6-4 (b); 17-10-6.2 (a) (5), (b). A person over the age of eighteen who is convicted of sexual exploitation of children likewise is subject to a split sentence, which also must include a mandatory-minimum five-year prison term, to be followed by at least one year of probation. OCGA §§ 16-12-100 (f) (1); 17-10-6.2 (a) (10), (b). A trial court may, however, in its discretion, impose a sentence below the statutory minimum for either offense if it finds the existence of six mitigating factors set forth in OCGA § 17-10-6.2 (c) (1). See OCGA § 17-10-6.2 (a) (5), (10), (c). When a trial court deviates below the mandatory-minimum sentence under OCGA § 17-10-6.2 (c) (1), it must issue a written order setting forth the reasons therefor. OCGA § 17-10-6.2 (c) (2); McCranie, supra, 335 Ga. App. at 555 (4).

A sentence that does not comply with the OCGA § 17-10-6.2 split-sentence requirement is void. See New v. State, 327 Ga. App. 87, 106-109 (5) (755 SE2d 568) (2014). A sentence below the statutory minimum for an offense subject to the split-sentence requirement likewise is void where the trial court fails to enter the required written findings indicating that it was exercising its discretion to impose a downward deviation. McCranie, supra, 335 Ga. App. at 556 (4).

We first note that Jackson’s challenge to the trial court’s failure to consider and impose sentences below the mandatory minimums does not state a void-sentence claim. The failure to deviate — or consider deviating — below a minimum sentence does not render the sentence one “that the law does not allow,” so long as the sentences imposed remain within the range of punishments permitted by law. See Jones, supra, 278 Ga. at 670.

Decided August 10, 2016.

William C. Jackson, pro se.

Ashley Wright, District Attorney, for appellee.

Nevertheless, the sentences imposed for Jackson’s child molestation convictions are void because they do not comply with the OCGA § 17-10-6.2 split-sentence requirement. Thecourtwas required to impose a total sentence on each of these counts that included at least one year of probation. See OCGA §§ 16-6-4 (b); 17-10-6.2 (a) (5), (b). Consequently, Jackson’s 20-year prison sentences are voidbecause they include no probation. See New, supra, 327 Ga. App. at 106-109 (5); see also Spargo v. State, 332 Ga. App. 410, 411-412 (773 SE2d 35) (2015) (holding that 20-year prison sentences for child molestation convictions were void); Clark v. State, 328 Ga. App. 268, 270 (1) (761 SE2d 826) (2014) (same).

Although not raised by either party, we conclude that Jackson’s probation-only sentences for sexual exploitation of children also are void. See von Thomas v. State, 293 Ga. 569, 573 (2) (748 SE2d 446) (2013) (“[A] sentence which is not allowed by law is void, and its illegality may not be waived.”) (punctuation and emphasis omitted). As was the case with Jackson’s child molestation convictions, the trial court was required to impose sentences for his sexual exploitation convictions of at least five years in prison, to be followed by at least one year of probation. See OCGA §§ 16-12-100 (f) (1); 17-10-6.2 (a) (10), (b). By imposing probation-only sentences for these convictions, the trial court deviated below the mandatory-minimum five-year prison sentence, but failed to enter the required written findings regarding each of the OCGA § 17-10-6.2 (c) (1) factors that must be considered when doing so. See OCGA § 17-10-6.2 (c) (2); McCranie, supra, 335 Ga. App. at 555-556 (4). Accordingly, because each of the sentences imposed in this case is void as a matter of law, we must vacate Jackson’s sentences and remand this case for resentencing under OCGA § 17-10-6.2, in accordance with this opinion.

In so holding, we recognize and approve the special concurrence of Judge Ray in New, supra, 327 Ga. App. at 109-110, and vacate and remand this sentence which did not comply with OCGA § 17-10-6.2.

Judgment vacated and case remanded for resentencing.

Barnes, P. J., and Rickman, J., concur.

       Jackson was 45 years old when the trial court sentenced him. The record contains no indication that he previously had been convicted of child molestation.

       A statutory exception for misdemeanor sexual exploitation of children is inapplicable here. See OCGA § 16-12-100 (f) (2), cross-referencing OCGA § 16-12-100 (c).

       A trial court also may deviate below the mandatory minimum when the State and the defendant have agreed upon such a sentence. See OCGA § 17-10-6.2 (c) (1). The record contains no indication of any such agreement in this case.


author: Ray, Judge.

text:
    A16A1341.
    NERO v. THE STATE.
    (790 SE2d 298)
   Ray, Judge.

Keoshamine Lydasia Nero pled guilty to armed robbery, burglary in the first degree, and possession of a firearm during the commission of a crime. After sentencing, Nero moved to withdraw her guilty plea. The trial court denied the motion. Nero now appeals the denial of her motion, contending that her guilty plea was not knowingly and voluntarily entered because she did not understand whether she was charged as a party to or a principal for possession of a firearm during the commission of a crime. For the following reasons, we affirm.

Nero’s indictment arose from an armed robbery of a victim in his home. Prior to the trial court accepting her plea of guilty, the State set forth the factual basis for the plea, including that Nero pretended to be sexually interested in the victim to gain entry to his home and, once inside, unlocked the door, allowing four men with a handgun to enter the victim’s bedroom, where they forced him into a closet, shot at him, and robbed him.

Nero entered a negotiated guilty plea with the assistance of counsel on February 19, 2015. The trial court sentenced Nero to serve the twenty-four years recommended by the prosecution: nineteen years for armed robbery in Count 1, ten years for burglary in the first degree in Count 3 to be served concurrent with Count 1, and five years for possession of a firearm during the commission of a crime in Count 4 to be served consecutive to Counts 1 and 3. After sentencing, Nero filed a motion to withdraw her guilty plea to the charge of possession of a firearm during the commission of a crime. Nero testified at the hearing on her motion to withdraw that she did not understand that she could be charged as a party to the crime of possession of a firearm when she did not carry one during the robbery Nero also testified that “[i]t’s my first offense and I think that I shouldn’t have got 24 years for my first offense.” The trial court denied her motion.

In her sole enumeration, Nero contends that her guilty plea was not freely and voluntarily entered because she did not understand Georgia law regarding being a party to the crime as it related to the charges against her. We disagree.

After sentence is pronounced, whether to allow the withdrawal of a guilty plea lies within the trial court’s sound discretion, and we review the trial court’s decision for manifest abuse of that discretion. On a motion to withdraw a guilty plea, the trial court is the final arbiter of all factual issues raised by the evidence. Where the validity of a guilty plea is challenged, the State bears the burden of showing that the plea was voluntarily, knowingly, and intelligently made. The State may do this by showing through the record of the guilty plea hearing that (1) the defendant has freely and voluntarily entered the plea with (2) an understanding of the nature of the charges against [her] and (3) an understanding of the consequences of [her] plea.

(Citation and footnote omitted.) Carter v. State, 272 Ga. App. 158, 160 (2) (611 SE2d 790) (2005).

Here, the record contains a transcript of the plea hearing, which reveals that the trial court informed Nero that she was waiving her constitutional rights to, inter alia, a trial by jury, to the presumption of innocence, to confront the witnesses against her, and to not incriminate herself. The trial court asked Nero if she was satisfied with her attorney, if she understood that she was pleading guilty and the sentence recommendation, and if everything put in front of her was explained to her. Nero testified that she has ADHD, but a mental evaluation found she did not suffer from any disability that would prevent her from knowing right from wrong and that she was competent to stand trial.

Nero cites to Henderson v. Morgan, 426 U. S. 637 (96 SCt 2253, 49 LE2d 108) (1976), for the assertion that her guilty plea should be withdrawn because it was not explained to her during the plea hearing that she was being charged as a party to the crime or that she was responsible for what the others did during the robbery. Id. at 644- 647 (II) (holding where neither defense counsel nor the trial court explained to the defendant that intent to cause death was an element of second-degree murder, and there was no factual statement or admission implying intent, the plea was involuntary). However, this Court has previously found that the Henderson decision “was unique because the trial judge found as a fact that the element of intent was not explained. . . . This decision does not require the trial judge accepting a guilty plea to personally instruct the defendant of the elements of the crime.” (Citation and punctuation omitted.) Ballard v. State, 150 Ga. App. 704, 706 (3) (258 SE2d 331) (1979).

Further, because Nero testified that her attorney read and discussed the plea agreement with her and she has not challenged her attorney’s effectiveness, it is presumed that her attorney explained the nature of the offense in sufficient detail to give her notice of what she was being asked to admit. Clark v. State, 299 Ga. App. 558, 560 (683 SE2d 93) (2009). See also Scurry v. State, 194 Ga. App. 165, 166 (390 SE2d 255) (1990) (stating where the record reflects that the defendant consulted with his counsel regarding the guilty plea and the defendant has not asserted an ineffective assistance claim, “it may be presumed (subject to rebuttal) that counsel has adequately advised his client regarding the meaning and effect of the subsequently offered plea. And such consultation constitutes an additional factor which may be considered in determining plea validity”) (citation and emphasis omitted).

Decided August 10, 2016.

Jesse W. Owen, for appellant.

Nero also contends that she did not understand whether she was charged as a party or as a principal to the crimes because the indictment did not indicate such. Although the indictment did not indicate whether Nero was charged as a party or principal, it is not required in Georgia that the State “indicate in the indictment that it is charging a person as a party to the crime.” (Citations and punctuation omitted.) Riley v. State, 292 Ga. App. 202, 204 (1) (663 SE2d 835) (2008). See also Frady v. State, 275 Ga. App. 677, 680 (2) (621 SE2d 799) (2005) (“[a] person need not directly commit a crime to be charged and convicted of that crime, for every person concerned in the commission of a crime is a party thereto and may be charged with and convicted of commission of the crime”) (punctuation and footnote omitted).

The record reflects that Nero understood both the nature of the charges and the amountoftimerecommendedfor sentencing. Although Nero testified otherwise at the hearing on her motion to withdraw her plea, because the trial court is the final arbiter on all factual questions, “any contradiction between [Nero’s] testimony during the plea hearing and [her] testimony during the motion hearing is a matter of witness credibility, which the trial court was authorized to decide against [her].” (Citation and punctuation omitted.) Green v. State, 324 Ga. App. 133, 136-137 (2) (749 SE2d 419) (2013). Therefore, because the record supports the trial court’s finding that the plea was given freely and voluntarily, the trial court did not abuse its discretion in denying Nero’s motion to withdraw her guilty plea.

Judgment affirmed.

Doyle, C. J., and Andrews, R J., concur.

Ashley Wright, District Attorney, Joshua B. Smith, Assistant District Attorney, for appellee.

       “[A] guilty plea involves the waiver of . . . the privilege against compulsory self-incrimination, the right to trial by jury, and the right to confront one’s accusers. . .. The record must disclose the accused’s voluntary waiver of those constitutional rights.” Whitesides v. State, 266 Ga. App. 181, 186 (1) (596 SE2d 706) (2004).


author: Rickman, Judge.

text:
    A16A1056.
    OXFORD v. FULLER.
    (790 SE2d 303)
   Rickman, Judge.

A mother appeals from a trial court order modifying custody of her minor children from joint legal and physical custody shared with the children’s father to a custody arrangement whereby primary physical custody and final decision making authority alternate annually and automatically The mother contends that the trial court erred by entering the custody order because it is self-executing without making a determination as to whether the custody change is in the best interests of the children and there is no evidence that the terms of the order are in the best interests of the children. F or the following reasons, we reverse the judgment and remand for further proceedings consistent with this opinion.

On appeal from a trial court’s determination in a custody dispute, we defer to that court in all matters of fact: When considering a dispute regarding the custody of a child, a trial court has very broad discretion, looking always to the best interest of the child. This Court will not interfere unless the evidence shows a clear abuse of discretion, and where there is any evidence to support the trial court’s finding, we will not find there was an abuse of discretion.

(Citation and punctuation omitted.) Bankston v. Warbington, 332 Ga. App. 29 (771 SE2d 726) (2015).

So viewed, the record shows that there are three children at issue, twin girls who were born on November 15,2006, and a boy born on June 15, 2009. In a June 2012 divorce compromise and settlement agreement, the parties agreed that they would share joint legal and physical custody of the children and follow a week-to-week custodial arrangement schedule. There was a provision in that agreement that the mother “agree[d] to live and reside in Upson County, Georgia, or any County which is contiguous to Upson County, until further order of the [trial court].”

In January 2013, the mother moved to Coweta County with her current husband because she was offered more lucrative employment. In February 2014, the mother filed, in Upson County, the instant petition for a change of custody and child support, alleging, inter alia, that her move was a change in circumstances materially affecting the welfare of her children. In response to that petition, the father filed a petition for modification of custody in Coweta County The father’s petition was transferred to Upson County.

At the April 2015 trial on both petitions, the court heard testimony that since the divorce, the mother had attended nursing school, which increased her employment opportunities, and she had remarried. Insurance for the children is provided by the mother and her new husband. The trial court heard testimony that the mother was more financially stable than the father.

Both of the girls testified at the trial that they liked staying with both parents. One of the girls testified that when she was with her father she could not speak with her mother as much as she would like, and that her father would not let her go home with her mother when she was injured.

The trial court heard testimony from the mother and the father that the father would not allow the children to participate in extracurricular activities because of the week-to-week custody arrangement.

The trial court heard testimony from two guardians ad litem, Elizabeth Hiatt and Elizabeth Fordham. Hiatt testified that her “recommendation was for [the mother] to have custody.” Hiatt based this recommendation on her home evaluation, “circumstances regarding the children,” and that “the children are taken care of primarily by [the mother].” However, Fordham testified that her recommendation was that “[the mother’s] request to have the children full-time be denied. At a minimum . . . the arrangement should stay the way that it is.” Fordham further testified that she would not object to the father being primary custodian. Fordham testified that she had never interviewed the mother, but she recognized that the mother “had a really good job, and that [the mother] was in a really good house, and that she’s been married, and their marriage was stable.” Fordham acknowledged that Hiatt had been in both parties’ homes while she had not, and she agreed that generally a person who interviews both parents and sees both of their homes would have a better understanding of the comparison between the two.

Prior to the close of the evidence the trial court stated:

[T]he children shouldn’t lose by saying oh, my gosh, we’re only going to see mommy every other weekend. That can still happen. The kids shouldn’t lose by saying oh, my gosh, we’re only going to get to see dad every other weekend. You know, those would both be horror stories for you. But, logistically, the week to week is also something that is a little bit difficult, okay? So, here is what I’m thinking about doing. I’ve done this once before and never heard back from the people that it didn’t work. And, I’ve seen people agree to this once before, and never heard back that it didn’t work. And, that is, instead of dividing custody week to week, divide it year to year. And, the reason that could happen is because we now have, I think, a common core curriculum. And, I think the curriculum all across Georgia is about the same ... [T]he kids are going to have friends in both places.

The trial court asked the attorneys if they had discussed the possibility of a year-to-year custody arrangement, and the father’s attorney responded, “No, sir.” The trial court replied, “No surprise. That’s why I do what I do.” At the conclusion of the evidence, the mother’s attorney expressed concerns about the proposed year-to-year custody arrangement, including concerns about the children changing schools every year. The trial court responded, “[A]ren’t you ignoring that there are also benefits in being a new kid in school?” The trial court further stated, “Show me how [the year-to-year custody arrangement] is harmful.”

Following the trial, the court entered an order providing:

[The] [m] other shall have primary physical custody of and final decision making authority for said minor children beginning July 1, 2015, at noon until July 1, 2016, at noon at which time the [f]ather shall have primary physical custody and final decision making authority for the minor children until July 1, 2017, at [n]oon; and shall continue this annual alternation of primary physical custody and final decision making authority each year changing over on July 1st at [n]oon for said minor children until each respectively attains the age of eighteen years, graduates high school, marries or otherwise becomes emancipated.

It is from this order that the mother now appeals.

1. The mother contends that the trial court erred by entering the custody order because it is self-executing without making a determination as to whether the custody change is in the best interests of the children. We agree.

“Self-executing change of custody provisions allow for an ‘automatic’ change in custody based on a future event without any additional judicial scrutiny.” Scott v. Scott, 276 Ga. 372, 373 (578 SE2d 876) (2003). Our Supreme Court has held that,

[wjhile self-executing change of custody provisions are not expressly prohibited by statutory law ... any such provision that fails to give paramount import to the child’s best interests in a change of custody as between parents violates this State’s public policy as expressed in OCGA § 19-9-3.

Id. at 375.

The trial court’s order changes the parent who “will have primary physical custody of and final decision making authority” for the children each year on July 1 until each of the children “attains the age of eighteen years, graduates high school, marries or otherwise becomes emancipated” without any “determination whether the custody change is in the best interest of the parties’ [children] at the time the change would automatically occur.” Scott, 276 Ga. App. at 377. In the absence of an annual hearing prior to the change in custody,

[the order] violates this State’s public policy as expressed in OCGA § 19-9-3 that a trial court take into account the factual situation at the time the custody modification is sought, with the court’s “paramount concern” always remaining the best interests and welfare of the minor child.

(Citation and punctuation omitted.) Bankston, 332 Ga. App. at 35 (2) (reversing a self-executing provision automatically changing custody after 18 months). See Scott, 276 Ga. at 377 (vacating divorce decree with direction that the trial court set aside provision therein which automatically transferred physical custody to the father in the event the mother moved outside of her county of residence); see also Dellinger v. Dellinger, 278 Ga. 732, 736 (1) (609 SE2d 331) (2004) (reversing trial court’s order imposing a self-executing change in visitation should the mother move more than 35 miles outside her county of residence). Compare Lester v. Boles, 335 Ga. App. 891, 893 (1) (782 SE2d 53) (2016) (finding no abuse of discretion in self-executing provision that was not open-ended or arbitrary and “gave paramount import to the child’s best interests”) (punctuation and footnote omitted). Therefore, we reverse the trial court’s order.

Decided August 11, 2016.

Bennett Law, Scott D. Bennett, for appellant.

2. The mother contends that the trial court erred by entering the custody order because there was no evidence that the terms of the order are in the best interests of the children. We agree.

Pursuant to OCGA § 19-9-3 (a) (2), when determining the issue of custody of minor children, “[t]he duty of the judge . . . shall be to exercise discretion to look to and determine solely what is for the best interest of the child and what will best promote the child’s welfare and happiness and to make his or her award accordingly.”

In the instant case, the effect of the trial court’s order is to require the children to change schools, homes, school friends, and extracurricular activities every year. There was no evidence presented that these changes would be in the best interest of the children. Both guardians ad litem had finished their testimony before the trial court pronounced that it was considering an annual change in custody Neither guardian ad litem recommended an annual change in custody or testified as to what effect an annual change in custody would have on the children. Furthermore, while the trial court believed that there are benefits to being the new kid in school, no evidence was presented that changing schools every year would be in the best interest of these children.

Because there is no evidence in the record to support a finding that the best interests of the children would be served by the annual change in custody, we reverse the trial court’s order and remand for the trial court to further consider this issue consistent with this opinion. See Lifsey v. Lifsey, 256 Ga. 613, 614 (2) (351 SE2d 637) (1987) (“There is no evidence in the record that might support findings that the best interests of the children will be served by requiring that they change residences, school systems, circles of friends, activities, and states on a yearly basis.” (emphasis in original)); see also Steed v. Deal, 225 Ga. App. 35, 36 (3) (482 SE2d 527) (1997) (“[Tjhere is no evidence in the record that might support a finding that the best interest of the child will be served by requiring that he change residence, school system, special education teachers, doctors, therapists, circle of friends, activities, and states on a yearly basis.”).

Judgment reversed and case remanded.

Barnes, P. J., and Boggs, J., concur.

Kimmey & Murphy, J. Lansing Kimmey III, J. Craig Murphy, for appellee.

       Hiatt was appointed to investigate the mother, and Fordham was appointed to investigate the father.


author: Barnes, Presiding Judge.

text:
    A16A1034.
    FLOYD v. BROWN.
    (790 SE2d 307)
   Barnes, Presiding Judge.

Shauntia Floyd appeals from the order of the trial court awarding sole legal and physical custody of her two children to the children’s father, Jermaine Brown. Upon our review, we affirm.

A petition to change child custody should be granted only if the trial court finds that there has been a material change of condition affecting the welfare of the child since the last custody award. If there has been such a change, then the court should base its new custody decision on the best interest of the child. The evidence sufficient to warrant a modification of custody can consist of a change in material conditions which have a positive effect on the child’s welfare as well as changes which adversely affect the child.

(Citations and punctuation omitted.) Viskup v. Viskup, 291 Ga. 103, 105 (2) (727 SE2d 97) (2012). See also OCGA § 19-9-3 (b). “A trial court faced with a petition for modification of child custody is charged with exercising its discretion to determine what is in the child’s best interest.” (Citation and punctuation omitted.) Blumenshine v. Hall, 329 Ga. App. 449, 450 (1) (765 SE2d 647) (2014). Moreover,

[a] court’s determination that there has been a material change in condition supporting a modification of custody will be affirmed on appeal absent abuse of discretion, and where there is any evidence to support the trial court’s ruling, a reviewing court cannot say there was an abuse of discretion.

(Citation and punctuation omitted.) Id.

The record reflects that Brown and Floyd were married in 2009 and divorced in 2010. After the divorce, Floyd was awarded sole legal and physical custody of their two children who were born before the couple married. The two children were placed in Brown’s temporary custody after Floyd was incarcerated for aggravated assault, aggravated battery, and cruelty to children after allegedly breaking the arm of one of her other children. On July 28, 2014, the children were returned to Floyd’s custody, after which, on September 30, 2014, Brown filed a complaint for modification of custody and child support seeking primary physical custody of the children. Brown later amended the complaint to seek “sole legal and physical custody” of the children. On March 31, 2015, after Floyd failed to appear for a 30-day status conference, the trial court entered a temporary order finding that “[u]pon evidence presented ... it is in the best interest of the . . . children . . . that [Brown] have sole legal and physical custody of the minor children.”

Following a hearing, which is not included in the record, the trial court granted Brown sole legal and physical custody of the children in a final order entered on November 18, 2015. In its final order, the trial court noted that Floyd had been arrested “multiple times” since the original custody determination, including arrests for battery, harassing phone calls, criminal trespass, reckless conduct, and her most recent arrest for aggravated assault, aggravated battery, and cruelty to children. It further found that, in contrast, Brown had a safe and stable home for the children, no history of arrests, and was employed with a stable job and income.

1. This Court has consistently warned pro se appellants about the hazards inherent in proceeding pro se on appeal. Central to those warnings is that “[proceeding pro se does not relieve [Floyd] of [her] obligation to comply with the rules of this Court.” Goodman v. State, 313 Ga. App. 290, 291 (717 SE2d 496) (2011). “Our requirements as to the form of appellate briefs were created, not to provide an obstacle, but to aid parties in presenting their arguments in a manner most likely to be fully and efficiently comprehended by this Court.” Aldalassi v. Drummond, 223 Ga. App. 192 (1) (477 SE2d 372) (1996).

Here, there is no statement of the proceedings below, no statement of facts, nor is there one specific reference to the record or transcript in the entirety of Floyd’s appellate brief. The brief does not contain any appreciable enumerated errors, argument, or substantive legal analysis. Especially troubling in this case is that Floyd’s appellate “brief” is a two-page form document which, although purportedly following the structure prescribed for appellate briefs as outlined in our rules, fails to provide the required content of an appellate brief. See Court of Appeals Rule 25 (a), (c). The first line of the document, denoted as “Form 7” and titled, “Brief of Appellant,” states, “COMES NOW Appellant_[Plaintiff/Defendant] below, and files this brief on appeal.” The form has four divisions: “Part One Facts,” “Part Two Enumeration of Errors,” “Part Three Standard Review,” and, last, “Argument and Citation of Authorities.” There is a space with between five and six lines under each division, and Floyd handwrote information in the space allotted for each section.

In the space provided for the section entitled “Part One Facts,” the brief states in total:

Onthe28th day of July 2014... Floyd was awarded back custody of my two children . .. from them living temporarily with... Brown from me being incarcerated on felony charges from my daughter [K. F.]. There was anger management in place, psychological, parental fitness evaluation, domestic violence evaluation, etc.

Under the section entitled “Part Two Enumeration of Errors” is written:

Jermaine Brown father of my two children . . . filed a modification of custody back of his two children because he didn’t like or accept the fact that custody was returned back to me .... So unfairly he files all type of paper from Dekalb to Fulton County with all these [illegible] excuses to win custody of my babies.

In the space provided for the “Part Three Standard Review” Floyd states:

Due to substantial reasons of custody being turned over to the father .. . the case was not thoroughly and completely evaluated, neither was [there] a matter that I was found or deemed to be unfit to parent my children. He was just granted legal, physical, and sole custody of the two of our kids. . . .

And in the space under the section entitled “Argument and Citation of Authorities,” the brief simply states:

Jermaine’s attorney . . . argued that my two sons and I had criminal cases, which didn’t have anything to do with any physical harm or threat to the minor kids. .. . [A]lso the [guardian] ad litem used my information as her form of decision based on other allegations etc.

While certainly form documents can sometimes provide helpful guidance in certain routine legal matters, especially if there is informed help in filling out the form, it is clear that in this case, Floyd did not understand the actual content required for each part of an appellate brief. Instead, she relied on the false assumption that by writing something in each section of the “Brief of Appellant” form, she was satisfying our appellate brief requirements. We reiterate that proceeding pro se does not relieve Floyd of the obligation to comply with the rules of this Court. Goodman, 313 Ga. App. at 291. See Court of Appeals Rule 25 (a) (an appellant’s brief “shall contain a succinct and accurate statement of the proceedings below and the material facts relevant to the appeal and the citation of such parts of the record or transcript essential to a consideration of the errors complained of”); Rule 25 (c) (2) (“Any enumeration of error which is not supported in the brief by citation of authority or argument may be deemed abandoned.”); and Rule 25 (c) (2) (i) (“Each enumerated error shall be supported in the brief by specific reference to the record or transcript. In the absence of such reference, the Court will not search for or consider such enumeration.”).

However, our Supreme Court has emphasized:

In addition to the statutory mandate that the [Appellate Practice Act] be “liberally construed so as to bring about a decision on the merits of every case appealed and to avoid... refusal to consider any points raised therein” (OCGA § 5-6-30), the legislature, in enacting OCGA § 5-6-48 (f), has imposed on the appellate courts a statutory duty to discern what errors an appellant is attempting to articulate.

Felix v. State, 271 Ga. 534, 538 (523 SE2d 1) (1999). Further, OCGA § 5-6-48 (f) directs:

Where it is apparent from the notice of appeal, the record, the enumeration of errors, or any combination of the foregoing, what judgment or judgments were appealed from or what errors are sought to be asserted upon appeal, the appeal shall be considered in accordance therewith notwithstanding that... the enumeration of errors fails to enumerate clearly the errors sought to be reviewed.

Decided August 12, 2016.

Shauntia Floyd, pro se.

Jermaine Brown, pro se.

(Emphasis supplied.)

2. Mindful of this direction, Floyd appears to assert on appeal that the trial court erred in granting Brown’s petition for modification of custody and child support. However, any claim of error found to be unsupported by authority or argument will be deemed abandoned under Rule 25 (c) (2). Additionally, notwithstanding her failure to provide any cognizant support for this claim, we also note that “[i]n accordance with the presumption of the regularity of court proceedings, we must assume in the absence of a transcript that there was sufficient competent evidence to support the trial court’s findings.” (Citations and punctuation omitted.) Reed v. Reed, 295 Ga. 574, 578 (2) (761 SE2d 326) (2014).

Accordingly, based upon the evidence described in its order, the trial court was authorized to conclude that there had been a material change in condition since the parties’ divorce supporting a modification of custody and that it was in the best interest of the children for custody to be awarded to Brown. See Blumenshine, 329 Ga. App. at 450 (1); see also Vines v. Vines, 292 Ga. 550, 552 (2) (739 SE2d 374) (2013) (“Where there is any evidence to support the trial court’s ruling, a reviewing court cannot say there was an abuse of discretion.”).

Judgment affirmed.

Boggs and Rickman, JJ., concur.

       Brown’s petition to legitimate the two children was granted in November 2009.

       Floyd has five older children who are not Brown’s children.

       Floyd was present at the hearing and represented herself.

       The second page of the document is the certificate of service.


author: Miller, Presiding Judge.

text:
    A16A0745.
    BARTON v. THE STATE.
    (790 SE2d 538)
   Miller, Presiding Judge.

This is Paul Barton’s second pro se appeal arising from his 2013 conviction for two counts of sexual battery, including one count against a child under the age of sixteen (OCGA § 16-6-22.1). Barton was sentenced by the trial court to two consecutive five-year terms. Barton now appeals from the denial of his motion to set aside his sentence, contending that the trial court erred when it failed to sentence him to a split sentence, which would have included at least one year of probation, as required by OCGA § 17-10-6.2 (b). We agree fully. Accordingly, we vacate Barton’s sentence and remand this case to the trial court for resentencing.

“A person convicted of the offense of sexual battery against any child under the age of 16 years shall be guilty of a felony and, upon conviction thereof, shall be punished by imprisonment for not less than one nor more than five years.” OCGA § 16-6-22.1 (d).

Here, Barton entered a negotiated guilty plea to two counts of sexual battery, including one count against a child under the age of sixteen, and the trial court sentenced him to two consecutive five-yearterms. Barton’s sentence was governed by OCGA § 17-10-6.2 (b), which pertinently provides:

. . . [A]ny person convicted of a sexual offense shall be sentenced to a split sen tence which shall include the minimum term of imprisonment specified in the Code section applicable to the offense. No portion of the mandatory minimum sentence imposed shall be suspended, stayed, probated, deferred, or withheld by the sentencing court and such sentence shall include, in addition to the mandatory imprisonment, an additional probated sentence of at least one year. . . .

(Emphasis supplied.) See also Hedden v. State, 288 Ga. 871, 873-874 (708 SE2d 287) (2011).

“A sentence is void if the [trial] court imposes punishment that the law does not allow.” (Citations and punctuation omitted.) Rooney v. State, 287 Ga. 1, 2 (2) (690 SE2d 804) (2010). The trial court had jurisdiction to correct Barton’s void sentence, and Barton was entitled to directly appeal the denial of his motion to correct his sentence. Id. at 2-3 (2); see also Williams v. State, 271 Ga. 686, 689 (1) (523 SE2d 857) (1999).

In this case, the underlying offenses were two counts of sexual battery, including one count against a child under the age of sixteen; OCGA § 17-10-6.2 required the trial court to impose a split sentence that included a mandatory minimum sentence of at least five years of imprisonment and at least one year of supervised probation. Here, although Barton’s sentence fell within the applicable statutory range set forth in OCGA § 16-6-22.1, the trial court failed to impose a split sentence. See Spargo v. State, 332 Ga. App. 410, 411 (773 SE2d 35) (2015); New v. State, 327 Ga. App. 87, 108 (5) (755 SE2d 568) (2014). Consequently, we vacate Barton’s sentences for the two counts of sexual battery and remand this case for resentencing.

Decided August 15, 2016.

Paul Barton, pro se.

Leigh E. Patterson, District Attorney, Harold W. Goldin, Jr., Assistant District Attorney, for appellee.

Judgment vacated and case remanded for resentencing.

McFadden and McMillian, JJ., concur.

       In Barton v. State, 331 Ga. App. 887 (769 SE2d 96) (2015), this Court affirmed the denial of Barton’s motion to withdraw his guilty plea.

       Barton was convicted of two crimes charged in the same indictment. Accordingly, as the trial court correctly noted, Barton is deemed to have only one conviction for recidivist purposes.


author: Ellington, Presiding Judge.

text:
    A16A0852.
    MORDECAI et al. v. CAIN.
    (790 SE2d 539)
   Ellington, Presiding Judge.

A Cobb County jury returned a plaintiff’s verdict in this motor vehicle collision case brought by Barbara Mordecai against Michael Cain. Mordecai appeals, contending that the trial court erred in failing to qualify the prospective jurors with regard to State Farm Mutual Automobile Insurance Company, her uninsured motorist coverage carrier, and in excluding evidence that Cain pled guilty to driving on the wrong side of the road. For the reasons explained below, we reverse.

1. Mordecai contends that the trial court erred in denying her request to have prospective jurors qualified in the courtroom during voir dire with regard to State Farm, her uninsured motorist insurance carrier.

The records show the following. On May 18, 2015, Cain and State Farm moved in limine to “[e]xclud[e] any questioning in Voir Dire by counsel concerning insurance unless the prospective jurors have stated, in response to an inquiry concerning current employment, that they presently work for an insurance company” Later that day, the parties filed a proposed consolidated pretrial order. Paragraph 4 of the pretrial order reads as follows:

The jury will be qualified as to relationship with the following: [] William Mordecai, Barbara S. Mordecai, Michael Anthony Cain and... officers, directors, employees or policy holders of . . . State Farm ... to determine if any juror is related by consanguinity (blood) or affinity (marriage) within the sixth degree according to the civil law. The jurors should also be qualified as to such relationship with the following attorneys and witnesses

listed there. Paragraph 4 then indicates that Cain and State Farm “objected] to the jury being qualified as to . . . State Farm as [it has] no financial interest in the case.” Cain and State Farm requested that, if the court elected to qualify the prospective jurors concerning insurance, qualification occur “outside the courtroom and in the jury assembly area prior to trial.” In the same paragraph of the consolidated pretrial order, Paragraph 4, Mordecai asserted that because “this is an uninsured motorist case . . . State Farm clearly has a financial interest in the case.” In addition, Mordecai asserted, “[a]s to State Farm . . . , the jury should be qualified as to whether any juror is an officer, director, employee [or] policyholder. The jury should be qualified in the courtroom, not the jury assembly room, so counsel can explore their answers.” (Citation omitted.)

At the beginning of the trial on July 27, 2015, the trial court first took up the motion in limine. The judge informed counsel that, “with respect to . . . the insurance, this is the question that was asked” by the jury assembly administrator to all prospective jurors in the jury assembly room: “Are you an officer, employee, stockholder, agent, director, or policyholder of State Farm Automobile Mutual Insurance?” Mordecai’s counsel asked about following up on affirmative answers. The judge responded, “I have not been advised that anyone answered yes[ ] to that question.” The judge then took up certain evidentiary matters in the pretrial order.

Next, the court turned to jury selection and asked counsel to identify the persons and entities about which they wished the court to ask the prospective jurors qualifying questions. After listing the parties, their attorneys, and two nonparty witnesses, the judge continued “[ojfficers, directors, employees or policyholders of the State Farm — State Farm has been done. I can do it again.... I don’t know why I would need to, but I’ll be glad to hear from [Mordecai’s counsel], if you need to.” Mordecai’s counsel responded, “If there are no people that are officers of State Farm, we don’t need to go any further than that.” The judge summarized that he would qualify the jury as to Mordecai, her husband, Cain, the attorneys and law firms, and the witnesses.

The trial court called for a panel of 27 prospective jurors to be brought to the courtroom and posed qualifying questions, asking if any were related to the parties, their attorneys, and the witnesses. None of the prospective jurors responded positively, and the trial court moved on to voir dire examination of the prospective jurors by counsel.

After the voir dire examination, and before beginning jury selection, the judge called counsel to the bench. Mordecai’s counsel “asked that the panel be qualified as to State Farm,” and Cain’s counsel “objected on the grounds the jurors had been qualified as to State Farm ... in the jury assembly area.” The trial court “denied [Morde-cai’s] request to qualify the prospective jurors as to State Farm ... in the courtroom, but agreed to have the jury assembly administrator explain how the panel was qualified as to State Farm ... in the jury assembly area.” Next, the trial court directed counsel to exercise peremptory strikes to select 12 jurors. The trial court administered the oath, impaneling the jury Opening statements followed, and the trial court directed Mordecai’s counsel to call his first witness.

After Mordecai’s husband testified, and when the jury was outside the courtroom, the trial court summoned to the courtroom the jury assembly administrator, who had polled the prospective jurors in the jury assembly room. The court asked the administrator on the record what question she had asked in the jury assembly room about State Farm. She replied, as the trial court had already informed counsel at the pretrial hearing, that she read the following to the entire group: “Are you an officer, employee, stockholder, agent, director or policyholder of State Farm Automobile Mutual Insurance Holding?” She said that every prospective juror who answered “yes” was excluded from the panel that was sent to the courtroom for voir dire in Mordecai’s case. The court asked Mordecai’s counsel if his inquiry was satisfied. Mordecai’s counsel responded, “It satisfied my inquiry. I’m not sure that satisfies the law. I think they have to be questioned in the courtroom.” The jury was then brought back into the courtroom, and the trial continued.

In response to Mordecai’s appellate argument, Cain contends that the trial court qualified the prospective jurors as to State Farm through the procedure of having the jury assembly administrator pose the question to them in the jury assembly room and that the trial judge was not required to personally qualify the prospective jurors a second time in the courtroom. In addition, Cain contends that, because Mordecai’s counsel did not renew his objection to the selected jury after the jury assembly administrator’s appearance in court, she waived any disqualification objection she may have had. He argues that Mordecai’s “decision to seat a jury and allow the trial to proceed^] without the issues concerning jury qualifications resolving, constitutes a waiver of the right to challenge their qualification [,] and it is conclusively presumed that no harm resulted.” We disagree.

It is the longstanding rule in Georgia that, to ensure the right of trial by an impartial jury, a party to a civil case is entitled to have the jury qualified by the court as to any insurance carrier with a financial interest in the case. It is an equally longstanding Georgia rule that where a civil jury was not properly qualified in this way, and where the party seeking such qualification has properly preserved the issue for review, prejudice to that party will be presumed, and in the absence of proper rebuttal, a new trial must be ordered.

(Citations omitted.) Ford Motor Co. v. Conley, 294 Ga. 530, 550 (3) (b) (757 SE2d 20) (2014).

Qualifying each prospective juror as to a possible relationship with a nonparty liability insurer that has an interest in the outcome of the case must be done “before the parties begin to strike a jury[,]” because the parties have “the right to a panel of impartial [prospective] jurors from which to select the trial jury.” (Punctuation, footnotes and emphasis omitted.) Lewis v. Emory Univ., 235 Ga.App. 811, 813-814 (1) (509 SE2d 635) (1998). See also Atlanta Coach Co. v. Cobb, 178 Ga. 544, 555 (174 SE 131) (1934) (accord).

In addition, qualifying each prospective juror as to insurers if requested must be done in open court in the presence of the parties (and counsel), because a party has the right to examine prospective jurors upon the questions of their qualification, including questions regarding disqualifying ties to insurance companies. Ford Motor Co. v. Conley, 294 Ga. at 550-551 (3) (b); Atlanta Coach Co. v. Cobb, 178 Ga. at 552. See also Lewis v. Emory Univ., 235 Ga. App. at 813-814 (1) (a party is entitled to have prospective jurors examined by counsel). Cain argues that “Georgia Courts have made clear that the decision of when and where to qualify the prospective jurors is in the sound discretion of the presiding judge.” Cain cites to two cases from this Court which discuss in dicta the concern that questioning prospective jurors as to potentially disqualifying relationships with insurers improperly informs them that the interest of an insurance company is at stake, which is irrelevant to the issues before them: Patterson v. Lauderback, 211 Ga. App. 891, 895-896 (3), n. 2 (440 SE2d 673) (1994), overruled on other grounds by Warren v. Ballard, 266 Ga. 408 (467 SE2d 891) (1996); and Franklin v. Tackett, 209 Ga. App. 448, 450-455 (433 SE2d 710) (1993) (Beasley, P. J., concurring specially). In Patterson v. Lauderback, we suggested that one “practical solution[ ] to the problem ... is to utilize the written juror questionnaires now commonly in use to discover such disqualifications rather than doing so orally in the presence of all jurors.” Patterson v. Lauderback, 211 Ga. App. at 895-896 (3), n. 2. In Atlanta Coach Co. v. Cobb, however, the Supreme Court of Georgia addressed “the right to examine the jurors in open court upon the question of their qualification, where they could be permitted to testify either pro or con in relation thereto.” (Emphasis supplied.) 178 Ga. at 552. Although the Supreme Court has not directly been presented with the issue “whether there is any way to adequately qualify jurors in civil cases as to a defendant’s potentially liable insurers short of directly asking the jurors about relationships with the particular insurance companies at issue[,]” the Supreme Court recently recognized Atlanta Coach Co. v. Cobb as the seminal case in Georgia regarding jury qualification as to a defendant’s insurance carriers and found “no compelling reason” to now change the law established therein. Ford Motor Co. v. Conley, 294 Ga. at 555-556 (3) (b) (3). Accordingly, we conclude that existing precedent establishes that, when a party requests that qualification of prospective jurors be done during voir dire and in open court, the trial court’s discretion when and where to qualify them is, in fact, limited. That is, although so-called “prequalification” may be permitted, a party who asks that qualification of prospective jurors be done during voir dire and in open court is entitled to that procedure, regardless whether prospective jurors are prequalified by a court employee before they are sent to the courtroom. In this case, Mordecai specifically requested before trial that the judge question the prospective jurors, in the courtroom and in the presence of counsel, about disqualifying relationships with State Farm by so stating in the paragraph designated in the standard form pretrial order for jury qualification issues. See id. at 556 (4) (The requirement in the trial court rules that each party “file a proposed pretrial order in which the party must, among other things, complete the statement: ‘The jury will be qualified as to relationship with the following:_’. . . allows a party to list all of the individuals and entities, including insurers, that the party wants the court to consider in qualifying the jury [^’(emphasis omitted)).

Atrial court’s failure to qualify prospective jurors with regard to a particular relationship may be waived by a party’s failure to object when the trial court omits the question at trial. In this case, Mordecai specifically requested before trial that the trial court qualify prospective jurors as to State Farm in the courtroom and asserted her right to have counsel explore their answers. As Cain has expressly stipulated, after the trial judge posed qualification questions to the prospective jurors, omitting the question about State Farm, and before jury selection, Mordecai repeated her request that the prospective jurors be qualified as to State Farm in the courtroom, Cain objected, and the trial court denied the request. We conclude that this was sufficient under the circumstances to preserve for appellate review the trial court’s error in failing to qualify the prospective jurors as Mordecai requested. Cain’s argument that Mordecai willingly decided to proceed with seating the jury and trying the case with the issue concerning jury qualifications unresolved is defeated by the parties’ stipulation. The issue was resolved when the trial court denied Mordecai’s request and directed counsel to select the jury Furthermore, we find no basis for concluding that the trial court’s action of summoning the jury assembly administrator to the courtroom in the middle of Mordecai’s case-in-chief to have her describe what had transpired in the jury assembly room triggered any requirement that Mordecai renew her request that the prospective jurors be properly qualified. This would be nonsensical, given that the trial court had declared all 27 prospective jurors qualified, 12 of them had been selected, sworn, and impaneled, and the remaining 15 released. See Lewis v. Emory Univ., 235 Ga. App. at 813-814 (1). Absent any requirement that Mordecai at that time renew her objection to the trial court’s error, we conclude that her counsel’s somewhat equivocal statement, “I’m not sure that satisfies the law. I think they have to be questioned in the courtroom[,]” did not operate to waive the error.

The trial court’s failure to qualify the jury as requested by counsel entitles Mordecai to a new trial. Ford Motor Co. v. Conley, 294 Ga. at 556 (3) (c); Atlanta Coach Co. v. Cobb, 178 Ga. at 554. Accordingly, the judgment is reversed.

We will address any remaining claims of error that bear on evidentiary matters likely to recur at any subsequent retrial of the case. See Toler v. Ga. Dept. of Transp., 328 Ga. App. 144, 149 (1) (761 SE2d 550) (2014).

2. Mordecai contends that the trial court erred in denying her request to introduce a certified copy of Cain’s bond forfeiture to the charge of driving on the wrong side of the road as evidence that he entered a guilty plea to that charge. In a related claim of error, Mordecai contends the trial court improperly directed defense counsel to instruct Cain to change his trial testimony “The decision to admit or exclude evidence is committed to the sound discretion of the trial court and will not be disturbed on appeal absent a clear abuse of discretion.” (Citation and punctuation omitted.) Trotman v. Velociteach Project Mgmt., 311 Ga. App. 208, 215 (8) (715 SE2d 449) (2011).

In this case, the record shows that before trial Cain stipulated that he was driving in the wrong direction and collided head-on into Mordecai’s vehicle and that he was negligent in causing the wreck; that is, that he owed Mordecai a duty of care and that he breached that duty in the manner alleged. Cain moved in limine to exclude “any evidence as to the timing of [his] admission that he caused the accident.” Before trial, the trial court granted the motion on the basis that, because Cain had stipulated that he owed Mordecai a duty and breached that duty, the timing of his admission was irrelevant.

At trial, Mordecai’s counsel asked Cain whether he acknowledged that he had crossed the centerline, and Cain responded that he had no recollection of the event. Mordecai’s counsel asked to approach the bench. The court had the jury removed from the courtroom and told Cain’s counsel that either Cain could acknowledge being at fault or the court would allow Mordecai to introduce evidence of his guilty plea, which had previously been excluded. The court then asked Cain’s counsel if he wanted to talk with Cain, and counsel said, “yes.” Defense counsel conferred with his client and informed the court that Cain understood that his testimony was inconsistent with the legal position he had taken in obtaining the limine ruling, that he acknowledged his fault, and that he would correct his testimony when the trial resumed. The judge emphasized that he was not instructing Mordecai’s counsel to ask any particular questions. When the trial resumed, Cain recanted his immediately preceding testimony that he did not remember the accident and testified that he did recall crossing the centerline.

Mordecai contends that evidence that Cain admitted guilt to the offense of driving on the wrong side of the road by forfeiting his bond would have refuted his testimony that he did not recall the accident and that, when Cain testified he did not recall the accident, “[his] testimony about the accident became so conflicting that [she] renewed [her] request to present evidence of his guilty plea[.]” Mordecai asserts that the court “instructed Cain’s attorney to counsel his client to change his testimony” or the court would allow her to introduce evidence of his guilty plea. She argues that “the failure to allow evidence of such admission” denied her “the opportunity to impeach [Cain] on this issue” and “denied [her] a full and thorough cross examination of the adverse party.”

We conclude, however, that the trial court was authorized to find, after Cain admitted crossing the centerline and retracted his testimony that he did not remember doing so, that introduction of his bond forfeiture would have been cumulative of his stipulation of negligence and of his admission in judicio that he negligently drove in the wrong direction and caused the collision. Accordingly, the trial court did not abuse its discretion in excluding evidence of his bond forfeiture. Mitchell v. Gay, 111 Ga. App. 867, 873 (6) (143 SE2d 568) (1965) (“There is no reversible error in excluding evidence offered to prove a fact which is admitted or fully established by other evidence.”) (citations omitted).

Decided August 15, 2016

Freisem, Macon, Swann & Malone, C. Cyrus Malone III, for appellants.

Waldon, Adelman, Castilla, Hiestand & Prout, Russell D. Wal-don, John E. Alday, Anam Y. Ismail; Worsham, Corsi, Scott & Knighten, Nanci S. Corsi, for appellee.

In addition, Mordecai’s assertion that the trial court improperly “directed” defense counsel to instruct Cain to change his trial testimony is not supported by the record. The record shows instead that the trial court cautioned defense counsel that, if the evidentiary basis for the court’s limine ruling changed, the trial court would revisit that ruling regarding the admissibility of his bond forfeiture, as it had the power to do. We find no error in the giving of this caution or in giving defense counsel the opportunity to speak with his client before proceeding.

Judgment reversed.

Mercier, J., concurs. Branch, J., concurs fully in Division 2 and concurs in judgment only in Division 1.

       In addition, Mordecai’s husband, William Mordecai, asserted a claim for loss of consortium. The jury returned a verdict in favor of William Mordecai on his derivative claim. He also appeals and joins in his wife’s arguments.

       State Farm, as Mordecai’s uninsured motorist carrier, elected to try this case in the name of the individual defendant, Michael Cain.

       This tracks the form civil pretrial order provided in the uniform court rules. See Uniform Superior Court Rule 7.2 (“(4) The jury will be qualified as to relationship with the following:_.")

       We note that the bench conference was not transcribed. The parties supplemented the transcript with a stipulation regarding the substance of the colloquy and ruling.

       See also Atlanta Coach Co. v. Cobb, 178 Ga. 544, 549-552 (174 SE 131) (1934) (accord); OCGA § 15-12-135 (disqualification of jurors based on a relationship to a party or an interest in the.case); Reese v. Ford Motor Co., 320 Ga.App. 78, 80, n.2 (738 SE2d 301) (2013) (“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.”) (citation omitted); Frank E. Jenkins III et al., Ga. Automobile Ins. Law § 10:5 (2015-2016 ed.) (“[I]t is imperative under Georgia law that a trial court qualify each prospective juror as to a possible relationship with a nonparty liability insurer which has an interest in the outcome of the case. In fact, the rule is so well ingrained in the law that failure to qualify the jury upon request by counsel demands a new trial. . . . Thus, the trial court is charged with the responsibility to qualify the jury as to those companies which insure a party against whom damages are potentially recoverable in the action.”) (footnote omitted).

         Ford Motor Co. v. Conley, 294 Ga. at 555 (3) (b) (3).

       See Park v. Nichols, 307 Ga. App. 841, 842 (706 SE2d 698) (2011); Patterson v. Lauderback, 211 Ga. App. at 895-896 (3), n. 2.

        Citizens & Southern Nat. Bank v. Haskins, 254 Ga. 131, 138 (5) (327 SE2d 192) (1985). See also Ford Motor Co. v. Conley, 294 Ga. at 553 (3) (b) (2) (“The disqualification of a juror may be expressly or impliedly waived by a party having cause to complain, and[,] if expressly or impliedly waived, it is conclusively presumed that no harm or benefit to either party resulted from the disqualification, and[,] where it appears that the party having cause to complain either knew of the relationship or could have discovered it by the timely exercise of ordinary diligence! ] and remained silent, that party will be presumed to have waived the disqualification.”) (citations and punctuation omitted).

       See OCGA § 40-6-40.

       See Paul S. Milich, Ga. Rules of Evidence, § 3:6 (database updated October 2015) (“The trial judge may always reconsider and change a ruling made in a pre-trial hearing. As a trial progresses, it may reveal additional facts or raise new concerns that were not visible when the judge ruled before trial. Counsel should ask the court to reconsider its initial ruling in light of the new factors.”) (footnote omitted); Harley-Davidson Motor Co. v. Daniel, 244 Ga. 284, 285-286 (1) (260 SE2d 20) (1979) (Arulingona motion in limine controls the subsequent course of the action, unless modified at trial to prevent manifest injustice.); Thomas v. State, 287 Ga. App. 124, 124-125 (650 SE2d 793) (2007) (A motion in limine ruling is not a final judgment, and the trial court can modify its ruling at trial.); Jakobsen v. Colonial Pipeline Co., 237 Ga. App. 441, 446 (3) (514 SE2d 851) (1999) (Atrial court can modify a ruling on a motion in limine during trial.) (physical precedent only).

       See Turner v. Wilmouth, 161 Ga.App. 2, 4(4) (288 SE2d 839) (1982) (“The trial court has the right and the obligation to ask questions, restrict examination, and otherwise control the course of the proceedings in order to [ejnsure the truth is given to the jury in orderly fashion. In the absence of abuse, we will not interfere with the exercise of that discretion.”) (citation and punctuation omitted); see also Campbell v. State, 248 Ga.App. 162, 165 (2) (545 SE2d 6) (2001) (accord).


author: Branch, Judge.

text:
    A14A2312.
    BARROW v. MIKELL.
    (790 SE2d 814)
   Branch, Judge.

In Barrow v. Mikell, 331 Ga.App. 547 (771 SE2d 211) (2015), we affirmed the trial court’s dismissal of Abdou Barrow’s appeal from the cancellation of his driver’s license by the Georgia Department of Driver Services on the ground that Barrow’s appeal was untimely Id. at 550. In Barrow v. Mikell, 298 Ga. 429 (782 SE2d 439) (2016), the Supreme Court of Georgia reversed this Court and held that Barrow’s appeal was timely. Id. at 433. On remand, we vacate our earlier decision and adopt the Supreme Court’s as our own. The trial court’s dismissal of Barrow’s appeal is reversed.

Decided August 16, 2016.

Justin W. Chaney, S. Anne Thompson, for appellant.

Samuel S. Olens, Attorney General, Joseph J. Drolet, Senior Assistant Attorney General, Amy M. Radley, Assistant Attorney General, for appellee.

Judgment reversed.

Barnes, P. J., and Boggs, J., concur.


author: MILLER, Presiding Judge.

text:
    A14A1577.
    STRICKLAND v. STRICKLAND et al.
    (790 SE2d 550)
    Decided August 18, 2016.

      Barnes Law Group, Roy E. Barnes, for appellant.

      Dupree & Kimbrough, Hylton B. Dupree, Jr., Blake R. Carl, for appellees.
   MILLER, Presiding Judge.

In Strickland v. Strickland, 298 Ga. 630 (783 SE2d 606) (2016), the Supreme Court of Georgia reversed the judgment of this Court in Strickland v. Strickland, 330 Ga. App. 879 (769 SE2d 607) (2015). We therefore vacate our opinion in Strickland, supra, 330 Ga. App. 879 and adopt the judgment of the Supreme Court as the opinion of this Court.

Judgment affirmed.

Doyle, C. J., and Dillard, J., concur.