text:
    A12A1260.
    A12A1558.
    MANHERTZ v. THE STATE. JOYNER v. THE STATE.
    (734 SE2d 406)
   Dillard, Judge.

Following a jury trial, Kirk Manhertz and his co-defendant, Nicole Joyner, were both convicted on 12 counts of identity fraud. Manhertz was also convicted on one count of giving a false name to a law enforcement officer and one count of driving without a license. On appeal of their convictions, Manhertz contends that the trial court erred in denying his claim that his trial counsel rendered ineffective assistance, and Joyner contends that the evidence was insufficient to support her convictions. Because the charges arose from the same incident and the defendants were tried together, we have consolidated their separate appeals for review. And for the reasons set forth infra, we affirm in both cases.

Viewed in the light most favorable to the jury’s guilty verdicts, the record shows that on March 27, 2008, a Henry County police officer on traffic patrol observed a black Lexus with New York license tags and noticed that the driver was not wearing a seat belt. Consequently, the officer initiated a traffic stop and, after approaching the vehicle, asked the driver to produce his driver’s license. The driver responded that he did not have his driver’s license but that his name was Glenroy Hardie. However, when a computer check on that name turned up no information, and the driver appeared nervous, the officer asked the driver to exit the vehicle. The officer then asked if he could search the vehicle, and the driver consented. During his search, the officer found an identification card with a photograph of the driver. The card indicated that the driver’s name was Kirk Manhertz and that he resided at 363 Interlake Place, McDonough, Georgia, which is in Henry County. In addition, the officer found several credit cards in the vehicle, all of which bore names different from either Manhertz or Hardie.

Based on the search of Manhertz’s vehicle, the police suspected that he was involved in an identity-fraud scheme and, thus, police arrested him and obtained a warrant to search the McDonough address listed on Manhertz’s identification card. During the search of that residence, the police found a ledger, which had the name “Kane” on the front and which contained people’s names and other identifying information such as social-security and driver’s-license numbers. The police also found copies of numerous checks, all of which were made payable to the Point at Perimeter apartment complex in DeKalb County, and papers that contained the names, social-security numbers, and driver’s-license numbers of the individuals identified on the checks. Additionally, the police found a New York identification card for Manhertz and more credit cards.

Approximately two months later, an investigator with the Henry County district attorney’s office began attempting to track down the apparent victims of Manhertz’s identity-fraud scheme. Consequently, the investigator met with a regional supervisor for the company that owned the Point at Perimeter apartment complex and the complex’s property manager at another apartment complex owned by the company to determine if they knew the people whose copied checks were found at Manhertz’s residence or if they recognized the handwriting on the list of names and identifying information. The property manager confirmed that the copied checks were those of current and former tenants, and he recognized the handwriting on the list of names and identifying information as that of his assistant, Nicole Joyner. Based on this conversation, the investigator asked to speak with Joyner, so the property manager went to the Point at Perimeter complex where Joyner was currently working and brought her back to the sister property for questioning.

As the recorded interview began, the investigator told Joyner that he was investigating an identity-fraud scheme involving some of the apartment complex’s tenants. The investigator then asked Joyner if she recognized the name Manhertz or a photograph of him, but she replied that neither was familiar. When confronted with the handwritten list of tenants’ identifying information, Joyner admitted that the handwriting was hers, but she initially denied compiling the information for any nefarious purpose. Eventually, however, Joyner confessed that she provided the copied checks and tenants’ identifying information to someone after being promised cash in exchange for same.

Specifically, Joyner explained that she met a dancer at a strip club, who went by the stage name Paradise. After a brief conversation, Paradise asked Joyner how she was employed, and Joyner informed her that she worked as an assistant manager at an apartment complex. Paradise responded by informing Joyner that she had a friend named Kane, who would pay $1,000 for tenants’ names, social-security numbers, driver’s-license numbers, and copies of signed checks. Joyner agreed to do so and later provided Paradise with the requested information. However, Joyner asserted that she was never paid any money. And although Joyner claimed that she went back to the strip club on one or two occasions in an attempt to collect the promised payment, she was unable to find Paradise — no doubt finding little comfort in the axiom that “solitude sometimes is best society.” Other than her physical description and place of employment, the only information about Paradise that Joyner could provide to the investigator was that she drove a black Lexus with New York license plates.

Thereafter, Manhertz and Joyner were jointly indicted in the Superior Court of Henry County with fourteen counts of identity fraud, and in the same indictment, Manhertz was also charged with one count of giving a false name to a law enforcement officer, and one count of driving without a license. Following a pretrial JacksonDenno hearing, the trial court ruled that the investigator’s recorded interview of Joyner was admissible at trial. And during that same pre-trial hearing, the trial court heard and denied Joyner’s motion to sever her trial from Manhertz’s trial.

During the joint trial, the police officers involved in the investigation of the case testified, as did 12 former tenants of the Point at Perimeter apartments who were victims of the identity-fraud scheme. In addition, the district attorney’s investigator testified regarding his interview of Joyner, and prior to the audio recording of the interview being played, the trial court instructed the jury that Joyner’s out-of-court statement to the investigator could only be considered against her. Neither Manhertz nor Joyner testified in their own defense, and at the conclusion of the trial, the jury found both of them guilty on 12 counts of identity fraud. The jury also found Manhertz guilty on the giving-a-false-name and driving-without-a-license counts.

Subsequently, both Manhertz and Joyner filed motions for new trial. In Manhertz’s motion, he argued, inter alia, that his trial counsel rendered ineffective assistance. In her motion, Joyner argued, inter alia, that the State failed to prove venue beyond a reasonable doubt. The court held separate hearings on the respective motions and ultimately denied both. These appeals follow.

1. Manhertz contends that his trial counsel rendered ineffective assistance by failing to raise a Bruton objection when Joyner’s recorded interview was played during trial. We disagree.

In order to prevail on his claim of ineffective assistance of counsel, Manhertz must show that “counsel’s performance was deficient and that the deficient performance so prejudiced [him] that there is a reasonable likelihood that, but for counsel’s errors, the outcome of the trial would have been different.” Furthermore, there is a strong presumption that trial counsel’s conduct falls within the broad range of reasonable professional conduct, and a criminal defendant must overcome this presumption. Unless clearly erroneous, we will uphold a trial court’s factual determinations with respect to claims of ineffective assistance of counsel; however, a trial court’s legal conclusions in this regard are reviewed de novo.

Here, Manhertz argues that the portion of Joyner’s statement in which she claimed that the dancer Paradise told her that a person named Kane would pay her for her apartment tenants’ vital information violated his Sixth Amendment right of confrontation under Bruton. Specifically, Manhertz argues that Joyner’s statement led the jury to believe that he was Kane and, therefore, because he could not cross-examine Joyner or Paradise, his trial counsel’s failure to object to this portion of Joyner’s recorded interview constituted ineffective assistance. We disagree.

It is well established that under the Confrontation Clause, a criminal defendant has “the right to confront witnesses against him and to cross-examine them.” And when a jury is instructed that certain testimony or evidence may only be considered against a co-defendant, the jury is “presumed to follow the court’s instruction and the testimony or evidence is not considered to be against the defendant.” However, in Bruton, the Supreme Court of the United States

recognized a narrow exception to this principle, by holding that when a facially, powerfully incriminating statement of a non-testifying co-defendant is presented to the jury, the risk is so great the jury will ignore the limiting instruction and consider the co-defendant’s confession against the defendant that the general rule cannot be followed.

Accordingly, our Supreme Court has held that “the introduction of such statements, even with a limiting instruction, violates the defendant’s right of confrontation.”

In contrast to the “powerfully incriminating statements of a co-defendant” at issue in Bruton, the Supreme Court of the United States in Richardson v. Marsh held that “when a co-defendant’s statement does not directly incriminate the defendant and the jury is required to draw inferences to connect the statement to the defendant, it is a less valid generalization that the jury will not likely obey the instruction to disregard the evidence.” Our Supreme Court has, therefore, held that Bruton only “excludes statements by a non-testifying co-defendant that directly inculpate the defendant, and that Bruton is not violated if a co-defendant’s statement does not incriminate the defendant on its face and only becomes incriminating when linked with other evidence introduced at trial.”

Here, Joyner’s statement did not clearly inculpate Manhertz. In fact, at the beginning of the interview, Joyner told the investigator that she did not recognize Manhertz’s name or his photograph. And while Joyner’s statement did implicate the person named “Kane” in the identity-fraud scheme, there was no direct evidence that Kane and Manhertz are the same person. Indeed, Joyner’s mention of the name Kane only became incriminating when linked with other evidence introduced at trial. Thus, Joyner’s statément did not violate Bruton. Given the foregoing circumstances, and the fact that the trial court instructed the jury that Joyner’s statement was only to be considered against her, if Manhertz’s trial counsel had objected to the statement on Bruton grounds, that objection would have been wholly lacking in merit. And as we have repeatedly held, the failure to “pursue a futile objection does not amount to ineffective assistance.” Accordingly, Manhertz failed to show that his trial counsel provided ineffective assistance.

2. Joyner contends that the evidence was insufficient to prove beyond a reasonable doubt that she was a party to the crime of identity fraud in Henry County. In essence, Joyner argues that although she could have been tried on identity-fraud charges in DeKalb County, where the victims resided, because she did not have any connection to Manhertz and did not possess the victims’ identifying information outside of DeKalb County, the evidence was insufficient to prove that she committed identity fraud in Henry County. This argument is a nonstarter.

At the outset, we note that when a criminal conviction is appealed, the evidence must be viewed in the light most favorable to the verdict, and the appellant no longer enjoys a presumption of innocence. In evaluating the sufficiency of the evidence, we do not weigh the evidence or determine witness credibility, but “only determine whether a rational trier of fact could have found the defendant guilty of the charged offenses beyond a reasonable doubt.” Accordingly, a jury’s verdict will be upheld “[a]s long as there is some competent evidence, even though contradicted, to support each fact necessary to make out the State’s case. . . .”

Under OCGA § 16-9-121, “[a] person commits the offense of identity fraud when he or she willfully and fraudulently [wjithout authorization or consent, uses or possesses with intent to fraudulently use identifying information concerning a person... .” As used in the financial-identity-fraud statutes, the term “identifying information” includes current names, social-security numbers, driver’s-license numbers, and birth dates. And with regard to venue, the Georgia Constitution and our statutory law require that a criminal defendant must be tried in the county in which the alleged crime was committed. However, under the financial-identity-fraud statutes, a “crime will be considered to have been committed in any county where the person whose means of identification or financial information was appropriated resides or is found, or in any county in which any other part of the offense took place, regardless of whether the defendant was ever actually in such county.”

Here, Manhertz and Joyner were charged with 12 counts of identity fraud in that they “unlawfully, willfully and fraudulently, without the authorization and consent of [12 different individuals], possess, with intent to fraudulently use, identifying information concerning [those individuals], to wit: [their] social security number[s], date[s] of birth and Georgia driver’s license number[s]____” In support of these charges, the State introduced Joyner’s own statement, in which she admitted to providing the identifying information of several current and former tenants of the Point at Perimeter apartment complex to a third party who promised her $1,000 if she did so. And although Joyner argues that there was no evidence, other than victims’ identifying information in his possession, connecting her to Manhertz, pursuant to OCGA § 16-2-20, “[e]very person concerned in the commission of a crime is a party thereto and may be charged with and convicted of commission of the crime.” More specifically, a person is “concerned in the commission of a crime” if she “intentionally aids or abets in the commission of the crime.” And it is possible for various persons to be parties to “a single [criminal] agreement (and thus one conspiracy) even though they do not know the identity of one another, and even though they are not all aware of the details of the plan of operation.” Thus, the evidence was sufficient to support the jury’s verdict that Joyner either directly or as a party to a crime committed identity fraud.

Decided October 9, 2012.

Bobby E. Hutson, Jr., Kenneth D. Kondritzer, for appellant

(case no. A12A1260).

Melanie R. Snipes, for appellant

(case no. A12A1558).

Tommy K. Floyd, District Attorney, Sandra G. Rivers, Assistant District Attorney, for appellee.

Furthermore, as to Joyner’s venue argument, the State introduced evidence that the victims’ identifying information was found in the Henry County residence of Manhertz, and 12 of the victims testified at trial that they did not authorize any such use of their identifying information. Based on these circumstances, and the fact that Joyner admitted in her statement that she was a party to the crime in that she provided the victims’ identifying information to an unauthorized third party, the evidence was sufficient to allow the jury to find that at least part of the identity fraud took place in Henry County, regardless of whether Joyner was ever actually in that county.

Judgments affirmed.

Ellington, C. J., concurs. Phipps, P. J., concurs in judgment only.

        See, e.g., Goolsby v. State, 299 Ga. App. 330, 330-31 (682 SE2d 671) (2009).

       John Milton, Paradise Lost 234, bk. IX, 11. 249 (G. Routledge and sons ed. 1905) (1674).

        See OCGA § 16-9-121 (a) (1).

        See OCGA § 16-10-25.

        See OCGA § 40-5-20 (a).

       Two of the identity-fraud counts were dismissed because the victims currently resided outside the State and could not attend the trial.

        See Bruton v. United States, 391 U. S. 123 (88 SC 1620, 20 LE2d 476) (1968).

        Chapman v. State, 273 Ga. 348, 349-50 (2) (541 SE2d 634) (2001); see Strickland v. Washington, 466 U. S. 668, 687 (III) (104 SC 2052, 80 LE2d 674) (1984).

        Chapman, 273 Ga. at 350 (2).

        Henderson v. State, 303 Ga. App. 898, 898 (1) (695 SE2d 334) (2010).

        Moss v. State, 275 Ga. 96, 98 (2) (561 SE2d 382) (2002).

        Id. (punctuation omitted).

        Id. (citation and punctuation omitted); see Richardson v. Marsh, 481 U. S. 200, 207 (II) (107 SC 1702, 95 LE2d 176) (1987); Bruton, 391 U. S. at 135-36.

        Moss, 275 Ga. at 98 (2); see Bruton, 391 U. S. at 135-36.

       481 U. S. 200 (107 SC 1702, 95 LE2d 176) (1987).

        Moss, 275 Ga. at 98 (2) (punctuation omitted); see Richardson, 481 U. S. at 208.

        Moss, 275 Ga. at 98 (2); see Thomas v. State, 268 Ga. 135, 137-38 (6) (485 SE2d 783) (1997) (“For the admission of a co-defendant’s statements to constitute a Bruton violation the statements standing alone must clearly inculpate the defendant.” (punctuation omitted)); Garlington v. State, 268 Ga. App. 264, 267-68 (1) (a) (601 SE2d 793) (2004).

        See Moss, 275 Ga. at 99 (2) (holding that admission of nontestifying oo-defendant’s statement to police that murder defendant came to his apartment and went in bathroom and stayed there for awhile did not violate Bruton rule because statement, standing alone, did not clearly incriminate defendant but only became incriminating when linked with other evidence); Thomas, 268 Ga. at 137-38 (6) (holding that co-defendant’s statement, that at time of defendant’s arrest for kidnapping, which was unrelated to shootings for which defendant was now on trial, defendant had a pistol, which he had bought, did not clearly inculpate defendant and, thus, did not constitute Bruton error).

       Although in this appeal, Manhertz argues that his trial counsel rendered ineffective assistance by failing to make a Bruton objection to Joyner’s statement, an objection solely on hearsay grounds would have similarly lacked merit. See Munsford v. State, 235 Ga. 38, 43-44 (218 SE2d 792) (1975) (holding that when the testimony relating each of the statements by co-defendants was admissible against at least one of the co-defendants, the statements were not rendered inadmissible because each statement would be hearsay as to the other two defendants).

        Ventura v. State, 284 Ga. 215, 218 (4) (663 SE2d 149) (2008).

        See, e.g., English v. State, 301 Ga. App. 842, 842 (689 SE2d 130) (2010).

        Joiner v. State, 299 Ga. App. 300, 300 (682 SE2d 381) (2009); see also Lott v. State, 303 Ga. App. 775, 775 (1) (694 SE2d 698) (2010).

        Miller v. State, 273 Ga. 831, 832 (546 SE2d 524) (2001) (punctuation omitted).

       OCGA § 16-9-121 (a) (1).

       OCGA § 16-9-120 (4) (A), (B), (C), (L).

        See Ga. Const. 1983, Art. VI, Sec. II, Par. VI; OCGA § 17-2-2 (a).

       OCGA § 16-9-125.

       OCGA § 16-2-20 (a).

       OCGA § 16-2-20 (b) (3).

        Kilgore v. State, 251 Ga. 291, 299 (3) (c) (305 SE2d 82) (1983) (punctuation omitted).

        See Zachery v. State, 312 Ga. App. 418, 420 (1) (718 SE2d 332) (2011).

        See OCGA § 16-9-125.


source: Caselaw Access Project

author: Dillard, Judge.

license: Public Domain

text:
    A12A1313.
    ROCHA v. THE STATE.
    (733 SE2d 38)
   Dillard, Judge.

Following a stipulated bench trial, Pete Rocha was convicted of trafficking in cocaine. On appeal, Rocha contends that the trial court erred in denying his motion to suppress the drug evidence, arguing that his consent to the search of his vehicle and the resulting seizure of the cocaine was the product of an impermissibly prolonged traffic stop. He further argues that without the unlawfully seized cocaine, the evidence was insufficient to sustain his conviction. For the reasons set forth infra, we affirm.

Construing the evidence to uphold the trial court’s findings and judgment, the record shows that around 10:00 a.m. on September 20, 2005, a Douglas County Sheriff’s Department deputy, who was on traffic patrol on Interstate 20, observed a large commercial passenger bus that did not bear either an operating company’s trade name or the Federal Motor Carrier Safety Administration (“FMCSA”) identification number as required by the United States Department of Transportation. The deputy then began following the bus, ran a computer check on the bus’s Texas license tag number as he followed, and determined that the tag had expired in 2003. Consequently, the deputy initiated a traffic stop.

After the bus stopped, the driver exited the vehicle, and the deputy asked him for his driver’s license and whether there were any passengers on board. The driver stated that there were no passengers and that his license was on the bus. Subsequently, both the deputy and the driver entered the bus, and the driver retrieved his license, which indicated that his name was Pete Rocha. The deputy then inquired about the lack of passengers and the expired license tag. Rocha responded that he had transported hurricane Katrina evacuees the previous day from Houston, Texas to Birmingham, Alabama, and that he was currently traveling to Gaffney, South Carolina to pick up additional evacuees. He also claimed that the bus was owned by Genesis Bus Lines, and he produced a temporary Texas license tag, which was not scheduled to become active until 4:00 p.m. that same day, but in the deputy’s opinion, was not valid for use by commercial vehicles in Georgia.

As he was speaking to Rocha, the deputy saw that a woman lying down on a seat at the back of the bus was looking at him. By this time, another officer had arrived on the scene, so the deputy left Rocha with that officer and went to talk to the woman at the back of the bus. While walking to the back, the deputy noticed that the bus was spotlessly clean, which he thought was odd given Rocha’s claim that he had very recently transported hurricane evacuees. Upon reaching the seat where the woman was lying, the deputy observed that she now appeared to be asleep despite the fact that he had made eye contact with her only a few moments earlier. After waking the woman up, the deputy obtained her driver’s license, which indicated that her name was Digna Ordonez, and determined that she was Rocha’s co-driver. And although Ordonez similarly stated that she and Rocha were going to pick up hurricane evacuees in South Carolina, she did not claim that they had recently dropped off evacuees in Birmingham.

After speaking to Ordonez, the deputy requested that Rocha and Ordonez provide the driver’s log books that they were required to maintain. And upon examining those logbooks, the deputy observed that they contained inconsistent entries, indicated that the operating company was Adame Bus Lines rather than Genesis as Rocha had claimed, and made no mention of a stop in Birmingham. Rocha could not explain these inconsistencies, and despite the deputy’s request, he could not provide any paperwork or documentation for the evacuees that he had allegedly just dropped off or for those that he was going to pick up. In addition, although Rocha had initially claimed that he was taking the evacuees who were currently in South Carolina to Atlanta, he now stated that he was transporting those evacuees back to Houston.

Based on the inconsistencies in Rocha and Ordonez’s statements and their log books, the deputy became suspicious and asked Rocha if there was any contraband on the bus. Rocha replied negatively. Nevertheless, the deputy asked if he could search the bus, and both Rocha and Ordonez consented. Shortly after beginning the search, and approximately ten minutes after the deputy initiated the traffic stop, the second officer found a black duffle bag in a compartment under the driver’s seat that allowed one to access the bus’s engine. And inside the duffle bag, the officer found over 14 kilograms of cocaine.

Rocha and Ordonez were both charged, via indictment, with one count of trafficking in cocaine. Thereafter, Rocha filed a motion to suppress the drug evidence on the ground that his consent to the search of the bus was the result of an impermissibly prolonged traffic stop. The trial court held a hearing on Rocha’s motion, during which only the sheriff’s deputy who conducted the traffic stop testified. And after taking Rocha’s motion under advisement, the trial court ultimately denied it.

Rocha then waived his right to a jury and proceeded with a stipulated bench trial. During his trial, the State summarized the details of the traffic stop and introduced a GBI forensic report indicating that the cocaine found on the bus weighed 14.11 kilograms and had a purity of 66.6 percent. Consequently, the trial court found Rocha guilty of trafficking in cocaine. Thereafter, Rocha filed a motion for new trial, which the trial court denied. This appeal follows.

At the outset, we note that in reviewing a trial court’s decision on a motion to suppress, “we construe the evidence most favorably to uphold the findings and judgment, and the trial court’s findings on disputed facts and credibility of the witnesses are adopted unless they are clearly erroneous.” Furthermore, because the trial court is the trier of fact, its findings are “analogous to a jury verdict and will not be disturbed if any evidence supports them.” However, we review de novo the trial court’s application of law to the undisputed facts.

1. Rocha contends that the trial court erred in denying his motion to suppress the drug evidence, arguing that his consent to the search of the bus was the product of an impermissibly prolonged traffic stop. We disagree.

Although it is well established under Georgia law that “a police officer who observes a traffic violation is authorized to conduct a traffic stop of the vehicle in question[,]” as this Court has previously noted, “[t]he issue of the validity of a consent to search given during a traffic stop is a difficult area of the law and one which has caused much confusion in the real world.” However, in Salmerón v. State, our Supreme Court clarified this area of the law to a certain degree by holding that the Fourth Amendment “is not violated when, during the course of a valid traffic stop, an officer questions the driver or occupants of a vehicle and requests consent to conduct a search.” And if a driver is questioned and gives consent while he is being lawfully detained during a traffic stop, “there is no Fourth Amendment violation.”

Furthermore, the police may lawfully ask questions unrelated to the purpose of a valid traffic stop, “so long as the questioning does not unreasonably prolong the detention.” Specifically, we have held that a reasonable time includes the “time necessary to verify the driver’s license, insurance, registration, and to complete any paperwork connected with the citation or written warning.” It also includes the time necessary to “run a computer check to determine whether there are any outstanding arrest warrants for the driver or the passengers.”

Here, the sheriff’s deputy asked for consent to search the bus while he was still investigating whether Rocha, Ordonez, and the vehicle itself were in compliance with the state and federal regulations pertaining to the operation of commercial-passenger vehicles. And importantly, the deputy asked for and received consent approximately ten minutes after he first stopped Rocha for driving with an expired license tag and failing to display a logo for the bus’s operating company or its FMCSA identification number. Given these circumstances, we cannot conclude that the deputy’s conduct unreasonably prolonged Rocha’s detention and rendered his consent to the search of the bus invalid.

Moreover, we find that the information the deputy learned during the course of the traffic stop provided him with a reasonable, articulable suspicion to prolong the traffic stop. Specifically, the inconsistencies in Rocha and Ordonez’s statements regarding the city in which they allegedly had most recently stopped and whether they had recently dropped off any hurricane evacuees, as well as the inconsistencies in their driver’s log books, provided the deputy with a reasonable, articulable suspicion to continue his detention of Rocha. Accordingly, the trial court did not err in denying Rocha’s motion to suppress the drug evidence seized as a result of his consent to search his vehicle.

2. Rocha also contends that the evidence was insufficient to support his conviction, but he concedes that this argument is contingent upon the suppression of the seized cocaine. Given that the trial court did not err in denying Rocha’s motion to suppress and that 14.11 kilograms of cocaine with a purity of 66.6 percent were found on the bus he was driving, the evidence was sufficient to support his conviction of trafficking in cocaine.

Decided October 9, 2012.

Sonya R. Chachere-Compton, for appellant.

David McDade, District Attorney, James A. Dooley, Emily K. Richardson, Assistant District Attorneys, for appellee.

Judgment affirmed.

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

        See Hammont v. State, 309 Ga. App. 395, 396 (710 SE2d 598) (2011).

        See 49 CFR § 390.21.

        See 49 CFR § 395.8.

       OCGA § 16-13-31 (a) (1).

        Hammont, 309 Ga. App. at 396 (punctuation omitted).

        Christy v. State, 315 Ga. App. 647, 650 (727 SE2d 269) (2012) (punctuation omitted).

        Young v. State, 310 Ga. App. 270, 271 (712 SE2d 652) (2011).

        Id. at 272.

        Matthews v. State, 294 Ga. App. 836, 838 (2) (670 SE2d 520) (2008) (punctuation omitted).

       280 Ga. 735 (632 SE2d 645) (2006).

        Id. at 736 (1).

        Id. (citation omitted).

        Matthews, 294 Ga. App. at 838 (2).

        Id. (punctuation omitted).

        Id. (punctuation omitted).

        See id. at 838 (2) (a) (holding that police officer’s request to search vehicle less than 18 minutes after the traffic stop did not unreasonably prolong stop so as to render defendant’s consent to search invalid); Hayes v. State, 292 Ga. App. 724, 731 (2) (e) (665 SE2d 422) (2008) (holding that search initiated ten minutes after officer wrote warning ticket was not the result of an unreasonably prolonged detention).

        See Matthews, 294 Ga. App. at 839 (2) (b) (holding that the officer’s inability to find information on vehicle’s passenger, who was much younger than defendant, and inconsistencies in passenger and defendant’s statements provided the officer with a reasonable, articulable suspicion to prolong the traffic stop beyond the time necessary to write a speeding ticket); Andrews v. State, 289 Ga. App. 679, 682-83 (658 SE2d 126) (2008) (holding that passenger and defendant’s conflicting stories during traffic stop provided reasonable, articulable suspicion to prolong defendant’s detention).

        See, e.g., Delavega v. State, 312 Ga. App. 79, 80 (717 SE2d 681) (2011).


author: Boggs, Judge.

text:
    A12A1473.
    LOPEZ-JIMENEZ v. THE STATE.
    (733 SE2d 42)
   Boggs, Judge.

After a jury trial, Jose Rafael Lopez-Jimenez (“Lopez”) was convicted of the offense of trafficking in methamphetamine. His amended motion for new trial was denied, and he appeals, asserting the general grounds and ineffective assistance of counsel. Finding no error, we affirm.

1. Construed to support the jury’s verdict, the evidence shows that a police officer with the Atlanta DEA task force had a house in Duluth, Georgia under surveillance after receiving reports that it was an “active stash house[ ].” While he was observing and photographing the house, Lopez “came out the front door and approached” him, and wanted to know what he was doing. There was a “for sale” sign in the yard, and the officer asked Lopez “if the home was in fact for sale.” Lopez responded that it was, but when the officer asked to see the inside Lopez refused, saying that he needed to contact the real estate agent or the homeowner.

Three days later, the officer obtained a “knock and announce” search warrant on the house, and a drug task force team executed the warrant. After knocking at the front door and announcing in both English and Spanish that they were police and had a search warrant, the team received no response and forced open the front door. Lopez and another individual, Urena, were sitting on a sofa in the living room immediately inside the front door. Several officers testified that they noticed a strong smell of methamphetamine in the room.

A large plastic tub was on the coffee table in front of the sofa, along with several large plastic trash bags containing what the officer testified were wrapping or outer packaging for narcotics. An officer testified that methamphetamine is generally repackaged once it arrives at its destination, in this case into gallon-sized plastic bags. Field testing of the packaging materials was positive for methamphetamine. Two pairs of latex gloves were lying on the coffee table. An officer testified that handling methamphetamine without gloves produces a characteristic peeling of the skin and calluses, and that he observed such skin damage on Lopez’s hands.

The police recovered approximately 62 kilograms (136 pounds) of methamphetamine from the house. In the closet of the master bedroom, which was occupied by Urena, officers found a laundry basket and two cardboard boxes containing a digital scale and numerous gallon-sized plastic bags of methamphetamine. In a closet in one of the two other bedrooms, officers found a shoe box containing one-gallon plastic bags, each containing about a pound of methamphetamine. Clothing was also found in the second bedroom, which Urena testified was occupied by Lopez. The third bedroom was completely empty, without any clothing or items.

Officers found two wire transfer receipts on the kitchen counter, showing that money was wired from Mexico to Lopez at a nonexistent address in Lawrenceville. An officer testified that Lopez stated he was visiting from California and had arrived in Georgia about five days earlier.

Urena testified on behalf of the defense that Lopez moved into the house three to five days before the arrest, and that only the two of them were in the house. He testified that Lopez did not deliver the drugs, did not buy or sell them, and did not touch them while they were at the house. But on cross-examination, Urena acknowledged that Lopez was present when the drugs were brought to the house, that Urena told Lopez to help him dispose of the packaging, and that “[Lopez] was there with me doing it.” He also testified, however, that they had not yet begun and “were going to do it together,” and that “I was the one throwing it out.”

This evidence, though circumstantial, was sufficient to authorize the jury’s verdict.

Under OCGA § 24-4-6, upon which the jury was instructed, 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. Questions as to the reasonableness of hypotheses are generally to be decided by the jury which heard the evidence and where the jury is authorized to find that the evidence, although circumstantial, was sufficient to exclude every reasonable hypothesis save that of guilt, that finding will not be disturbed on appeal unless the verdict of guilty is insupportable as a matter of law.

(Citations, punctuation and footnote omitted.) Simmons v. State, 299 Ga. App. 21, 23 (1) (a) (681 SE2d 712) (2009).

Lopez argues that the evidence shows only spatial proximity to the contraband. We disagree. It is true that constructive possession must be shown by “some connection between the defendant and the contraband other than mere spatial proximity.” (Citations and punctuation omitted.) Brown v. State, 314 Ga. App. 212, 213 (2) (723 SE2d 504) (2012). Here, the State produced evidence that Lopez was residing at the house, that he approached an individual in the front yard and asked what he was doing, that he refused to show him the home even though it was for sale, that he occupied a bedroom in which methamphetamine was found, and that he was present when the drugs were brought to the house. The evidence further showed that the occupants did not respond to the police “knock and announce.” When police entered, Lopez was sitting with Urena on a nearby sofa amid a strong odor of methamphetamine, surrounded with plastic garbage bags full of narcotics packing material, which Urena testified Lopez was helping him remove. This circumstantial evidence was sufficient to exclude every reasonable hypothesis save that of guilt and was sufficient for the jury to find Lopez guilty beyond a reasonable doubt of trafficking in methamphetamine. OCGA § 16-13-31 (e); Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560) (1979); see Taylor v. State, 285 Ga. App. 697, 698-699 (1) (647 SE2d 381) (2007).

2. Lopez also asserts ineffective assistance of counsel in failing to object to the prosecutor’s closing argument and in failing to file a motion to suppress. In ruling on a claim of ineffective assistance,

[ujnder the two-part test established in Strickland v. Washington, 466 U. S. 668 (104 SC 2052, 80 LE2d 674) (1984), [Lopez] 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. If an appellant fails to meet his burden of proving either prong of the Strickland test, the reviewing court does not have to examine the other prong.

(Citations and punctuation omitted.) Harrison v. State, 313 Ga. App. 861, 865 (3) (722 SE2d 774) (2012).

Making that showing requires that [Lopez] rebut the strong presumption that his lawyer’s conduct falls within the wide range of reasonable professional assistance. As a general rule, matters of reasonable trial tactics and strategy, whether wise or unwise, do not amount to ineffective assistance of counsel. We will not reverse a trial court’s findings regarding either the deficiency or prejudice prong of the Strickland test unless clearly erroneous.

(Citations, punctuation and footnotes omitted.) Lott v. State, 303 Ga. App. 775, 783-784 (3) (694 SE2d 698) (2010).

(a) During closing argument, the prosecutor misstated Urena’s testimony, claiming that the two men unpackaged the drugs together. Trial counsel did not object to the State’s closing argument, but did address the statement in his own closing argument shortly afterward: “Now, I heard [the prosecutor] say that he helped unpack this stuff. I have to take issue with it. ... I did not hear anyone say that the Defendant actually unpacked packages of methamphetamine from that bag. If I’m wrong, I’m sorry, but I don’t remember hearing it.”

At the hearing on the motion for new trial, Lopez’s trial counsel explained that he did not object because he was not sure that the prosecutor’s statement was in error until he had checked with co-counsel and the Spanish interpreter. He stated, “I’ve always believed that if you don’t have a really solid reason to object... it looks bad for your client if you object, if you interrupt the other attorney in closing” and added that “my strategy was I didn’t want to — I feel that it will always hurt you with a j ury if you don’t have a rock solid obj ection when you... object during a closing or an opening argument.”

Trial tactics, however mistaken they may appear with hindsight, are almost never adequate grounds for finding trial counsel to have been ineffective so as to overturn a conviction. They provide no grounds for reversal unless such tactical decisions are so patently unreasonable that no competent attorney would have chosen them.

(Citations and punctuation omitted.) Brantley v. State, 271 Ga. App. 733, 737 (1) (611 SE2d 71) (2005).

Trial counsel’s decision not to object, but instead to comment on the misrepresented statement when given the next opportunity, was not patently unreasonable.

To the extent that trial counsel made a reasonable strategic decision not to object to the closing argument, such did not constitute ineffective assistance of counsel. Moreover, the trial court instructed the jury that the arguments of counsel were not evidence and thus, could not establish any fact. In light thereof, [Lopez] cannot show there is a reasonable probability that the outcome of the trial would have been different if counsel had argued differently to the jury.

(Citations and punctuation omitted.) Damerow v. State, 310 Ga. App. 530, 538-539 (4) (b) (714 SE2d 82) (2011).

(b) Lopez also contends that trial counsel was ineffective for failing to file a motion to suppress the methamphetamine and related evidence the police seized from the residence. He contends the affidavit supporting the search warrant was insufficient because it did not set forth enough details concerning the “confidential informant’s basis of knowledge to establish probable cause.” But trial counsel testified that the affidavit was “detailed,” and that the affiant laid out his qualifications as well as the qualifications and reliability of the confidential informant, and that the affiant gave facts corroborating the informant’s information. Counsel stated that “there were no legal insufficiencies to justify bringing a motion to quash the subpoena — I mean the search warrant.”

“The decision of whether to file a motion to suppress is a matter of professional judgment, and we will not judge counsel’s trial strategy in hindsight.” (Citations and punctuation omitted.) Patterson v. State, 259 Ga. App. 630, 634 (4) (577 SE2d 850) (2003). Moreover, we agree with trial counsel and the trial court that the affidavit in support of the search warrant was not insufficient, as it recited facts supporting the informant’s reliability, specific information furnished by the informant, and the affiant’s investigation which corroborated the informant. “It is not ineffective assistance of counsel to refrain from making a futile motion or filing a meritless motion to suppress.” (Citations, punctuation and footnote omitted.) King v. State, 287 Ga. App. 375, 377 (2) (a) (651 SE2d 496) (2007). The allegation of ineffective assistance of counsel therefore is without merit. Judgment affirmed. Doyle, P. J., and Andrews, J., concur.

Decided October 9, 2012.

Matthew D. Crosby, for appellant.

Daniel J. Porter, District Attorney, Michael D. Morrison, Assistant District Attorney, for appellee.

       The sign was a generic pre-printed “for sale by owner” sign with handwritten telephone numbers on it. The officer doing the surveillance testified that a “drug stash house” often has a “for sale” or “for rent” sign on the property “to allay suspicions by law enforcement.”

       Urena was also charged with trafficking and pleaded guilty before Lopez’s trial.

       The jury was charged on sole, joint, actual, and constructive possession.

       Appellate counsel believed that the misstatement was not deliberate and that the prosecutor had “misheard” the testimony. The prosecutor acknowledged, “I got it wrong.”


author: Ray, Judge.

text:
    A12A0916.
    FITZPATRICK v. THE STATE.
    (733 SE2d 46)
   Ray, Judge.

A jury convicted Michael Fitzpatrick of two counts of burglary and one count of possession of tools for the commission of a crime. The trial court denied his motion for a new trial, and he appeals, contending that he received ineffective assistance of counsel; that the trial court exhibited bias in sentencing him; and that the evidence was insufficient to sustain his conviction. For the reasons that follow, we affirm.

Viewed in the light most favorable to the jury’s verdict, the record shows that around midnight on November 7, 2008, a security guard saw Fitzpatrick pushing a baby stroller behind a shopping plaza containing a Metro PCS store. When the guard identified himself, Fitzpatrick ran away and jumped on top of a storage unit. The guard testified that he chased Fitzpatrick for about five minutes, never losing sight of him, then drew his weapon and apprehended him. In the stroller, the guard found cell phones, earpieces, and a radio. While the guard waited for the police, the owner of the Metro PCS store arrived because a silent alarm in his store had activated. He identified the baby stroller and its contents as having been taken from his store. When the police arrived, they searched Fitzpatrick and found screwdrivers and twelve cell phones in his pockets, as well as wire cutters and a flashlight in his duffel bag. The police also found that a hole had been chiseled through the cinder block and sheet rock into the back storage area of the store, and an additional hole from the storage area into the store itself. Fitzpatrick’s hair, clothing, and boots were covered in a white chalky substance consistent with dust near the holes. The guard testified that he first saw Fitzpatrick and the stroller about five feet from one of the holes. The holes were big enough for a person to crawl through, and hammers not belonging to the store owner were found inside the store.

Three days prior to the burglary at the Metro PCS store, in the early morning hours of November 5, 2008, hundreds of dollars worth of meat was stolen from a Super Giant food store in the same plaza. The Super Giant was burglarized via a hole made through the external wall. The jury viewed a surveillance video taken at the store that morning, on which Fitzpatrick is shown.

1. As an initial matter, we note that Fitzpatrick has propounded compound enumerations of error and, in some instances, has failed to provide citations to the record or relevant authority. Our requirements for 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; a party will not be granted rélief should we err in deciphering a brief which fails to adhere to the required form.

Further, “this Court will not cull the record in search of error on behalf of a party. Accordingly, if we have missed something in the record or misconstrued an argument, the responsibility rests with counsel.”

2. Fitzpatrick contends that his trial counsel was ineffective for a number of reasons.

To prevail on an ineffective assistance of counsel claim, a criminal defendant must show that his counsel’s performance was deficient and that the deficient performance so prejudiced him that there is a reasonable likelihood that, but for counsel’s errors, the outcome of the trial would have been different. “The likelihood of a different result must be substantial, not just conceivable.” We are not required to address both the deficient performance and prejudice prongs of the test if the defendant has made an insufficient showing on either one of them, and “a court need not determine whether counsel’s performance was deficient before examining the prejudice suffered by the defendant as a result of the alleged deficiencies.” Further, “[we] accept the trial court’s factual findings and credibility determinations unless clearly erroneous, but we independently apply the legal principles to the facts.”

Additionally, we note that Fitzpatrick’s counsel obtained a directed verdict on one of the four charges against his client. Such a circumstance strongly supports the conclusion that the assistance of Fitzpatrick’s trial counsel fell within the broad range of reasonably effective assistance which members of the bar in good standing are presumed to render.

(a) Fitzpatrick’s contention that he received ineffective assistance because his trial counsel lacked sufficient experience fails. Counsel had practiced law for five years as a public defender and had tried two or three felony cases before a jury. A successful ineffectiveness claim “rests upon specific errors made by counsel and does not rest upon trial counsel’s inexperience.” Fitzpatrick has not met either prong of the ineffectiveness test in this contention.

(b) Fitzpatrick’s assertion that trial counsel spent insufficient time preparing his case also fails. Although trial counsel did not recall how long he spent preparing for trial, at the motion for new trial hearing, he testified that he met with Fitzpatrick several times and had “ample opportunity to talk about... what our defense would be.” Further, Fitzpatrick testified that he wanted to testify on his own behalf and felt prepared to do so. “[T]here exists no magic amount of time which a counsel must spend in preparation for trial in order to provide a client with adequate counsel.” As Fitzpatrick does not address how additional communication with his lawyer would have had a reasonable probability of changing the outcome of his trial, he has not shown prejudice.

(c) Fitzpatrick contends that his trial counsel was ineffective because counsel “could recall no effort to ever locate” two witnesses whose names Fitzpatrick provided, and because counsel did not seek potential, unnamed witnesses from businesses in the same plaza where the burglaries were committed.

The decision about which defense witnesses will be called is a matter of trial strategy and tactics, and whether that decision is reasonable is a question of law, not fact. At trial, Fitzpatrick testified that one of those named witnesses, a co-worker, was “already gone” by the time Fitzpatrick went to the shopping plaza. There was no testimony about the other named witness. In addition, Fitzpatrick never asserted that these witnesses were with him at the time of the burglaries and thus could have provided an alibi. As for the potential witnesses from other businesses in the shopping plaza, Fitzpatrick has provided no argument about how those witnesses, even if they testified that he came into a nearby business to use the restroom, as he alleges, would then have been able to provide him with an alibi or other favorable testimony. Fitzpatrick did not call any of these witnesses at the hearing on his motion for a new trial, and trial counsel testified that he did not have enough information to contact the named witnesses.

Because [Fitzpatrick] neither called these witnesses to testify at the motion for new trial hearing nor presented a legally acceptable substitute for their direct testimony so as to substantiate his claim that the witnesses’ testimony would have been relevant and favorable to his defense, it was impossible for [Fitzpatrick] to show there is a reasonable probability the results of the proceedings would have been different.

(d) Fitzpatrick alleges that his trial counsel was ineffective for failing to object when a person not on the witness list authenticated the Super Giant surveillance tape and the tape was admitted into evidence. Although Fitzpatrick argued below that the trial court erred in admitting the tape, he never asserted below that his counsel rendered ineffective assistance in failing to object, nor did the trial court rule on this issue. “[I]t is well settled that this [Cjourt will not consider issues raised for the first time on appeal.” Accordingly, this issue is not properly before us on appeal.

(e) Fitzpatrick argues that his trial counsel’s performance was deficient because his trial counsel failed to object to a Metro PCS employee’s “speculative opinion” testimony about what he saw on the store’s surveillance video. The employee testified that he believed there was one person on the video because he saw only one flashlight beam. Fitzpatrick had argued that two other men committed the burglary.

Even assuming trial counsel’s failure to object rendered him ineffective, this testimony created little, if any, prejudice considering the overwhelming evidence of Fitzpatrick’s guilt: he was found pushing a baby stroller stolen from the Metro PCS store filled with items stolen from that store; his pockets contained items stolen from that store; his duffel bag contained tools used to access the store; and he was covered in dust from chiseling into the store. Fitzpatrick has failed to show that but for the failure to object to this testimony, the outcome of his trial would have been different. The trial court’s determination that he was afforded effective assistance of counsel was not clearly erroneous.

3. Fitzpatrick contends that the trial court erred by “punishing [him] for exercising his right to a jury trial” and that the trial judge should have recused himself because of bias or prejudice. Specifically, he supports his assertion of bias by referencing the trial judge’s statement at the sentencing hearing, “I watch you take up the court’s time, I watch you take up the jury’s time.” Fitzpatrick contends that this statement shows the trial court exhibited bias that “impacted the sentence.” We disagree. “In order to be disqualifying an alleged judicial bias must stem from an extra-judicial source and result in an opinion on the merits on some basis other than what the judge learned from his or her participation in the case.” The record does not show, nor does Fitzpatrick contend, that the alleged bias resulted from an extra-judicial source.

Further, we note that Fitzpatrick did not move for a recusal, and “[t]here is no duty for a trial judge to sua sponte recuse himself absent a violation of a specific standard of OCGA § 15-1-8 or Canon 3 (E) (1) (a) through (c) of the Code of Judicial Conduct.” Fitzpatrick cites no specific standard allegedly violated by the trial judge.

Moreover, the record belies Fitzpatrick’s argument that he was punished for requesting a jury trial. Immediately after making the remark about which Fitzpatrick complains, the trial judge stated that the Super Giant videotape clearly showed Fitzpatrick taking meat from the store, and that Fitzpatrick’s testimony regarding the Metro PCS burglary “defies belief.” The trial judge also indicated that the sentence was based on evidence he had observed from the bench. “During sentencing, a court may consider any evidence properly adduced during the guilt-innocence phase of the proceedings.”

Significantly, Fitzpatrick does not argue that the sentence was illegal or excessive based upon the facts of the case. Indeed, his counsel told the trial court, “I would hope that [Fitzpatrick] would get something less [as a sentence], but I think the Court in its discretion . . . could have given the same sentence . . . .” “It is well established that the trial court has the discretion to impose [a] sentence within the parameters prescribed by the statute and if the sentence is within the statutory limits, the appellate courts will not review it.” This enumeration is unavailing.

4. Fitzpatrick also contends that the evidence was insufficient to support his convictions. When viewed in the light most favorable to the verdict, and based on our determinations in Divisions 2 and 3, the evidence presented at trial and summarized above was sufficient to authorize a rational jury to find Fitzpatrick guilty beyond a reasonable doubt of the two counts of burglary for which he was convicted.

Fitzpatrick presents no substantive argument or citation to authority related to the sufficiency of the evidence supporting his conviction for possession of tools for the commission of a crime. “Pursuant to Court of Appeals Rule 25 (a) (3) and (c) (2), an appellant must support enumerations of error with argument and citations of authority, and mere conclusory statements are not the type of meaningful argument contemplated by the rule.” This portion of Fitzpatrick’s enumeration, therefore, has been abandoned. Nevertheless, our review of the record shows that there was sufficient evidence for a rational trier of fact to find Fitzpatrick guilty beyond a reasonable doubt of possessing tools for the commission of a crime.

Decided October 11, 2012.

Herbert Adams, Jr., for appellant.

Robert D. James, Jr., District Attorney, Deborah D. Wellborn, Assistant District Attorney, for appellee.

Judgment affirmed.

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

       OCGA § 16-7-1 (c).

       OCGA § 16-7-20.

        Jackson v. Virginia, 443 U. S. 307, 319 (III) (B) (99 SC 2781, 61 LE2d 560) (1979).

       (Footnote omitted.) Currid v. DeKalb State Court Probation Dept., 274 Ga. App. 704, 706 (1) (618 SE2d 621) (2005).

        Burrowes v. State, 296 Ga. App. 629, 631 (1) (675 SE2d 518) (2009); Court of Appeals Rule 25 (a).

        Strickland v. Washington, 466 U. S. 668, 694 (III) (B) (104 SC 2052, 80 LE2d 674) (1984).

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

        Strickland, supra at 697 (IV).

       (Citation and punctuation omitted.) Boynton v. State, 317 Ga. App. 446, 450 (2) (730 SE2d 738) (2012).

       Id. (acquittal on one count supports conclusion that counsel was effective). See Caylor v. State, 255 Ga. App. 362, 363 (566 SE2d 33) (2002) (verdict of acquittal on one count supports conclusion that counsel was effective).

       (Citation omitted.) Kelly v. State, 267 Ga. 252, 254 (2) (477 SE2d 110) (1996).

       (Citation and punctuation omitted.) Vanholten v. State, 271 Ga. App. 782, 783 (2) (a) (610 SE2d 555) (2005).

       Id.

        Jones v. State, 315 Ga. App. 427, 433 (3) (727 SE2d 216) (2012).

        See Mims v. State, 301 Ga. App. 436, 438-439 (2) (a) (687 SE2d 670) (2009) (trial counsel was not ineffective for failing to call witnesses for whom he had insufficient contact information where the defendant did not call those witnesses at his motion for new trial hearing or otherwise show their testimony would have altered the outcome of his case).

       (Citation and punctuation omitted.) Green v. State, 291 Ga. 287, 298 (10) (d) (728 SE2d 668) (2012).

       Fitzpatrick also contends that he did not see a copy of the Super Giant surveillance video prior to trial. However, trial counsel testified that he showed Fitzpatrick the video before trial, and Fitzpatrick testified that he saw the video the day before trial.

       (Citation and punctuation omitted.) Dukes v. State, 224 Ga. App. 305, 308 (3) (480 SE2d 340) (1997).

       See Lambert v. State, 287 Ga. 774, 111 (2) (700 SE2d 354) (2010) (counsel’s failure to object to testimony on coercion was not ineffective given the overwhelming evidence of defendant’s guilt); Pilkington v. State, 298 Ga. App. 317, 320 (1) (b), (c) (680 SE2d 164) (2009) (counsel’s failure to object to opinion testimony by police officers regarding credibility of a witness was not ineffective where the evidence of defendant’s guilt was overwhelming).

       (Punctuation and footnote omitted.) Butts v. State, 273 Ga. 760, 762-763 (3) (546 SE2d 472) (2001).

       (Citation and punctuation omitted.) Lemming v. State, 292 Ga. App. 138, 141 (1) (663 SE2d 375) (2008).

       (Footnote omitted.) De’Mon v. State, 262 Ga. App. 10, 15 (5) (584 SE2d 639) (2003).

       (Emphasis supplied.) See Ahmed v. Clark, 301 Ga. App. 426, 428 (688 SE2d 361) (2009) (party may not acquiesce in trial court’s ruling and later complain about that ruling on appeal).

       (Citations and punctuation omitted.) Bennett v. State, 292 Ga. App. 382, 385 (1) (665 SE2d 365) (2008).

       Since Fitzpatrick’s contention that his sentence is “incomprehensible” is not supported by argument, by citation to the record, or with any authority, this portion of his enumeration of error has been abandoned. See Court of Appeals Rule 25 (a), supra.

       See Jackson, supra.

       (Citation and punctuation omitted.) Quarterman v. State, 305 Ga. App. 686, 690 (1) (b) (700 SE2d 674) (2010).

       OCGA § 16-7-20, supra; Weeks v. State, 274 Ga. App. 122, 126 (2) (616 SE2d 852) (2005) (evidence was sufficient to support conviction for possession of tools for the commission of a crime where the defendant was found with a screwdriver and flashlight near the house that had been burglarized); Manous v. State, 205 Ga. App. 804, 805 (1) (423 SE2d 721) (1992) (evidence was sufficient where, among other things, screwdriver was found in area of woods where the defendant ran to evade police after burglary of a restaurant).


author: Miller, Presiding Judge.

text:
    A12A1170.
    JENSEN v. ENGLER et al.
    (733 SE2d 52)
   Miller, Presiding Judge.

We granted this application for interlocutory appeal to consider the trial court’s denial of Dr. Kevin L. Jensen’s motion to dismiss professional negligence and battery claims brought against him by Yong Ha Engler, as surviving spouse and administrator of the estate of Mr. Eric Walter Engler. On appeal, Dr. Jensen asserts that the trial court erred by allowing Engler to amend her original complaint after the expiration of the statute of limitation to add claims for professional negligence and battery. For the reasons set forth below, we affirm the trial court’s ruling.

“On appeal, this Court reviews the denial of a motion to dismiss de novo. However, we construe the pleadings in the light most favorable to the plaintiff with any doubts resolved in her favor.” (Footnote omitted.) Comprehensive Pain Mgmt. v. Blakely, 312 Ga. App. 721 (719 SE2d 579) (2011).

So viewed, Engler’s complaint alleged that on May 1, 2008, Dr. Jensen performed laparoscopic gallbladder surgery on Mr. Engler. Mr. Engler was discharged the following day. On May 6, 2008, Mr. Engler returned and presented to the emergency department at Gwinnett Medical Center with signs of an emerging infection. Although the emergency room doctor called Dr. Jensen to discuss Mr. Engler’s case, Dr. Jensen did not go to the hospital to personally examine Mr. Engler. Dr. Jensen indicated that he would instead see Mr. Engler three days later, at his previously scheduled follow-up appointment. Mr. Engler was discharged from the hospital.

On May 8,2008, two days later, Mr. Engler collapsed at his home. Upon the arrival of emergency medical services, Mr. Engler had no detectable pulse and was believed to be in cardiac arrest. He was transported to Gwinnett Medical Center; the emergency medical technicians noted that Mr. Engler’s abdomen was extremely swollen and the sutures had begun to open in the middle of his abdomen and chest. All efforts to resuscitate Mr. Engler were unsuccessful, and he was pronounced dead. According to the autopsy examination conducted the following day, Mr. Engler died as a result of an acute bacterial infection caused by thermal burns in the area where Dr. Jensen had performed the laparoscopic surgery.

On March 5, 2010, Engler filed suit against several defendants, including Dr. Jensen. Her original complaint raised a claim of ordinary negligence against Dr. Jensen for his failure to ensure the proper functioning of certain monitoring equipment during Mr. Engler’s surgery so as to prevent thermal burn injuries. Dr. Jensen subsequently moved to dismiss the suit on the basis that Engler’s claims actually sounded in professional negligence and her complaint was not accompanied by the requisite expert affidavit. The trial court denied the motion, finding that the allegations in Engler’s complaint did not disclose with certainty that she would not be entitled to relief on a claim of ordinary negligence against Dr. Jensen.

On July 15, 2011, Engler amended her complaint to include, in addition to the ordinary negligence claim, new claims against Dr. Jensen for professional negligence and battery. In light of the new professional negligence claim, she also filed the requisite expert affidavit along with her amended complaint. Engler’s professional negligence claim was based upon Dr. Jensen’s failure to come to the hospital on May 6, 2008, and personally evaluate and investigate the cause of Mr. Engler’s post-surgical symptoms. Her new battery claim was based upon Dr. Jensen’s deviation from the informed consent signed by Mr. Engler prior to his surgery. Dr. Jensen filed a second motion to dismiss, arguing that Engler’s new claims for professional negligence and battery were barred. Following a hearing, the trial court denied Dr. Jensen’s motion and issued a certificate of immediate review.

1. In his first enumeration of error, Dr. Jensen contends that the trial court erred in failing to dismiss Engler’s professional negligence claim because (a) it was barred due to Engler’s failure to file an expert affidavit with her original complaint; and (b) it was otherwise time-barred by the statute of limitation since it did not “relate back” to the original complaint.

(a) Dr. Jensen argues that Engler’s failure to file an expert affidavit along with her original complaint was fatal to her subsequent professional negligence claim. We disagree.

As noted above, a plaintiff is required to attach an OCGA § 9-11-9.1 expert affidavit to a complaint raising a claim for medical malpractice against a medical doctor. See OCGA § 9-11-9.1 (a) (1), (g) (11). Absent compliance with the expert affidavit requirement, a medical malpractice claim is subject to dismissal for failure to state a claim. See Roberson v. Northrup, 302 Ga. App. 405, 406 (691 SE2d 547) (2010). Here, however, as the trial court recognized, Engler’s original complaint raised only a claim of ordinary negligence, and therefore the OCGA § 9-11-9.1 affidavit requirement was not implicated at the time that the original complaint was filed. See OKelley v. Atlanta Heart Assoc., 316 Ga. App. 218, 219 (728 SE2d 313) (2012).

Citing Fales v. Jacobs, 263 Ga. App. 461, 462 (588 SE2d 294) (2003), Dr. Jensen nevertheless claims that the contemporaneous affidavit filing requirement of OCGA § 9-11-9.1 (a) would be negated if a plaintiff was allowed to bring an ordinary negligence claim without an affidavit, and then later add claims for professional negligence after the expiration of the statute of limitation. Fales, however, is inapplicable to the instant situation. There, the plaintiff originally brought a medical malpractice claim, but failed to attach the requisite expert affidavit. Fales, supra, 263 Ga. App. at 461. The plaintiff instead filed an amended complaint that included an expert affidavit, claiming that OCGA § 9-11-9.1 allowed an amended complaint to cure a failure to file an affidavit. Id. at 461-462. This Court rejected the plaintiff’s argument. Id. at 462; see also Roberson, supra, 302 Ga. App. at 407 (holding that OCGA § 9-11-9.1 does not allow a plaintiff suing for medical malpractice to cure a failure to attach an expert affidavit through amendment). Here, on the other hand, Engler did not raise a medical malpractice claim in her original complaint, thereby obviating the need to file an expert affidavit at that time. Engler subsequently filed an expert affidavit with her amended complaint only because she had raised a new claim for medical malpractice, in addition to the ordinary negligence claim, that was based on different factual allegations. Thus, the pleadings do not reflect that Engler’s amended complaint was an improper attempt to cure any original failure to file an expert affidavit or otherwise avoid the contemporaneous filing requirement of OCGA § 9-11-9.1 (a). And because Engler filed the required expert affidavit contemporaneously with the filing of her professional negligence claim, she satisfied the requirements of OCGA § 9-11-9.1 (a).

(b) Dr. Jensen further contends that Engler’s professional negligence claim was time-barred by the relevant statute of limitation because the new claim was based upon different factual allegations than the original ordinary negligence claim, and therefore did not “relate back” to the date of Engler’s original complaint. Again, we disagree.

“[A]n action for medical malpractice shall be brought within two years after the date on which an injury or death arising from a negligent or wrongful act or omission occurred.” OCGA § 9-3-71 (a). As Mr. Engler died on May 8, 2008, the statute of limitation on a medical malpractice claim, brought in Engler’s personal capacity as surviving spouse, expired on May 8, 2010. In addition, since Engler was appointed administrator of Mr. Engler’s estate on January 22, 2009, the statute of limitation on a medical malpractice claim, brought in Engler’s capacity as administrator, expired on January 22, 2011. See OCGA § 9-3-92 (tolling the statute of limitation from the date of death until the commencement of representation upon the decedent’s estate, provided that such time shall not exceed five years). Thus, in raising her professional negligence claim for the first time on July 15, 2011, the statute of limitation had already expired.

However, pursuant to OCGA § 9-11-15 (a), “[a] party may amend his pleading as a matter of course and without leave of court at any time before the entry of a pretrial order.” (Punctuation omitted.) Moreover, “[w]henever the claim or defense asserted in the amended pleading arises out of the conduct, transaction, or occurrence set forth or attempted to be set forth in the original pleading, the améndment relates back to the date of the original pleading.” (Punctuation omitted.) OCGA § 9-11-15 (c); see Deering v. Keever, 282 Ga. 161, 163 (646 SE2d 262) (2007) (“Under OCGA § 9-11-15, an amendment to a complaint may raise a new cause of action[.]”) (citation and punctuation omitted). This Court has held that “OCGA § 9-11-15 (c) shouldbe liberally construed to effect its purpose of ameliorating the impact of the statute of limitation.” (Citation omitted.) Morris v. Chewning, 201 Ga. App. 658, 659 (411 SE2d 891) (1991); see also Deering, supra, 282 Ga. at 163 (“OCGA § 9-11-15 is liberally construed in favor of allowing amendments.”) (citation omitted).

Despite Dr. Jensen’s contention that Engler’s professional negligence claim had to be based upon the same factual allegations giving rise to her original ordinary negligence claim in order to relate back to the original complaint, such is not the standard under OCGA § 9-11-15 (c). As set forth above, the standard is whether the professional negligence claim arose “out of the conduct, transaction, or occurrence set forth or attempted to be set forth in the original pleading[.]” (Punctuation omitted.) Id. Moreover,

[t]he question of relation back of the amendment turns on fair notice of the same general fact situation from which the claim arises. It is apparent that the strict rule of no relation back of the amendment to the time of filing the original complaint because of the assertion of a new cause of action is no longer applicable unless the causes of the action are not only different but arise out of wholly different facts.

(Citation and punctuation omitted; emphasis in original.) Smith v. Wilfong, 218 Ga. App. 503, 505-506 (1) (462 SE2d 163) (1995).

Here, both the original complaint and the amended complaint set forth allegations based upon Mr. Engler’s surgery, emergency room visit, and discharge. Specifically, Dr. Jensen’s follow-up care relating to the laparoscopic gallbladder surgery he performed on Mr. Engler just five days earlier was all part of the same general fact situation and did not arise from wholly different facts. Cf. Smith, supra, 218 Ga. App. at 505-506 (1) (concluding that the alleged malpractice in diagnosing the plaintiff’s kidney problem, which was raised in the original complaint, and the alleged battery involved in the operation due to the claimed fraudulently obtained consent, which was raised in the amended complaint, were part of the same general fact situation and did not arise from wholly different facts). Thus, the professional negligence claim asserted in Engler’s amended complaint arose out of the same conduct, transaction, or occurrence set forth in the original complaint. See OCGA § 9-11-15 (c).

Decided October 11, 2012

Houck & Regas, M. Paul Reynolds, Paul E. Weathington, Amy M. Hoffman, for appellant.

Therefore, the new professional negligence claim related back to the date of the original complaint and was not barred by the two-year statute of limitation. Accordingly, the trial court did not err in denying Dr. Jensen’s motion to dismiss Engler’s professional negligence claim.

2. Dr. Jensen also contends that the trial court erred by allowing Engler to amend her complaint after the expiration of the statute of limitation to add a new claim for battery. Dr. Jensen specifically argues that because the battery claim was actually a claim for professional negligence, it should have been dismissed for the same reasons he asserted in support of dismissing Engler’s professional negligence claim. However, even if we were to assume, without deciding, that Engler’s battery claim was in fact one for professional negligence, Dr. Jensen’s arguments in favor of dismissal must fail for the same reasons set forth in Division 1 above. That is, the claim arose out of the same conduct, transaction, or occurrence set forth in the original complaint, and Engler’s failure to file an expert affidavit along with her original complaint did not bar the subsequent claim. Therefore, the trial court did not err in denying Dr. Jensen’s motion to dismiss Engler’s battery claim.

Judgment affirmed.

Ray and Branch, JJ., concur.

Conley & Griggs, Cale H. Conley, Richard A. Griggs, Mahaffey, Pickens & Tucker, Gerald Davidson, Jr., for appellees.

       The other defendants are not parties to this appeal.

       See OCGA § 9-11-9.1 (a) (1), (g) (11) (“In any action for damages alleging professional malpractice against... [a] professional licensed by the State of Georgia... [, including medical doctors,] ... [t]he plaintiff shall be required to file with the complaint an affidavit of an expert competent to testify, which affidavit shall set forth specifically at least one negligent act or omission claimed to exist and the factual basis for each such claim.”) (punctuation omitted).

       We note that Dr. Jensen does not challenge the trial court’s denial of his motion to dismiss Engler’s original, ordinary negligence claim for her failure to attach an OCGA § 9-11-9.1 expert affidavit.

       Nothing in the record indicates that a pretrial order had been entered.

         Dr. Jensen analogizes this case to Pazur v. Belcher, 272 Ga. App. 456, 458-459 (2) (612 SE2d 481) (2004), in which this Court noted that the relation-back doctrine would be inapplicable where the plaintiff characterized his new, amended action against a new defendant as “wholly separate and distinct from the causes of action asserted against the [defendant] in the original complaint.” (Punctuation omitted.) Unlike the plaintiff’s characterization in Pazur, however, Engler’s amended complaint merely described her professional negligence claim as arising out of “different factual allegations” — and as explained herein, it otherwise arose out of the same conduct, transaction, or occurrence set forth in the original complaint.

       Engler did not raise a professional negligence claim in the original complaint, however, because it was not until after discovery that additional evidence was found suggesting that Dr. Jensen deviated from the applicable standard of care during Mr. Engler’s emergency room visit.


author: Phipps, Presiding Judge.

text:
    A12A1377.
    PERRY v. THE STATE.
    (733 SE2d 57)
   Phipps, Presiding Judge.

Clarence Perry, Jr., while driving a SUV on April 3, 2008, was stopped for suspected illegal window tint. Shemika Williams was the sole passenger. During the stop, the police found marijuana and cocaine inside the SUV and on Williams’s person. Perry was charged with window tint violation; Perry and Williams were both charged with possession of less than an ounce of marijuana and with cocaine possession. Perry was later also charged with the offense of influencing a witness — Williams — in connection with the drug charges. Williams entered a negotiated plea of guilty to the drug charges against her, then testified for the state at Perry’s jury trial, at which all charges against him were joined. A mistrial was declared on Perry’s cocaine possession charge; the jury found Perry not guilty of influencing a witness; and Perry was convicted on the charges of window tint violation and marijuana possession. In this appeal, Perry contends that the trial court erred by refusing to sever his trial on the drug charges from his trial on the charge of influencing a witness. For reasons that follow, we affirm.

Evidence at Perry’s trial included the following. Before Williams pled guilty, Perry sent requests to her through her mother for Williams to “take” the drug charges. Williams rejected his requests, and her mother informed Perry that Williams would admit guilt only for her part in the crimes. At her guilty plea hearing, Williams testified that, when the officer initiated the traffic stop, Perry was smoking a primo blunt, which she described as “crack and weed together”; that Perry quickly handed her the blunt, along with crack cocaine rocks, and instructed her to throw it all out the window; that she did not do so because the officer had driven too close to them; that she did not smoke; and that the blunt and crack cocaine rocks were not hers, but belonged to Perry. Williams testified further at her guilty plea hearing that powder cocaine found in the back area of the SUV was hers.

At Perry’s trial, Williams testified that she had pled guilty to both the marijuana and cocaine charges because both drugs had been found on her person and because she wanted to end the ordeal. Other witnesses at Perry’s trial included the officer who initiated the traffic stop, who described the degree of the window tint and the confiscated suspected drug evidence; and experts in drug identification, who testified that certain confiscated evidence was determined to be marijuana or cocaine.

“Severance lies within the sound discretion of the trial judge since the facts in each case are likely to be unique.” Perry has demonstrated no abuse of discretion. Evidence of either crime would have been admissible at the trial of the other; moreover, the charged offenses were neither so numerous nor so complex that the jury was unable to parse the evidence and correctly apply the law with regard to each charge. Nothing in the case of Carter v. State, which Perry cites, controls this case to an outcome in his favor. Indeed, Perry includes no argument as to how Carter entitles him to a reversal.

Decided October 11, 2012.

Jackie G. Patterson, for appellant.

Peter J. Skandalakis, District Attorney, Lee F. Tittsworth, Assistant District Attorney, for appellee.

Judgment affirmed.

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

       OCGA § 40-8-73.1 (b) (2).

       OCGA § 16-13-30 © (1).

       OCGA § 16-13-30 (a).

       OCGA § 16-10-93 (a).

       Perry makes no argument that the traffic and drug offenses should have been severed for trial purposes.

       See generally Carter v. State, 261 Ga. 344, 345 (1) (404 SE2d 432) (1991) (claim of error regarding failure to sever two offenses for trial is not necessarily rendered moot where defendant acquitted on one count).

        Watson v. State, 176 Ga. App. 610, 611 (2) (337 SE2d 54) (1985) (citation and punctuation omitted); see Johnson v. State, 257 Ga. 731, 733 (2) (c) (363 SE2d 540) (1988) (“court has wide discretion in severance motions”).

       See Woolfolk v. State, 282 Ga. 139, 140-141 (2) (644 SE2d 828) (2007) (where the evidence of one crime would be admissible in the trial of the other crime, it cannot be said that the trial court abused its discretion in denying the motion for severance); Johnson, supra (same); Watson, supra (joinder was proper, where evidence concerning the assault was inextricably bound to the evidence that appellant had threatened the victim in an attempt to influence her to drop the assault charge); see also Dukes v. State, 290 Ga. 486, 488 (3) (722 SE2d 701) (2012) (evidence of a defendant’s attempt to influence or intimidate a witness can serve as circumstantial evidence of guilt); Nguyen v. State, 273 Ga. 389, 398 (3) (543 SE2d 5) (2001) (state may introduce evidence of a defendant’s attempt to influence a witness as consciousness of guilt by conduct).

       See Stewart v. State, 277 Ga. 138, 139 (587 SE2d 602) (2003) (in determining whether to sever offenses, trial court must look to the number and complexity of the offenses charged and determine whether a trier of fact can parse the evidence and apply the law with regard to each charge).

       Supra.

       See id. at 344 (1) (explaining principle that where multiple offenses have been joined “solely on the ground that they are of the same or similar character, the defendant has an absolute right to a severance of the offenses”; authorizing trial court to exercise its discretion in other circumstances). Cf. Johnson, supra at 732-733 (2) (finding that the principle “[w]hen-ever two or more offenses have been joinedfor trial solely on the ground that they are of the same or similar character, the defendant shall have a right to a severance of the offenses” did not control severance determination, where counts were not joined for trial solely because they were similar, proof of defendant’s guilt in one event tended to establish his guilt in the other, and evidence of one crime would be admissible in the trial of the other crime) (punctuation omitted; emphasis in original).

       See generally Court of Appeals Rule 25 (a) (3).


author: Andrews, Judge.

text:
    A12A1138.
    MACFARLAN et al. v. ATLANTA GASTROENTEROLOGY ASSOCIATES, INC. et al.
    (732 SE2d 292)
   Andrews, Judge.

After John Macfarlan’s death from colon cancer, his parents brought this medical malpractice action against defendants Atlanta Gastroenterology Associates, Inc. (AGA) and R. Carter Davis, M.D., who had treated Macfarlan since 1994. On appeal from the trial court’s grant of summary judgment to defendants, plaintiffs argue inter alia that the statute of repose does not bar their action. We affirm.

To prevail at summary judgment under OCGA § 9-11-56, the moving party must demonstrate that there is no genuine issue of material fact and that the undisputed facts, viewed in the light most favorable to the nonmoving party, warrant judgment as a matter of law.... [T]he burden on the moving party may be discharged by pointing out by reference to the affidavits, depositions and other documents in the record that there is an absence of evidence to support the nonmoving party’s case. If the moving party discharges this burden, the nonmoving party cannot rest on its pleadings, but rather must point to specific evidence giving rise to a triable issue.

(Citations omitted.) Lau’s Corp. v. Haskins, 261 Ga. 491 (405 SE2d 474) (1991).

Plaintiffs’ brief does not contain a statement of facts, with the result that we are entitled to depend on defendants’ statement of the same. See Court of Appeals Rule 25 (a) (appellant’s brief must contain a statement of “the material facts relevant to the appeal”). The relevant facts are not in dispute, however. Dr. Davis first treated Macfarlan on January 9, 1994, when a colonoscopy showed that Macfarlan was suffering from ulcerative colitis, which he had first contracted at the age of 15. Dr. Davis advised Macfarlan that his biopsy showed high-grade dysplasia, or abnormal tissue growth, and that his colon might need to be removed. A second biopsy two months later, after a new medication regimen was in place, and taken for purposes including the detection of cancer, confirmed the longstanding condition of ulcerative colitis but showed only low-grade dysplasia. When Macfarlan decided after consultation not to remove his colon, Dr. Davis recommended a sigmoidoscopy in six months and a third colonoscopy in a year.

Macfarlan returned in May 1995 for a follow-up colonoscopy, which showed chronic colitis but no dysplasia. Dr. Davis increased Macfarlan’s medication so as to continue to control the colitis and recommended a colonoscopy the following year. In November 1995, after an episode of acute pain associated with passing a gallstone, Macfarlan was diagnosed with sclerosing cholangitis, or inflammation of the gallbladder. In light of this new condition, Macfarlan’s life expectancy was put at eight to ten years.

In the course of treatment at AGA over the next six years, Macfarlan received five more colonoscopies, none of which showed either high- or low-grade dysplasia. When a sixth colonoscopy performed in November 2001 showed high-grade dysplasia and an identifiable lesion, however, Dr. Davis referred Macfarlan to a colorectal surgeon. Macfarlan died of metastatic cancer less than three months later on January 25, 2002.

On January 22, 2004, plaintiffs filed their suit for medical malpractice accompanied by an affidavit from William Kaiser, M.D. The complaint alleged that as a result of substandard treatment from January 1994 to June 1996 “and thereafter,” Macfarlan’s cancer was not timely discovered, resulting in his death. In his accompanying affidavit, Dr. Kaiser stated his opinion that Dr. Davis had breached the applicable standard of care when, after the discovery of high-grade dysplasia, he failed to obtain additional consultation and treatment including biopsies and a colon resection, with the proximate result that Macfarlan died prematurely. At deposition, Dr. Kaiser made clear that his criticisms of Dr. Davis’s performance arose from perceived failures in treatment in 1994-1995, when high-grade dysplasia was diagnosed and treated, and not at any time after 1995.

After defendants moved for summary judgment in June 2006, on October 13, 2006, plaintiffs filed an amended complaint including claims under the Georgia Fair Business Practices Act (FBPA) (OCGA § 10-1-390 et seq.) and the Uniform Deceptive Trade Practices Act (UDTPA) (OCGA § 10-1-370 et seq.). The amended complaint also attached an affidavit from Stuart Finkel, M.D. Dr. Finkel’s affidavit stated his opinion that Dr. Davis had performed insufficiently frequent and comprehensive biopsies between 1994 and 2001. After a hearing, the trial court held that plaintiffs’ original complaint did not contain any allegations of negligence occurring after 1995 and was thus barred by the medical malpractice statute of repose. The trial court also held that the claims asserted in the amended complaint did not relate back under OCGA § 9-11-15 (c) because they did not arise out of the same conduct, transaction, or occurrence set forth in the original complaint.

1. OCGA § 9-3-71 sets out both a statute of limitation and a statute of repose applicable to actions for medical malpractice:

(a) Except as otherwise provided in this article, an action for medical malpractice shall be brought within two years after the date on which an injury or death arising from a negligent or wrongful act or omission occurred.
(b) Notwithstanding subsection (a) of this Code section, in no event may an action for medical malpractice be brought more than five years after the date on which the negligent or wrongful act or omission occurred.
(c) Subsection (a) of this Code section is intended to create a two-year statute of limitations. Subsection (b) of this Code section is intended to create a five-year statute of ultimate repose and abrogation.

(Emphasis supplied.)

As the Supreme Court of Georgia has noted, OCGA § 9-3-71 “ ‘clearly distinguishes between the statutes of limitation and the statutes of repose.’ ” Simmons v. Sonyika, 279 Ga. 378, 379 (614 SE2d 27) (2005), quoting Siler v. Block, 204 Ga. App. 672, 674 (1) (420 SE2d 306) (1992). OCGA § 9-3-71 (c) “expressly designates OCGA § 9-3-71 (b) as ‘a five-year statute of ultimate repose and abrogation,’ differentiating it from the ‘two-year statute of limitations’ created by OCGA § 9-3-71 (a).” Simmons, 279 Ga. at 379. Our Supreme Court describes this difference as follows:

A statute of limitation is a procedural rule limiting the time in which a party may bring an action for a right which has already accrued. A statute of ultimate repose delineates a time period in which a right may accrue. If the injury occurs outside that period, it is not actionable. A statute of repose stands as an unyielding barrier to a plaintiff’s right of action. The statute of repose is absolute; the bar of the statute of limitation is contingent. The statute of repose destroys the previously existing rights so that, on the expiration of the statutory period, the cause of action no longer exists.

(Citations and punctuation omitted; emphasis supplied.) Id. No external factor, whether a lack of discovery, infancy, incompetency, or fraud, may toll a statute of repose because any such tolling “would deprive the defendant of the certainty of the repose deadline and thereby defeat the purpose of a statute of repose.” (Citation and punctuation omitted.) Id. at 380.

(a) Although plaintiffs’ original complaint, as clarified by the affidavit and testimony of Dr. Kaiser, alleged negligence as to the course of treatment administered on Macfarlan in 1994-1995, the complaint itself was filed in 2004. Thus the trial court did not err when it held that the allegations of the original complaint are barred by OCGA § 9-3-71 (b), which abrogates any action for medical malpractice brought “more than five years after the date on which the negligent or wrongful act or omission occurred.” Id.; Simmons, 279 Ga. at 380; see also Pottinger v. Smith, 293 Ga. App. 626, 629 (667 SE2d 659) (2008) (reversing denial of summary judgment when complaint and expert affidavit, taken together, failed to maintain a question of material fact whether defendants were grossly negligent).

(b) With the exception of one assertion on appeal, made without citation to the record, that “there has been fraudulent concealment” in the course of Macfarlan’s treatment, plaintiffs have argued only negligence as the cause of their injury. Despite their failure to cite any evidence in support of this proposition, however, plaintiffs also assert that defendants should be estopped from asserting a statute-of-repose defense because “ ‘[t]he sun never sets on fraud.’ ” Esener v. Kinsey, 240 Ga. App. 21, 23 (522 SE2d 522) (1999) (affirming denial of defendant’s motion for judgment on the pleadings of a medical malpractice action where plaintiff could conceivably produce evidence to show that defendant was estopped from asserting the statute of repose as a defense), quoting Hill v. Fordham, 186 Ga. App. 354, 357-358 (367 SE2d 128) (1988).

We reject plaintiffs’ insinuations as unsupported by either this record or applicable law. Our cases are clear that “[a] patient must present evidence of a known failure to reveal negligence in order to show fraud.” (Citation and punctuation omitted.) Hutcherson v. Obstetric & Gynecologic Assocs. of Columbus, 247 Ga. App. 685, 688 (2) (543 SE2d 805) (2000). Thus, and in the absence of any evidence authorizing a reasonable inference that defendants in this case “had any knowledge of improper conduct” or that they “tried to cover up [their] conduct in any way,” id. at 688, the trial court properly granted them summary judgment under OCGA § 9-3-71 (b). Id. at 689 (2) (affirming grant of summary judgment in the absence of a jury question whether defendant was estopped from raising the defense of the statute of repose).

2. It follows from what has already been said that plaintiffs’ amended complaint cannot relate back under OCGA § 9-11-15 (c) so as to revive a cause of action already extinguished by the statute of repose.

OCGA § 9-11-15 (c) provides in relevant part: “Whenever the claim or defense asserted in the amended pleading arises out of the conduct, transaction, or occurrence set forth or attempted to be set forth in the original pleading, the amendment relates back to the date of the original pleading.” Specifically, allegations of a continuing failure to correct an initial misdiagnosis do not toll the statute of limitation laid out in OCGA § 9-3-71 (a). Frankel v. Clark, 213 Ga. App. 222, 224 (444 SE2d 147) (1994) (rejecting plaintiff’s argument that defendant dentist’s alleged failures to correct his previous negligence could constitute “additional acts of negligence” so as to toll the statute of limitation).

Even less could we interpret allegations concerning medical malpractice so as to effect a tolling of the “statute of ultimate repose and abrogation” laid out in OCGA § 9-3-71 (c). In Wright v. Robinson, 262 Ga. 844 (426 SE2d 870) (1993), for example, the Supreme Court of Georgia held that the statute of repose controls any attempt to renew a medical malpractice action because “the legislature never intended for the dismissal and renewal statutes to overcome the statute of repose.” Id. at 846 (1). As the Eleventh Circuit has held, moreover, a trial court is within its rights to deny a motion to amend a complaint for medical malpractice when “new or distinct conduct, transactions, or occurrences are alleged as grounds for recovery.” (Citation and punctuation omitted.) Moore v. Baker, 989 F2d 1129, 1131 (11th Cir. 1993). This is so for two reasons: because the defendant had no previous notice of the claims now asserted against him, and because those claims could have been included in the original complaint. See id. at 1131 (affirming denial of motion to amend complaint for medical malpractice where amendment concerned actions occurring after the subject matter of the original complaint); Smith v. Lockridge, 288 Ga. 180, 186 (702 SE2d 858) (2010) (affirming grant of summary judgment where matters alleged in plaintiffs’ amended complaint were or could have been put at issue in the original complaint, which was already the subject of a prior and binding adjudication on the merits).

As defendants point out, the negligence claims asserted in the amended complaint and supporting affidavit concern the procedure and method of the biopsies performed on Macfarlan between 1994 and 2001, whereas the original complaint, as clarified by Dr. Kaiser’s affidavit and deposition, concerned only the course of treatment in 1994-1995. In any case, and to the extent that the claims of plaintiffs’ amended complaint are taken as “arising out of the conduct, transaction, or occurrence” set forth in the original complaint, they are barred by the statute of repose laid out in OCGA § 9-3-71 (b). See Krasaeath v. Parker, 212 Ga. App. 525 (441 SE2d 868) (1994) (even if action for contribution against radiologist was not barred by the twenty-year statute of limitation, it was barred by the five-year statute of repose). Even assuming that some claims asserted for the first time in the amended complaint could be construed as a distinct set of actions and omissions ending in 2001, moreover, or more than two years before that amended complaint was filed, they would be barred under the statute of limitation laid out in OCGA § 9-3-71 (a). Frankel, 213 Ga. App. at 224.

3. Plaintiffs also assert that the trial court erred when it granted summary judgment on their claims under the FBPA and the UDTPA. Again, we disagree.

As we have already noted, these claims were asserted only in the amended complaint, with the result that they cannot be held to relate back under OCGA § 9-11-15 (c). Smith, 288 Ga. at 186. As the Supreme Court of Georgia has held, moreover, “[m] edical malpractice claims recast as FBPA claims cannot form the basis for a FBPA violation. To hold otherwise would transform every claim for medical malpractice into a FBPA claim.” Henderson v. Gandy, 280 Ga. 95, 98 (623 SE2d 465) (2005). Rather, a plaintiff states a FBPA claim only when the allegations of a complaint concern “any entrepreneurial or business aspect of the medical practice,” id. at 99, which the amended complaint does not. The same rationale also dooms plaintiffs’ claims under the UDTPA. Given that the latter statute has no plausible connection to medical malpractice claims, see OCGA § 10-1-372 (defining deceptive trade practices), it is not surprising that plaintiffs have cited no authority whatsoever in support of their contention that such a connection could exist.

For all of these reasons, the trial court did not err when it granted summary judgment to defendants.

Judgment affirmed.

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

Decided September 19, 2012

Reconsideration denied October 12, 2012

Eason, Kennedy & Crawford, David S. Crawford, Clarence O. Taylor TV, for appellants.

Commander & Pound, Scott C. Commander, Lori E. Jolly, for appellees.