text:
    A17A0611, A17A0783.
    JOHNSON v. THE STATE (two cases).
    (801 SE2d 82)
   MILLER, Presiding Judge.

After Joshua Johnson was indicted for armed robbery (OCGA § 16-8-41), aggravated assault (OCGA § 16-5-21), and misdemeanor obstruction of a law enforcement officer (OCGA § 16-10-24), defense counsel requested an evaluation of Johnson’s competency. The trial court ordered a psychological evaluation, held a hearing as required by Sell v. United States, 539 U. S. 166 (123 SCt 2174, 156 LE2d 197) (2003), and ordered Johnson be involuntarily medicated in order to make him competent to stand trial. Johnson now appeals, arguing that the trial court failed to follow the test under Sell. For the reasons that follow, we agree and vacate the trial court’s order and remand the case for further proceedings.

In Sell,

the Supreme Court of the United States established a four-part test for determining the rare instances when it is constitutionally permissible to involuntarily medicate a mentally ill criminal defendant for the sole purpose of making him competent to stand trial.

(Punctuation omitted.) Warren v. State, 297 Ga. 810, 812 (1) (778 SE2d 749) (2015).

[T]he first part of the [Sell] test generally presents a legal question and thus should be reviewed de novo on appeal, while the remaining three parts present primarily factual questions and thus should be reviewed only for clear error by the trial court.

Id.

So viewed, the evidence shows that Johnson was indicted in October 2015. On February 1, 2016, at the request of defense counsel, the trial court ordered the Georgia Department of Behavioral Health and Developmental Disabilities (“Department of Behavioral Health”) to conduct an evaluation of Johnson’s competency to stand trial as well as his criminal responsibility at the time of the alleged acts.

A psychiatrist, Deepti Vats, interviewed Johnson in February 2016 and determined that Johnson is incompetent to stand trial. Notably, Dr. Vats reported that when Johnson was first brought into the jail he had “slurred and scarce speech with a tangential thought process. He responded by giving inappropriate answers and making inappropriate expressions. [H]e had a history of being on medications, but was not currently prescribed any medications.”

Dr. Vats diagnosed Johnson with schizophrenia spectrum and other psychotic disorders, and he reported that Johnson had taken the anti-psychotic medications Haldol and Risperdal in the past. Dr. Vats also reported that Johnson has delusions of grandeur and symptoms of mental illness characterized by his delusions; his symptoms seriously impair his competency to stand trial; and he lacks the ability to assist his attorney because he cannot provide an accounting of his actions with respect to the charged crimes. Dr. Vats concluded that, “to a reasonable degree of medical certainty,” Johnson is not competent to stand trial. Dr. Vats also found that nothing during the interview suggested that Johnson was malingering or faking either incompetence or insanity

More than six months after Dr. Vats determined that Johnson was incompetent to stand trial, the trial court held the Sell hearing at issue in this case. At the hearing, the State presented the testimony of two witnesses, Psychologist Amy Gambow and Psychiatrist Kelly Coffman. Neither Dr. Vats nor Dr. Koster testified at the Sell hearing.

Dr. Gambow is a post-doctoral fellow in clinical psychology Although Dr. Gambow is not yet board-certified or licensed to practice as a psychologist in Georgia, the trial court allowed her to testify as an expert over defense counsel’s objection. Dr. Gambow testified that she works for the psychiatry and law service, which runs the “in-jail restoration program within the Fulton County jail” (hereinafter the “Program”), and she provides clinical services to inmates, like Johnson, who are found incompetent to stand trial.

Dr. Gambow first met with and examined Johnson beginning in March 2016, she reviewed his medical records from the jail, and she determined that Johnson was a good candidate for the Program. Johnson entered the Program on April 27, 2016, and participated in group sessions for the first two days. However, Johnson refused to participate in the Program after that time, so he was transferred out of the Program on June 1, 2016. Johnson refused to take any anti-psychotic medications through this time. Dr. Gambow testified that Johnson is schizophrenic, but she could not answer the State’s question regarding the type of medication Johnson should be given because medication is not her area of expertise.

Dr. Coffman, the only other witness who testified at the Sell hearing, is a board-certified psychiatrist and assistant professor at Emory University, specializing in forensic psychiatry Dr. Coffman serves as the medical director of the Program, she performs court-ordered evaluations for Fulton County, and she supervises the forensic psychiatry fellows in their medical treatment of inmates in the Program.

While Johnson was in the Program, Dr. Coffman periodically and briefly checked in with Johnson. Dr. Coffman also met with Johnson for about 25 minutes on September 15, just a few days before the Sell hearing. Prior to that meeting, Dr. Coffman had not seen Johnson in “quite some time.” Dr. Coffman testified that Johnson is schizophrenic, he is not competent to stand trial, and he will not become competent to stand trial without medication.

Dr. Coffman opined that anti-psychotic drugs would likely improve Johnson’s symptoms. Nevertheless, Dr. Coffman testified that Johnson has not taken any medication for at least a year, and Dr. Coffman admitted that she did not know whether Johnson has done well on medication in the past or what medications he had previously taken because Johnson did not give the doctors in the Program permission to look at his hospital records. Dr. Coffman also admitted that without Johnson’s medication history there was no way to know whether Johnson was at risk of having any side effects and that the administration of anti-psychotic medications could not be justified on any grounds other than competency

Although Dr. Coffman testified that there are several medications used to treat schizophrenia, she did not provide any testimony regarding a proposed treatment plan for Johnson, such as the proper dosages of these medicines, how long each medication should be tried, what should be done if Johnson developed side effects from any of the medications, or whether certain medications are medically appropriate for Johnson.

Following the Sell hearing, the trial court entered an order (hereinafter the “First Order”) in which it found that Johnson is not competent to stand trial and ordered that he be involuntarily medicated. In its order, the trial court adopted an unsigned and unauthenticated two-page “Proposed Treatment Plan” which is not otherwise a part of the record on appeal and was not admitted at the Sell hearing.

Johnson filed an appeal of the First Order, which forms the basis of the appeal in Case No. A17A0611. He also sought an emergency stay of that order, which this Court granted. Thereafter, upon the State’s motion, and without holding a new hearing, the trial court entered a revised order (hereinafter the “Revised Order”), providing that Johnson be forcibly medicated to restore his competency for trial. Johnson’s appeal from the Revised Order forms the basis of the appeal in Case No. A17A0783.

Upon a thorough review of the limited record in both of these appeals, we find that the Revised Order is wholly insufficient under Sell to support the trial court’s conclusion that Johnson can be involuntarily medicated for the sole purpose of making him mentally competent to stand trial.

In Case No. A17A0783, Johnson argues that the trial court failed to follow the four-part Sell test in its Revised Order when it ordered that he be forcibly medicated to restore his competency for trial. We agree because the Revised Order is insufficient to justify Johnson’s involuntary medication for the sole purpose of making him mentally competent to stand trial.

An individual has a significant constitutionally protected liberty interest in avoiding the unwanted administration of antipsychotic drugs. The interference is particularly severe when, as in this case, the medication in question is an antipsychotic, for the use of such medications threatens an individual’s mental, as well as physical, integrity. On the physical side, there is the violence inherent in forcible medication, compounded when it comes to antipsychotics by the possibility of serious, even fatal, side effects. But it is the invasion into a person’s mental state that truly distinguishes antipsychotics, a class of medications expressly intended to alter the will and the mind of the subject.

(Citations and punctuation omitted.) Warren, supra, 297 Ga. at 830 (3) (b). Consequently, before the State can obtain an order to involuntarily medicate a defendant,

the State must demonstrate the following: (1) important governmental interests are at stake; (2) involuntary medication will significantly further those governmental interests; (3) involuntary medication is necessary to further those governmental interests; and (4) the administration of the drugs to be used is medically appropriate for the defendant.

(Citation omitted.) Id. at 812 (1).

With regard to the first element of the Sell test,

the Government’s interest in bringing to trial an individual accused of a serious crime is important. That is so whether the offense is a serious crime against the person or a serious crime against property In addition the Government has a substantial interest in timely prosecution and a concomitant, constitutionally essential interest in assuring that the defendant’s trial is a fair one.

(Citations and punctuation omitted.) Warren, supra, 297 Ga. at 826 (3) (a). With regard to the second element of the test, the trial court

must find that administration of the drugs is substantially likely to render the defendant competent to stand trial and, at the same time, that administration of the drugs is substantially unlikely to have side effects that will interfere significantly with the defendant’s ability to assist counsel in conducting a trial defense, thereby rendering the trial unfair.

(Citation and punctuation omitted; emphasis supplied.) Id. at 828 (3) (b).

The third part of the Sell test requires the trial court to conclude that involuntary medication is necessary to further the governmental interests in proceeding with the defendant’s prosecution. To reach this conclusion, the court must find that any alternative, less intrusive treatments are unlikely to achieve substantially the same results, and the court also must consider less intrusive means for administering the drugs, e.g., a court order to the defendant backed by the contempt power, before considering more intrusive methods.

(Citation, punctuation and emphasis omitted.) Warren, supra, 297 Ga. at 833-834 (3) (c).

“The fourth and final part of the Sell test requires the trial court to conclude that administration of the drugs is medically appropriate, i.e., in the patient’s best medical interest in light of his medical condition.” (Citation and punctuation omitted.) Warren, supra, 297 Ga. at 837 (3) (d).

Here, the record shows that the State has fundamentally failed to meet its burden under the four-part Sell test. Warren, supra, 297 Ga. at 812 (1). Moreover, the trial court’s Revised Order again fails to properly evaluate the four factors necessary to overcome Johnson’s constitutionally protected liberty interest.

Notably, the record merely shows that Johnson is schizophrenic, and he has reportedly taken the anti-psychotic medications Haldol and Risperdal in the past. The record contains no evidence regarding the proposed medications and dosages recommended to restore Johnson’s competency, other than the unsigned and unauthenticated appendix to the Revised Order, which was apparently prepared by a fellow in the Program who did not testify at the Sell hearing. See Warren, supra, 297 Ga. at 828 (3) (b). Moreover, the Proposed Treatment Plan does not set forth the duration for which the specified medications would be tried, except to state that the proposed protocol will be enforced involuntarily at 90-day intervals. Finally, there is no evidence or testimony in the record that the administration of specific medications is medically appropriate for Johnson or linking specific possible side effects to specific medications. See id. at 828 (3) (b).

We therefore conclude that the Revised Order in Case No. A17A0783 is legally insufficient to justify Johnson’s involuntary medication for the sole purpose of making him mentally competent to stand trial. Warren, supra, 297 Ga. at 838 (4). Consequently, we vacate the trial court’s Revised Order and remand the case for further proceedings consistent with this opinion, including a new Sell hearing if the State elects on remand to pursue its motion for involuntary medication. See id. In Case No. A17A0611, we dismiss the appeal as moot.

Decided May 15, 2017.

Lauren B. Shubow, Kimberly M. Carey, for appellant.

Paul L. Howard, Jr., District Attorney, Paige Reese Whitaker, Assistant District Attorney, for appellee.

Judgment vacated and case remanded in Case No. Al 7A0783. Appeal dismissed as moot in Case No. Al 7A0611.

Doyle, C. J., and Reese, J., concur.

       Accordingto the trial court’sorder in this case, another psychiatrist, Felicitas Koster, also evaluated Johnson and determined that he is not competent to stand trial. Dr. Koster’s full report is not part of the record on appeal.

       The trial court noted in its order that the Proposed Treatment Plan was prepared by a doctor, Dr. Koster. The record shows that Dr. Koster was a fellow in the Program, however, Dr. Koster did not testify at the Sell hearing, and no evidence was admitted at the hearing regarding her credentials.

       Johnson’s argument that the trial court lacked jurisdiction to enter the Revised Order is meritless. The trial court maintains jurisdiction over the injunctive relief granted to the State, including any modification or stay of that relief. See Warren, 297 Ga. at 833 (3) (b) (“either the government or the defendant may move to revise the court’s Sell order if circumstances change during a defendant’s treatment”) (citation and punctuation omitted); OCGA § 5-6-45 (a) (notice of appeal acts as supersedeas only in criminal cases “where a sentence of death has been imposed or where the defendant is admitted to bail”).

       Johnson also contends that the trial court erred by holding a Sell hearing to determine whether he should be forcibly medicated without having first been declared incompetent to stand trial. We reject this contention, even though Johnson has apparently not yet entered a plea of incompetency, “ [constitutional guarantees require the trial court to inquire into competency ... if evidence of incompetence comes to the court’s attention.” (Citation and punctuation omitted.) Jackson v. State, 294 Ga. 431, 434 (5) (754 SE2d 322) (2014). In this case, the limited record on appeal does not show what behavior Johnson engaged in that caused defense counsel and the trial court to inquire into his competency.

       In light of our holding that the Revised Order is insufficient to justify Johnson’s involuntary medication, we need not address his remaining enumerations of error.


source: Caselaw Access Project

author: MILLER, Presiding Judge.

license: Public Domain

text:
    A17A0004.
    USSERY v. GOODRICH RESTORATION, INC.
    (800 SE2d 606)
   MILLER, Presiding Judge.

In this contractual dispute, defendant Warren Ussery appeals the final judgment entered in favor of plaintiff Goodrich Restoration, Inc. d/b/a Servpro of Macon East-West (“Servpro”) on: (i) Ussery’s counterclaims for return of funds paid and for a violation of the Fair Business Practices Act (“FBPA”), OCGA § 10-1-390 etseq., and (ii) his request for attorney fees. Ussery contends on appeal that the trial court erred in three ways: (i) by misinterpreting OCGA § 43-41-17 (b) when it found that he could not recover for funds he paid to Servpro for general contracting services it provided without the necessary license; (ii) by denying relief on his FBPA claim; and (iii) by denying his request for attorney fees. For the reasons that follow, we affirm.

Where, as here, an appeal is filed from the entry of judgment following a bench trial, “we apply a de novo standard of review to any questions of law decided by the trial court, but will defer to any factual findings made by that court if there is any evidence to sustain them.” (Citation and punctuation omitted.) Central Mtg. Co. v. Humphrey, 328 Ga. App. 474, 475 (759 SE2d 896) (2014).

The material facts in this case are undisputed. After a fire damaged Ussery’s home in 2011, he and his insurance company arranged for Servpro to provide cleanup and restoration services. Following a disagreement between the parties, Ussery terminated those services. Servpro then sued Ussery, seeking: (i) damages for breach of contract and quantum meruit/unjust enrichment in the amount of $27,421.57; and (ii) to foreclose on a lien it had recorded against Ussery’s home. Ussery raised several counterclaims against Servpro, including an FBPA claim and a claim for return of funds he paid to Servpro, which was premised on the proposition that his agreement with Servpro was illegal because Servpro had violated OCGA § 43-41-17 by acting as a general contractor without a license.

After the trial court granted summary judgment to Servpro on several of Ussery’s counterclaims, Servpro dismissed all of its claims against him. The parties then proceeded to a bench trial on Ussery’s remaining counterclaims, each of which the trial court denied. This appeal followed.

1. Ussery first challenges the denial of relief on his claim under OCGA § 43-41-17 (b) for a return of funds he paid to Servpro. He contends that the trial court erred in ruling that, because Servpro did not realize a profit from its dealings with him, it is not required to return the funds he paid to it. We discern no error.

The interpretation of a statute is a question of law, which we review de novo. Hill v. First Atlantic Bank, 323 Ga.App. 731, 732 (747 SE2d 892) (2013). “When we consider the meaning of a statute, we must presume that the General Assembly meant what it said and said what it meant.” (Citation and punctuation omitted.) Deal v. Coleman, 294 Ga. 170, 172 (1) (a) (751 SE2d 337) (2013). Thus,

[t]he cardinal rule of statutory construction requires this Court to look diligently for the intention of the General Assembly (OCGA § 1-3-1), and the golden rule of statutory construction requires us to follow the literal language of the statute unless it produces contradiction, absurdity, or such an inconvenience as to ensure that the legislature meant something else. Absent clear evidence that a contrary meaning was intended by the legislature, we assign words in a statute their ordinary, logical, and common meanings.

(Citation and punctuation omitted.) Turner v. Ga. River Network, 297 Ga. 306, 308 (773 SE2d 706) (2015).

Initially enacted in 2004, see Ga. L. 2004, pp. 786, 810, § 1, the statute at issue here, OCGA § 43-41-17 (b), provides, in relevant part:

As a matter of public policy, any contract entered into on or after July 1, 2008, for the performance of work for which a residential contractor or general contractor license is required by this chapter and not otherwise exempted under this chapter and which is between an owner and a contractor who does not have a valid and current license required for such work in accordance with this chapter shall be unenforceable in law or in equity by the unlicensed contractor.... Notwithstanding any other provision of law to the contrary, if a contract is rendered unenforceable under this subsection, no lien or bond claim shall exist in favor of the unlicensed contractor for any labor, services, or materials provided under the contract or any amendment thereto. This subsection shall not affect the rights of parties other than the unlicensed contractor to enforce contract, lien, or bond remedies. . . .

In enacting this statute, our legislature explained:

It is the intent of the General Assembly, in the interest of public health, safety, and welfare, to safeguard homeowners, other property owners, tenants, and the general public against faulty, inadequate, inefficient, and unsafe residential and general contractors. The practice of residential and general contracting is declared to be a business or profession affecting the public interest and this chapter shall be liberally construed so as to accomplish the intent and purposes stated in this Code section.

OCGA § 43-41-1.

The parties do not dispute that Servpro was not a licensed general contractor when it provided the general contracting services underlying this action and that, as a result, any agreement Servpro may have had with Ussery is unenforceable under OCGA § 43-41-17 (b). It is an open question, however, as to what civil remedy is available for a violation of that statute. Neither party has cited, and we have not found, any authorities applying OCGA § 43-41-17 (b) to a civil claim by an unlicensed general contractor’s client for return of funds paid.

The plain language of the statute bars an unlicensed general contractor from enforcing a contract “for the performance of work for which a residential contractor or general contractor license is required.” OCGA § 43-41-17 (b). It does not, by its terms, address the means by which an unlicensed general contractor’s client may seek civil enforcement of the statute. The legislative findings urging liberal interpretation of the statute to protect the public from inadequate contractors similarly shed little light on this issue, particularly where, as here, the client has identified no harm he has suffered arising out of services that he paid for and received. SeeOCGA § 43-41-1.

The evidence at trial established that Servpro received $41,355.92 out of Ussery’s insurance proceeds for services rendered in connection with repairs to his home. Servpro paid that entire amount to subcontractors who undisputedly performed work on Ussery’s home, and it realized no profit in connection with this project. Ussery neither disputed Servpro’s evidence that all money it had received had been paid out to subcontractors nor identified any damage to his home — or any other loss he suffered, for that matter — that was caused by Servpro or its subcontractors.

Where, as here, it is undisputed that the client has received the benefit for which he has paid and the unlicensed general contractor has received no benefit, nothing in the plain language of OCGA § 43-41-17 (b) suggests that the General Assembly intended either: (a) that the unlicensed general contractor must bear all of the costs of all benefits received by the client, in essence subjecting the contractor to punitive damages, or (b) that the client is entitled to the windfall that such an outcome would entail. See Tolleson Lumber Co. v. Kirk, 200 Ga. App. 689, 691 (409 SE2d 260) (1991) (a statute should be construed to “square with common sense and sound reasoning” and to avoid “unreasonable or absurd consequences not contemplated by the legislature”) (citation and punctuation omitted).

We have said in addressing illegal contracts in other contexts: “[I]f an illegal contract be in part performed and money has been paid in pursuance of it, no action will lie to recover the money” (Citation and punctuation omitted.) Hilb, Rogal & Hamilton Co. of Atlanta v. Holley, 295 Ga.App. 54, 56 (1) (670 SE2d 874) (2008) (affirming grant of directed verdict to defendant on plaintiff’s claim for unjust enrichment arising out of covenant not to compete in an employment contract that was unenforceable as an illegal restraint of trade). “This stems from the rule that if an illegal contract is executed it will be left to stand; if it be executory neither party can enforce it.” (Citation and punctuation omitted.) Id.; accord, e.g., Dorsett v. Garrard, 85 Ga. 734 (11 SE 768) (1890). The General Assembly is presumed to have enacted OCGA § 43-41-17 (b) knowing of these decisions. See Summerlin v. Ga. Pines Community Svc. Bd., 286 Ga. 593, 594 (2) (690 SE2d 401) (2010) (“The General Assembly is presumed to enact all statutes with full knowledge of the existing condition of the law and with reference to it.”) (citation omitted).

On a related note, the trial court’s interpretation of OCGA § 43-41-17 (b) also leads to a practical result in this case. If Ussery had not yet paid Servpro for any of the work done by its subcontractors, OCGA § 43-41-17 (b) would bar Servpro from suing Ussery to recover the amounts due for such work. By its plain terms, however, “parties other than the unlicensed contractor,” i.e., Servpro’s subcontractors, would then retain the right to recover compensation from Ussery for their services. OCGA § 43-41-17 (b). Under that set of facts — and given that Ussery has presented no evidence that the repair work performed by the subcontractors is worth less than what he already has paid — the parties would be in the same position as they are now: with the subcontractors having been compensated for the repairs they made to Ussery’s home, Ussery having benefitted from those repairs, and Servpro receiving nothing.

Ussery relies on Drake v. Parkman, 79 Ga. App. 679 (54 SE2d 714) (1949), for support, but Drake is clearly distinguishable. In Drake, the plaintiff sued an unlicensed real estate broker to recover a commission paid to the broker, relying on a former statute that prohibited an unlicensed broker from enforcing a claim for “commissions, profits, option profits, or fees” arising from business done as a real estate broker or salesperson. (Citation and punctuation omitted.) Id. at 679, 680 (2). We rejected the defendant’s contention that, by barring unlicensed brokers’ claims for compensation, the General Assembly necessarily also had barred plaintiffs from seeking recovery of any such compensation that already had been paid. Id. at 681-682 (2). We read Drake, as did the trial court here, as limited to the facts and statute at issue in that case. Notably, nothing in our decision in Drake suggests that the plaintiff there sought the return of funds that the broker had paid to others, in return for which the plaintiff had received a benefit. Thus, the outcome in Drake, in which the broker was not allowed to keep his commissions, is consistent with the outcome here, in which Servpro similarly will realize no profits.

For each of the above reasons, the trial court properly determined that, on the facts of this case, Ussery is not entitled to a return of the amounts he already has paid to Servpro, which amounts Servpro has paid entirely to its subcontractors, and for which Ussery has received the benefit of the services of those subcontractors.

2. Ussery challenges the trial court’s conclusion that he failed to establish damages resulting from Servpro’s violation of the FBPA. We discern no error.

“The FBPA forbids and declares unlawful any unfair or deceptive acts or practices in the conduct of consumer transactions and consumer acts or practices in trade or commerce.” (Citation and punctuation omitted.) Small v. Savannah Intl. Motors, 275 Ga.App. 12, 15 (4) (619 SE2d 738) (2005). “[T]o prevail on a private cause of action under the FBPA, a private individual must establish three elements: a violation of the Act, causation, and injury . . . [T]he measure of damages to be applied for an FBPA violation is that of actual injury suffered.” (Citation and punctuation omitted.) Id. Thus, one “cannot rely on a naked claim for nominal or general damages to sustain his cause of action." Moore-Davis Motors v. Joyner, 252 Ga.App. 617, 619 (1) (556 SE2d 137) (2001).

Ussery devotes a single paragraph in his appellate brief to this enumeration of error, asserting without elaboration that: (i) he “presented evidence of the payment of $41,355.92 as his measure of damages”; and (ii) Servpro maintained a lien against his home for more than four years while seeking to recover more than $27,000 it claimed he owed. Importantly, Ussery has pointed to nothing in the record refuting the trial court’s finding that he “presented no evidence whatsoever that he or his property was injured or harmed” as a result of the repairs made to his home by Servpro’s subcontractors. Nor has he identified any record evidence suggesting that the value of those repairs was less than $41,355.92. He likewise has identified no evidence of any injury to him or his property that may have resulted from the existence of Servpro’s lien. Consequently, he has not met his burden of showing error in the denial of relief on his FBPA claim. See Tolbert v. Toole, 296 Ga. 357, 363 (3) (767 SE2d 24) (2014) (“It is [the appellant]’s burden, as the party challenging the ruling below, to affirmatively show error from the record on appeal.”) (citation omitted).

3. Finally, Ussery contends that the trial court erred in denying his request for attorney fees. Again, we disagree.

In the prayers for relief that followed his counterclaims, Ussery asked, without elaboration, that “he be awarded reasonable attorney fees incurred in the defense of Servpro’s action and the prosecution of his counterclaim.” In neither instance did he identify the statutory basis for his request. During closing argument in the bench trial, Ussery conceded that he: (i) had failed to present any evidence supporting a claim for attorney fees; and (ii) would not be entitled to a fee award if the trial court ruled against him on his counterclaims. Following closing argument, Ussery asked the court to reopen the evidence to allow him to present testimony in support of his fee request. The trial court declined to do so at that time but indicated that it may revisit the issue after issuing a ruling on the merits of Ussery’s counterclaims. Ussery did not thereafter file a post-judgment request for attorney fees.

Under these circumstances, we conclude that Ussery waived any claim he may have had for attorney fees, regardless of the potential statutory basis of such request. Ussery has pointed to nothing in the record supporting his conclusory assertion that a post-judgment motion for attorney fees would have been entirely “futile.” Although we agree with this contention with respect to fees arising from his unsuccessful counterclaims, Ussery fails to explain why a post-judgment fee request premised on his defense of Servpro’s complaint — which Servpro dismissed, apparently after concluding that its claims were barred as a matter of law — would have been futile. See, e.g., OCGA § 9-15-14 (a) (attorney fees shall be awarded against a party who has asserted a claim lacking “any justiciable issue of law or fact”), (b) (attorney fees may be awarded against a party who brought an action “that lacked substantial justification”), (e) (fees may be requested under this statute up to 45 days after final judgment). Given Ussery’s waiver of this issue, this enumeration of error presents nothing for us to review. See Employees Retirement System of Ga. v. Baughman, 241 Ga. 339, 341 (3) (245 SE2d 282) (1978) (a claim abandoned before the trial court presents nothing for this Court to review); 9766, LLC v. Dwarf House, 331 Ga. App. 287, 291 (4) (b) (771 SE2d 1) (2015) (“This court is for the correction of errors, and where the trial court has not ruled on an issue, we will not address it.”) (citation and punctuation omitted).

Decided May 16, 2017.

Alonzo Nelson, for appellant.

Donner, Marshall & Sims, Michael J. Marshall, for appellee.

For each of the above reasons, we affirm the judgment of the trial court.

Judgment affirmed.

Doyle, C. J., and Reese, J., concur.

       Notably, the General Assembly has provided a criminal sanction for violating the statute . Under OCGA § 43-41-12 (a) (1), providing unlicensed general contractor services is a misdemeanor, punishable by a fine of not less than $500, three months’ imprisonment, or both.

       Ussery also orally asked for permission to file a post-judgment brief to address his claim for attorney fees, although it appears that the court did not expressly rule on this request.

       Ussery asserts in his appellate brief that he sought attorney fees under OCGA § 9-15-14. He has identified no record evidence, however, suggesting that he brought the statutory basis for his request to the trial court’s attention.


author: BARNES, Presiding Judge.

text:
    A17A0020.
    GOVERNMENT EMPLOYEES INSURANCE COMPANY v. MORGAN et al.
    (800 SE2d 612)
   BARNES, Presiding Judge.

The issue in this appeal is the amount of uninsured/underinsured motorist (“UM”) coverage available to Wanda and Victor Morgan under their automobile insurance policy with the Government Employees Insurance Company (“GEICO”). The trial court ruled that the policy provided the Morgans with the default amount of UM coverage set forth in OCGA § 33-7-11 (a) (1) — an amount equal to their policy’s liability limit of $100,000 per person — because there is no evidence that they affirmatively chose a lower amount of coverage. GEICO challenges this ruling, arguing that the Morgans selected the statutory minimum UM coverage of $25,000 per person. For reasons that follow, we affirm.

The record shows that on November 8, 2012, Wanda Morgan was injured in a motor vehicle collision caused by Dwain Mims. Wanda Morgan alleges that she has suffered damages totaling more than $100,000 to date, and her husband Victor Morgan asserts a claim for loss of consortium. Mims was covered under an automobile insurance policy that had a liability limit of $25,000 per person. In response to a demand from the Morgans, Mims’s insurer tendered a check for $25,000. The Morgans were covered under an automobile insurance policy issued by GEICO that had a liability limit of $100,000 per person. The policy also included UM coverage. The Morgans demanded $100,000 from GEICO in UM coverage under their policy GEICO, however, tendered a check for $25,000, which it alleges is the per-person limit of the Morgans’ UM coverage under the policy.

The Morgans filed a personal injury action against Mims, and they served GEICO as their UM carrier. GEICO answered and counterclaimed for a declaratory judgment that the Morgans’ UM coverage was limited to $25,000. Following discovery, GEICO filed a motion for summary judgment. The trial court entered an order denying GEICO’s motion and ruling as a matter of law that the Morgans’ policy provided UM coverage with a limit of $100,000 per person. We granted GEICO’s application for interlocutory review, and this appeal followed.

1. GEICO argues that the relevant undisputed facts and applicable law show that the Morgans’ UM coverage was limited to $25,000 per person and that the trial court erred by ruling otherwise. We disagree.

The record shows that the Morgans first purchased the policy in 1986. In 1991, they completed an optional coverages selection form provided by GEICO indicating their wish to include UM coverage on the policy. The form listed several available UM coverage options, and the Morgans checked a box designating the amount of coverage they wanted. In 1992, they discontinued that coverage, completing another selection form indicating that they rejected UM coverage “entirely.” In February 2000, and again in January 2003, the Morgans completed additional selection forms confirming that GEICO had offered them UM coverage at various policy limits, but they had rejected any coverage.

In August 2003, the Morgans made several changes to their GEICO policy, including adding UM coverage back to the policy They did not complete an optional coverage selection form in connection with the addition of UM coverage. GEICO has no record of the Morgans’ 2003 request for UM coverage, but GEICO believes it “was probably by telephone,” though it “could have been by Internet.” The Morgans submitted affidavits stating that when they added UM coverage, GEICO did not explain to them, “verbally or otherwise,” that they could select coverage in an amount equal to their policy’s liability limits. GEICO renewed the policy every six months thereafter, and the Morgans completed no selection forms in connection with these renewals. The declarations page of the policy in effect at the time of Wanda Morgan’s accident indicates that the policy provided UM coverage with a limit of $25,000 per person.

Georgia law requires insurers to provide UM coverage in automobile insurance policies unless the insured rejects the coverage in writing. See OCGA § 33-7-11 (a) (1), (3); Tice v. American Employers’ Ins. Co., 275 Ga. App. 125, 125-126 (619 SE2d 797) (2005). Before 2002, an insurer was obligated to provide UM coverage only at a statutory minimum level, unless the insured requested greater coverage in writing. Tice, 275 Ga. App. at 126. In 2001, the legislature amended OCGA § 33-7-11 (a) (1) (“Subsection (a) (1)”) to “require[ ] insurance policies issued in Georgia to contain provisions for UM coverage which at the option of the insured shall be (i) not less than $25,000 per person, or (ii) equal to the policy’s bodily injury liability insurance coverage, if higher than $25,000 per person.” Infinity Gen. Ins. Co. v. Litton, 308 Ga. App. 497, 499 (2) (707 SE2d 885) (2011). “[T]he 2001 amendment was intended to make a policy’s liability limits the default provision for UM coverage, unless an insured affirmatively elects UM coverage in a lesser amount.” Soufi v. Haygood, 282 Ga. App. 593, 595 (639 SE2d 395) (2006). The 2001 amendment to Subsection (a) (1) applies to “policies issued or renewed on or after January 1, 2002.” Tice, 275 Ga. App. at 126; see also Ga. L. 2001, pp. 1228, 1229, § 3. The Morgans’ policy, as noted, was issued before January 1, 2002, but renewed many times thereafter.

Subsection (a) (1) contains no specific requirement that an insured’s affirmative election of a lesser amount of UM coverage must be made in writing. Lambert v. Alfa Gen. Ins. Corp., 291 Ga. App. 57, 60 (660 SE2d 889) (2008). Nevertheless,

the lack of a writing requirement does not absolve [the insurer] of its burden of showing that [the insured] did in fact make an affirmative choice of lesser coverage in support of its position that the term setting forth lesser coverage should be enforced instead of the statutory default coverage.

(Emphasis in original.) McGraw v. IDS Property & Cas. Ins. Co., 323 Ga. App. 408, 410-411 (744 SE2d 891) (2013). An automobile insurance policy that provides UM coverage with a lower limit than the liability limit, “without the insured having affirmatively chosen that lesser amount,” is “not in compliance” with Subsection (a) (1). Id. at 410. “In such instance, the requirements of the statute control over the terms of the policy,” and the policy must be construed to provide the statutory default amount of UM coverage. Id.

(a) GEICO contends that the Morgans’ written rejections of UM coverage in 1992, 2000, and January 2003 — shown on their completed optional coverages selection forms — limit their UM claim to the statutory minimum coverage amount of $25,000. GEICO cites OCGA § 33-7-11 (a) (3) (“Subsection (a) (3)”), which provides in relevant part that UM coverage “need not be provided in or supplemental to a renewal policy where the named insured had rejected the coverage in connection with a policy previously issued to said insured by the same insurer.” GEICO interprets this language to mean that Subsection (a) (1) offers an insured a “one-time option” of obtaining UM coverage either at the $25,000 statutory minimum or at an amount equal to the policy’s liability coverage limits. In essence, GEICO argues that if an insured declines UM coverage at any point, Subsection (a) (1) no longer applies for the duration of the policy, even if the insured later chooses to add UM coverage to the policy We reject this argument.

In Merastar Ins. Co. v. Wheat, 220 Ga. App. 695 (469 SE2d 882) (1996), we interpreted Subsection (a) (3) as an exception to Subsection (a) (l)’s requirement that an insurer offer UM coverage each time a policy is issued or delivered. Id. at 696 (1). Under this exception, “[o]nce an insured has exercised the option to reject [UM] coverage, the insurer is under no further duty or obligation to offer the coverage, absent a request, for the life of the policy.” (Emphasis supplied.) Id. Thus, Subsection (a) (3) relieves an insurer of the “administrative burden” of obtaining a fresh written rejection of UM coverage for every renewal period from an insured who has already rejected that coverage in writing. Id.

But the exception set forth in Subsection (a) (3) applies only “absent a request” for UM coverage. (Emphasis supplied.) Merastar Ins. Co., 220 Ga. App. at 696 (1). The exception does not apply where, as here, an insured who previously rejected UM coverage later requests that UM coverage be added to the policy As we explained in Tice, Subsection (a) (1) requires the insurer to provide the statutory default amount of UM coverage “when the insured elects UM coverage,” unless the insured affirmatively chooses a lesser amount. (Emphasis supplied.) 275 Ga. App. at 127. Nothing in Subsection (a) (1) or Subsection (a) (3) makes the default provision a “one-time option,” as GEICO contends. Rather, the default provision applies whenever the insured obtains UM coverage, whether that occurs when the insured first buys the policy or when the insured requests UM coverage at some later date — unless the insured affirmatively chooses a lower limit.

(b) We now turn to the question of whether the Morgans affirmatively chose a $25,000 limit when they requested UM coverage in 2003. GEICO cites two pieces of evidence to support its argument that the Morgans chose the statutory minimum.

(i) First, GEICO contends that the Morgans admitted in discovery that they chose the statutory minimum. GEICO’s Request for Admission No. 21 asked the Morgans to admit the following: “On the posting date of August 4, 2003, and for an effective date of August 17, 2003, the Morgans effected a number of changes in their policy, including... uninsured motorist coverage was added in the statutory minimum coverage amounts of $25,000/$50,000/$25,000.” The Morgans responded, “Admitted.” According to GEICO, that admission conclusively settles any dispute regarding the amount of coverage.

The Civil Practice Act permits a party to serve on another party a written request for the admission of matters “that relate to statements or opinions of fact or of the application of law to fact.” OCGA § 9-11-36 (a) (1). “Any matter admitted under this Code section is conclusively established unless the court, on motion, permits withdrawal or amendment of the admission.” OCGA § 9-11-36 (b). But a matter is conclusively established only “[i]f a response to a request for admission is unambiguous, and is not subject to different meanings.” 27 CJS Discovery § 174 n. 1 (2017). Under the circumstances presented here, the Morgans’ response to Request No. 21 did not constitute an admission that their policy provides the statutory minimum amount of UM coverage.

As the Morgans point out, their response can be interpreted as admitting only that the UM limits listed in GEICO’s declarations page were $25,000/$50,000/$25,000 — not that those listed limits actually govern the policy The Morgans’ responses to GEICO’s other requests for admission in the same discovery filing support this interpretation. GEICO’s Request for Admission No. 22 — the very next request — asked the Morgans to admit that in effecting the changes described in Request No. 21, the Morgans “affirmatively chose uninsured motorist coverage limits in an amount less than the limits of liability coverage” under the policy. The Morgans responded, “Denied.” Similarly, in Request No. 11, GEICO asked the Morgans to admit that in August 2003, they affirmatively chose to add UM coverage in minimum limits to their policy The Morgans responded:

Denied. In August of [2003], Plaintiffs added uninsured motorist insurance coverage to their policy, but were not given the option of adding it in an amount equal to the $100,000.00 liability policy limits. As such, Plaintiffs did not “affirmatively choose” to add uninsured motorist insurance coverage (in minimum limits of $25,000.00 per person for bodily injury and/or death).

These clear denials of any affirmative choice preclude us from interpreting the Morgans’ response to Request No. 21 as an unambiguous concession that GEICO’s UM obligation is limited to $25,000.

(ii) GEICO also points to the declarations page of the policy that was in effect at the time of the accident, which lists the limit of UM coverage as $25,000 per person. The declarations page, however, “cannot support an inference that [the Morgans] made an affirmative choice among the various UM coverage options available under OCGA § 33-7-11 (a) (1), because it raises merely a conjecture or possibility of that fact.” (Emphasis in original.) McGraw, 323 Ga. App. at 411. Applying this principle in McGraw, we held that a declarations page showing a UM limit less than the bodily injury limit, standing alone, was insufficient to demonstrate an affirmative choice of a lesser amount of coverage. Id. Here, as in McGraw, there is no evidence that the Morgans affirmatively chose a UM limit lower than the default amount. Accordingly, the trial court did not err by construing the policy to provide UM coverage in an amount equal to the policy’s bodily injury liability coverage. See id. at 412.

Decided May 16, 2017

Wallace Miller III, Trey Ennis, for appellant.

Studstill Firm, Haynes M. Studstill, Justin D. Studstill, for appellees.

Dari H. Champion, Jr., amicus curiae.

2. GEICO’s motion to strike the amicus curiae brief of the Georgia Trial Lawyers Association is denied.

Judgment affirmed.

Rickman and Self, JJ., concur.

       The Morgans’ affidavits provide no further information about their 2003 request for UM coverage or their communications with GEICO concerning the request.

       When the Morgans first purchased their policy, the statutory minimum UM coverage was $15,000 per person. See Tice, 275 Ga.App. at 126 and n. 3, citing OCGA § 33-7-11 (a) (1) (A), (B), as amended by Ga. L. 1978, pp. 1895, 1896, § 1, and by Ga. L. 1984, pp. 839-840, § 1. In 2000, the legislature amended the UM statute to raise the minimum amount of UM coverage to its current amount — $25,000 per person. Tice, 275 Ga.App. at 126 and n. 7, citing Ga. L. 2000, pp. 1516-1517, § 1.

       Subsection (a) (1), as amended, provides in pertinent part:
      No automobile liability policy . .. shall be issued or delivered in this state .. . unless it contains an endorsement or provisions undertaking to pay the insured damages for bodily injury, loss of consortium or death of an insured . . . under the named insured’s policy sustained from the owner or operator of an uninsured motor vehicle, within limits exclusive of interests and costs which at the option of the insured shall be: (A) Not less than $25,000.00 because of bodily injury to or death of one person in any one accident, ... or (B) Equal to the limits of liability because of bodily injury to or death of one person in any one accident[.] ... In any event, the insured may affirmat ively choose uninsured motorist limits in an amount less than the limits of liability.
      (Emphasis supplied.) OCGA § 33-7-11 (a) (1).

       As before 2002, an insured may opt out of UM coverage entirely, but such an election must be in writing. Lambert, 291 Ga. App. at 60, citing OCGA § 33-7-11 (a) (3).


text:
    A17A0278.
    BOSTIC v. THE STATE.
    (801 SE2d 89)
   BARNES, Presiding Judge.

Travis Bostic appeals from the denial of his motion for new trial, following his convictions for voluntary manslaughter, aggravated assault and possession of a firearm by a convicted felon. He was sentenced to 35 years, with 22 years to be served in confinement,. On appeal, Bostic contends that trial counsel was ineffective, that the jury was improperly influenced by a photograph of the deceased victim displayed on a television monitor and shirts worn in the courtroom and that the jury selection resulting in an all-white jury was unconstitutional. Following our review, we affirm.

On appeal from a criminal conviction, a defendant no longer enjoys the presumption of innocence, and the evidence is viewed in the light most favorable to the guilty verdict. We neither weigh the evidence nor assess the credibility of witnesses, but merely ascertain that the evidence is sufficient to prove each element of the crime beyond a reasonable doubt.

(Citation and punctuation omitted.) Fuller v. State, 320 Ga. App. 620 (740 SE2d 346) (2013).

So viewed, the evidence demonstrates that after an early morning shooting at a nightclub that left one victim dead and another with gunshot injuries, Bostic was indicted on charges of malice murder, felony murder, three counts of aggravated assault and possession of a firearm by a convicted felon. After a jury trial, Bostic was found guilty of two counts of voluntary manslaughter as lesser included offenses to the malice murder and felony murder charges, three counts of aggravated assault and possession of a firearm by a convicted felon. Bostic filed a motion for new trial on general grounds, which he later amended to raise claims that trial counsel was ineffective and that a photograph of the victim was improperly displayed during trial and on t-shirts worn in the courtroom. Following a hearing, the trial court denied Bostic’s motion, and this appeal ensued.

1. Bostic first contends that trial counsel was ineffective for failing to adequately explain and preserve his right to present the affirmative defense of self-defense. He maintains that trial counsel’s failure to file a notice of an affirmative defense pursuant to OCGA § 17-16-5 barred him from asserting his self-defense claim during the trial. We do not agree.

To prevail on his claim of ineffective assistance of counsel, Bostic

must show [both] that trial counsel’s performance [was deficient in that it] fell below a reasonable standard of conduct and that [it was prejudicial because] there existed a reasonable probability that the outcome of the case would have been different, had it not been for counsel’s deficient performance. If [Bostic] fails to [prove] either prong of the [two-part] test, this relieves the reviewing court of the need to address the other prong.

(Citations and punctuation omitted.) Scott v. State, 290 Ga. 883, 889 (7) (725 SE2d 305) (2012). “The trial court’s determination with respect to effective assistance of counsel will be affirmed unless its findings are clearly erroneous.” Johnson v. State, 287 Ga. 767, 769 (2) (700 SE2d 346) (2010).

Under Georgia law, a defendant is required, upon demand by the State, to provide written notice of his intent to rely upon alibi evidence, and such notice must be provided no later than ten days prior to trial. OCGA § 17-16-5 (a). Where a defendant fails to provide such notice, a trial court “may order the defendant to permit the discovery or inspection [of the evidence or] interview of the witness, grant a continuance, or, upon a showing of prejudice and bad faith, prohibit the defendant from introducing the evidence not disclosed or presenting the witness not disclosed.” OCGA § 17-16-6.

Here, although the State filed a notice for demand of alibi defense, Bostic never maintained a defense of alibi. See OCGA § 17-16-5 (a); Matthews v. State, 285 Ga. App. 859, 862 (2) (648 SE2d 160) (2007) (alibi is not an affirmative defense). Instead, his affirmative defense was that he had shot the victims in self-defense, a theory that was advanced by Bostic during his testimony See Paul v. State, 266 Ga. App. 126 (596 SE2d 670) (2004) (self-defense is an affirmative defense). Moreover, the trial court also charged the jury on self-defense, justification and accident. Thus, Bostic has not demonstrated, as he now asserts, that he was prejudiced because he was prevented from presenting the affirmative defense of self-defense at trial. See generally Murray v. State, 295 Ga. 289, 292 (1) (759 SE2d 525) (2014) (jury entitled to disbelieve affirmative defense of self-defense).

Moreover, although the transcript of the motion for new trial hearing is not included with the record on appeal, in its order denying Bostic’s motion for new trial, the trial court found that, based on trial counsel’s testimony at the new trial hearing, Bostic initially desired to advance a defense of innocence rather than of self-defense, and he desired to do so, in part, because he did not want to testify at trial because of a prior conviction and changed his mind about testifying at the conclusion of the State’s case. The trial court found that, based on the hearing testimony, “[t]rial [c]ounsel’s choice of [trial] strategy was consistent with [Bostic’s] desire and it was a reasonable choice based upon the pretrial assessment.” “As a general rule, matters of reasonable tactics and strategy, whether wise or unwise, do not amount to ineffective assistance of counsel.” Grier v. State, 273 Ga. 363, 365 (4) (541 SE2d 369) (2001). Accordingly, trial counsel’s performance was not deficient in this regard, nor has Bostic demonstrated prejudice.

Decided May 16, 2017.

Smith, Garner & Rowland, J. Stanley Smith, Jr., James C. Garner, for appellant.

L. Craig Fraser, District Attorney, for appellee.

Bostic also contends that trial counsel failed to sufficiently assert the defense of self-defense “through a series of errors,” and did not object to the prosecution’s prejudicial statement about his right to remain silent. He does not, however, support either assertion with any argument, citations to the record or legal authority. Accordingly, we deem the arguments abandoned. See Court of Appeals Rule 25 (c) (2) (“Any enumeration of error which is not supported in the brief by citation of authority or argument may be deemed abandoned.”) Patterson v. State, 327 Ga. App. 695, 698 (3) (761 SE2d 101) (2014) (deeming arguments of ineffective assistance abandoned when alleged errors were not “supported with any further argument, citations to the record, or legal authority”).

2. Bostic also asserts without argument, citations to the record, or legal authority that the jury was influenced by a photograph of the victim displayed on a television monitor in the courtroom and on shirts worn in the courtroom, and that the jury selection which resulted in an all-white jury was unconstitutional. We deem these arguments abandoned for appellate review pursuant to Court of Appeals Rule 25 (c) (2). See also Johnson v. State, 290 Ga. App. 255, 259 (1) (d) (659 SE2d 638) (2008) (deeming abandoned argument that was unsupported by citation to authority); Thrasher v. State, 289 Ga. App. 399, 400 (1) (657 SE2d 316) (2008) (“filing a brief without legal authority is tantamount to filing no brief at all”).

Judgment affirmed.

McMillian and Mercier, JJ., concur.

       The State did not file a brief in this appeal. Pursuant to Court of Appeals Rule 23 (b), “[a] brief shall be filed by the appellee in all criminal appeals when the State is the appellee[.]” (Emphasis supplied.) Our law is based upon the premise that both sides, not just one party, should present argument and authority to assist the court in reaching a legally correct and just result. In this case, both sides have failed in that regard. Although we do not issue a finding of contempt, we note that the district attorney’s failure to adhere to this rule in the future may subject him to a finding of contempt. See Thrasher v. State, 289 Ga.App. 399, 400 (1) (657 SE2d 316) (2008) (State’s appellate brief inadequate under this Court’s rules, and while no finding of contempt in this case, “we caution counsel that future violations of our rules will not be treated with such leniency”).

       Upon written demand by the prosecuting attorney within ten days . . . the defendant shall serve ... a written notice of the defendant’s intention to offer a defense of alibi. Such notice by the defendant shall state the specific place or places at which the defendant claims to have been at the time of the alleged offense and the names, addresses, dates of birth, and telephone numbers of the witnesses!.]
      OCGA § 17-16-5 (a).


author: Ellington, Presiding Judge.

text:
    A17A0717.
    CRENSHAW v. THE STATE.
    (801 SE2d 92)
   Ellington, Presiding Judge.

A Fulton County jury found Jeremiah Crenshaw guilty of rape, OCGA § 16-6-1 (a) (1); aggravated sodomy, OCGA § 16-6-2 (a) (2); burglary in the first degree, OCGA § 16-7-1 (b); false imprisonment, OCGA § 16-5-41 (a); and possession of a firearm during the commission of a crime against or involving the person of another, OCGA § 16-11-106 (b) (1). Following the denial of his motion for a new trial, Crenshaw appeals, contending that the trial judge commented on the evidence in violation of OCGA § 17-8-57 when the judge directed that the record reflect that the victim and the witness had identified Crenshaw during their testimony For the reasons explained below, we affirm.

Viewed in the light most favorable to support the verdict, the record shows that the State presented evidence that, on October 8, 2011, Crenshaw broke into the victim’s house while she was sleeping, tapped a gun on her forehead to wake her up, and then raped and sodomized her. A few months later, the victim saw Crenshaw in the neighborhood and called the police, which resulted in his arrest.

At trial, the victim testified that, a few months before the rape, an acquaintance she knew as “JR” stopped by her home with a friend and that, the day before she was attacked, she saw JR’s friend in the neighborhood and recognized him from his then previous visit to her home. She testified that, on the night she was attacked, she had a good view of her assailant’s face, and she “knew exactly who he was” — JR’s friend — by his distinctive features and speech impairment. The prosecutor asked the victim whether she saw the man who raped her, and she replied, “Yes, I do.” The prosecutor asked her to identify him by his clothing and where he was sitting in the courtroom. She identified her assailant as the man wearing a white shirt and black tie and sitting next to the defense attorney. The prosecutor asked, “[L]et the record reflect that the witness has accurately identified the defendant Jeremiah Crenshaw by his article of clothing and positioning in the courtroom,” and the trial court responded, “The record will so reflect.” The victim testified that she was “100 percent sure” that Crenshaw was the man who raped her.

The day following the victim’s testimony, her girlfriend testified about the time a few months before the assault when Crenshaw briefly stopped by their home. The prosecutor asked the witness to identify him by his clothing and where he was sitting in the court - room. She identified him as the man wearing a “kind of gold shirt” and sitting next to “the little lawyer,” pointing at them. The prosecutor asked, “[L]et the record reflect that the witness has identified the defendant by an article of clothing and his positioning next to the rather petite” defense lawyer, and the trial court responded, “The record will so reflect.”

Crenshaw contends that the trial judge commented on the evidence in violation of OCGA § 17-8-57 by directing that the record reflect that the victim and the witness had identified him. Under the applicable version of that Code section, “[i]t is error for any judge, during any phase of any criminal case, to express or intimate to the jury the judge’s opinion as to whether a fact at issue has or has not been proved or as to the guilt of the accused.” OCGA § 17-8-57 (a) (1). Because Crenshaw did not object at trial, we review the court’s allegedly improper comments under the “plain error” standard. The threshold issue is whether the trial court deviated from the legal rule that prohibits a trial judge from intimating to the jury the judge’s opinion as to whether a fact at issue has or has not been proved or as to the guilt of the accused. The Supreme Court of Georgia has held that a judge’s statement “[l]et the record reflect that the man that the witness pointed out in court today is the defendant” does not constitute an improper comment on the evidence. Anderson v. State, 249 Ga. 132, 136 (6) (287 SE2d 195) (1982). This is the customary language which allows the record, that is, the trial transcript, to accurately reflect aspects of the evidence that are available to the jurors’ sensory perception, such as a witness’s gestures, but will not be available to future readers of the transcript. In this case, the jurors were present in the courtroom and able to determine for themselves whether someone in the courtroom matched the man identified by the victim and by the witness by describing his clothing and his location in the courtroom and by gesturing toward him. In context, the trial judge’s “the record will so reflect” served to clarify the victim’s and witness’s words, as they would later be transcribed, not to indicate to the jury whether the State had proved that Crenshaw was the man who visited the victim’s home and, months later, broke in and attacked her. The trial judge did not comment on the evidence in violation of OCGA § 17-8-57. Anderson v. State, 249 Ga. at 136 (6); King v. State, 336 Ga. App. 531, 541 (4) (784 SE2d 875) (2016). Because there was no error, there was per force no plain error warranting reversal. McNair v. State, 330 Ga. App. 478, 485 (2) (767 SE2d 290) (2014); Moore v. State, 325 Ga.App. 749, 751 (2) (754 SE2d 792) (2014); Anthony v. State, 317 Ga. App. 807, 812 (3) (732 SE2d 845) (2012).

Decided May 16, 2017.

The Patterson Firm, Jackie G. Patterson, for appellant.

Paul L. Howard, Jr., District Attorney, Paige Reese Whitaker, Michael V. Snow, Assistant District Attorneys, for appellee.

Judgment affirmed.

Andrews and Rickman, JJ., concur.

       See Jackson v. Virginia, 443 U. S. 307 (99 SCt 2781, 61 LE2d 560) (1979).

       We note that, after Crenshaw was tried in April 2014, the General Assembly amended OCGA § 17-8-57, effective July 1, 2015. SeeGa. L. 2015, pp. 1050-1051 (Act 174), § 1. The 2015 amendment addresses when, in the absence of a contemporaneous objection, a trial court’s violation of the prohibition against commenting on whether a fact was or was not proven will result in a new trial. Specifically, the amendment added subsection (b), which provides that, except as otherwise provided, “failure to make a timely objection to an alleged violation of [OCGA § 17-8-57 (a)(1)] shall preclude appellate review, unless such violation constitutes plain error which affects substantive rights of the parties.” See OCGA § 17-8-57 (b). Crenshaw contends that former OCGA § 17-8-57 applies, because his trial occurred before the effective date of the amendment, but our appellate courts have held that the 2015 amendment should be given retroactive effect. See Pyatt v. State, 298 Ga. 742, 747-748 (3), n. 9 (784 SE2d 759) (2016) (“OCGA § 17-8-57 (b) [(2015)] applies not to proceedings in the trial court, which, in this case, predated the amendment. Rather, that provision is specifically directed to appellate review.”) (citation and punctuation omitted); Quiller v. State, 338 Ga.App. 206, 209 (789 SE2d 391) (2016) (“[S]ubsection (b) of newly amended OCGA § 17-8-57 should be given retroactive effect.”) (footnote omitted). Nevertheless, Crenshaw expressly concedes that the alleged trial court error in this case is subject to the “plain error” rule, and the provision at issue here, specifically, that it is error for a trial judge to express or intimate to the jury the judge’s opinion as to whether a fact at issue has or has not been proved or as to the guilt of the accused, is substantially the same in both the former and the present versions of the Code section. See former OCGA § 17-8-57 (2014) (“It is error for any judge in any criminal case, during its progress or in his charge to the jury, to express or intimate his opinion as to what has or has not been proved or as to the guilt of the accused.”); OCGA § 17-8-57 (a) (1) (2015) (quoted in text); Quiller v. State, 338 Ga.App. at 214 (1) (McFadden, J., dissenting) (“The substantive aspects of OCGA § 17-8-57, prohibiting trial judges from expressing an opinion as to what the evidence has proved or as to the guilt of the accused, have not changed in the new statute.”). Under these circumstances, whether the 2015 amendment applies is not determinative.

       A new trial is required for “plain error” in these circumstances:
      First, there must be an error or defect — some sort of deviation from a legal rule — that has not been intentionally relinquished or abandoned, i.e., affirmatively waived, by the appellant. Second, the legal error must be clear or obvious, rather than subject to reasonable dispute. Third, the error must have affected the appellant’s substantial rights, which in the ordinary case means he must demonstrate that it affected the outcome of the trial court proceedings. F ourth and finally, if the above three prongs are satisfied, the appellate court has the discretion to remedy the error — discretion which ought to be exercised only if the error seriously affects the fairness, integrity or public reputation of judicial proceedings.
      (Citations and punctuation omitted.) Martin v. State, 298 Ga. 259, 276-277 (6) (b) (779 SE2d 342) (2015) (applying OCGA § 17-8-58), cert. denied, 137 SCt 62, 196 LE2d 60 (2016).

        See King v. State, 336 Ga.App. 531, 540-541 (4) (784 SE2d 875) (2016) (Where the witness identified the defendant, by pointing to him in the courtroom, as the person who confessed to him while they were incarcerated together, the prosecutor stated, “[l]et the record reflect he’s identified the defendant!,]” and “the trial court used the customary language!,]” that is, “so noted,” “to let the record reflect that he did so[,]” the trial judge did not express or intimate an opinion as to what had or had not been proved as to the guilt of the accused in violation of OCGA § 17-8-57.); see also Bradeen v. State, 711 SW2d 263, 265 (Tex.App. 1986) (Atrialcourt’s responding to the State’s request to have the record reflect that a witness had identified the defendant after the witness identified the defendant in court by saying that “the record will so reflect” was approved and recommended procedure under analogous Texas law and did not amount to a comment on the evidence that would prejudice the accused or benefit the State.); cf. Chapman v. State, 217 Ga. App. 264, 264-265 (1) (457 SE2d 206) (1995) (Where the prosecutor asked a police officer about the victim’s response to a photographic line-up, the defense objected to the testimony, asserting no proper foundation had been laid for its admission, the court asked, “Well, hasn’t there been positive identification?”, and the prosecutor immediately responded that there had, the trial judge’s comment regarding evidence of a positive identification of the defendant, “compounded by the eager response by the [S]tate, clearly left the jury with the impression that [the defendant] had been positively identified as the perpetrator of the crimes charged.” Because misidentification and alibi were the defendant’s sole defenses, the comments directly addressed a material issue in the case in violation of OCGA § 17-8-57.).


text:
    A17A0912.
    HILL v. THE STATE.
    (801 SE2d 87)
   Ellington, Presiding Judge.

After a bench trial, the State Court of Clayton County found Debra Hill guilty beyond a reasonable doubt of a misdemeanor pedestrian violation, failing to yield the right of way to vehicles upon the roadway when crossing other than at a crosswalk, OCGA § 40-6-92 (a). Hill appeals, challenging the sufficiency of the evidence. For the following reasons, we affirm.

When reviewing a conviction after a bench trial,

[t]he issue before [the appellate court] is whether the evidence was sufficient to support a conviction under the standards of Jackson v. Virginia, 443 U. S. 307 (99 SC[t] 2781, 61 LE2d 560) (1979). Therefore, we view the evidence in the light most favorable to the [trial court’s judgment], and the defendant no longer enjoys the presumption of innocence. We do not weigh the evidence[,] nor do we determine the [witnesses’] credibility. Instead, we determine only whether the evidence was sufficient for a rational trier of fact to find the defendant guilty of the charged offense beyond a reasonable doubt.

(Citations and punctuation omitted.) Brown v. State, 298 Ga. App. 545, 545-546 (680 SE2d 579) (2009).

Viewed in the light most favorable to the trial court’s judgment, the evidence showed the following undisputed facts. On July 1, 2015, at approximately 7:00 p.m., Rodolfo Navarro-Sanchez was driving his van westbound on Mount Zion Road in Morrow. It was raining and traffic was heavy. At the traffic light at the intersection with Jones-boro Road, Navarro-Sanchez stopped in the dedicated left turn lane, preparing to turn left onto southbound Jonesboro Road. At the red light, he was first in line, waiting for a green left turn arrow. When the left turn arrow turned green, Navarro-Sanchez turned left into the southbound lanes of Jonesboro Road, and his van struck Hill, who was on foot in the intersection, and threw her into the air.

Navarro-Sanchez did not see Hill before striking her. Hill testified that she had been walking westbound along Mount Zion Road and was in the process of crossing Jonesboro Road, after waiting for the light. She testified that she crossed in front of the cars stopped in the northbound lanes on Jonesboro Road and was hit when she continued across the southbound lanes. An eyewitness, a driver who was headed southbound on Jonesboro Road and stopped at the traffic light at Mount Zion Road, testified that he saw Hill to his left as she waited for the light to change and then crossed several lanes of Jonesboro Road before she was hit. The responding officer concluded, contrary to Hill and the witness, that Hill had been walking eastbound. At any rate, as Hill admitted, there was no crosswalk marked on the pavement; the only marking on Jonesboro Road was the painted stop line for vehicles.

The responding officer cited Hill for an improper pedestrian crossing. The State filed an accusation charging her with failing to yield the right of way to vehicles when crossing a roadway at other than a crosswalk, in violation of OCGA § 40-6-92 (a). That Code section provides:

Every pedestrian crossing a roadway at any point other than within a marked crosswalk or within an unmarked crosswalk at an intersection shall yield the right of way to all vehicles upon the roadway unless he [or she] has already, and under safe conditions, entered the roadway.

As noted above, it is undisputed that there was no marked crosswalk where Hill was crossing Jonesboro Road. In addition, there was no evidence that Hill was crossing from one sidewalk to another on the opposite side of Jonesboro Road. Consequently, it is undisputed that Hill was crossing other than at either a marked crosswalk or an unmarked crosswalk. Furthermore, the evidence authorized the trial court to find that Hill entered the roadway when it was not safe to do so, given the traffic and weather conditions, and that she failed to yield to motor vehicle traffic. Accordingly, the trial court did not err in finding that she violated OCGA § 40-6-92 (a). Nelson v. State, 317 Ga. App. 527, 528 (731 SE2d 770) (2012) (Where the defendant crossed opposite a bus stop at night, although there were intersections with marked crosswalks located approximately 50 yards away from the bus stop, she crossed at other than a crosswalk when it was unsafe to do so in violation of OCGA § 40-6-92 (a).).

Decided May 16, 2017.

Yinka T. Omole, for appellant.

Taska M. Mosley, Solicitor-General, Albert P Hopkins III, Assistant Solicitor-General, for appellee.

Judgment affirmed.

Andrews and Rickman, JJ., concur.

       See Wells v. Alderman, 117 Ga. App. 724, 729 (2) (162 SE2d 18) (1968) (Georgia law recognizes two kinds of crosswalks: (1) a crosswalk marked or painted on the street or highway by the responsible public authorities, which may or may not be at an intersection, and (2) a crosswalk, which may or may not be marked, which comports with the statutory definition.); Conner v. Mangum, 132 Ga.App. 100, 104 (3) (207 SE2d 604) (1974) (accord); OCGA § 40-1-1 (10) (A) (A crosswalk is “[t]hat part of a roadway at an intersection included within the connections of the lateral lines of the sidewalks on opposite sides of the highway measured from the curbs or in the absence of curbs, from the edges of the traversable roadway; or (B) Any portion of a roadway at an intersection or elsewhere distinctly indicated for pedestrian crossing by lines or other markings on the surface.”), (22) (A) (An intersection is “the area embraced within the prolongation or connection of the lateral curb lines, or, if none, then the lateral boundary lines of the roadways of two highways which join one another at, or approximately at, right angles, or the area within which vehicles traveling upon different highways joining at any other angle may come in conflict.”).


author: DILLARD, Presiding Judge.

text:
    A17A0052.
    THE STATE v. CRIST.
    (801 SE2d 545)
   DILLARD, Presiding Judge.

A jury convicted Carl Crist of three counts of sexual battery. Crist filed a motion for new trial, which the trial court granted because it found that, during the oral charge to the jury, it inadvertently omitted the elements of sexual battery. The State appeals, arguing that the trial court erred in granting Crist a new trial because he failed to carry his burden of establishing that the jury charge, taken as a whole, constituted plain error. We agree, and for the reasons set forth infra, reverse.

Viewed in the light most favorable to the jury’s verdict, the evidence shows that on May 15, 2012, then 14-year-old D. M. reported to a teacher that her stepfather, Crist, had been molesting her. The school immediately contacted D. M.’s mother and the police, and D. M. made a report to a police officer.

When D. M. was approximately nine or ten years old, her mother began living with Crist. D. M. did not recall when the abuse began, but Crist frequently touched her on her chest, buttocks, and vagina with his hands. This happened more than 20 times. The abuse occurred in D. M.’s bedroom at night, while her mother was away at work. When Crist touched her, D. M. would tell him to stop and go away, and she would hit him. Although Crist would occasionally listen to her pleas, he continued to abuse D. M. At the time of her outcry, D. M. shared a bedroom with her three sisters, then twelve-year-old I. M., then four-year-old S. C., and then two-year-old A. C. At trial, I. M. confirmed that Crist would come into their room at night and “mess with” D. M. I. M. witnessed Crist pick up the covers on D. M.’s bed, and she heard D. M. yell at Crist to leave her alone and get out of their bedroom. I. M. also told police that Crist “molested” D. M. Moreover, D. M.’s mother argued with Crist about him going into the children’s bedroom at night. She also discovered, on Crist’s cell phone, a picture he had taken of D. M., from the waist down, sleeping. D. M. was wearing shorts in the picture, but her underwear was also showing.

At trial, the court admitted, over his objection, a portion of Crist’s statement to police. Crist admitted to an investigator that he had gone into D. M.’s bedroom at night, and that he had physical contact with the child while in her room. Notwithstanding these admissions, Crist denied touching D. M. inappropriately Crist told police that he believed D. M. had confused other behavior—such as his looking in D. M.’s bed for his cell phone, moving her leg onto the bed, and touching her waist to wake her up—with molestation.

Thereafter, Crist was charged by indictment with three counts of sexual battery and three counts of child molestation. The jury convicted him on all the sexual-battery counts and found him not guilty of the child-molestation counts. Crist filed a motion for new trial, arguing, inter alia, that the trial court failed to fully instruct the jury on the elements of sexual battery, in that the charge given by the court omitted the element of lack of consent. Following a hearing, the trial court granted Crist’s motion, finding that, when it read the written instructions at the conclusion of the trial, it had inadvertently omitted the page of the instructions defining the crime of sexual battery. The court found that this was an obvious error. Although the written instructions included the complete instructions on sexual battery, the written instructions were provided to the jury before they began their deliberations, and the definition of sexual battery had been underlined by one of the jurors during deliberation, the trial court found that this was “unsubstantiated evidence that the error did not affect the outcome of the proceedings^]” And the court declared that it would not “assume that all jurors read the definition of sexual battery in the jury room.” The court further found that this error affected Crist’s “substantial rights” and significantly affected the fairness, integrity, or public reputation of the judicial process because the jury should have been instructed on the elements of each crime at the same time to ensure fairness and “should not have been required to rely solely on the written charge.” This appeal by the State follows.

In its sole enumeration of error, the State argues that the trial court erred in granting Crist’s motion for new trial because the jury instructions, taken as a whole, properly instructed the jury on the elements of sexual battery, such that the omission of the instructions during the oral charge did not constitute plain error. Specifically, the State asserts that Crist failed to show that the omission of the oral instruction on the elements of sexual battery likely affected the outcome of the trial and the court impermissibly shifted the burden to the State to show no plain error. We agree.

Although Crist does not directly challenge the sufficiency of the evidence as to his convictions for sexual battery, the evidence was sufficient to sustain the guilty verdicts. Additionally, while the “first grant of a new trial on general grounds is reviewed for abuse of discretion,” this Court reviews “de novo the trial court’s first grant of a new trial on a special ground involving a question of law.” And here, the trial court granted Crist a new trial on a special ground, namely that the court’s failure to give an oral charge on sexual battery was plain error.

In beginning our analysis, it is important to note that under OCGA § 17-8-58, “[a]ny party who objects to any portion of the charge to the jury or the failure to charge the jury shall inform the court of the specific objection and the grounds for such objection before the jury retires to deliberate.” But Crist did not object to any portion of the trial court’s jury instructions. His failure to so object precludes “appellate review of such portion of the jury charge, unless such portion of the jury charge constitutes plain error which affects the substantial rights of the parties.” In such cases, the proper inquiry is whether “the instruction was erroneous, whether it was obviously so, and whether it likely affected the outcome of the proceedings.” In this regard, our Supreme Court has adopted the four-part federal plain-error standard:

First, there must be an error or defect—some sort of deviation from a legal rule—that has not been intentionally relinquished or abandoned, i.e., affirmatively waived, by the appellant. Second, the legal error must be clear or obvious, rather than subject to reasonable dispute. Third, the error must have affected the appellant’s substantial rights, which in the ordinary case means he must demonstrate that it affected the outcome of the trial court proceedings. Fourth and finally, if the above three prongs are satisfied, the appellate court has the discretion to remedy the error— discretion which ought to be exercised only if the error seriously affects the fairness, integrity or public reputation of judicial proceedings.

Consequently, because Crist failed to object to the jury charges, our review is limited to determining whether plain error occurred. Moreover, as our Supreme Court has emphasized, satisfying the plain-error standard “is difficult, as it should be.” And the burden of establishing plain error falls squarely on the defendant.

With these guiding principles in mind, we turn now to the State’s specific claim of error. It is, of course, well established that “the charge to the jury is to be taken as a whole and not out of context when making determinations as to its correctness.” And for purposes of plain-error analysis, the “charge” includes “not only . . . instructions given orally to the jury, but necessarily must apply to any written instructions given to the jury.” In this regard, at the start of Crist’s trial, the trial court read the indictment to the jury, including the three charges of sexual battery In its relevant parts, the indictment charged that Crist: “intentionally made physical contact with the intimate parts of the body of [D. M.], a child under the age of 16 years, by placing his hand upon” her buttocks, breast, and vagina, “without the consent of said child.” After closing arguments, the court instructed the jury, “I’m going to give you the law that applies to this case. You’re going to have a copy of this out with you, so you don’t have to try to write it all down. It’s a lengthy charge ... .’’And the trial court reminded the jury that it had read the indictment and that the jury would have a copy of the indictment as well, before it further instructed the jury on the presumption of innocence and the State’s burden to prove Crist’s guilt beyond a reasonable doubt. The court then specifically instructed the jury: “The burden of proof rests upon the State to prove every material allegation of the indictment and every essential element of the crime or crimes charged beyond a reasonable doubt.” After giving additional instructions on the meaning of reasonable doubt, the consideration of the evidence, and criminal intent, the court charged the jury on the elements of child molestation and on the statute of limitation for child molestation and sexual battery, but failed to give any oral instructions on the elements of sexual battery. After the court explained the verdict form and gave its final instructions, the jury began deliberations.

Given the foregoing, even assuming that the trial court’s failure to include the elements of sexual battery in its oral charge to the jury constituted an obvious error, Crist has failed to show that this omission likely affected the outcome of the proceedings. Notably, the indictment, including the elements of the charge of sexual battery, was read to the jury; the jury was instructed that it had to find each element in the indictment beyond a reasonable doubt; and the indictment was sent into the jury room.

Furthermore, the jury was told at the outset of the closing charge that it need not remember all of the court’s instructions, which were 17 pages in length, and was given a complete set of written instructions, including the sexual-battery instruction, in the jury room. To be sure, the better practice would have been to include all instructions in the oral charge following closing arguments. Nevertheless, the trial court’s written and oral instructions, as a whole, adequately informed the jury of the charges. Moreover, the elements of both child molestation and sexual battery were underlined on the written jury instructions that went out with the jury. Thus, while the trial court found that the notations on the written instructions were “unsubstantiated” evidence that the error did not affect the proceedings and declared that it would not “assume” that the jury read the instructions, its reasoning was misguided. The burden was on Crist, not the State, to show that the error likely affected the outcome of the trial. And here, we can find no evidence that the jury misunderstood the instructions on sexual battery or any other topic. Rather, the record, including the acquittal of Crist on charges of child molestation, shows that the jury understood the law and the evidence before it.

In sum, because the trial court’s instructions, when considered as a whole, properly instructed the jury on the law and Crist failed to show that the omission of the oral instruction on sexual battery at the close of trial likely affected the outcome of the proceedings, we conclude that the trial court erred in granting Crist’s motion for a new trial. Thus, we reverse the trial court’s grant of Crist’s motion for new trial and reinstate his convictions for sexual battery.

Judgment reversed.

Ray and Self, JJ., concur.

Decided May 18, 2017.

Jacquelyn L. Johnson, District Attorney, Andrew J. Ekonomou, Thomas E. Buscemi, Assistant District Attorneys, for appellant.

Jonathan P. Lockwood, for appellee.

        See, e.g., Powell v. State, 310 Ga. App. 144, 144 (712 SE2d 139) (2011).

       The written instructions provided to the jury stated: “A person commits sexual battery when when [sic] that person intentionally makes physical contact with the genital area, groin/inner thigh, buttocks, or brests [sic] of another person without the consent of the other person.” This instruction was based on the pattern jury instructions. See Suggested Pattern Jury Instructions, Vol. II: Criminal Cases (2016), § 2.38.70.

        See OCGA § 5-7-1 (a) (8) (An appeal may be taken by the State “[f]rom an order, decision, or judgment of a court granting a motion for new trial or an extraordinary motion for new trial[.]”). Crist filed a motion to dismiss the State’s appeal on the basis that it failed to include an accurate jurisdictional statement in its brief, as required by Court of Appeals Rule 25 (a) (2). But the failure to include a jurisdictional statement “does not afford a basis for dismissal of the appeal.” All-Georgia Dev., Inc. v. Kadis, 178 Ga.App. 37, 38 (1) (341 SE2d 885) (1986); see also Park v. Minton, 229 Ga. 765, 768 (1) (194 SE2d 465) (1972) (noting that court rule requiring jurisdictional statement is “directory only, and not jurisdictional”). Furthermore, as set forth supra, jurisdiction is proper in this case under OCGA § 5-7-1 (a) (8).

       See OCGA § 16-6-22.1 (b) (“Aperson commits the offense of sexualbattery whenheor she intentionally makes physical contact with the intimate parts of the body of another person without the consent of that person.”); Watson v. State, 297 Ga. 718, 719 (2) (777 SE2d 677) (2015) (same); Hamrick v. State, 304 Ga. App. 378, 378-79 (1) (696 SE2d 403) (2010) (holding that victim’s testimony that the defendant touched his “private part” was sufficient to sustain conviction for sexual battery); In the Interest of J. L. B., 280 Ga.App. 556, 560 (5) (634 SE2d 514) (2006) (holding that victim’s testimony that juvenile grabbed her breasts, crotch, and buttocks was sufficient to support delinquency adjudication based on sexual battery). See generally Jackson v. Virginia, 443 U. S. 307, 319 (III) (B) (99 SCt 2781, 61 LE2d 560) (1979).

         State v. James, 292 Ga. 440, 441 (1) (738 SE2d 601) (2013); see OCGA § 5-5-50 (“The first grant of a new trial shall not be disturbed by an appellate court unless the appellant shows that the judge abused his discretion in granting it and that the law and facts require the verdict notwithstanding the judgment of the presiding judge.”).

        James, 292 Ga. at 441 (1); accord State v. Kelly, 290 Ga. 29, 30-31 (1) (718 SE2d 232) (2011); see OCGA § 5-5-25 (“In all motions for a new trial on other grounds not provided for in this Code, the presiding judge must exercise a sound legal discretion in granting or refusing the same according to the provisions of the common law and practice of the courts.”).

       OCGA § 17-8-58 (b); see Alvelo v. State, 290 Ga. 609, 614 (5) (724 SE2d 377) (2012) (holding that OCGA § 17-8-58 (b) requires an appellate court to revie w for plain error an alleged jury-instruction error to which no objection was raised at trial); Wheeler v. State, 327 Ga. App. 313, 318 (3) (758 SE2d 840) (2014) (same).

        Alvelo, 290 Ga. at 615 (5) (punctuation omitted); accord Wheeler, 327 Ga. App. at 318 (3).

        Kelly, 290 Ga. at 33 (2) (a) (punctuation and emphasis omitted) (quoting Puckett v. United States, 556 U. S. 129, 135 (II) (129 SCt 1423, 173 LE2d 266) (2009)); accord Smart v. State, 299 Ga. 414, 420-21 (3) (788 SE2d 442) (2016).

        See OCGA § 17-8-58 (b); see also State v. Alvarez, 299 Ga. 213, 214 (1) (790 SE2d 66) (2016) (noting that when trial counsel fails to object to a jury charge, appellate courts must review the issue under the plain-error doctrine); Wheeler, 327 Ga. App. at 318 (3).

        Kelly, 290 Ga. at 33 (2) (a) (punctuation omitted) (quoting Puckett, 556 U. S. at 135 (II)).

        See Anderson v. State, 299 Ga. 193, 196 (2) (787 SE2d 202) (2016) (“To show plain error, [the defendant] must establish not only that the jury instruction was erroneous, but also that it was obviously so and that it likely affected the outcome of the proceedings.” (punctuation omitted)); Murray v. State, 295 Ga. 289, 294 (3) (759 SE2d 525) (2014) (“Appellant has failed to show plain error under the four-pronged test adopted in State v. Kelly, in that appellant has failed to show that the instruction was erroneous, the error was obvious, the instruction likely affected the outcome of the proceedings, and the error seriously affects the fairness, integrity, or public reputation of judicial proceedings.” (citation and punctuation omitted)); see also Jones v. United States, 527 U. S. 373, 394-95 (II) (B) (119 SCt 2090, 144 LE2d 370) (1999) (noting that it is the defendant’s “burden of showing that the error actually affected his substantial rights”); United States v. Olano, 507 U. S. 725, 734 (II) (A) (113 SCt 1770, 123 LE2d 508) (1993) (explaining that under federal plain-error analysis, “[i]t is the defendant rather than the Government who bears the burden of persuasion with respect to prejudice”).

        Minor v. State, 328 Ga.App. 128, 132 (2) (a) (761 SE2d 538) (2014) (punctuationomitted); see Drayton v. State, 297 Ga. 743, 748-49 (2) (b) (778 SE2d 179) (2015) (explaining that before a jury charge will be considered reversible error, it must be considered in the context of the jury instructions as a whole); Guajardo v. State, 290 Ga. 172, 176 (4) (718 SE2d 292) (2011) (same).

        Cheddersingh v. State, 290 Ga. 680, 683 (2) (724 SE2d 366) (2012); see Murray, 295 Ga. at 294 (3) (considering court’s oral and written instructions).

        See OCGA § 16-6-22.1 (b) (“A person commits the offense of sexual battery when he or she intentionally makes physical contact with the intimate parts of the body of another person without the consent of that person.”).

        See, e.g., Essuon v. State, 286 Ga. App. 869, 872 (2) (650 SE2d 409) (2007) (reversingthe defendant’s convictions on two counts of criminal solicitation to commit a felony (murder) where the instructions as a whole failed to define the terms “felony” and “murder,” which were essential elements of the crime charged).

        See Anderson, 299 Ga. at 196 (2) (holding that defendant did not establish that the trial court’s failure to instruct the jury that it had to find the defendant had a firearm “within arm’s reach” likely affected the outcome of the proceeding where the “element was properly included in ... the indictment, that indictment was read to the jury, the trial court charged the jury that the State had to prove every material allegation in the indictment beyond a reasonable doubt, and the trial court reminded the jury that it would have the indictment in the jury room ‘during your deliberations in order that you may examine the specific allegations against these defendants’ ”); see also Miller v. State, 289 Ga. 854, 861 (8) (717 SE2d 179) (2011) (holding that “deviation from the indictment to the jury charge” by omitting an element of first degree arson “is not error where the trial court read the indictment in full to the jury and charged the jury that the State must prove each element of the crime as charged beyond a reasonable doubt”). But cf. Aguilar v. State, 340 Ga. App. 522, 523 (1) (798 SE2d 60) (2017) (holding that earlier reading of the indictment could not save the court’s erroneous sexual-battery instruction, which omitted the element of lack of consent, because sexual battery was a lesser-included charge and was not included in the indictment).
      Crist asserts that Anderson, is distinguishable from the case sub judice because whether the firearm was “within arm’s reach” of the shooter was not disputed at trial. Here, Crist admitted to touching D. M. in her bed, but denied doing so inappropriately, such that the disputed issue at trial was whether or not D. M. and I. M., who both reported that Crist touched D. M. without her consent, were credible witnesses. This distinction is of no consequence. In this case, the jury was properly instructed, via the reading of the indictment and the instructions as a whole, on the State’s burden to prove lack of consent. See infra notes 18 and 19.

        See Anderson v. State, 262 Ga. 26, 27-28 (3) (a) (413 SE2d 732) (1992) (“[W]e think it is frequently desirable that instructions which have been reduced to writing be not only read to the jury but also be handed over to the jury. .. . We see no good reason why the members of the jury should always be required to debate and rely upon their several recollections of what a judge said when proof of what he said is readily available.”) (citing Copeland v. Un ited States, 152 F2d 769, 770 (D. C. Cir. 1945)); accord Reese v. State, 241 Ga.App. 350, 351-52 (3) (526 SE2d 867) (1999).

        See Miner v. State, 268 Ga. 67, 68 (3) (485 SE2d 456) (1997) (holding that the failure to include “language charging that the burden of proof is upon the State to prove beyond a reasonable doubt that the murder offense is not mitigated by provocation or prejudice” in oral charge, where it was included in written charge, was not reversible error); see also Arthur v. Walker, 285 Ga. 578, 580 (679 SE2d 13) (2009) (noting, in affirming denial of habeas corpus petition based on ineffective assistance in failing to object to court’s slip of the tongue during oral charge, that “the trial court sent out a written copy of the jury instructions to the jury, which would have included a full and correct version of the charge . . . unfettered by the trial court’s inadvertent slip of the tongue”). But see Cheddersingh, 290 Ga. at 682 (2) (although oral instructions informed the jury that the defendant was innocent until proven guilty and burden was upon the State and never shifted to the defendant, it was plain error to use pre-printed verdict form which required jury to find defendant not guilty beyond a reasonable doubt).

       We find the trial court’s refusal to “assume” that the jury read the written instructions curious, given its statement—immediately following closing arguments—that the jury would have a copy of the written instructions in the jury room and that the members did not need to write down the lengthy oral charge.

        See supra, note 12. We note that Crist made no presentation of evidence at the hearing on his motion for new trial, but simply rested on his motion and brief. In his brief, he made no argument that the instructional error likely affected the outcome, merely asserting that the court’s charge on sexual battery was plain error because it failed to instruct the jury that the State was required to prove lack of consent.

        Cf. Heard v. State, 287 Ga. 554, 559 (4) (697 SE2d 811) (2010) (holding that trial court did not err in denying defendant’s motion for severance when verdict, including acquittal for some charges, showed the jury understood law and evidence); Algren v. State, 330 Ga. App. 1, 4 (1) (764 SE2d 611) (2014) (same).

       Other cases upon which Crist relies are distinguishable. Specifically, in Stanbury v. State, 299 Ga. 125 (786 SE2d 672) (2016), our Supreme Court found plain error when the trial court failed to instruct the jury that the testimony of an accomplice had to be corroborated and the accomplice testimony “served as the bedrock of the conviction because he was the only witness who affirmatively identified” the defendant. Id. at 129-31 (2). Because the jury was not “properly instructed on the manner in which they needed to judge this evidence,” the error likely affected the outcome of the proceedings. Id. at 131 (2). But here, the jury was properly instructed on how to consider the evidence. In Alvarez, our Supreme Court also found plain error in the trial court’s failure to give any instruction on the defense of justification when “justification was the critical disputed issue at trial.” 299 Ga. at 214-15 (1). Pertinently, in these cases and other cases finding plain error based on the omission of a jury instruction, the instruction was omitted entirely from the jury’s consideration. See, e.g., Alvarez, 299 Ga. at 214-15 (1) (finding plain error where trial court failed to give any instruction on the defense of justification); Stanbury, 299 Ga. at 129 (1) (finding plain error where trial court failed to instruct that the testimony of an accomplice must be corroborated); Aguilar, 340 Ga.App. at 524 (1) (finding plain error where “jury instruction wholly failed to charge the essential element of the crime of sexual battery— lack of consent to the touching”); Patterson v. State, 328 Ga.App. 111, 116-21 (4) (761 SE2d 524) (2014) (holding that failure to instruct jury that defendant had to have knowledge that pill contained hydrocodone in order to convict him for possession of hydrocodone was plain error); Wagner v. State, 311 Ga.App. 589, 591-93 (2) (716 SE2d 633) (2011) (physical precedent only) (finding plain error in the trial court’s use of a disapproved-instruction that shifted the burden of proof to the defendant in a DUI case). In stark contrast, the oral and written instructions in this case, as a whole, properly informed the jury of the elements of sexual battery. See Anderson, 299 Ga. at 196 (2) (finding no plain error where omitted element was included in the indictment, which was read to the jury and sent to the jury room, and jury was instructed to find the indictment allegations beyond a reasonable doubt); Miner, 268 Ga. at 68 (3) (finding no plain error where written instructions were correct).