author: Ellington, Chief Judge.

text:
    A11A0048.
    McCOBB et al. v. CLAYTON COUNTY.
    (710 SE2d 207)
   Ellington, Chief Judge.

Sherri McCobb, individually and as the administratrix of the estate of her son, Larry Smith, brought this wrongful death action in the Superior Court of Clayton County against Clayton County, alleging that the improper conduct of a county police officer during a high-speed chase proximately caused Smith’s death. The county filed a motion for judgment on the pleadings, arguing that McCobb’s claims were barred because it had not waived its sovereign immunity. Following a hearing, the trial court granted the county’s motion and dismissed McCobb’s action. McCobb appeals, contending that the county waived its sovereign immunity when it purchased liability insurance which provides coverage for her claim. For the reasons explained below, we reverse.

When, as in this case, a defendant files a motion for judgment on the pleadings and does not introduce affidavits, depositions or interrogatories in support of the motion, such motion is the equivalent of a motion to dismiss the complaint for failure to state a claim upon which relief can be granted. Hewell v. Walton County, 292 Ga. App. 510, 511 (1) (664 SE2d 875) (2008). Such a motion “should not be granted unless the averments in the complaint disclose with certainty that the plaintiff would not be entitled to relief under any state of facts which could be proved in support of the plaintiffs claim.” (Citation and punctuation omitted.) Id. “On appeal, we review de novo the trial court’s decision on a motion for judgment on the pleadings, and we construe the complaint in a light most favorable to the appellant, drawing all reasonable inferences in his [or her] favor.” (Citation and punctuation omitted.) Id. at 510-511.

1. McCobb contends that the trial court erred in ruling that the county’s liability insurance does not cover her claims and that the county, therefore, has not waived its sovereign immunity.

(a) As provided in Georgia’s constitution, sovereign immunity extends to the counties, and a county’s sovereign immunity “can only be waived by an Act of the General Assembly which specifically provides that sovereign immunity is thereby waived and the extent of such waiver.” Ga. Const, of 1983, Art. I, Sec. II, Par. IX (e). See also OCGA § 36-1-4 (“A county is not liable to suit for any cause of action unless made so by statute.”). Under Georgia law, sovereign immunity is an immunity from suit, rather than a mere defense to liability, and, therefore, whether a governmental defendant has waived its sovereign immunity is a threshold issue. Bd. of Regents &c. of Ga. v. Canas, 295 Ga. App. 505, 507 (1) (672 SE2d 471) (2009); Wendelken v. JENK LLC, 291 Ga. App. 30, 31 (1) (661 SE2d 152) (2008). “[A] waiver of sovereign immunity . . . must be established by the party seeking to benefit from that waiver[.]” (Citation omitted.) Bd. of Regents &c. of Ga. v. Daniels, 264 Ga. 328, 329 (446 SE2d 735) (1994).

OCGA § 33-24-51 authorizes a county to secure insurance to cover liability for damages on account of bodily injury, death, and property damage “arising by reason of [the county’s] ownership, maintenance, operation, or use of any motor vehicle” and provides that the county’s sovereign immunity “for a loss arising out of claims for the negligent use of a covered motor vehicle is waived as provided in [OCGA §] 36-92-2.” OCGA § 36-92-2 in turn provides for the monetary limits of the waiver. See Hewell v. Walton County, 292 Ga. App. at 512 (1) (OCGA § 33-24-51 is a legislative act that specifically provides that sovereign immunity is waived and the extent of such waiver.). Because McCobb seeks to benefit from such a waiver, she has the burden of establishing that the county had waived sovereign immunity by obtaining liability insurance covering her claims. Bd. of Regents &c. of Ga. v. Daniels, 264 Ga. at 329.

In her complaint, McCobb alleges, inter alia, the following: on February 25, 2007, a Clayton County police officer, who was driving a county-owned vehicle, chased a vehicle in which the decedent was a passenger; the driver lost control of his vehicle and struck a tree, killing the decedent; the officer’s decision to continue the pursuit, under the circumstances, was in reckless disregard of proper law enforcement procedures; at the relevant time, the county carried liability insurance that covered her claims up to $10 million. It is undisputed that the county purchased liability insurance, and the policy is in the record. Despite the county’s purchase of that policy, however, the trial court ruled that the county did not waive its sovereign immunity as to McCobb’s claims pursuant to OCGA § 33-24-51, citing Peeples v. City of Atlanta, 189 Ga. App. 888 (377 SE2d 889) (1989) (physical precedent only). The trial court reasoned that,

even after viewing the facts in the complaint in the instant case as true, this court cannot find the injuries claimed in the complaint originated from, had their origins in, grew out of, or flowed from [the officer’s] use of his patrol vehicle, particularly because, in addition to the officer’s pursuit, [McCobb] states that [the driver] lost control of [his car], ran off the road and struck a tree. . . . The complaint did not state the officer literally used his vehicle to push the [driver’s] vehicle off of the road and into the tree. The complaint fails to show that the officer’s use of his vehicle was the cause of the victim’s injuries, thus, the plaintiff has not demonstrated the [c]ounty waived its sovereign immunity under OCGA § 33-24-51.

In Peeples v. City of Atlanta, which is not binding authority, the plaintiffs’ decedent was killed when a stolen car being chased by a city police officer collided with her car. In affirming the grant of summary judgment in favor of the city, this Court noted that the complaint was “grounded upon the actions of a police officer, in the performance of his duties, while attempting to apprehend a fleeing felon.” 189 Ga. App. at 890 (3). Because it was undisputed that the police officer was in the performance of his official duties, the city that employed him was immune from liability pursuant to OCGA § 36-33-3, which provides, “A municipal corporation shall not be liable for the torts of policemen or other officers engaged in the discharge of the duties imposed on them by law.” 189 Ga. App. at 891 (3). After so holding, the Court then remarked:

We do not view plaintiffs decedent’s death as arising from the use, maintenance or operation of the City’s motor vehicle. Plaintiffs decedent’s death was due to the negligence or wilful misconduct of a fleeing felon in running a red light and as a consequence thereof striking the decedent’s car.

Id. As we recognized in a later case, however, this analysis was dicta, in that the issue on appeal in Peeples v. City of Atlanta was fundamentally sovereign immunity and not proximate cause. Contrary to that dicta in Peeples v. City of Atlanta, a waiver of sovereign immunity under OCGA § 33-24-51 does not require a showing that an officer “used” a police vehicle by intentionally physically contacting a suspect’s vehicle. Cameron v. Lang, 274 Ga. at 122, 126-127 (3); Standard v. Hobbs, 263 Ga. App. 873, 875, 878 (2) (589 SE2d 634) (2003). Accordingly, the trial court’s reliance on Peeples v. City of Atlanta was misplaced.

(b) In addition, to the extent the county relies on Peeples v. City of Atlanta to argue that, when an officer’s act of using an official vehicle to pursue a suspect sets in motion a sequence of events that results in injury to an innocent third party, the suspect’s intervening act of causing a collision while fleeing pursuit is as a matter of law the sole proximate cause of the third party’s injuries, this position conflicts with current Georgia law. In 2002, the General Assembly amended Georgia’s Uniform Rules of the Road, which grants police officers exceptional rights in operating motor vehicles when pursuing a suspect or responding to an emergency, to specify the circumstances in which an innocent party injured by a fleeing suspect may recover, striking a balance between police officers’ duty to apprehend lawbreakers and their duty to execute their responsibilities in a way that does not unreasonably jeopardize public safety. As amended, the Rules provide that an officer who is pursuing a suspect “shall not [be] relieve[d] . . . from the duty to drive with due regard for the safety of all persons!,]” OCGA § 40-6-6 (d) (1) and that police pursuit may be found to constitute a proximate cause of any damage, injury, or death caused by the fleeing suspect if the officer acted with reckless disregard for proper law enforcement procedures in the decision to initiate or continue the pursuit, OCGA § 40-6-6 (d) (2). Thus, the county’s argument based on Peeples v. City of Atlanta fails.

(c) In a related argument, the county contends that negligence and reckless disregard are two completely different and separate standards of liability and, further, that reckless disregard of the consequences is equivalent to intent. According to the county, when a plaintiff in a police pursuit case shows a waiver of sovereign immunity pursuant to OCGA § 33-24-51 by the purchase of liability insurance for the negligent use of its motor vehicles, that plaintiff has, in effect, stipulated that the officer’s conduct was not more than merely negligent. As a result, the county contends, the plaintiff is precluded from proving the more culpable conduct that is required to sustain a claim under OCGA § 40-6-6 (d), that is, that the officer acted with reckless disregard for proper law enforcement procedures.

We find no basis for construing these statutes in this fashion. First, if the General Assembly intended to preclude a waiver of sovereign immunity with regard to a police pursuit claim based on the purchase of liability insurance, it could have simply said so. Further, OCGA § 40-6-6 (d) (4) provides that “[cjlaims arising out of [OCGA § 40-6-6 (d)] which are brought against local government entities . . . shall be subject to the procedures and limitations contained in Chapter 92 of Title 36.” OCGA § 36-92-1 (1) defines a claim as “any demand against a local government entity for money for a loss caused by negligence of a local government entity officer or employee using a covered motor vehicle while carrying out his or her official duties or employment.” OCGA § 36-92-2 (a) provides that “[t]he sovereign immunity of local government entities for a loss arising out of claims for the negligent use of a covered motor vehicle is waived up to” monetary limits specified in that Code section. It would be nonsensical on its face for the General Assembly to make claims under OCGA § 40-6-6 (d) subject to the procedures and limitations contained in OCGA § 36-92-1 et seq. if it did not intend that a claim that an officer acted with reckless disregard for proper law enforcement procedures in pursuing a fleeing suspect comes within the ambit of claims for negligent use of a city- or county-owned motor vehicle.

Because McCobb alleged that the decedent was killed as a result of the officer’s reckless disregard for proper law enforcement procedures in his decision to continue the pursuit, and because McCobb showed that the county had purchased insurance to cover claims for the negligent use of the county’s motor vehicles, the county waived its sovereign immunity up to the monetary limits specified in OCGA § 36-92-2. The trial court erred in ruling otherwise and in granting the county’s motion for judgment on the pleadings. Rahmaan v. DeKalb County, 300 Ga. App. 572, n. 3 (685 SE2d 472) (2009).

Decided April 11, 2011

Finch, McCranie, Brown, Hendrix & Sullivan, Richard W. Hendrix, for appellants.

Gillen, Withers & Lake, Craig A. Gillen, Freeman, Mathis & Gary, Jack R. Hancock, Sun S. Choy, for appellee.

2. McCobb contends that the trial court erred in denying her motion for partial summary judgment based on the county’s alleged spoliation of evidence. After granting the county’s motion for judgment on the pleadings, the trial court determined that McCobb’s motion for partial summary judgment was moot. Because the trial court has not considered and ruled on McCobb’s motion on the merits, McCobb’s appeal on this issue is premature.

Judgment reversed.

Miller, P. J., and Doyle, J., concur.

       See Toombs County v. O’Neal, 254 Ga. 390, 391 (1) (330 SE2d 95) (1985) (holding that the constitutional reservation of sovereign immunity “to the State and all of its departments and agencies” extended sovereign immunity to the counties of the State of Georgia).

       See also Cameron v. Lang, 274 Ga. 122, 126 (3) (549 SE2d 341) (2001) (“Generally, a court should consider the issue of governmental immunity!, (that is, sovereign immunity),] and its waiver before addressing issues of causation.”) (footnote omitted).

       If an appeal to the Georgia Court of Appeals is decided by a division, that is, by a panel of three judges, the judgment is a binding precedent only if all judges of the division concur fully. Court of Appeals Rule 33 (a); MCG Health v. Whitfield, 302 Ga. App. 408, 410, n. 1 (690 SE2d 659) (2010). Because one judge of the division concurred only in the judgment in Peeples v. City of Atlanta, the judgment is physical precedent only.

       See Mixon v. City of Warner Robins, 209 Ga. App. 414, 415-416 (434 SE2d 71) (1993), rev’d on other grounds, 264 Ga. 385 (444 SE2d 761) (1994).

       See Ga. L. 2002, pp. 579, 584, § 4; OCGA § 40-6-6; City of Winder v. McDougald, 276 Ga. 866, 867 (583 SE2d 879) (2003); see also Cameron v. Lang, 274 Ga. at 128 (4); Mixon v. City of Warner Robins, 264 Ga. 385, 386-389 (1) (444 SE2d 761) (1994); Pearson v. City of Atlanta, 231 Ga. App. 96, 97-98 (2) (499 SE2d 89) (1998).

       See also OCGA § 36-92-2 (b) (“The sovereign immunity of local government entities for a loss arising out of claims for the negligent use of a covered motor vehicle is waived only to the extent and in the manner provided in this chapter and only with respect to actions brought in the courts of this state.”).

        Rahmaan v. DeKalb County, 300 Ga. App. 572, n. 3 (685 SE2d 472) (2009) (The county’s waiver of sovereign immunity in a police pursuit case pursuant to OCGA § 40-6-6 was based on an insurance policy.); see also Cameron v. Lang, 274 Ga. at 128 (4) (Where the county purchased liability insurance for the sheriffs department vehicles, the county thereby waived sovereign immunity to the extent of the liability insurance for purposes of a claim pursuant to OCGA § 40-6-6 against a sheriffs deputy in his official capacity for injuries sustained by a bystander as a result of the deputy’s pursuit of a fleeing suspect.); Standard v. Hobbs, 263 Ga. App. at 878 (2) (Where the county purchased liability insurance for the sheriffs department vehicles, the county thereby waived sovereign immunity for purposes of a claim pursuant to OCGA § 40-6-6 against a sheriffs deputy individually for injuries sustained by a bystander as a result of the deputy’s pursuit of a fleeing suspect.). We note that both Cameron v. Lang and Standard v. Hobbs were decided before January 1, 2005, the effective date of OCGA § 40-6-6 (d) (4). See Ga. L. 2002, pp. 579, 584 § 4.


source: Caselaw Access Project

author: Andrews, Judge.

license: Public Domain

text:
    A11A0546.
    HALL v. THE STATE.
    (709 SE2d 910)
   Andrews, Judge.

On appeal from her conviction on three counts of permitting a child to be present during the manufacture of methamphetamine, Patricia Hall argues that the trial court erred when it barred her from presenting evidence and argument concerning the guilt of another party and when it denied her motion to reopen evidence on the same subject. We find no error and affirm.

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

So viewed, the record shows that on the evening of October 4, 2007, Hall County police officers executed a search warrant for methamphetamine and Donald Jason Passmore, Hall’s husband, at a trailer in Gainesville. The trailer was rented by Kristi Gooch and her boyfriend Brandon Witherow, who lived there with their daughter. Having been put out of their previous home, Passmore and Hall had moved into the same trailer with their two children. When the three officers entered the trailer, they found Gooch and Hall in the living room with Gooch’s daughter and Hall’s children. The officers then went into the far right bedroom and found Passmore lying on a bed. As the officers handcuffed Passmore, one of them noticed a bowl full of matchbook striker plates on a box. Another officer opened the unlocked door of the middle bedroom and saw items including a hot plate, chemicals, and matches. All the occupants of the trailer were then ordered to evacuate.

As the officers gathered everyone to leave, Passmore said that the equipment didn’t belong to him but that he could tell police whose it was. Passmore also told the officers that a man who lived “down the road” had brought the meth lab equipment to the trailer and that he knew' “where another one is, a lab.” On hearing this latter statement, Hall nodded her head, and both women also said that this other lab was in “a trailer.” The officers assumed that this last term referred to another mobile home. At some point during the search, however, Witherow drove into the subdivision in a vehicle with Roger and Telina Moore and was later seen driving the same vehicle pulling a small trailer. The officers later tried to locate this vehicle and trailer but could not. Both of the Moores had prior convictions related to methamphetamine manufacture and distribution.

After the evacuation was completed, officers recovered the match striker plates, which contained the red phosphorus commonly used to manufacture methamphetamine, as well as four boxes of Sudafed PE, which contained neither ephedrine nor pseudoephe-drine, from Hall and Passmore’s bedroom. An officer also recovered a digital scale from the top drawer of Hall’s dresser. Elsewhere in the trailer, police recovered other materials including stove fuel, muri-atic acid, hydrogen peroxide, a hot plate, rubber gloves stained with red phosphorus, empty packs of Sudafed containing ephedrine, jars containing dissolved ephedrine or methamphetamine residue, and a spoon with methamphetamine residue on it.

Hall was charged with one count of trafficking in methamphetamine by manufacturing less than 200 grams of the drug (OCGA § 16-13-31 (f) (1)), three counts of permitting a child to be present during the manufacture of methamphetamine (OCGA § 16-5-73 (b)), one count of possession of methamphetamine (OCGA § 16-13-30 (a)), and one count of possession of altered ephedrine or pseudoephedrine (OCGA § 16-13-30.3 (d)).

At trial, Hall proffered evidence concerning Witherow and the Moores in support of her theory that they, rather than she or her husband, were running the lab, including that both Moores had previously visited the trailer and had left fingerprints there, including on the digital scales. The trial court ruled that because the spoon with meth residue had been found on top of a check stub with Witherow’s name on it in the bedroom he shared with Gooch, Hall could argue that Witherow was an “other party” to the crime, but that there was insufficient evidence, beyond the Moores’ mere presence in the area, to justify further evidence or argument concerning them. Hall later renewed her motion as to the Moores in light of the officers’ testimony about Passmore’s statements at the scene, but the trial court again denied the motion.

The jury acquitted Hall of trafficking in and possession of methamphetamine as well as possession of altered ephedrine, but found her guilty on all three counts of permitting a child to be present during the manufacture of methamphetamine. Hall was convicted and sentenced to fifteen years with three to serve. Her motion for new trial was denied.

1. First adopted into law in 2004 (see Ga. L. 2004, p. 57, § 4), OCGA § 16-5-73 provides in part:

(b) (1) Any person who intentionally causes or permits a child to be present where any person is manufacturing methamphetamine or possessing a chemical substance with the intent to manufacture methamphetamine shall be guilty of a felony and, upon conviction thereof, shall be punished by imprisonment for not less than two nor more than 15 years.

(Emphasis supplied.) Subsection (a) (1) of the same statute defines “[cjhemical substance” as “anhydrous ammonia, . . . ephedrine, pseudoephedrine, or phenylpropanolamine, ... or any other chemical used in the manufacture of methamphetamine.'1'’ Subsection (a) (3) defines “[i]ntent to manufacture” as

meaning] but . . . not limited to the intent to manufacture methamphetamine, which may be demonstrated by a chemical substance’s usage, quantity, or manner or method of storage, including but not limited to storing it in proximity to another chemical substance or equipment used to manufacture methamphetamine.

Although Hall does not challenge the sufficiency of the evidence against her, we note that OCGA § 16-5-73 has not previously been construed by a Georgia court. Accordingly, we hold that the evidence that Hall and her children resided in the trailer and that a bowl of striker plates containing the red phosphorus commonly used to manufacture the drug was found in the bedroom she shared with Passmore was sufficient to sustain her conviction for permitting a child to be present at the scene of methamphetamine manufacture. See, e.g., Wilson v. State, 231 Ga. App. 525, 526-527 (1) (499 SE2d 911) (1998) (evidence of other occupants’ access to contraband was insufficient as a matter of law to rebut the presumption that defendant who also occupied apartment was in possession of the contraband).

2. Hall argues that the trial court erred when it excluded further evidence and argument concerning the Moores as other parties to the crime. We disagree.

As Hall concedes, we review a trial court’s decision as to the admissibility of “other party” evidence only for an abuse of discretion. Snider v. State, 304 Ga. App. 64, 70 (3) (695 SE2d 383) (2010). Moreover, although a defendant “is entitled to introduce relevant and admissible testimony tending to show that another person committed the crime for which the defendant is tried,” Scott v. State, 281 Ga. 373, 377 (3) (637 SE2d 652) (2006), “the proffered evidence must raise a reasonable inference of the defendant’s innocence, and must directly connect the other person with the corpus delicti, or show that the other person has recently committed a crime of the same or similar nature.” Id. “[A] reasonable inference of the defendant’s innocence [is] raised by evidence that render[s] the desired inference more probable than the inference would be without the evidence.” Oree v. State, 280 Ga. 588, 593 (5) (630 SE2d 390) (2006).

Here, Hall subjected the officers to thorough cross-examination concerning their failure to pursue the vehicle driven by Witherow, and the trial court authorized Hall to present evidence and argument that Witherow was indeed the party responsible for the manufacture. There is no sign in the record before us that the jury had any difficulty distinguishing between those parties involved in manufacturing the drug and those involved only in the maintenance of children at the scene. On the contrary, the jury found Passmore guilty of attempt to commit trafficking in as well as possession of the drug, whereas it acquitted Hall and Gooch of both these charges. See Dills v. State, 281 Ga. App. 484, 486 (636 SE2d 166) (2006) (noting absence of evidence that jury was confused when it acquitted one defendant but found another defendant guilty of the same charge).

More important, even though the Moores both had recent convictions for crimes involving methamphetamine, and even assuming that this relieved Hall of establishing any link between them and the corpus delicti, the presence of Mrs. Moore’s fingerprints on the digital scales found in Hall’s bedroom did not tend to make any “more probable” an inference that the Moores rather than Hall were responsible for any of the crimes for which Hall was tried. Even less did this evidence have any bearing on the crime of which Hall was convicted — that is, permitting children in a place where methamphetamine was being manufactured. Thus the trial court did not abuse its discretion when it barred Hall from further evidence and argument concerning her theory that the Moores rather than she were responsible for those crimes. Snider, 304 Ga. App. at 70-71 (3) (finding no abuse of discretion in excluding evidence of another party’s showing the child molestation victim a pornographic video when there was “no logical connection” between that act and the charged crime).

Decided April 11, 2011.

Mark A. Begnaud, for appellant.

Lee Darragh, District Attorney, Lindsay H. Burton, Assistant District Attorney, for appellee.

3. Hall also argues that the trial court abused its discretion when it denied her motion to reopen evidence. Again, we disagree.

The record shows that on the day before the close of evidence, counsel discovered that an officer had failed to write down the name of the methamphetamine manufacturer given to him by Passmore at the scene, that Passmore had taken a drive with another officer to show him the location of the lab, and that an informant had tipped off police that the manufactured methamphetamine was supposed to be delivered to the trailer where Passmore and Hall lived. On the morning after the close of evidence, Hall moved to reopen evidence and, in the alternative, for a mistrial. After noting that counsel had failed to bring the matter to its attention before the close of evidence, the trial court held a proffer hearing, including examination of witnesses by both sides, and then denied both motions.

Here, counsel knew of the evidence at issue before the close of its case and did not bring the matter to the attention of the trial court. It also appears highly improbable that the proffered evidence would have led to a different verdict. Under these circumstances, we conclude that the trial court did not abuse its discretion when it denied the motion. See Carruth v. State, 267 Ga. 221, 221-222 (476 SE2d 739) (1996).

Judgment affirmed.

Phipps, P. J., and McFadden, J., concur.


author: Adams, Judge.

text:
    A10A1933.
    KIRT v. THE STATE.
    (709 SE2d 840)
   Adams, Judge.

After a jury trial, Michael James Kirt was convicted of kidnapping (Count 1), false imprisonment (Count 2), criminal attempt to commit child molestation (Count 3), aggravated assault (Count 4), simple assault, as a lesser included offense of aggravated assault with intent to rape (Count 5), cruelty to children (Count 6), possession of a weapon on school property (Count 7), and on six counts of possession of a knife during the commission of a felony (Counts 8 through 13). Kirt was sentenced to life in prison plus 80 years to serve consecutively. On appeal, Kirt asserts five enumerations of error: (1) the evidence was insufficient to support the asportation element of the kidnapping conviction; (2) the sentences on Counts 9 through 13 are void because there was only one victim; (3) Count 3 of the indictment failed to allege a substantial step related to the attempted child molestation charge; (4) his conviction on Count 6 must be reversed because there was no evidence that he intended to cause the victim excessive mental pain, or in the alternative, Count 6 should have been merged with Count 2 or 4; and (5) the trial court’s instruction concerning the asportation element of kidnapping was harmful error. We reverse the conviction of kidnapping, reverse the judgment and sentences imposed on Counts 10, 11, and 13, and remand for resentencing.

“On appeal from a criminal conviction, the evidence must be viewed in the light most favorable to support the verdict, and the defendant no longer enjoys a presumption of innocence.” So viewed, the evidence shows that on March 1, 2007, Kirt entered Clarke Middle School in Athens, Georgia at approximately 10:08 a.m., as evidenced by photographs taken by the school’s surveillance cameras. Kirt was wearing a button-down shirt, jeans, and running shoes and carried a bag. Kirt entered the school office, then the teacher’s lounge, but when he emerged from the lounge, he was wearing a jacket with a hood that covered his face. According to the video surveillance tapes, Kirt entered the girls’ bathroom at 10:16 a.m.

At 10:30 a.m., 12-year-old H. G. entered the bathroom. H. G. testified that she used the restroom, then opened the door of the stall to exit and wash her hands when Kirt ran into the stall. H. G. further testified that she started screaming; that Kirt held a knife and a roll of duct tape but set the knife down on the trash can in the stall as he tried to quiet her down; that she continued to scream; that Kirt grabbed her shoulders and pushed her back into the stall; that Kirt unsuccessfully tried to get a piece of duct tape off the roll; and that Kirt then picked up the knife again. H. G. recalled that Rosemary Salter, a counselor at the school, entered the bathroom, and Kirt ran out.

D. C., also a student at the school, testified that she heard someone screaming about a knife and ran into the bathroom; that she pushed against the door of a stall that was locked; that she looked through the cracks in the door and saw H. G. in the corner of the stall; that H. G. was crying and appeared to be afraid; that Kirt’s back was to her but she could see him fumbling with something; and that Kirt was wearing a hood. D. C. further testified that she ran from the bathroom, screamed for help, and told Salter what she had seen. Another student, J. E, testified that she ran into the bathroom after D. C. and saw her look through the cracks of the stall; that when Kirt exited the bathroom, he was wearing a hood; and that she and D. C. ran when Kirt stopped and looked at them.

Salter testified that she heard a disturbance in the hallway and that three girls standing near the girls’ bathroom told her there was a man in the bathroom with a knife; that she entered the bathroom, and H. G. darted around the corner and whispered “he has a knife”; and that Kirt then bolted between them and ran out of the bathroom. Salter observed that he was pulling a hood over his face and appeared to be clutching his pants, which were below his buttocks. Salter chased Kirt and yelled “stop,” alerting other individuals in the school who also pursued Kirt. Salter returned to the main office with H. G., who appeared ashen, pale, and scared, and clutched her hands toward her body. In the meantime, school officials chased Kirt through the building to Alps Road Elementary School, which was next door, and cornered him. William Miller, one of the officials who chased Kirt, testified that he saw the duct tape and the knife, then grabbed Kirt from behind and took him down.

Officer Marshall Brizendine of the Athens-Clarke County Police Department testified that when he arrested Kirt at Alps Road Elementary School, Kirt had a bag in his possession, which contained, among other things, a roll of duct tape, a digital camera, and a wet t-shirt. Brizendine recovered Kirt’s black pocketknife from one of the school officials. Kirt told Brizendine that he went into the school to get out of the rain and to use the bathroom; that he and a girl exited bathroom stalls simultaneously; and that the girl began to “flip the f-ck out” and to scream. Kirt maintained that he did not try to harm anyone.

The police located Kirt’s vehicle, which they towed from the site. A search of Kirt’s vehicle revealed a CD that contained sexually explicit material including images of nude, young girls and a DVD entitled Petite and Sweet. ’ On the DVD were various clips including two young women posing as young school girls having a lesbian encounter, a young woman acting like a young girl eating candy and being seduced by an older man, and a young woman in pigtails wearing a cheerleading outfit who strips and then enters a jacuzzi with an older man.

1. In two enumerations of error, Kirt argues that the evidence was insufficient to support the asportation element of kidnapping and that the trial court’s instruction regarding asportation was erroneous. We agree with the first point, which renders the second point moot.

The evidence of the victim’s movement comes solely from her. She was in a typical bathroom stall, not a handicap stall, and a picture shows the door opens inward. She testified she unlatched and opened the door to the stall in order to leave. At that moment she was either “kind of towards the side of the toilet” or in front of the toilet. As she opened the door, a man walked in and she started screaming, which she continued to do the entire time over the assailant’s indications to be quiet. When the man entered, he had a roll of duct tape in one hand and a knife in the other. Either during or right before pushing the victim, he put the knife on top of a trash can in the back left corner of the stall. The man then “pushed [her] shoulders back” with both hands. After the push, she wound up “[o]n the right side of the toilet,” or “in the corner.” He then tried to get a piece of duct tape off the roll, but he was unsuccessful and picked up the knife again. According to the victim, the man never got far into the stall or moved further inward once in. There is no other testimony about the victim’s movement inside the stall. Although the victim testified that the man never locked the door, D. C. testified that when she responded to the screams, she found the door locked and saw the victim in the back right corner of the stall. Salter or others then came in, and the man ran out. As he did, his pants, including the belt, were completely below his buttocks; his gait was altered; and he was trying to pull up his pants.

As stated by the Supreme Court, given that the only difference between kidnapping and false imprisonment is asportation, “an expansive construction of asportation . . . effectively eviscerates the distinction between [the two crimes].” Garza v. State, 284 Ga. 696, 701 (670 SE2d 73) (2008). Accordingly, the court adopted four factors for determining whether movement constitutes asportation:

(1) the duration of the movement; (2) whether the movement occurred during the commission of a separate offense; (3) whether such movement was an inherent part of that separate offense; and (4) whether the movement itself presented a significant danger to the victim independent of the danger posed by the separate offense.

Id. at 702.

Considering those factors, it is apparent that the movement had extremely short duration — a push of at most three or four feet. Second, the movement occurred during at least three separate offenses — false imprisonment, criminal attempt to commit child molestation, and cruelty to a child; the aggravated assault with an intent to rape arguably ended when Kirt put the knife down. These factors weigh against finding asportation.

Third, the movement could be a part of criminal attempt to commit child molestation or cruelty to a child because the push preceded trying to remove a piece of duct tape, which could be used to bind or gag the victim as part of his effort to molest the child. The movement could also be part of the false imprisonment. It may be that the push was not, however, an inherent part of these offenses, as articulated by Garza. The trial court reasoned that “[plhysically and forcefully pushing the child back into the stall enclosure and attempting to bind or gag her was not an inherent part of the aggravated assault or false imprisonment.” It does not appear, however, that the trial court considered whether the push could be part of the child offenses. Although it is conceivable that Kirt was preparing to kidnap the child and take her somewhere else, there is no additional evidence to support that theory. All in all, the third factor does not weigh in favor of a finding of asportation.

Fourth, we cannot conclude that the push presented a significant danger to the victim independent of the fact that a man with a knife and duct tape was already in the stall blocking a sixth-grade girl from leaving. She could be heard screaming from either position, and, in fact, her screams brought help. With regard to asportation, this factor is inconclusive.

Most cases finding Garza-asportation involve a much more significant movement with a more significant increase in danger to the victim independent of the separate offenses. In Bryant v. State, the defendant was convicted of (relevant to this issue) armed robbery, aggravated assault, and kidnapping. The defendant had grabbed a child in his backyard, shoved a metal object in his back, threatened to shoot, and then made the child go into the house to get money. This Court held that there was asportation sufficient to support kidnapping because the movement from the open backyard into the house “placed the boy in additional danger by isolating him from rescue and exercising further control over him.”

Conversely, in Moore v. State, this Court reversed a conviction for kidnapping due to lack of evidence of asportation. There, the defendant forced the victim’s car off the road at 4:00 a.m. on a dark rural road, demanded money, pulled her out of her car, and threatened her in order to receive oral sex. He then dragged her into the ditch to perform the act. The Court analyzed the Garza factors to conclude there was insufficient evidence of asportation even for the move from beside the car to the ditch:

[T]he movement here was minimal in duration and was clearly done in commission of the other offenses. Further, because the crime occurred beside a dark and deserted rural road in the middle of the night, we cannot say that moving her into a ditch to perpetrate the sexual assault significantly increased the danger to her.

In Escoffier v. State, the defendant, using a knife, “ordered the victim from the driver’s seat to the passenger seat so that he could get in the car and steal it; thus, the victim’s movement occurred during the commission of the separate offense of hijacking a motor vehicle.” This Court found that the short and brief movement did not create a significant danger independent of the separate offenses. Finally, other cases find that movements larger than the push at issue here did not amount to asportation under Garza.

In this case, the victim was not moved from one area to another, or even from outside the stall to inside the stall. The four Garza factors were designed to show

whether the movement in question is in the nature of the evil the kidnapping statute was originally intended to address — i.e., movement serving to substantially isolate the victim from protection or rescue — or merely a “crimi-nologically insignificant circumstance” attendant to some other crime.

Here, almost nothing changed with regard to the child’s isolation or potential rescue as a result of the push. Thus, examination of the Garza factors does not show that the victim was moved in a way sufficient to establish asportation and, consequently, kidnapping. That conviction must be reversed.

2. In his second enumerated error, Kirt argues that the trial court unlawfully sentenced him on Count 10 (possession of a knife during the commission of the felony of criminal attempt to commit child molestation), Count 11 (possession of a knife during the commission of the felony of aggravated assault), and Count 13 (possession of a knife during the commission of the felony of cruelty to children in the first degree) because there was only one victim. “[W]here multiple crimes are committed together during the course of one continuous crime spree, a defendant may be convicted once for possession of a firearm during the commission of a crime as to every individual victim of the crime spree.” The State concedes that the sentences on Counts 10, 11, and 13 should have merged with Count 8 (possession of a knife during the commission of the felony of kidnapping). We agree. Therefore, the convictions and sentences imposed on Counts 10,11, and 13 are vacated; the sentence on Count 8 is vacated, and the case is remanded for resentencing on Count 8.

3. Kirt next argues that his conviction for criminal attempt to commit child molestation (Count 3) must be set aside because the indictment failed to allege the performance of a substantial step toward the commission of the crime. But Kirt did not file a timely special demurrer to the indictment or a timely motion in arrest of judgment; therefore, he has waived any claim, such as this, that could have been raised via special or general demurrer.

4. In Kirt’s final enumeration of error, he argues that his conviction on Count 6, which charged him with cruelty to children in the first degree, must be reversed because there is no evidence that he intended to cause the victim excessive mental pain. Alternatively, Kirt maintains, his conviction on Count 6 should have been merged with his conviction for either aggravated assault or false imprisonment. We find no error.

Pursuant to OCGA § 16-5-70 (b), “[a]ny person commits the offense of cruelty to children in the first degree when such person maliciously causes a child under the age of 18 cruel or excessive physical or mental pain.”

For purposes of this Code section, malice in the legal sense, imports the absence of all elements of justification or excuse and the presence of an actual intent to cause the particular harm produced, or the wanton and wilful doing of an act with an awareness of a plain and strong likelihood that such harm may result. Intention may be manifest by the circumstances connected with the perpetration of the offense. Intent is a question of fact to be determined upon consideration of words, conduct, demeanor, motive, and all other circumstances connected with the act for which the accused is prosecuted. Consequently, the question of a defendant’s mental state and whether the children experienced cruel or excessive physical or mental pain are reserved for the jury.

Unless clearly erroneous, the jury’s findings on the question of intent will be affirmed on appeal.

Here, the evidence showed that Kirt hid in the girls’ bathroom with a knife, duct tape, and a camera, lay in wait for a young lady to come in, and then held 12-year-old H. G. in a bathroom stall against her will as she screamed continuously for help, during which time he tried to tear off a piece of duct tape and held a knife. A jury could infer from this evidence that Kirt maliciously intended to cause H. G. cruel and excessive mental pain. Accordingly, Kirt’s argument fails.

Decided March 22, 2011

Reconsideration denied April 12, 2011

Brian Steel, for appellant.

Kenneth W. Mauldin, District Attorney, Brian V. Patterson, Assistant District Attorney, for appellee.

Kirt’s alternative argument, that the cruelty to children charge should have been merged with the aggravated assault or false imprisonment charge, reflects a misunderstanding of the law of merger. Under Drinkard v. Walker, relied upon by Kirt, “the applicable rule is that where the same act or transaction constitutes a violation of two distinct statutory provisions, the test to be applied to determine whether there are two offenses or only one, is whether each provision requires proof of a fact which the other does not.” Neither aggravated assault nor false imprisonment requires proof that the victim suffered cruel or excessive physical or mental pain. Accordingly, Kirt’s conviction for cruelty to children in the first degree does not merge with aggravated assault or false imprisonment.

Judgment affirmed in part and reversed in part, sentence vacated in part, and case remanded for resentencing.

Smith, P. J., and Mikell, J., concur.

       (Citation and punctuation omitted.) Hyde v. State, 291 Ga. App. 662 (662 SE2d 764) (2008).

       The decision in Garza is applicable even though it was issued after this case was tried. Garza itself reversed on sufficiency grounds. And although the kidnapping statute was amended by the Georgia legislature after Garza, see OCGA § 16-5-40, the amendment applies to crimes committed on or after July 1, 2009. Id.

       304 Ga. App. 755 (1) (697 SE2d 860) (2010).

       Id. at 757 (1).

       301 Ga. App. 220 (687 SE2d 259) (2009).

       Id. at 229 (7) (b).

       303 Ga. App. 317, 318 (693 SE2d 569) (2010).

       Id. See also Rayshad v. State, 295 Ga. App. 29, 33-34 (1) (b) (670 SE2d 849) (2008) (reversing one of two kidnapping convictions where there was no evidence that “movements enhanced significantly the risk she was already facing during the commission of these crimes”).

       See, e.g., Grimes v. State, 297 Ga. App. 720 (678 SE2d 167) (2009) (defendant forced victim into an office to unlock cabinet then out of office to cash register to open it); In the Interest of A. B., 296 Ga. App. 350 (674 SE2d 401) (2009) (defendant struck victim on the head, dragged her into neighbor’s yard, and took her purse; movement into neighbor’s yard “did not significantly endanger the victim independently of the purse snatching and aggravated assault”).

        Garza, 284 Ga. at 702.

       In his enumerated error, Kirt argues that he was unlawfully sentenced on Counts 9 and 12 as well, but he acknowledges in a footnote in his appellate brief that the trial court merged those counts with Count 8.

        State v. Marlowe, 277 Ga. 383, 386 (2) (c) (589 SE2d 69) (2003).

        Garrett v. State, 306 Ga. App. 420, 422 (b) (703 SE2d 666) (2010) (“See Coleman v. State, 286 Ga. 291, 295 (3) (687 SE2d 427) (2009) (same remedy); Taylor v. State, 304 Ga. App. 395, 399 (1) (696 SE2d 686) (2010) (vacating conviction and sentence); Williams v. State, 287 Ga. 192 (695 SE2d 244) (2010) (claim that conviction merged is a claim challenging conviction not just sentence).”).

       Count 3 charged that Kirt
      did attempt to commit the crime of Child Molestation, OCGA § 16-6-4, in that the said accused did perform an act constituting a substantial step toward the commission of said crime with the intent to commit child molestation; said act being that said accused did enter Clarke Middle School, go into a girls’ restroom in said school with a knife, duct tape and a camera on his person, and detain [H. G.], a child under the age of fourteen years; in violation of OCGA § 16-4-1 and § 16-6-4.

       OCGA §§ 17-1-110; 17-9-61 (b); Thompson v. State, 286 Ga. 889, 890 (2) (692 SE2d 379) (2010).

       (Punctuation and footnotes omitted.) Garrett v. State, 300 Ga. App. 391, 393-394 (685 SE2d 355) (2009).

       Id. at 394.

       281 Ga. 211 (636 SE2d 530) (2006).

       (Punctuation and footnote omitted.) Id. at 215.


author: SMITH, Presiding Judge.

text:
    A10A1979.
    THE STATE v. GODFREY.
    (709 SE2d 572)
   SMITH, Presiding Judge.

In the second appearance of this case before this court, the State appeals from the trial court’s grant of Jamie Godfrey’s motion to dismiss the indictment against him on the ground that his constitutional right to a speedy trial was violated. The State also appeals from the dismissal of several counts of the indictment. Because the trial court did not properly analyze the legal factors in determining that Godfrey was denied the right to a speedy trial, we vacate in part and remand. We also remand for the videotape of the forensic interview of the victim to be made part of the record here on appeal. And we reverse in part the trial court’s grant of Godfrey’s plea in bar to dismiss certain counts of the indictment on statute of limitation grounds, but affirm the dismissal of two of those counts.

Godfrey was arrested on June 1, 2003, and charged with rape and aggravated child molestation against his girlfriend’s daughter. He was subsequently indicted on April 4, 2006. At the start of his trial on March 19, 2008, Godfrey filed a motion to dismiss the indictment on the ground that his constitutional right to a speedy trial had been violated. The trial court denied the motion and Godfrey appealed to this court. In an unpublished opinion, we affirmed, holding that although the delay weighed against the State, Godfrey failed to timely assert his right to a speedy trial and failed to show that the delay impaired his defense. Godfrey v. State, 298 Ga. App. XXIV (2009) (unpublished opinion) (“Godfrey I”).

Following the remittitur to the trial court on July 9, 2009, Godfrey’s case was called for plea and arraignment on October 8, 2009. Godfrey pled not guilty and requested a jury trial. The case was placed on the November 24, 2009 calendar, but it was not reached. On December 15, 2009, the State re-indicted Godfrey charging him with multiple counts of rape, child molestation, aggravated child molestation, and statutory rape. On January 7, 2010, Godfrey filed a motion to dismiss certain counts of the indictment by special demurrer. Godfrey’s case was again set for trial on January 25, 2010, but once again the case was not reached. On January 29, 2010, Godfrey filed a motion to dismiss certain counts of the indictment on the ground that they were barred by the statute of limitation, and he also filed a motion to dismiss the indictment on the ground that his constitutional right to a speedy trial was violated. The State now appeals from the tried court’s ruling in favor of Godfrey on all three motions.

1. The State first contends that the trial court erred in granting Godfrey’s motion to dismiss the charges against him on the ground that he was denied the constitutional right to a speedy trial. On appeal, the trial court’s ruling that a defendant’s right to a speedy trial was violated will not be reversed unless an abuse of discretion is shown. State v. Moore, 289 Ga. App. 99, 100 (2) (656 SE2d 156) (2007). “However, where, as in this case, the trial court has clearly erred in some of its findings of fact and/or has misapplied the law to some degree, the deference owed the trial court’s ultimate ruling is diminished.” (Citations and punctuation omitted.) State v. Moses, 301 Ga. App. 315, 316 (692 SE2d 1) (2009).

In Barker v. Wingo, 407 U. S. 514 (92 SC 2182, 33 LE2d 101) (1972), the Supreme Court of the United States identified four factors to be considered by a court in determining whether an accused’s constitutional right to a speedy trial had been violated!:] (a) the length of the delay, (b) the reason for the delay, (c) the defendant’s assertion of his right, and (d) the prejudice to the defendant. 407 U. S. at 530. The Supreme Court further stated that it regarded none of the factors as either a necessary or sufficient condition to a finding of a deprivation of the right of speedy trial but rather that the factors should be considered together in a balancing test of the conduct of the prosecution and the defendant.

(Citation and punctuation omitted.) Marshall v. State, 286 Ga. 446 (1) (689 SE2d 283) (2010).

This is the second appeal of this case on speedy trial grounds, as this court issued a judgment on the same issue in Godfrey I. As explained in Brannen v. State, 262 Ga. App. 719 (586 SE2d 383) (2003), “[i]t is axiomatic that the same issue cannot be relitigated ad infinitum. The same is true of appeals of the same issue on the same grounds.” (Citation, punctuation and footnote omitted.) Id. at 720. We are therefore without jurisdiction to review the same matter for a second time. Id.

We note, however, that a former judgment binds only as to the facts in issue and events existing at the time of such judgment, and does not prevent a re-examination even of the same questions between the same parties, if in the interval the material facts have so changed or such new events have occurred as to alter the legal rights or relations of the litigants.

(Citations and footnote omitted.) Id.

Here, the trial court entered the following findings:

1. Length of delay: The allegations were reported to law enforcement authorities on January 29, 2003[;] Mr. Godfrey was arrested on June 1, 2003. The length of the delay without trial is in excess of six years. This is a sufficient delay to create a presumption of prejudice and to trigger further analysis of the Barker v. Wingo factors.
2. Reasons for delay: Although Mr. Godfrey was arrested on June 1, 2003, the case was not indicted until April 4, 2006. Counsel for the State was unable to explain the delay in indicting the case. Once the case was indicted, the State did not furnish the defense with crucial discovery until November 2007, more than four years after Mr. Godfrey’s arrest. Those delays were solely attributable to the negligence of the State. The only delay that can be attributed to the defense is the delay occasioned by the appeal against the denial of the motion to dismiss. The present indictment was only filed on December 15, 2009, more than six years after his arrest.
3. Assertion of the right: Defendant did not file a speedy trial demand prior to the filing of the Motion to Dismiss. It is however undisputed that the State failed to produce [or] furnish the defense with crucial discovery until November 2007. Defendant cannot be faulted for demanding that the State comply with its discovery obligations before indicating his readiness to proceed to trial. Hester v. State, 268 Ga. App. 94 (601 SE2d 456) (2004).
4. Prejudice to the defense: The delay of more than six years in bringing Defendant to trial raises a presumption that the defense has been hindered. Defense counsel did not however only rely ... on presumptive prejudice. Due to the delay in indicting this matter and bringing it to trial, DFACS and counseling records have been lost and/or destroyed, witnesses have disappeared, and memories have faded. It is apparent from the testimony of the alleged victim that she has no recollection of the events that occurred more than seven years ago.

Although the trial court made a reference to this court’s prior ruling in Godfrey I in evaluating the reason for the delay, it analyzed each of the Barker factors as if it were Godfrey’s first assertion of speedy trial grounds. It is apparent from the trial court’s order that it did not consider that this court’s former judgment was binding as to the facts in issue and events existing at the time of that judgment, and it made no determination as to whether in the interim following that judgment, material facts have changed or new events have occurred to alter the rights of the parties. We must therefore vacate this portion of the trial court’s judgment and remand this case for the trial court to enter an order balancing the legal factors under the proper standard. See State v. Pickett, 288 Ga. 674 (706 SE2d 561) (2011) (remand necessary where trial court used wrong legal analysis); State v. Porter, 288 Ga. 524 (705 SE2d 636) (2011).

2. The State contends that the trial court erred in dismissing Counts 4-8 of the indictment as barred by the statute of limitation. The trial court ruled that those counts alleged offenses committed more than seven years prior to the indictment, and that “[w]here an exception is relied upon to prevent the bar of the statute of limitations, it must be alleged in the indictment and proved.”

“In criminal cases, the period of limitation runs from the commission of the offense to the date of the indictment. The burden is on the State to prove that a crime occurred within the applicable statute of limitation.” (Citation and punctuation omitted.) Flournoy v. State, 299 Ga. App. 377, 378 (1) (682 SE2d 632) (2009). The applicable general statute of limitation, OCGA § 17-3-1 (c), provides that

[p]rosecution for felonies. . . must be commenced wdthin four years after the commission of the crime, provided that prosecution for felonies committed against victims who are at the time of the commission of the offense under the age of 18 years must be commenced within seven years after the commission of the crime.

Counts 5, 7, and 8 of the indictment alleged that Godfrey committed the offenses of aggravated child molestation, child molestation, and statutory rape wdth a child under the age of 16. This language invokes the statute of limitation tolling provision set forth in OCGA § 17-3-2.1. See Tompkins v. State, 265 Ga. App. 760, 765 (2) (c) (595 SE2d 599) (2004), reversed in part on other grounds, Tompkins v. State, 278 Ga. 857 (607 SE2d 891) (2005). Although the trial court was correct that when an exception is relied upon it must be alleged and proved, Moss v. State, 220 Ga. App. 150 (469 SE2d 325) (1996), this court has held that an allegation that the victim was under the age of 16 is sufficient to satisfy this requirement. See Grizzard v. State, 258 Ga. App. 124, 127 (572 SE2d 760) (2002), overruled on other grounds, Tompkins, supra, 265 Ga. App. at 765 (2) (b), reversed in part on other grounds, Tompkins, supra, 278 Ga. at 857.

The indictment sufficiently invoked the tolling provision of OCGA § 17-3-2.1. That Code section provides that if the victim of certain sexual offenses, including those at issue here,

is under 16 years of age on the date of the violation, the applicable period wdthin which a prosecution must be commenced under Code Section 17-3-1 or other applicable statute shall not begin to run until the victim has reached the age of 16 or the violation is reported to a law enforcement agency, prosecuting attorney, or other governmental agency, whichever occurs earlier.

So for the crimes charged in Counts 5, 7, and 8 the statute did not begin to run until the earlier of these two dates — when the offenses were reported to police in January 2003. The State therefore had seven years from January 2003 to indict Godfrey. Because Godfrey was indicted within this seven-year window, those counts were not barred by the statute of limitation. See Tompkins, supra, 265 Ga. App. at 765-766 (2) (c). The trial court therefore erred in dismissing these counts as barred by the statute of limitation.

Counts 4 and 6 alleged that Godfrey committed child molestation and aggravated child molestation to a child under the age of 14 (which tracks the language of former OCGA § 17-3-1 (c) for application of the seven-year limitation period for offenses occurring prior to 2002). Because the State did not allege that the victim was under the age of 16, the tolling provision of OCGA § 17-3-2.1 was not invoked. See Moss, supra. The State therefore had to indict Godfrey within seven years after the commission of the crimes. Former OCGA § 17-3-1 (c). Counts 4 and 6 alleged that the crimes were committed between October 13, 1994, and June 30, 1995. The State therefore had to indict Godfrey before June 30, 2002 at the latest. Godfrey was first indicted in April 2006, and the State re-indicted him in December 2009. Because the State failed to indict Godfrey within the applicable limitation period, the trial court did not err in granting Godfrey’s plea in bar to dismiss these counts.

3. The State argues that the trial court erred in granting Godfrey’s special demurrer to dismiss Counts 1 and 2, and Counts 4-8 of the indictment. Those counts allege that Godfrey committed sex acts with the child victim within a range of dates. In granting Godfrey’s special demurrer, the trial court held that the State could have narrowed the range of dates of the indictment. “We conduct a de novo review of a trial court’s ruling on a special demurrer in order to determine whether the allegations in the indictment are legally sufficient.” (Citation omitted.) State v. Marshall, 304 Ga. App. 865 (698 SE2d 337) (2010).

“Generally, an indictment which fails to allege a specific date on which the crime was committed is not perfect in form and is subject to a timely special demurrer.” (Citations, punctuation and footnote omitted.) State v. Layman, 279 Ga. 340, 340-341 (613 SE2d 639) (2005); see OCGA § 17-7-54 (a) (indictment should state with sufficient certainty the time and place of committing offense).

Although this Court has recognized an exception to this rule where the evidence does not permit the State to identify a single date on which the offense occurred, the exception does not apply unless the State first presents evidence to the trial court showing that it cannot more specifically identify the dates of the offenses.

(Citation and footnote omitted.) Howard v. State, 281 Ga. App. 797, 798 (1) (637 SE2d 448) (2006). “[I]f an indictment alleges that a crime occurred between two particular dates, and if evidence presented to the trial court shows that the State can reasonably narrow the range of dates during which the crime is alleged to have occurred, the indictment is subject to a special demurrer.” Layman, supra, 279 Ga. at 341.

At the hearing on the motion, a detective assigned to investigate the case testified that the 14-year-old victim stated during a forensic interview that Godfrey had vaginal and anal sex with her. He stated further that “[the victim] said it happened several times. She said it happened once. She said it happened twice. She disclosed other things during the course of the investigation that [led] me to believe it happened over the course of those years.” When asked specifically how many times the victim stated Godfrey performed sex acts with her, the detective testified that the victim disclosed that Godfrey did so when she was age five and on January 28, 2003, when she was age fourteen, the day before her outcry to a teacher. The detective explained that because the victim had the mental ability of a seven-year-old, he and the forensic interviewer decided that based upon the entire interview, the victim was “not adequately able to give us a timeline,” and that “[d]uring the forensic interview, we narrowed it down that this was a repeated act that had been occurring since she was 5 or 6 years old.”

The trial court, obviously rejecting the detective’s testimony, concluded: “It is apparent from the testimony of [the detective] and the video tape of [the victim’s] interview with the Georgia Center for Children . . . that there were only two instances of molestation. . . .” The court ruled that the State could reasonably have narrowed the range of dates in the indictment and granted Godfrey’s demurrer to all of the counts challenged.

Because we review the trial court’s ruling on this issue de novo, and because the State’s evidence that it could not reasonably narrow the dates of the indictment necessarily requires us to review the videotape, we remand this case to the trial court for the videotape to be made a part of the record here on appeal.

Judgment affirmed in part and vacated in part, and case remanded.

Mikell and Adams, JJ., concur.

Decided March 15, 2011

Reconsideration denied April 12, 2011.

Paul L. Howard, Jr., District Attorney, Lenny I. Krick, Assistant District Attorney, for appellant.

Jennifer Lubinsky, Alixe E. Steinmetz, for appellee.

       Former OCGA § 17-3-1 (c) provided a seven-year limitation period for prosecutions involving victims under the age of 14, and was applicable to offenses committed prior to 2002.


text:
    A10A2204.
    SMITH v. THE STATE.
    (709 SE2d 823)
   Adams, Judge.

Earnest Lee Smith appeals the trial court’s denial of his motion for new trial after a jury convicted him on one count of aggravated assault. Smith does not contest that the evidence was sufficient to support his conviction. Rather, he asserts that he is entitled to a new trial on the following grounds: (1) prosecutorial misconduct; (2) newly discovered evidence; (3) ineffective assistance of counsel; and (4) the trial court’s failure to hold a pre-sentencing hearing. For the reasons set forth below, we affirm.

Viewed in the light most favorable to the verdict, the evidence at trial showed that on or around September 25, 2005, Smith got into an argument with Robert Harris as Harris was attempting to exit a store in Broxton, Georgia, to return to his truck. Harris testified that as he reached his truck, Smith pulled up in his own truck and called Harris’ name in a pleasant tone. Harris had turned and begun walking toward Smith’s truck when he saw that Smith had a gun in his hand. Harris stopped and said, “I guess you think you are going to shoot me. . . .” Harris testified that he was six to seven feet away from Smith’s truck at the time. Smith then “cursed loudly” and shot Harris. Harris was transported to a hospital for treatment of his injuries.

Smith testified, however, that no real argument occurred that day; the two were just “talking.” And he stated that he never pointed a gun at Harris. Instead, he said that he kept a gun on the console of his truck. Smith was inside the truck when Harris ran over and tried to open the truck door. Smith locked the door and grabbed his gun. Harris then reached into the window and grabbed Smith’s arm and also grabbed at the gun. Smith said that Harris was holding the barrel of the gun when it went off.

No other eyewitnesses to the shooting testified at trial, but Haley Strom, who was in a nearby parking lot, testified that she heard two men arguing and she heard a gun. She turned around and saw a man holding a pistol out of his truck window. The man then drove away quickly, with tires squealing.

Smith moved for a new trial following his conviction, and the trial court denied the motion without explanation. We review the trial court’s order for an abuse of discretion. Locher v. State, 293 Ga. App. 67, 72 (3) (666 SE2d 468) (2008); Mondy v. State, 229 Ga. App. 311, 312 (1) (494 SE2d 176) (1997) (abuse-of-discretion standard applies to trial court’s ruling on motions for new trial).

1. Smith argues that he was entitled to a new trial because the prosecution failed to disclose evidence favorable to the defense. He asserts that the prosecution was aware that two of the police officers who participated in the investigation of the incident, Chief Hugh L. McReady and Investigator Steve Dixon, had concluded that the shooting was self-defense, but the prosecution failed to inform Smith’s attorney of this.

McReady testified at the hearing on the motion for new trial that he was Chief of Police for the City of Broxton at the time of the shooting and he oversaw the investigation in this case. He was present when Harris was interviewed and when he re-created the shooting for police. McReady said he had “strong feelings” that the shooting had been self-defense based upon the trajectory of the bullet through Harris’ arm and blood discovered on the outside of the truck which seemed to show that Harris was standing close to the truck at the time of the shooting. He identified a photograph showing one drop of what appeared to be blood on the outside of the truck as the basis for his opinion. McReady testified that he just assumed that the blood was Harris’, but he acknowledged that Smith was also bleeding that day and the blood could have been Smith’s. Blood evidence was collected by the Georgia Bureau of Investigation, but the evidence was lost, so the blood was never matched to anyone. Moreover, McReady said that he spoke to Smith’s attorney about these concerns one to two days before the trial began. Smith’s trial attorney testified on direct, however, that he did not speak to McReady until the evidence at trial was closed, although he conceded on cross-examination that he may have spoken to him earlier in the day before the close of evidence.

The evidence at the hearing, therefore, supports a finding that Smith was on notice of the information he now claims was withheld by the prosecution before the trial concluded. Yet he raised no objection and made no claim at trial that the State had violated Brady v. Maryland, 373 U. S. 83 (83 SC 1194, 10 LE2d 215) (1963), by withholding exculpatory information. Accordingly, the trial court could have concluded that Smith waived his right to raise this issue. See Nelson v. State, 279 Ga. App. 859, 864 (2) (632 SE2d 749) (2006); Mondy v. State, 229 Ga. App. at 312 (1).

But even in the absence of waiver, Smith’s argument provides no ground for a new trial. In order to obtain a new trial based upon a Brady violation, Smith would be required to prove, among other things, that he did not possess the evidence and could not have obtained it with due diligence and that a “reasonable probability exists that the outcome of the trial would have been different had the evidence been disclosed.” (Citation omitted.) Ellis v. State, 289 Ga. App. 452, 455 (2) (657 SE2d 562) (2008). Here, Smith’s counsel conceded that the State provided him the evidence upon which McReady based his opinion. And he discussed the blood evidence with the police before trial and knew that it was missing or destroyed. He admitted questioning the State’s police witnesses about the blood evidence. Thus, Smith cannot establish that he did not possess the pertinent evidence.

Rather, Smith’s argument on appeal appears to be he was not told of McReady’s or the other officer’s assessment of that evidence. The officers’ opinions, however, are not evidence and, as Smith’s counsel acknowledged, would not have been admissible at trial. In any event, Smith made no attempt to put McReady on the stand once he became aware of his assessment of the evidence. Moreover, even if he had called McReady as a witness, the prosecutor cast some doubt on McReady’s opinion as to the bullet’s trajectory and the blood evidence when he cross-examined McReady at the motion hearing.

Additionally, Smith’s counsel knew from the beginning that Smith would be pursuing a claim of self-defense. Smith’s counsel argued to the jury that the blood on the outside of the truck created reasonable doubt and further argued that the evidence of how the bullet struck Harris supported Smith’s version of events and not Harris’ version. Accordingly, Smith’s counsel argued to the jury the very evidence McReady cited in support of his opinion. Smith, therefore, cannot establish a “reasonable probability” that the outcome of his trial would have been different if the State had disclosed McReady’s opinion earlier. Accordingly, no new trial was warranted and the trial court did not abuse its discretion in denying Smith’s motion on this ground. See Ellis v. State, 289 Ga. App. at 457 (2).

2. Smith also asserted that the trial court erred in denying his motion for new trial on the ground of newly discovered evidence. To support this argument, Smith presented the testimony of Charlie Riley at the motion hearing. Riley testified that he was an eyewitness to the shooting. “Motions for new trial on the ground of newly discovered evidence are not favored and are addressed to the sole discretion of the trial judge, which will not be controlled unless abused.” (Citation and punctuation omitted.) Robinson v. State, 308 Ga. App. 45, 48 (2) (d) (706 SE2d 577) (2011). See also Rivera v. State, 296 Ga. App. 152, 153 (2) (673 SE2d 642) (2009) (trial court’s determination entitled to great consideration).

Charlie Riley testified that Smith and he had been friends all their lives. He had also known Harris all his life. On the morning of the shooting, he was scheduled to meet Smith at the store, as he did every day. Riley said that he was at the store and had a direct view of Smith and Harris at the time of the shooting. He said Harris was within one to two feet of Smith’s truck and was “fixing to reach into” or “reaching toward” the truck when he was shot. After the shooting, Riley went inside the store and told them to call 911; then he left the scene. He never told anyone what he saw because he thought the whole thing had been “settled.” Although he saw Smith several times since, he never talked to him about the shooting, and Smith never asked him about it, in the intervening three years before trial. It was only when he found out that Smith had been convicted that he came forward.

In order to establish a basis for new trial on this ground, Smith was required to show, among other criteria, that it was not owing to the want of his own due diligence that he did not acquire the evidence before trial. See Timberlake v. State, 246 Ga. 488, 491 (1) (271 SE2d 792) (1980). But Smith cannot show that he exercised due diligence in obtaining Riley’s testimony. Riley testified that he was a lifelong friend whom Smith met every morning at the store for coffee. Riley testified that Smith knew he would be at the store that day, yet for three years Smith never asked Riley about the shooting and never gave his attorney Riley’s name as a potential witness. “Given [Smith’s] failure to show due diligence, the trial court acted within its discretion in denying the motion for new trial.” (Citation omitted.) Woodard v. State, 289 Ga. App. 643, 649 (658 SE2d 129) (2008).

3. Smith next asserts that the trial court erred in failing to grant his motion for new trial on the ground that he received ineffective assistance of counsel. To obtain a new trial on this ground, Smith must satisfy the two-prong test under Strickland v. Washington, 466 U. S. 668 (104 SC 2052, 80 LE2d 674) (1984) by showing that his counsel’s performance was deficient and that this performance prejudiced his defense. Lawson v. State, 280 Ga. App. 870, 872 (2) (635 SE2d 259) (2006). To establish the requisite prejudice, Smith must prove “a reasonable probability that the outcome of the proceedings would have been different, but for counsel’s deficiency.” (Punctuation and footnote omitted.) Id. “Moreover, there is a strong presumption that trial counsel’s performance fell within the broad range of reasonable professional conduct.” (Footnote omitted.) Id. And this Court “must accept the trial court’s factual findings and credibility determinations unless they are clearly erroneous, but we apply the appropriate legal principles to the facts independently.” (Citations and punctuation omitted.) Henry v. State, 279 Ga. 615, 616 (3) (619 SE2d 609) (2005). See also Rose v. State, 258 Ga. App. 232, 234-235 (2) (573 SE2d 465) (2002).

(a) Smith argues that his trial counsel was ineffective in failing to adequately investigate the case or meet with him prior to trial. In particular, Smith notes that his trial attorney did not listen to an audio recording of his interview with police until admonished by the trial court on the day of trial that it would be error not to do so.

The evidence showed that Smith’s trial attorney met with Smith when he was first assigned the case and then met with him briefly at the end of each calendar call to discuss the continuances. He said that he probably spent 30 minutes or less with Smith before the trial, and he discussed Smith’s testimony with him the day of trial when they were deciding whether to put him on the stand. But he stated that he never refused to speak with Smith, who was out on bail prior to trial but never requested to meet with counsel. He discussed the case with Smith’s son and knew Smith had been injured when Harris supposedly reached into the window. Smith’s son also provided a list of witnesses, and Smith’s counsel spoke with at least one of those witnesses, a clerk at the store. The other witness he recalled was Smith’s daughter, who knew Smith had been injured, but who was not present at the shooting. Counsel also spoke before trial with Marvin Pridgen, another man who had been at the store that day, and he spoke with McReady and Lee Clements, another investigator, on the day of trial.

The attorney also reviewed the discovery, including incident reports and photographs provided by the State prior to trial and recalled that he questioned either McReady or Clements earlier about the whereabouts of the blood evidence disclosed in those documents. The State did not produce the tape recording of Smith’s interview until the morning of the trial and the prosecutor represented that he did not have the tape until that morning. The State also provided a tape recorder at that time to allow Smith’s counsel to hear the tape. Smith’s counsel said that he was familiar with the police investigation, including his client’s re-creation of events, and felt he knew before trial what the witnesses would be saying. He felt prepared to present Smith’s defense of justification/self-defense at trial.

Less than 30 minutes seems a very small amount of time to spend with a client charged with aggravated assault, even for a public defender who handles 500 cases per year as Smith’s trial attorney does. Certainly, the better practice would have been to spend more time with the client given the serious nature of the charge. But the trial court could have found that the attorney’s trial preparation was not limited to the time he spent with Smith. The court could have found that he also discussed the case and potential witnesses with Smith’s son, he interviewed a number of witnesses, he reviewed the discovery provided by the State and followed up on the blood evidence. Based upon this preparation, Smith’s trial counsel presented his defense of justification to the jury through cross-examination and argument.

Even if we were to find that Smith’s trial counsel’s performance was deficient in this regard, however, it does not relieve Smith of his burden of establishing how his defense was prejudiced. Smith’s complaint that his attorney spent an inadequate amount of time with him “is not dispositive, as there exists no magic amount of time which counsel must spend in actual conference with his client.” (Citations omitted.) Henry v. State, 279 Ga. at 616 (3). Smith must also establish a reasonable probability that further conferences and preparation by his trial counsel would have resulted in a different outcome, and he has failed to carry this burden. For example, while the record does not reflect whether Smith’s attorney actually listened to the tape of his police interview, neither party sought to use the tape at trial, and no transcript or description of the tape’s contents appears in the record. Thus, Smith has not proven any prejudice arising from the tape. Nor has he “specifically describe[d] how additional communications with [or investigation by] his lawyer would have changed the outcome of his trial.” (Citations and punctuation omitted.) Id.

Accordingly, we cannot say that the trial court’s denial of the motion for new trial on this ground was an abuse of discretion.

(b) Smith next contends that his trial counsel was ineffective because he failed to interview and cross-examine the State’s witnesses.

Smith’s trial counsel cross-examined all of the State’s witnesses except one witness who testified only that he was asleep in his truck outside the store at the time of the shooting and was awakened by the sound of a gunshot. He saw that Harris was injured but he did not see who shot him. Smith fails to explain how the failure to cross-examine this witness prejudiced his defense. But Smith also complains about the length and thoroughness of his trial counsel’s cross-examination of the other witnesses. He notes that his attorney did not question the police witness about the “sloppiness” of the investigation and the angle of Harris’s injuries.

It is well established, however, that “the scope of cross-examination is grounded in trial tactics and strategy, and will rarely constitute ineffective assistance of counsel.” (Citation and punctuation omitted.) Cooper v. State, 281 Ga. 760, 762 (4) (a) (642 SE2d 817) (2007). While Smith’s counsel’s cross-examination of the police witness did not specifically bring out the fact that the blood evidence had been lost, the attorney argued in closing that the State had never established whose blood it was and that this created reasonable doubt. In addition, the trial attorney questioned the officer about other “holes” in the investigation, such as the failure to take and analyze gunshot residue evidence. And a description of Harris’ injuries was in evidence, allowing trial counsel to argue that the injuries did not square with Harris’ version of events. Thus, Smith has not established a reasonable probability that further interviews and cross-examination would have resulted in a different outcome at trial. “[T]he test regarding effective assistance of counsel is to be not errorless counsel, and not counsel judged ineffective by hindsight, but counsel rendering reasonably effective assistance.” (Punctuation and footnote omitted.) Martin v. State, 300 Ga. App. 419, 421 (3) (685 SE2d 399) (2009). Applying this test, we cannot say the trial court abused its discretion in denying a new trial on this ground.

(c) Smith also argues that his trial counsel was ineffective in failing to file a motion for immunity from prosecution/plea in bar pursuant to OCGA § 16-3-24.2 based upon Smith’s claim of self-defense. But “[c]ounsel’s decisions on which motions and objections to make are matters of trial strategy and tactics that are within the lawyer’s exclusive province and do not amount to ineffective assistance of counsel.” Howard v. State, 252 Ga. App. 465, 468 (1) (556 SE2d 536) (2001). Smith’s trial counsel testified that he considered filing such a motion, but determined that he would have to put Smith on the stand and he “wasn’t sure he wanted to go that route.”

Moreover, Smith cannot demonstrate how the failure to pursue such a motion harmed him. “[T]o avoid trial under OCGA § 16-3-24.2, a defendant must show that he is entitled to immunity by a preponderance of the evidence.” (Citations omitted.) State v. Thompson, 288 Ga. 165, 169 (702 SE2d 198) (2010). The evidence in this case was, in effect, a swearing contest. Given Harris’ testimony that he was six or seven feet away from the truck and thus not threatening Smith when he was shot, Smith cannot establish that he would have prevailed on such a motion. And although Smith argues that his trial attorney may have learned of additional evidence through an earlier motion hearing, he points to no evidence or information that Smith’s counsel did not possess either before or during the trial. “The fact that [Smith] and his . . . present counsel now disagree with the difficult decisions regarding trial tactics and strategy made by trial counsel does not require a finding that [Smith] received representation amounting to ineffective assistance of counsel.” (Citations and punctuation omitted.) Muller v. State, 284 Ga. 70, 73-74 (3) (663 SE2d 206) (2008).

(d) Smith further argues that his trial attorney was ineffective in failing to request a jury charge on the use of force in defense of habitation. In support of this argument he cites Benham v. State, 277 Ga. 516 (591 SE2d 824) (2004). In that case, the Supreme Court of Georgia found that Benham received ineffective assistance of counsel because his attorney failed to request a charge on defense of habitation, but instead relied only upon self-defense. At the hearing on the motion for new trial, Benham’s counsel testified that she considered self-defense to be her client’s best defense and that she wanted the jury to believe that Benham acted out of fear for the safety of her children and her, not that she was merely protecting her vehicle. The Court found that this response indicated a lack of understanding of the law, explaining that

[f]rom this response, it is evident that defense counsel failed to appreciate that the defense of habitation may have justified the use of deadly force in this case even if that amount of force was not necessarily required to repel Kennemore’s attack. In failing to adequately research and understand the defenses available to her client, defense counsel rendered assistance that fell below the minimum standard set forth in Strickland, supra.

Benham v. State, 277 Ga. at 517-518.

Here, Smith’s trial counsel admitted in an affidavit that he never asked for a charge on defense of habitation. By the time he testified at the hearing, he no longer remembered whether he had requested a charge on defense of habitation, although he did recall requesting a charge on self-defense. At no time, however, was he ever asked why he failed to request, such a charge, nor did he provide an explanation in his affidavit. The record in this case, therefore, does not support a conclusion that Smith’s attorney misunderstood the law, as she apparently did in Benham. We are left, therefore, with the presumption that trial counsel’s performance fell “within the wide range of reasonable professional assistance.” (Citation and punctuation omitted.) Higginbotham v. State, 287 Ga. 187, 190 (5) (a) (695 SE2d 210) (2010) “Where[, as here,] trial counsel does not testify at the motion for new trial hearing about the subject, it is extremely difficult to overcome this presumption.” (Citation and punctuation omitted.) Id. at 190-191 (5).

Moreover, we conclude that Smith has failed to show how he was prejudiced by the failure to request such a charge under the facts of this case. Here, the jury was charged on the law of self-defense, but rejected that defense, and Smith has not established how a jury charge on defense of habitation would have raised a reasonable probability that the outcome of the case would have been different.

(e) Smith also contends that his trial counsel was deficient in failing to test the thoroughness and good faith of the State’s investigation. He asserts that his counsel should have made an issue of the State’s loss of the blood evidence, its failure to swab Harris’ hands for gunpowder residue and the lack of any analysis from the GBI. Although the evidence at trial showed only two drops of blood and McReady confirmed this amount at the hearing on the motion for new trial, Smith contends that his counsel should have questioned his son about his knowledge of the blood evidence. Smith’s son testified at the hearing that he saw blood spattered all over the truck.

But as discussed above, Smith’s attorney questioned the police witness about the lack of gunpowder testing and he argued the State failed to prove that the blood evidence supported Harris’ version of events. Although Smith’s current counsel may have followed a different strategy in light of these omissions, Smith has failed to establish that this would have created a reasonable probability that the outcome of the trial would have been different. Moreover, we note that the trial court was not required to credit Smith’s son’s testimony regarding the blood evidence, as it was contradicted by McReady and by the photographic evidence at trial. Smith’s son admitted that even though he sat through the trial and heard all the evidence, he never told Smith’s trial attorney about the blood he saw on the truck.

Thus, we conclude that the trial court did not abuse its discretion in denying Smith’s motion for new trial on the ground of ineffective assistance of counsel.

4. Smith also asserts error in the trial court’s failure to conduct a pre-sentence investigation before imposing sentence. Smith argues that his counsel was ill-prepared to represent him at the hearing because he had not interviewed Smith’s family members. Moreover, Smith apparently informed his trial attorney that he wanted to have his daughter present for the sentencing, but the attorney represented to the trial court that he was ready to proceed with the sentencing hearing. The trial court heard argument and evidence in connection with sentencing. Smith testified on his own behalf as to his health problems, but indicated that he did not owe Harris an apology because he did not do anything to him. He also indicated that he believed the jury had been misled due to the missing blood evidence. After hearing the evidence and argument, the trial court sentenced Smith to twenty years, with ten years to serve.

Decided March 17, 2011

Reconsideration dismissed April 12, 2011

Copeland, Haugabrook & Walker, Tyrone N. Haugabrook, John G. Edwards, for appellant.

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

Smith does not contend that his sentence does not comply with the sentence limits set out in OCGA § 16-5-21 (b) for a conviction for aggravated assault. Nor does he specifically identify any evidence that he contends he was prevented from presenting at the sentencing hearing. He made no proffer, for example, of what his daughter would have said had she been allowed to testify. And Smith cites no authority to support his argument that the trial court’s actions somehow violated the law. Accordingly, we conclude that the trial court properly denied Smith’s motion for new trial on this ground.

Judgment affirmed.

Smith, P. J., and Mikell, J., concur.

       “If it is [Smith’s] contention that additional time for investigation of the exculpatory material revealed at trial would have enhanced his defense, the proper motion would have been for an adequate recess.” (Citation and punctuation omitted.) Mondy v. State, 229 Ga. App. at 312 (1), n. 2.

       Indeed, Smith’s counsel stated before that he would not be asking any witness for his opinion as to whether the shooting was self-defense, and thus effectively consented to the State’s Motion in Limine in this regard.

       “Habitation” is defined by OCGA § 16-3-24.1 to include “any dwelling, motor vehicle, or place of business.” (Emphasis supplied.)

       We note that Benham is distinguishable on its facts. There, it was uncontroverted the victim was attacking Benham while she sat in her car; someone tried to pull her away from the car at least twice, but she resisted. In addition, the path of Benham’s car was blocked and she could not leave the scene. Benham v. State, 277 Ga. at 516.