author: Mikell, Judge.

text:
    A10A2070.
    DELGIUDICE v. THE STATE.
    (707 SE2d 603)
   Mikell, Judge.

Nelson Delgiudice, Jr., appeals from the trial court’s denial of his amended motion for new trial following his conviction by a jury of kidnapping with bodily injury (Count 1 - Gamaliel Comancho Romero), four counts of aggravated assault (Counts 2, 3, and 4 - Romero, Count 6 - Alizeth Dorian Cardoza), and one count of the lesser included offense of false imprisonment on a kidnapping charge (Count 5 - Cardoza). He was sentenced to life in prison on Count 1, 20 years each on Counts 2, 3, 4, and 6, to run concurrent with the sentence on Count 1, and ten years on Count 5, also to run concurrent with the sentence on Count 1.

1. In his first enumeration of error, Delgiudice argues that the verdict was decidedly and strongly against the weight of the evidence and that the evidence was otherwise insufficient to enable a rational trier of fact to find him guilty of the crimes of which he was convicted.

On appeal from a criminal conviction, we view the evidence in the light most favorable to the verdict, and an appellant no longer enjoys the presumption of innocence. This court determines whether the evidence is sufficient under the standard of Jackson v. Virginia and does not weigh the evidence or determine witness credibility.

So viewed, the evidence here showed that Alizeth D. Cardoza lived in an apartment complex in Norcross. Because she and her boyfriend, Gustavo Carcamo, were late returning to the apartment on June 20, 2006, she called her upstairs neighbor, known to her as Hugo, to meet her then five-year-old son when he returned from summer school. Hugo lived with a man named Carlos in the apartment directly above Cardoza’s. When Cardoza and Carcamo returned to the apartments, Cardoza went upstairs to get her son while Carcamo remained in the car. When she knocked on the apartment door, a man later identified as Delgiudice grabbed her by her hair, covered her mouth, and threw her on the living room floor. Delgiudice then placed a handgun at her right temple, tied her hands, and took her into a bathroom. Carlos, later identified as Gamaliel Comancho Romero, was tied up on the bathroom floor and had been stabbed in the buttock. Cardoza, still being restrained by Delgiudice, witnessed another man place a hot iron on Romero’s back. Romero had come to the apartment earlier that day where he was attacked in front of Cardoza’s apartment and dragged upstairs to Hugo’s apartment. At least three men participated in the attack. Romero was put in the bathroom, tied up, and told by the men that they wanted drugs.

Cardoza was then taken by Delgiudice to another bathroom off the bedroom in the apartment where she saw Hugo, who was also bound and whose face appeared to have been beaten. Cardoza saw a third assailant in the bathroom with Hugo. At this point, Carcamo knocked on the apartment door and Delgiudice took Cardoza to the window and asked her who that was. When Cardoza identified Carcamo, Delgiudice told her to take a good look because it was the last time she was going to see him. Delgiudice and another man then took Cardoza into another bedroom where the man with Delgiudice told her they were looking for money and drugs.

Carcamo encountered Officer Rowell in the parking lot on another call. Carcamo told him his girlfriend was in the apartment and he thought the men inside had guns. Rowell went to the front door of the apartment, announcing that he was a police officer. Delgiudice and the other men then fled from the apartment by jumping off the balcony. Seven hundred grams of cocaine, worth approximately $70,000, were confiscated from the apartment. Backup officers responded and searched the area for the perpetrators. Officer Forrester searched a business area approximately a half mile from the apartment and apprehended co-defendant Peralta. Investigator Diaz interviewed Cardoza, Carcamo, and Perlata. Based on information obtained from Perlata, Diaz and other officers escorted Perlata to an extended stay motel in the area. Perlata had a key to room 502 at the motel. Detective Millsap observed a man walk to the door of room 502 and stand in front of it. As the officers approached the man, later identified as Delgiudice, he ran and was chased by the officers. Delgiudice was finally chased down by Sergeant Atwater, who ordered Delgiudice to get on the ground. When Delgiudice did not and, instead, turned toward Sergeant Atwater, he was shot with a taser and arrested. Sergeant Atwater heard Delgiudice speak Spanish following his arrest. Officers later went into Peralta’s motel room and observed that the beds were in disarray and there were three or four suitcases in the room.

Cardoza, a native of El Salvador, had worked in a restaurant in the area which was frequented by people from the Dominican Republic. She advised the officers that, in her opinion, the assailants in the apartment were Dominican. The man known to Cardoza as Hugo blended into the crowd following the arrival of the police and left the scene. Romero was taken to the hospital, where he was treated and released. A year later, Romero was arrested, convicted in federal court of conspiracy to possess with intent to distribute five kilos of a mixture containing cocaine, and sentenced to ten years to serve. He testified at Delgiudice’s trial and, based on his conversations with Delgiudice, Romero was also of the opinion that Delgiu-dice was Dominican. At the time of Delgiudice’s trial, Romero was under indictment for possession of the cocaine found in Hugo’s apartment.

Cardoza was shown a photo array containing six photographs on June 23, 2006, and she immediately picked Delgiudice’s photo as the man who held the gun to her head during the incident. Cardoza also identified Delgiudice in court.

We find the evidence legally sufficient to support the crimes of which Delgiudice was convicted.

2. Delgiudice’s fifth enumeration of error is that the trial court erred in denying his motion to suppress Cardoza’s identification of him in a pretrial photo array because the photo array was unduly suggestive.

On appellate review of a trial court’s order on a motion to suppress evidence, we construe the evidence most favorably to the upholding of the trial court’s findings and judgment and affirm unless the court has committed an error of law.

“An unduly suggestive procedure is one which leads the witness to the virtually inevitable identification of the defendant as the perpetrator, and is equivalent to the authorities telling the witness, ‘This is our suspect.’ ” Where the identification procedure is not unduly suggestive, it is not necessary to consider whether there was a substantial likelihood of irreparable misidentification.

Below and here, Delgiudice’s sole argument consists of his assertion that he was the only black man in the array among five Hispanic males. Pretermitting the issue of whether it is possible to be both black and Hispanic, we note that “[t]he fact that the accused may be of a different race or ethnicity does not in and of itself make the identification procedure impermissibly suggestive, especially when there are other individuals in the line-up having roughly the same characteristics and features as the accused.” We have examined the array and conclude that the trial court properly denied the motion to suppress. The array was not impermissibly suggestive because the six men depicted are of the same race or ethnicity, the same general age group, and have similar hairstyles and facial hair.

3. In his second, third, sixth, and eighth enumerations of error, Delgiudice argues that his trial counsel rendered ineffective assistance. These enumerations will be addressed together.

To prevail on a claim of ineffective assistance of counsel, a defendant must show that counsel’s performance was deficient and that the deficient performance so prejudiced the defendant that there is a reasonable likelihood that, but for counsel’s errors, the outcome of the trial would have been different. . . . Strickland v. Washington[.] If an appellant fails to meet his or her burden of proving either prong of the Strickland test, the reviewing court does not have to examine the other prong. In reviewing the trial court’s decision, we accept the trial court’s factual findings and credibility determinations unless clearly erroneous, but we independently apply the legal principles to the facts.

Moreover, “there is a strong presumption that the performance of counsel was within the wide range of reasonable professional law-yering, and we cannot reach a contrary conclusion unless defendant successfully rebuts the presumption by clear and convincing evidence.”

Finally, “fw]e will not reverse on the basis of ineffective assistance of counsel unless trial counsel’s conduct so undermined the proper functioning of the adversarial process that the trial court could not reliably have produced a just result.”

(a) In his third enumeration, Delgiudice contends that trial counsel was ineffective when he elicited testimony from Detective Milsap that another witness, besides Cardoza, had identified him as being at the scene.

During cross-examination, Delgiudice’s trial counsel asked Detective Millsap “... other than Ms. Cardoza, there has been no one who has placed my client in that apartment on June 20th?” In response, the detective stated: “[y]es, there has been. Yes, there has been someone else that said he was there.” At that point, defense counsel asked to approach the bench and the jury was excused.

Because the discussion between the court and defense counsel indicates that defense counsel had done extensive discovery in the case and was surprised by the detective’s answer, we do not find that counsel’s performance was deficient. Further, even if we were to conclude otherwise, the error did not so undermine the proper functioning of the adversarial process that the trial court could not have reliably produced a just result.

(b) Delgiudice also contends, in his second enumeration, that his trial counsel rendered ineffective assistance by failing to object to Cardoza’s tainted in-court identification of him.

Delgiudice’s argument states that Cardoza had seen his photograph contained in the photo array “several times.” This, however, is not supported by the record before us. During cross-examination, Cardoza did acknowledge that, sometime after her identification of Delgiudice from the photo array, her immigration attorney had obtained a photo of Delgiudice from the internet and gave it to her. This photo was apparently Delgiudice’s booking photograph, but it was not the one contained in the photo array. Cardoza had had the booking photograph for approximately a month and a half before trial. The record further shows that she saw the photo array twice, once when the detective showed it to her and she identified Delgiu-dice and once during her testimony at the trial of co-defendant Peralta.

Trial counsel, asked during the motion for new trial hearing why he did not ask the trial court to strike Cardoza’s in-court identification of Delgiudice, answered “[bjecause I didn’t.” He also acknowledged that his failure to ask for a mistrial on this ground was not a strategic decision.

We first consider whether Delgiudice’s in-court identification was tainted under these circumstances. We note that a claim of a tainted in-court identification “generally is raised in the context of an out-of-court identification which an appellant asserts was unduly suggestive, thereby tainting the in-court identification.” That is the situation in the case relied upon by Delgiudice here. That is not the situation in the instant case where Cardoza, three days after the incident, immediately identified Delgiudice from a photo array. Further, “[a]n allegedly suggestive pretrial encounter must be the result of either police or prosecution action to have an effect on the admissibility of a subsequent in-court identification.” Here, Cardoza’s civil attorney provided her with the copy of Delgiudice’s booking photo.

Delgiudice’s argument appears to be that Cardoza’s having seen the photo array twice and having a copy of his booking photo creates a substantial likelihood of misidentification.

The factors to be considered in evaluating the likelihood of misidentification include the opportunity of the witness to view the criminal at the time of the crime, the witness’ degree of attention, the accuracy of the witness’ prior description of the criminal, the level of certainty demonstrated by the witness at the confrontation, and the length of time between the crime and confrontation.

Analyzing these factors, we do not find Cardoza’s in-court identification of Delgiudice tainted. Her possession of the photo and having seen the array twice merely created an issue of witness credibility to be explored by the defense on cross-examination and to be ultimately determined by the jury.

As discussed above, the booking photo was provided to Cardoza by her civil attorney, and trial counsel’s failure to object to its introduction or to request that the in-court identification be struck was not deficient.

(c) In his sixth enumeration, Delgiudice argues that trial counsel was ineffective for failing to object to the introduction of the photo array and identification affidavit of Cardoza.

As discussed in Division 2, supra, the photo array was not impermissibly suggestive and defense counsel’s motion to suppress it was properly denied. Given this determination, Delgiudice cannot establish that his attorney was ineffective for failing to object to the admission of the array during trial.

(d) Delgiudice’s eighth enumeration of error is that trial counsel was ineffective because he did not object to the trial court’s failure to merge his convictions of Counts 2, 3, and 4 (aggravated assault) with his conviction on Count 1 (kidnapping with bodily injury). As discussed infra in Division 4, because the State concedes that the trial court erred in not merging these offenses, this issue is moot.

4. The State concedes, as argued by Delgiudice in his seventh enumeration, that Counts 2, 3, and 4 merge as a matter of fact with Count 1 and it was error for the trial court to impose separate sentences on Counts 2, 3, and 4. Therefore, this case must be remanded for resentencing.

Decided March 14, 2011

5. Delgiudice’s fourth enumeration of error is that the trial court erred in denying his motion for new trial based on newly discovered evidence, i.e., the fact that the state charges against Romero regarding the 700 ounces of cocaine found in the apartment had been dismissed following Delgiudice’s trial.

The standard for granting a new trial on the basis of newly discovered evidence is well established. It is incumbent on a party who asks for a new trial on the ground of newly discovered evidence to satisfy the court: (1) that the evidence has come to his knowledge since the trial; (2) that it was not owing to the want of due diligence that he did not acquire it sooner; (3) that it is so material that it would probably produce a different verdict; (4) that it is not cumulative only; (5) that the affidavit of the witness himself should be procured or its absence accounted for; and (6) that a new trial will not be granted if the only effect of the evidence will be to impeach the credit of a witness.

All six requirements must be complied with in order to secure a new trial.

Delguidice argues that the effect of the dismissal “is not only to impeach the credit of Mr. Romero. That is, the dismissal shows Mr. Romero’s bias and motive to testify in accord with the State’s theory of the case.” As recently reiterated by our Supreme Court, however, credibility is attacked by showing that the pending charges and their dismissal reveal a possible bias, prejudice, or ulterior motive on behalf of the witness to give untruthful or shaded testimony in an effort to please the State. Therefore, Delgiudice cannot comply with the sixth requirement and his motion for new trial on this ground was properly denied.

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

Smith, P. J., and Adams, J., concur.

G. Richard Stepp, for appellant.

Daniel J. Porter, District Attorney, James M. McDaniel, Assistant District Attorney, for appellee.

       OCGA § 5-5-21 authorizes the trial court to grant a new trial “where the verdict may be decidedly and strongly against the weight of the evidence even though there may appear to be some slight evidence in favor of the finding.” This “general ground” addresses itself to the trial court’s sole discretion and allows the trial judge to sit as a thirteenth juror and weigh the evidence to determine whether to grant a new trial. There is nothing in the record here to indicate that the trial judge did not so exercise his discretion and there is nothing further regarding this alleged error for us to review. See Hartley v. State, 299 Ga. App. 534, 540 (3) (683 SE2d 109) (2009).

       (Footnote omitted.) Buruca v. State, 278 Ga. App. 650-651 (629 SE2d 438) (2006).

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

        State v. Ellison, 271 Ga. App. 898, 901 (2) (a) (611 SE2d 129) (2005).

       (Citation and punctuation omitted.) Humphrey v. State, 281 Ga. 596, 597 (1) (642 SE2d 23) (2007).

        Whatley v. State, 266 Ga. 568, 569 (2) (468 SE2d 751) (1996); see also Davis v. State, 286 Ga. 74, 76 (2) (a) (686 SE2d 249) (2009).

        Woods v. State, 208 Ga. App. 565, 566 (2) (431 SE2d 167) (1993) (Juror, in responding to Batson challenge, identified as either black or Hispanic.)

       (Citation omitted.) Humphrey, supra.

        Russell v. State, 288 Ga. App. 372, 373 (2) (654 SE2d 185) (2007).

       466 U. S. 668 (104 SC 2052, 80 LE2d 674) (1984).

       (Citations and punctuation omitted.) Bridges v. State, 286 Ga. 535, 537 (1) (690 SE2d 136) (2010).

       Id., citing Flanigan v. State, 269 Ga. 160, 162 (2) (d) (496 SE2d 255) (1998).

       (Citation omitted.) Powell u. State, 272 Ga. App. 628, 630 (2) (612 SE2d 916) (2005).

       Counsel and the court then engaged in a lengthy discussion regarding what had been contained in discovery, prior court hearing transcripts, etc. It is apparent from this exchange that defense counsel was surprised by the detective’s statement and that Peralta’s identification of Delgiudice at the extended stay motel was the basis upon which the detective said someone else had identified Delgiudice as having been at the apartment. The trial court prohibited the State’s request that it be allowed to ask the detective to whom he was referring.

       Id.

        Chisholm v. State, 231 Ga. App. 835, 839 (4) (500 SE2d 14) (1998), overruled on other grounds in Murphy v. State, 270 Ga. 72, 74 (2) (c) (508 SE2d 399) (1998).

        Joncamlae v. State, 267 Ga. App. 214, 215-216 (1) (598 SE2d 923) (2004) (Counsel rendered ineffective assistance where two victims, unsure of their identification, saw an individual photo of the defendant the day before trial in the district attorney’s office and counsel failed to object.)

        Green v. State, 279 Ga. 455, 458 (614 SE2d 751) (2005).

       (Citation and punctuation omitted.) Chisholm, supra.

       Id. at 840 (4).

        Thomas v. State, 273 Ga. App. 357, 362 (4) (b) (615 SE2d 196) (2005).

       (Citations and punctuation omitted.) Timberlake v. State, 246 Ga. 488, 491 (1) (271 SE2d 792) (1980).

       Id.

        Brown v. Baskin, 286 Ga. 681-682 (690 SE2d 822) (2010).


source: Caselaw Access Project

author: SMITH, Presiding Judge.

license: Public Domain

text:
    A10A1845.
    MCINTOSH v. GORDY.
    (707 SE2d 609)
   SMITH, Presiding Judge.

Michael McIntosh appeals from a superior court order denying his application for an arrest warrant for Heather Gordy, the assistant principal at the school attended by McIntosh’s son. For the reasons set forth below, we affirm.

The record shows that McIntosh applied for an arrest warrant of Gordy under OCGA § 17-4-40 (b). The superior court held a hearing in which McIntosh and Gordy were provided an opportunity to present evidence from which the trial court could determine whether probable cause existed for the arrest of Gordy. See OCGA § 17-4-40 (b) (5).

In the hearing, McIntosh asserted that Gordy committed the following crime in connection with a disciplinary hearing to determine whether his son should be suspended: “It shall be unlawful for any person knowingly ... to engage in misleading conduct toward another person with intent to . . . [clause or induce any person to . . . [b]e absent from an official proceeding to which such person had been summoned by legal process.” OCGA § 16-10-93 (b) (1) (B) (iv). In support of his claim, McIntosh presented evidence showing that a disciplinary hearing was scheduled in connection with his son. McIntosh obtained subpoenas from the local school board chair for several students present in the classroom at the time of an alleged incident involving his son. McIntosh’s wife requested that she be allowed to accompany Gordy when she delivered the subpoenas to the students, but Gordy declined this request. The document issued by the school board chair was titled a “subpoena” and ordered the respondent to appear “under penalty of law.”

In the warrant hearing, McIntosh presented evidence showing that Gordy told some of the subpoena recipients and their parents that the students did not have to appear at the disciplinary hearing even though they had received a subpoena to appear issued by the Forsyth County Board of Education. Gordy presented evidence showing that her direct supervisor informed her that the school board could not force a student to appear at the disciplinary hearing of another student, and directed her to share this information with the students and parents at the time she delivered the subpoenas. He directed her to share this information “as a courtesy” because in his experience the first question asked after delivery of a school board subpoena was “do they absolutely have to appear?” He also testified that in his ten years as a high school administrator, “there has never been a disciplinary consequence” for students who chose not to attend another student’s disciplinary hearing.

Decided March 15, 2011.

Michael McIntosh, pro se.

After taking the matter under advisement at the conclusion of the hearing, the trial court issued a written order concluding that probable cause did not exist for Gordy’s arrest. It reasoned that the subpoenas issued by the school board were not “legal process” within the meaning of OCGA § 16-10-93 (b) (1) (B) (iv).

We need not reach the issue of whether the school board subpoenas were “legal process” because we find that the evidence submitted at the warrant hearing failed to show that Gordy knowingly engaged in any misleading conduct. OCGA § 20-2-1160 (a) provides: “Every county, city, or other independent board of education shall constitute a tribunal for hearing and determining any matter of local controversy in reference to the construction or administration of the school law, with power to summon witnesses and take testimony if necessary.” Nothing in this Code section provides a mechanism for enforcement of a school board’s “power to summon witnesses.” Compare OCGA § 9-9-9 (authorizing arbitrators to issue subpoenas that “upon application to the court by a party or the arbitrators, [are] enforced in the same manner provided by law for the service and enforcement of subpoenas in a civil action”).

Although the document issued by the school board chair was titled a “subpoena” and ordered the respondent to appear “under penalty of law,” the law does not provide a penalty for failing to comply with a school board subpoena. Consequently, Gordy did not “knowingly” engage in any “misleading conduct” under OCGA § 16-10-93 (b) (1) (B) (iv) when she advised the recipients of the purported “subpoenas” that their appearance at the disciplinary hearing was not mandatory. For this reason, we conclude that the superior court did not err when it denied McIntosh’s application for an arrest warrant.

Judgment affirmed.

Mikell and Adams, JJ., concur.

Borquaye A. Thomas, LaKisha S. Clements, for appellee.

       Persons violating this Code section are guilty of a felony and “shall be punished by imprisonment for not less than two nor more than ten years or by a fine of not less than $10,000.00 nor more than $20,000.00, or both.” OCGA § 16-10-93 (b) (2).


author: BARNES, Presiding Judge.

text:
    A10A2003.
    In the Interest of W W, a child.
    (707 SE2d 611)
   BARNES, Presiding Judge.

The father of W W appeals from the order of the juvenile court finding his 13-year-old daughter deprived. The mother is not a party to this appeal. He asserts as error the juvenile court’s finding that the evidence was sufficient to find that W. W. was deprived. Upon our review, we affirm.

On appeal from a finding that a child is deprived, we review the evidence in the light most favorable to the juvenile court’s judgment to determine whether any rational trier of fact could have found by clear and convincing evidence that the child was deprived. This Court neither weighs evidence nor determines the credibility of witnesses; rather, we defer to the trial court’s fact-finding and affirm unless the appellate standard is not met.

(Citation, punctuation and footnote omitted.) In the Interest of A. P., 299 Ga. App. 886 (684 SE2d 22) (2009).

Construed in the light most favorable to upholding the juvenile court’s finding that W W was deprived, the evidence shows that the Cherokee County Department of Family and Children Services (“DFACS”) became involved with W. W.’s family on July 1, 2009, when the case was transferred to the agency. It is unclear from the record where the case was transferred from. DFACS initiated the deprivation petition after W W’s mother was arrested for reckless driving on August 24, 2009, and there was no one to take care of W W On August 26, 2009, the juvenile court entered a shelter care order granting DFACS temporary custody of the child, and the Department thereafter filed a complaint regarding the incident. The complaint reflected that after the arrest, W W was “safety planned” with a family friend for one day until it was discovered that the friend had a history with DFACS, and that the father lived in Ohio, had “unresolved criminal history,” and had “bond conditions [that] prevented] him from having any contact with [the mother].” It was also alleged that W. W. might have mental health issues. At the time of the mother’s reckless driving arrest, DFACS had been providing individual counseling services for W W. and the mother to address domestic violence issues in the home.

On September 1, 2009, DFACS filed a deprivation petition in which it asserted that the August incident had left the child without a guardian to provide care and support, and that the father was unavailable to take physical custody of the child. It was alleged that the father had been arrested for domestic violence against the mother, and had pending DUI charges. DFACS further alleged that W W. “cut herself when under emotional distress,” had been emotionally abused by the father, and did not want to live with him. DFACS noted in the petition that the mother had relinquished legal custody of W W to the father for financial reasons, but that the child had always lived with her.

The case came before the juvenile court on September 8, 2009, but was continued after the father requested and was appointed counsel. At the September 29, 2009 hearing on the petition, at which the father was present and represented by counsel, a DFACS family preservation case manager testified that she was assigned the case in July 2009 after allegations of domestic violence in the home. She further testified that in August 2009, DFACS had put “homestead services” in place for W. W. after the mother requested counseling for W W. because of an August 2009 incident between W. W. and the father. The service provided individual counseling for W. W and the mother. The case manager testified that the father was not in the home at that point because of bond conditions, and, because he lived out of state, no services could be applied to him until he moved back into the state.

The case manager also testified that the mother had recounted “the abuse that she has endured at the hand of the [father],” the violent incidents between W W and the father, her attempts to intervene on behalf of the child, and at “getting the child . . . away from [the father].” The caseworker witnessed that the child had carved “All Hope Died” into her arm after her mother was arrested, and that W W. was “very depressed.” She said W. W.’s cutting allegedly started in November 2008, when W. W. and her mother moved into the home with the father.

The mother of one of W W’s friends testified that in May 2009, she became concerned about W W after the girl came home with her daughter after school one day. Soon after they arrived, W W’s mother called and said that W W needed to come home because the father was angry. When the friend’s mother took the child home, the mother was visibly upset and pacing outside. After the mother told the woman that she did not want to “get beat up again,” the friend’s mother asked her if she could take W W back home with her. When the child went into the home to gather her things, the father grabbed W W, “flipped her upside down[,] and drug her in the house and [W W] screamed.” The woman called police, and drove about a block away to wait for their arrival. W W then ran to her car crying, and the friend’s mother drove her to a nearby restaurant to wait for police. When police responded, W W was taken back to her own home.

The same woman also testified that the following week, on May 30, 2009, she picked the mother up from the hospital after she had been beaten. W. W’s mother did not say that she had been beaten by the father, but the friend “thought it was [him].” The woman took the mother home, and helped her clean up because the house was “pretty trashed.” There was broken glass scattered around, an overturned table, “wads of hair” and “[s]tuff all over the floor.”

The mother testified at the hearing that she and the father had never married, that she had given him legal custody of W W for financial reasons so that the father could “show enough income” to purchase a house, but that W W had always lived with her. She testified that she and W W moved into the house in November 2008, when the two moved back to Georgia from Florida. Before then, she and the father had been separated for about four years. The mother had not worked for four years at the time of the hearing, but testified that she received approximately $500 per month in Social Security benefits. She also testified that she lived in the father’s home rent-free, and that the couple had agreed that she could live there “as long as he owns it.”

The mother recounted that her relationship with the father had always been troubled, and testified about several incidences of domestic violence dating back to when W W was a small child. She testified that one of the reasons she separated from the father was because of the domestic violence. The mother acknowledged that, although she had been back with the father for less than a year, from April 2009 the police were called to their home eight times for domestic violence issues. She described the month leading up to W W’s birthday in May of that year as absolutely “out of control.” The mother testified that she wanted to leave the home, but felt powerless because the father had custody of W. W. and “control of the money.” She further testified that she would not leave without W W because she felt the child needed protection from the father.

The mother testified that she had been severely beaten on May 30, 2009, but did not have any memory of the beating. The father was arrested the night before for suspected DUI. He and the mother had been “involved in a verbal dispute in the automobile, and both were intoxicated.” The father bonded out on May 30, and later that day police responded to a 911 call at the home and found that “the [mother] had been battered.” She was not lucid, and because the circumstantial evidence, including what appeared to be defensive fresh scratches, “pointed to” the father, he was arrested and charged with family violence battery.

The father testified at the hearing, and acknowledged that he was “temporarily” living in Ohio, and awaiting trial for charges of DUI and battery. He also admitted to an earlier conviction for battery for which he had pled guilty, stemming from an incident in “1995 or 1996 [when the mother] and I had a little problem. We had a push and shove match.”

In its order finding W. W deprived, the trial court noted the mother’s failure to protect W W from exposure to domestic violence, inability to meet her own mental health needs as related to ongoing domestic violence, inability to meet W W’s mental health needs, and inadequate housing. As to the father, the juvenile court found as a basis for finding W W. deprived, the “perpetration of domestic violence and inability to meet the mental health needs of the child.”

A deprived child is one who “[i]s without proper parental care or control, subsistence, education as required by law, or other care or control necessary for the child’s physical, mental, or emotional health or morals.” OCGA § 15-11-2 (8) (A). “Deprivation is established by proof of parental unfitness arising from either intentional or unintentional misconduct resulting in the abuse or neglect of the child or by what is tantamount to physical or mental incapability to care for the child.” (Citations, punctuation and footnote omitted.) In the Interest of A. B., 267 Ga. App. 466 (600 SE2d 409) (2004). “The [deprivation] petition is brought on behalf of the child and it is the child’s welfare and not who is responsible for the conditions which amount to deprivation that is the issue.” (Punctuation and footnote omitted.) In the Interest of J. L., 269 Ga. App. 226, 228 (1) (603 SE2d 742) (2004). Moreover, “[t] he juvenile court is not required to reunite the [child] with [the parent] in order to obtain current evidence of deprivation or neglect.” (Citation and punctuation omitted.) In the Interest ofL. G., 273 Ga. App. 468, 474 (2) (c) (615 SE2d 551) (2005).

The father’s contention that the evidence was insufficient to support the trial court’s ruling is without merit. It is the province of the juvenile court to weigh the evidence and determine its credibility. In the Interest ofT.L., 269 Ga. App. 842, 843 (605 SE2d 432) (2004). The trial court exercises its discretion in issuing its ruling, and, as earlier noted, this Court defers to the factfinder unless the appellate standard has not been met. In the Interest of M. E., 265 Ga. App. 412, 417 (1) (593 SE2d 924) (2004).

Here, we cannot say that the evidence is insufficient to support the trial court’s ruling, given the father’s history of physical abuse to the mother and W W’s exposure to repeated incidences of abuse. Moreover, the evidence shows that W W began exhibiting disturbing “cutting” and “burning” behaviors when she and her mother returned to Georgia in November 2008 and moved in with the father. The child would cut herself and burned words into her skin with an eraser. Despite this, there was no evidence that the parents attempted to have W. W.’s mental health evaluated or to professionally address these behaviors. The mother also testified about the father’s aggressive behavior toward W W, and that weekly she would “physically get in the middle in sort of a protection mode” between W W and the father. The mother testified that she felt that she could do little other than “get. .. between them” to prevent the father’s behavior toward W W because she had given the father custody of W W She also felt powerless to change her circumstances because the father owned the home, controlled her finances, had legal custody of W W, and the mother was unemployed, in chronic pain, took daily medications for pain, and had other issues related to a chronic medical condition.

Decided March 15, 2011.

James K. Luttrell, for appellant.

Thurbert E. Baker, Attorney General, Shalen S. Nelson, Senior Assistant Attorney General, Elizabeth M. Williamson, Assistant Attorney General, Hope M. Pereira, for appellee.

Although “[t]he right to the custody and control of one’s child is a fiercely guarded right in our society and in our law,” In the Interest of T. L., supra, 269 Ga. App. at 845 (2), here there was clear and compelling evidence showing a lack of proper parental control to such an extent that W. W. was adversely affected as evinced by the cutting and burning episodes, and her fear of the father. Cf. In the Interest of C. D. E., 248 Ga. App. 756, 767 (2) (546 SE2d 837) (2001) (evidence failed to support finding of deprivation where petitioner failed to show that father’s misdemeanor acts of domestic violence against his wife, none of which was witnessed by his children or severe enough to cause bruising, had any negative effect on his relationship with his children).

Thus, as there was clear and convincing evidence that W W was deprived, we affirm the juvenile court’s order.

Judgment affirmed.

Blackwell and Dillard, JJ., concur.

       The charge of battery from the May 30, 2009 incident involving the mother was nol prossed because the crime lab report showed that the DNA recovered from under the mother’s fingernail belonged to an unidentified female.


text:
    A10A2180.
    PHILLIPS v. SELECTO SCIENTIFIC.
    (707 SE2d 615)
   SMITH, Presiding Judge.

Andrew Phillips appeals from the trial court’s dismissal of his complaint for breach of contract against Selecto Scientific (“Selecto”), on the ground that he is not a real party in interest. Phillips also appeals from the trial court’s rulings regarding discovery and the award of attorney fees to Selecto. For the following reasons, we reverse the trial court’s dismissal of Phillips’s complaint, but affirm the trial court’s ruling with respect to discovery and the award of attorney fees.

The record reveals that Selecto offered Phillips six months of employment beginning on February 15, 2007. Phillips claims that he accepted the offer and worked for Selecto for three-and-a-half months when he was terminated. Phillips sued Selecto for, among other things, breach of contract and sought damages of $13,900, the amount he claimed was remaining under the employment agreement. Selecto moved to dismiss Phillips’s complaint on the ground that he was not a proper party to the lawsuit because he had assigned his payments under the employment agreement to ParSigma, a LLC in which Phillips was the only principal. The trial court granted the motion concluding that

[b]ased upon the deposition transcript of [Phillips], wherein [Phillips] admitted that he assigned all rights to payments under the subject contract to ParSigma and/or Par-Technology, LLC, the Court finds that [Phillips] is not the real party in interest to institute the action and therefore lacks standing.

1. Phillips first argues that the trial court erred in ruling that he does not have standing to bring his breach of contract action. We agree.

It is well settled that every action shall be prosecuted in the name of the real party in interest. Thus, a person may only challenge a ruling that has adversely affected his or her own rights. And, as a general rule, standing must be determined at the time at which the plaintiffs complaint is filed in order to place an actual case or controversy within the purview of the court.

(Citation, punctuation and footnotes omitted.) Associated Credit Union v. Pinto, 297 Ga. App. 605, 606 (677 SE2d 789) (2009); see OCGA § 9-11-17 (a). “The real party in interest is the person, who, by the substantive governing law, has the right sought to be enforced.” (Citation and punctuation omitted.) Allianz Life Ins. Co. &c. v. Riedl, 264 Ga. 395, 398 (3) (444 SE2d 736) (1994). And when an action has not been instituted by the real party in interest, it shall not be dismissed until after a reasonable time is allowed for the joinder or substitution of the real party in interest. OCGA § 9-11-17 (a).

Phillips deposed that he created ParSigma at the advice of his accountant. He first stated that his work for Selecto was assigned to ParSigma or Par-Technology, another LLC he created. He later clarified, however, that he personally did the work for Selecto, but assigned the payment for the work to ParSigma: “I meant that I assigned the payment for them to pay me through ParSigma or Par-Technology.” Tax documents in the record reveal that Selecto paid ParSigma $53,300 in 2007, apparently for Phillips’s services.

“An assignment is an ‘absolute, unconditional, and completed transfer of all right, title, and interest in the property that is the subject of the assignment. . ., with the concomitant total relinquishment of any control over the property.’ ” (Citation omitted.) Allianz, supra, 264 Ga. at 398 (2). The facts of this case are similar to the facts in Hodgskin v. Markatron, Inc., 185 Ga. App. 750 (365 SE2d 494) (1988). In that case, the plaintiff, Hodgskin, sued the defendant, Markatron, to recover sales commissions allegedly due under an employment contract. Id. at 751-752 (3).

In support of its motion, Markatron submitted the affidavit of its president, Titus, stating “it was [his] understanding” that Hodgskin’s right to commission payments “as well as all other rights she had under her employment agreement with Markatron had been assigned to Hodgskins [sic] Enterprises, Inc.” because of a letter signed by Hodgskin and her husband. The letter contained the statement that any sums from Markatron made payable personally to Hodgskin in the past and all payments in the future would “be treated as outside services paid to Hodgskin Enterprises, Inc.” Both Hodgskin and her husband averred in affidavits that no assignment of any rights to Hodgskin Enterprises, Inc. had occurred nor was such an assignment intended to result from the letter they signed which, they asserted, was intended instead to obviate the requirement that Marka-tron withhold F.I.C.A. and other sums from Hodgskin’s commission payments.

Id. This court held that there was an absence of evidence establishing outright assignment. Id. at 752 (3).

Assuming Phillips’s employment agreement with Selecto was valid and enforceable, Phillips assigned payment under the agreement to ParSigma. But Phillips did not assign to ParSigma his right, title, and interest under the employment agreement. Moreover, for the contract to be enforced by ParSigma, the assignment would have to be in writing. See Wirth v. Cach, LLC, 300 Ga. App. 488, 489 (685 SE2d 433) (2009) (“A party may assign to another a contractual right to collect payment, including the right to sue to enforce the right. But an assignment must be in writing in order for the contractual right to be enforceable by the assignee.”) (citation and punctuation omitted). Under these circumstances, without a showing that Phillips assigned his right, title, and interest in the employment contract to ParSigma, we must conclude that the trial court erred in dismissing Phillips’s complaint on the ground that he is not a real party in interest.

2. In two enumerations, Phillips argues that the trial court erred in finding that he did not meet the good faith requirement of Uniform Superior Court Rule (“USCR”) 6.4 (B) for filing a motion to compel and a motion for sanctions and in denying those motions on that ground. “[A] trial court is granted broad discretion under the discovery provisions of the Civil Practice Act, and an appellate court will not interfere with the court’s exercise of its discretion absent clear abuse.” (Citations, punctuation and footnote omitted.) Bd. of Regents <fee. v. Ambati, 299 Ga. App. 804, 810 (4) (685 SE2d 719) (2009).

USCR 6.4 (B) provides:

Prior to filing any motion seeking resolution of a discovery dispute, counsel for the moving party shall confer with counsel for the opposing party in a good faith effort to resolve the matters involved. At the time of filing the motion, counsel shall also file a statement certifying that such conference has occurred and that the effort to resolve by agreement the issues raised failed. . . .

The trial court, in denying the motions, found that Phillips’s counsel did not respond to Selecto’s counsel’s offer to meet prior to his filing the motions to compel and for sanctions, and that he scheduled a deposition on a date that Selecto’s counsel had informed him Selecto would be unavailable. The court’s ruling is supported by evidence in the record and testimony given at the hearing on the motions. Phillips’s counsel stated that he offered to take Selecto’s counsel to lunch. His offer was 13 days before he filed the motion to compel, and a month and a half before he filed the motions for sanctions. Phillips admitted that Selecto’s counsel offered instead to meet for coffee and that he did not respond to her offer. Also, Selecto’s counsel testified that Phillips’s counsel filed the motion to compel without first informing her of the alleged deficiencies in Selecto’s production.

The parties also had difficulty scheduling the deposition of Terry Libin, CEO of Selecto, who was originally a party to the lawsuit, but was dismissed. Although Selecto’s counsel initially e-mailed Phillips’s counsel on December 20, 2007, that Libin would be available to be deposed on February 6, 2008, she told him in late January that Libin would not be available on that date, but that Libin would be available the last week in February. Selecto’s counsel stated that when she attempted to reschedule the deposition, Phillips’s counsel told her he would not schedule another one until he had a hearing.

Phillips’s counsel stated that he never personally talked to Selecto’s counsel until the day of the hearing. Selecto’s counsel stated that she had spoken to Phillips’s counsel one or two times since the lawsuit was filed, but that he “became very hostile and belligerent very early on.” She explained that for that reason, she responded to many of his voice messages by e-mail.

After reviewing the record before us, we cannot say that the trial court abused its discretion in finding that Phillips did not satisfy the good faith requirement of USCR 6.4 (B) and in denying his motion to compel and motion for sanctions on this ground. See Ambati, supra, 299 Ga. App. at 811-812 (4) (a); see also, e.g., Lykins v. Nationwide Mut. Ins. Co., 214 Ga. App. 577, 580 (4) (448 SE2d 716) (1994) (court did not abuse its discretion in denying motion to compel where counsel failed to certify that he conferred with opposing counsel in an effort to resolve matter); compare Mansell 400 Assoc. v. Entex Information Sues., 239 Ga. App. 477, 481 (5) (519 SE2d 46) (1999) (good faith shown where counsel for movant sent letter explaining why discovery responses were inadequate and counsel for opposing party did not respond).

3. Phillips challenges the trial court’s award of attorney fees to Selecto pursuant to OCGA § 9-11-37 (a) (4) (B) (“If the [discovery] motion is denied, the court shall, after opportunity for hearing, require the moving party or the attorney advising the motion or both of them to pay to the party or deponent who opposed the motion the reasonable expenses incurred in opposing the motion, including attorney’s fees.”). Because we have held in Division 2 that the trial court did not abuse its discretion in denying Phillips’s motions to compel and for sanctions because Phillips did not satisfy the good faith requirement of USCR 6.4 (B), we cannot say that the award of attorney fees to Selecto as authorized by OCGA § 9-11-37 (a) (4) (B), was improper. See Ambati, supra; Lykins, supra.

Decided March 15, 2011.

Michael O. Mondy, for appellant.

Ichter Thomas, Cary Ichter, Patricia A. Roy, for appellee.

4. Phillips’s remaining enumerations are rendered moot by our holding in Division 1.

Judgment affirmed in part and reversed in part.

Mikell and Adams, JJ., concur.

       Phillips also named Selecto’s CEO Terry Libin as a defendant, but subsequently dismissed his claims against Libin.

       Phillips claimed damages of $17,000 in his deposition.


author: Doyle, Judge.

text:
    A10A2091.
    EAGLE’S LANDING CHRISTIAN CHURCH, INC. v. HENRY COUNTY.
    (708 SE2d 23)
   Doyle, Judge.

Eagle’s Landing Christian Church, Inc. (“the Church”), appeals from the trial court’s order dismissing the Church’s answer to a declaration of condemnation filed by Henry County. Although noting its displeasure at the result, the trial court dismissed the answer on the basis that the Church’s document could not be construed as a timely notice of appeal filed pursuant to OCGA § 32-3-14 because the Church failed to include some expression of dissatisfaction with the proposed amount of compensation, as required under the statute. In support of its order, the trial court relied upon this Court’s holding in Lopez-Aponte v. City of Columbus.

The Church now appeals, contending that the dismissal order was erroneous because it was based on a hyper-technical procedural argument, and the answer demanding a jury trial was sufficient to provide notice to the County that the Church was dissatisfied with the condemnation award and should be construed as a notice of appeal as required by OCGA § 32-3-14. We disagree and affirm for the reasons that follow.

“This question is one of law, and we therefore apply the plain legal error standard of review.” When bringing a condemnation proceeding under OCGA § 32-3-1 et seq., the condemnor is required to file a petition and declaration of taking, which is self-executing in nature. A condemnee, however, may file within 30 days of service either a petition challenging as improper the declaration or may file within 30 days of service a notice of appeal challenging the amount of compensation offered by the condemnor.

Applicable to this case, OCGA § 32-3-14 states specifically:

If the owner, or any of the owners, or any person having a claim against or interest in the property is dissatisfied with the amount of compensation as estimated in the declaration of taking and deposited in court, as provided for in Code Section 32-3-7, such person or persons, or any of them, shall have the right, at any time subsequent to the filing of the declaration and the deposit of the fund into court, but not later than 30 days following the date of the service as provided for in Code Sections 32-3-8 and 32-3-9, to file with the court a notice of appeal, the same to be in writing and made a part of the record in the proceedings.

Normally, then, an owner files a pleading entitled “notice of appeal,” which alerts the trial court that the condemnee wishes to challenge the award of compensation. When a condemnee, as here, fails to file a notice of appeal and instead files some other pleading in an attempt to challenge the award, this Court has held that the pleading “must express dissatisfaction with the proposed compensation” to be construed as a notice of appeal for purposes of OCGA § 32-3-14. In Howard, this Court held that an answer filed by the condemnee could not be construed as a notice of appeal when the answer “sought to clarify [the condemnee’s] name[ ] and demanded strict proof of the allegations of the condemnor’s petition since the [condemnee] professed itself without sufficient knowledge to form a belief as to the truth of those allegations.” In this case, the Church similarly argues that it was without sufficient knowledge to form a belief as to the allegations regarding compensation that appear in the petition for condemnation, claims the petition fails to state a claim for relief, and claims that the petition seeks an inconsistent remedy. Even given a generous reading, at no time does the answer discuss the compensation award, and as this Court previously has determined, stating that the condemnee is “without sufficient knowledge” of an allegation does not constitute compliance with OCGA § 32-3-14’s requirement of an expression of dissatisfaction with the award.

Decided March 3, 2011

Reconsideration denied March 16, 2011.

Bryan, Cave, Powell & Goldstein, Wilbur G. Hamlin, Jr., for appellant.

LaTonya N. Wiley, for appellee.

Accordingly, we affirm the trial court’s dismissal of the Church’s answer.

Judgment affirmed.

Ellington, C. J., and Andrews, J., concur.

       267 Ga. App. 65 (599 SE2d 1) (2004). See also Howard v. Dept. ofTransp., 184 Ga. App. 116, 117 (2) (361 SE2d 7) (1987).

        Ga, Power Co. v. Stowers, 282 Ga. App. 695, 696 (639 SE2d 605) (2006).

       See OCGA §§ 32-3-6 (a); 32-3-13 (a).

       See OCGA §§ 32-3-11; 32-3-14. We note that the citation of condemnation issued by the trial court included instructions for filing a notice of appeal to challenge the award of compensation, and these instructions specifically direct the condemnee to file a “notice of appeal,” in accordance with OCGA §§ 32-3-13 to 32-3-19.

        Howard, 184 Ga. App. at 117 (2).

       (Punctuation omitted.) Id.

       See id.; Lopez-Aponte, 267 Ga. App. at 67-68 (1) (“[l]n order for [an award] to be construed as a notice of appeal under [OCGA § 32-3-14], that writing must express dissatisfaction with the proposed compensation.”). Compare with Ga. Power Co., 282 Ga. App. at 697-698 (holding that, in a proceeding under OCGA § 22-2-102, the condemnee’s statement that the condemnor “ ‘failed to establish the value of consequential damages or the benefit to the remainder’ ” satisfied a similar statutory requirement that a pleading express dissatisfaction with the award); Nunnery v. Dept. ofTransp., 128 Ga. App. 221, 222 (1) (196 SE2d 171) (1973) (holding sufficient a condemnee’s pleading which stated that “ ‘plaintiff has not offered just and adequate compensation’ ” and contended that the “ ‘true value [was] $30,000.’ ”).


text:
    A10A1723.
    KELLEY v. THE STATE.
    (707 SE2d 619)
   BARNES, Presiding Judge.

Based upon allegations that he sexually abused a foster child placed in his care, a jury convicted Frederick D. Kelley of two counts of aggravated sexual battery and four counts of child molestation. On appeal from the denial of his motion for a new trial, Kelley contends that the trial court erred in admitting similar transaction evidence and that his trial counsel rendered ineffective assistance. For the reasons set forth below, we affirm.

Following a criminal conviction, we view the evidence in the light most favorable to the jury’s verdict, and Kelley is no longer presumed innocent. Boring v. State, 303 Ga. App. 576, 577 (1) (694 SE2d 157) (2010). So viewed, the evidence showed that Kelley was the founder and pastor of the Greater New Macedonia International Church of God and Christ. As part of their ministry, Kelley and his wife were actively involved with the church youth and also chose to serve as foster parents. In 2006, several young foster children were living in their home, including the 15-year-old female victim.

The sexual abuse alleged in this case occurred on three successive mornings in September 2006. In the early morning hours of Wednesday, September 27, 2006, Kelley entered the bedroom shared by the victim and another young girl in his foster care. The victim was asleep but awoke as Kelley pulled aside her bedcovers and placed his hands underneath her nightgown. Kelley began rubbing the victim’s breasts and vagina through her bra and underwear. He stopped when the victim’s roommate stirred in her bed.

At approximately the same time the next morning, Kelley returned to the victim’s bedroom while the victim and her roommate were asleep. Kelley began rubbing the victim’s breasts and vagina underneath her bra and underwear. Kelley also penetrated the victim’s vagina with his fingers. As on the previous day, he stopped when the victim’s roommate stirred in her bed. Kelley committed these same acts again around the same time the next morning.

On each of the three days that Kelley sexually abused the victim, she disclosed the abuse to an adult male friend whom she saw regularly on the way to school. After the third incident, her friend called 911 and reported the victim’s outcries of sexual abuse. Following the 911 call, the victim and other foster children were removed from Kelley’s home.

Kelley was arrested and indicted on two counts of aggravated sexual battery and four counts of child molestation. At trial, the victim testified to the incidents of sexual abuse as previously described, and the State presented several witnesses to whom the victim had disclosed the abuse, including the victim’s adult friend who had called 911. The State also introduced into evidence and played for the jury a videotape of a forensic interview of the victim conducted at the Georgia Center for Child Advocacy in which the victim described the sexual abuse.

In addition, the trial court, after conducting a pretrial hearing and giving a limiting instruction to the jury, allowed the State to introduce similar transaction evidence for the purpose of showing Kelley’s bent of mind, course of conduct, and lustful disposition. The similar transactions involved prior acts by Kelley perpetrated against four other teenage victims — another female foster child who lived in Kelley’s home at the same time as the victim, Kelley’s niece, and two of Kelley’s sisters-in-law.

The female foster child who served as a similar transaction witness testified that one night while she was sleeping, Kelley came into her bedroom and began rubbing her on her stomach underneath her pajamas and then moved his hands up toward her breasts. When she awoke, Kelley stopped and left the room. The foster child was 14 years old at the time of the incident.

Kelley’s niece also testified as a similar transaction witness. The niece testified that when she was 13 years old, she lived for several months with Kelley and his wife. According to the niece, Kelley repeatedly sexually abused her at night when everyone else in the home was asleep, and also during the day when they were alone together. The niece testified that Kelley initially fondled her on top of her clothing but progressed to touching her underneath her clothing and ultimately forced her to have sexual intercourse with him on multiple occasions.

Two of Kelley’s sisters-in-law testified as similar transaction witnesses concerning how Kelley assaulted them when they were teenagers. The first sister-in-law testified that when she was 12 years old, she came to stay with Kelley and his wife. She testified that one night while she was sleeping, Kelley approached her, forced himself on top of her, and tried to pull down her pajama pants. When she began to struggle, Kelley stopped and left the room.

The second sister-in-law testified that when she was 14 and 15 years old, Kelley pinned her down and touched her in her private areas on several occasions when his wife was away. She further testified that on one occasion, she “responded back” to Kelley’s sexual advances and they began having sexual intercourse, at which point she told Kelley to stop because she was in pain. Kelley, however, refused to stop. The sister-in-law testified that from that point forward, Kelley had sexual intercourse with her on repeated occasions. According to the sister-in-law, she ultimately became pregnant and gave birth to a child that Kelley and his wife coerced her into letting them raise as their own.

Kelley’s defense to the testimony presented by the State was that the victim had been inconsistent in her statements regarding the sexual abuse and had fabricated the allegations. Likewise, Kelley’s defense to the similar transaction evidence was that the witnesses were fabricating the allegations of prior sexual abuse, although he admitted that he was the father of his sister-in-law’s child.

After hearing all of the testimony, the jury convicted Kelley of the aggravated sexual battery and child molestation offenses. Kelley moved for a new trial, arguing that his trial counsel was ineffective for failing to call a witness who would have testified that she routinely drove the victim to the bus stop on weekday mornings, that she drove the victim to the bus stop on the three mornings of the alleged sexual abuse, and that the victim’s demeanor on those mornings “was the same as it always was previously.” The trial court denied the motion, and this appeal followed.

1. The testimony discussed above was sufficient to enable a rational jury to find Kelley guilty beyond a reasonable doubt of the charged offenses. Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560) (1979). See OCGA §§ 16-6-4 (a) (1); 16-6-22.2 (b). Questions regarding the weight of the evidence and credibility of the witnesses were for the jury, rather than this Court, to decide. Johnson v. State, 289 Ga. App. 206, 208 (656 SE2d 861) (2008).

2. Kelley claims that the trial court erred in allowing the State to present similar transaction evidence of prior instances involving young teenage girls. We disagree.

Before the State may introduce similar transaction evidence, it first must make three affirmative showings: (1) that the evidence is being admitted for a proper purpose; (2) that the defendant committed the separate offense; and (3) that the independent offense is sufficiently similar to the offense for which the defendant is on trial such that proof of the former tends to prove the latter.

(Footnote omitted.) White v. State, 291 Ga. App. 646, 646-647 (662 SE2d 757) (2008). See Williams v. State, 261 Ga. 640, 642 (2) (b) (409 SE2d 649) (1991). After the State has made these three affirmative showings, the trial court retains the discretion to exclude the similar transaction evidence if its probative value is substantially outweighed by the danger of unfair prejudice. See Grant v. State, 302 Ga. App. 661, 664-665 (2) (691 SE2d 581) (2010); Clarke v. State, 241 Ga. App. 186, 188 (1) (a) (526 SE2d 395) (1999).

Kelley argues that the State did not identify a proper purpose for admitting the similar transaction evidence and that the evidence was unfairly prejudicial. These arguments are without merit. It is well settled under Georgia law that in cases involving the sexual abuse of a child, evidence of prior acts against other children is admissible for the purpose of showing the bent of mind, course of conduct, and lustful disposition of the defendant. See Copeland v. State, 276 Ga. App. 834, 836-837 (1) (625 SE2d 100) (2005); Lewis v. State, 275 Ga. App. 41, 42-43 (2) (a) (619 SE2d 699) (2005). Furthermore, the trial court acted within its discretion in concluding that the similar transaction evidence was not unfairly prejudicial, in light of the trial court’s limiting instruction to the jury, see Moody v. State, 273 Ga. App. 670, 672 (2) (615 SE2d 803) (2005), and “because the prior transactions in this case corroborated the victim’s testimony and rebutted [Kelley’s] defense of fabrication.” Helton v. State, 268 Ga. App. 430, 434 (3) (c) (602 SE2d 198) (2004). Accordingly, we discern no error by the trial court in admitting the similar transaction evidence over Kelley’s objection, particularly since “Georgia courts construe the rules regarding the use of similar transaction evidence liberally in cases involving sexual offenses.” (Punctuation and footnote omitted.) Enurah v. State, 279 Ga. App. 883, 885 (2) (633 SE2d 52) (2006).

3. Kelley contends that his trial counsel rendered ineffective assistance by failing to call a critical defense witness at trial. Again, we disagree.

To prevail on a claim of ineffective assistance, appellant must show that counsel’s performance was deficient and that the deficient performance so prejudiced the client that there is a reasonable likelihood that, but for counsel’s errors, the outcome of the trial would have been different. We need not address both the deficient performance and prejudice prongs of the test if the defendant has made an insufficient showing on either prong.

(Citations and punctuation omitted.) Towry v. State, 304 Ga. App. 139, 143 (2) (695 SE2d 683) (2010). See Strickland v. Washington, 466 U. S. 668 (104 SC 2052, 80 LE2d 674) (1984). In addressing ineffective assistance claims on appeal, “[w]e accept the trial court’s factual findings and credibility determinations unless clearly erroneous, but we independently apply the legal principles to the facts.” (Citation and punctuation omitted.) Robinson v. State, 277 Ga. 75, 76 (586 SE2d 313) (2003).

Kelley argues that his trial counsel was deficient for failing to call the neighbor who routinely drove the victim to the bus stop every day before school. The neighbor worked for the Department of Family and Children Services and was a member of the church where Kelley served as pastor. The neighbor would have testified that on the three mornings of the alleged sexual abuse, she drove the victim to the bus stop and there was nothing unusual about her demeanor on those days. The neighbor informed Kelley’s trial counsel of what she had observed prior to the trial.

Decided March 16, 2011

Brian Steel, for appellant.

At the hearing on Kelley’s motion for a new trial, his trial counsel testified that the decision not to call the neighbor was a strategic one. According to trial counsel, “[t]he fact of [the victim’s] demeanor came out through other means and other witnesses,” and he believed that the jury would not find the neighbor credible, given that she was a member of Kelley’s church. Consequently, trial counsel made a tactical decision not to call the neighbor as a witness based upon his conclusion that the defense “could do without her.”

To prove deficient performance, a defendant must rebut the strong presumption that trial counsel’s conduct fell within the broad range of reasonable professional conduct. Robinson, 277 Ga. at 76. “Trial tactics and strategy, no matter how mistaken in hindsight, are almost never adequate grounds for finding trial counsel ineffective unless they are so patently unreasonable that no competent attorney would have chosen them.” (Punctuation and footnote omitted.) Gray v. State, 291 Ga. App. 573, 579 (2) (662 SE2d 339) (2008).

We cannot say that trial counsel’s strategic decision to forego calling the neighbor as a witness was patently unreasonable. Trial counsel correctly noted that evidence of the victim’s “normal” demeanor on the mornings of the alleged sexual abuse came out at trial through other witnesses, including Kelley’s wife and the victim herself. Given that the neighbor’s testimony would have been cumulative of other testimony admitted at trial and that her credibility could be questioned because Kelley was her pastor, Kelley failed to rebut the strong presumption that his trial counsel’s decision fell within the broad range of reasonable professional conduct. See generally McDougal v. State, 284 Ga. 427, 428 (2) (667 SE2d 592) (2008) (trial counsel’s decision to forego calling defense witness based upon belief that the witness’s testimony would be cumulative and that testimony might “backfire” before the jury was a reasonable strategic one). As such, Kelley was unable to demonstrate that his trial counsel rendered deficient performance, and thus could not succeed on his ineffective assistance claim.

Judgment affirmed.

Blackwell and Dillard, JJ., concur.

Gwendolyn Keyes Fleming, District Attorney, Leonora Grant, Assistant District Attorney, for appellee.

       Kelley also was indicted for rape, but the jury acquitted him of that count.

       Kelley does not contest that the State presented adequate evidence that he committed the other transactions or that the other transactions were sufficiently similar to the charged offenses.

       In arguing otherwise, Kelley relies upon case law from a foreign jurisdiction that is not binding on this Court.


author: PHIPPS, Presiding Judge.

text:
    A10A1728.
    TERRY v. THE STATE.
    (707 SE2d 623)
   PHIPPS, Presiding Judge.

After a jury trial, Montique Terry was convicted of cocaine possession. On appeal, Terry contends that the trial court erred by denying his motion for new trial, which was based upon his claim that the prosecutor’s admonishment of the sole defense witness deprived him of due process. For reasons that follow, we affirm.

Terry’s drug conviction was supported by evidence of the following. On March 8, 2007, six law enforcement officers arrived at a residence to serve an arrest warrant on a woman there. Hearing a commotion inside, several officers went to the back of the residence, where they observed two men jump from a window to the ground. The first man who jumped complied with the officers’ commands to halt. The second man, Terry, tried unsuccessfully to flee. While Terry was running, two officers saw him drop “in the rear yard of the house” a baggie of what was later determined to be 0.59 gram of a substance containing cocaine. Incident to his arrest at the scene, Terry was searched, and officers found on his person $955 in United States currency.

The sole defense witness was the first man who jumped from the window. An admitted user of crack cocaine for about 25 years, he characterized the area as a “hoodlum neighborhood” and the area behind the residence as wooded “nobody property.” He testified that numerous young men who “sell drugs . . . hide them down in the woods. . . . They go back there and get the drugs and come back on the street and sell them. And go back there and hide them back there in the back.” The witness further explained that he and Terry had jumped out the window “[bjecause we thought it was a robbery. . . . I thought folks was trying to rob the folks or whatever because that’s what they do in my neighborhood over crack.”

On motion for new trial, Terry asserted that, before his witness testified, that witness had indicated out of court that the cocaine was his. When the witness was called to the stand, however, he did not claim the cocaine as his own. Terry blamed the prosecutor, alleging in his motion:

As his trial began, [Terry] had an ace in the hole: a witness with a known crack habit . . . who was willing to exculpate him. His prospects soured, though, when the prosecutor suggested to the witness that testifying could land him [the witness] in prison for years. This threat constituted pros-ecutorial misconduct; and in light of the importance to the case of the testimony that the threat deterred, that misconduct warrants reversal of. . . Terry’s conviction.

The impermissible admonishment alleged by Terry had occurred during an interview conducted the day before the witness testified. Counsel for both sides had attended the interview. And to support his claim on motion for new trial, Terry called at the hearing his trial lawyer, who testified:

When we talked to [the defense witness], he had indicated that the half gram was, in fact, his. However, when [the prosecutor and I] together were talking to him[,] [the prosecutor] indicated that, well, if you’re going to take this case, you’re going to be the one that’s going to do time behind it, essentially. ... I don’t want to say his exact words because I don’t recall the exact words. But the gist of it was, if you testify to that, then I’m going to prosecute you, and you’re going to go to jail. That’s the gist of what he said.

On appeal, Terry maintains that he was thus entitled to a new trial, citing Webb v. Texas and other opinions derived therefrom. In Webb, the sole defense witness, who was then serving a prison sentence, was called into the courtroom during a jury recess. The trial judge, on his own initiative, undertook to admonish the witness, saying:

If you take the witness stand and lie under oath, the Court will personally see that your case goes to the grand jury and you will be indicted for perjury and the liklihood [sic] is that you would get convicted of perjury and that it would be stacked onto what you have already got. ... If you get on the witness stand and lie, it is probably going to mean several years and at least more time that you are going to have to serve. It will also be held against you in the penitentiary when you’re up for parole. . . . [I]f you lie you can get into real trouble.

The witness then refused to testify for any purpose and was excused by the court. Convicted, the defendant argued on appeal that the judge’s conduct had deprived him of due process of law by driving his sole witness off the witness stand. Agreeing, the Webb Court reiterated:

The right to offer the testimony of witnesses, and to compel their attendance, if necessary, is in plain terms the right to present a defense, the right to present the defendant’s version of the facts as well as the prosecution’s to the jury so it may decide where the truth lies. Just as an accused has the right to confront the prosecution’s witnesses for the purpose of challenging their testimony, he has the right to present his own witnesses to establish a defense. This right is a fundamental element of due process of law.

The Webb Court noted that the fact that the witness had been willing to come to court to testify in the defendant’s behalf, but refused to do so only after the judge’s lengthy and intimidating warning (including threats, at least some of which may have been beyond the power of that judge to carry out), strongly suggested that the judge’s comments were the cause of the witness’s refusal to testify. Therefore, the Webb Court reversed the judgment of conviction.

Relying on principles underlying Webb, “courts have held that judicial or prosecutorial intimidation that dissuades a potential defense witness from testifying for the defense can, under certain circumstances, violate the defendant’s right to present a defense.” Also well established, however, is that “the right to present a defense, and its concomitant right to compulsory process, are not unqualified; they are subject to ‘countervailing public interests.’ ”

A defendant’s right to present a defense ... is not absolute. The right may, in appropriate cases, bow to accommodate other legitimate interests in the criminal trial process. For example, the accused does not have an unfettered right to offer testimony that is incompetent, privileged, or otherwise inadmissible under standard rules of evidence. The right to present a defense, as a result, does not displace traditional testimonial privileges. The Fifth Amendment privilege, no less, reflects a complex of our fundamental values and aspirations, and marks an important advance in the development of our liberty. Several courts of appeal, therefore, have held a defendant’s right to present a defense does not include the right to compel a witness to waive his Fifth Amendment privilege against self incrimination.

Accordingly, the due process analysis that Webb dictates must be conducted on a case-by-case basis.

Due process guarantees that a criminal defendant will be treated with that fundamental fairness essential to the very concept of justice. In order to declare a denial of it [a court] must find that the absence of that fairness fatally infected the trial; the acts complained of must be of such quality as necessarily prevents a fair trial.

Under this test, no violation of due process was demonstrated. Terry has not shown that the prosecutor’s conduct dissuaded a defense witness from testifying or that the prosecutor induced materially less favorable testimony. This case is not like Webb, where the trial judge, without any basis in the record to conclude the witness might lie, delivered a lengthy and unnecessary harangue to the defense witness about the possibility of prosecution — effectively driving the witness off the stand. Terry’s witness testified and did so in Terry’s favor. That witness, an admitted 25-year user of crack cocaine, described the area behind the residence where the cocaine was found as woods, generally used by individuals in the drug trade to stash their supplies. Terry’s witness also provided a reason for his and Terry’s flight when numerous unexpected individuals converged upon the residence.

What is more, it has been recognized that the potential for unconstitutional coercion by a government actor diminishes when a defendant’s witness has consulted with an independent attorney. In this case, when Terry’s witness took the stand, he did so with his own counsel, who informed the court before the witness testified that, following the conversation with counsel, the witness “doesn’t have anything else to say to either counsel at this point. His testimony is what it is going to be.” Thereupon, the court asked Terry’s witness, “Are you prepared to testify?” The witness replied, “Yes, ma’am.”

When Terry’s witness took the stand, he did not invoke the Fifth Amendment, nor did he otherwise refuse to answer any question posed to him. Terry’s lawyer did not ask the witness whether — despite his generalized drug-use characterization of the area behind the residence located in the “hoodlum neighborhood” — the cocaine seized in this case belonged to him. Thus, Terry’s lawyer made no attempt to show that the defense witness had made the purported prior inconsistent statement (that the cocaine, in fact, had belonged to him), acknowledging at the new trial hearing that he simply had made a strategic decision not to ask the witness that question. Given these circumstances, Terry has not shown that the prosecutor’s conduct impermissibly eroded “the right to present [his] version of the facts.” While Terry has shown that the prosecutor warned his witness about the consequences of claiming the cocaine as his own, Webb does not stand for the proposition that merely warning a defense witness of the possible consequences of testifying demands reversal.

Our conclusion that the prosecutor’s warning to Terry’s witness did not warrant a new trial is consistent with our decision in Murray v. State. The appellant in that case complained on motion for new trial that a defense witness — an individual who had been jointly indicted for the same criminal activity, but who had entered a guilty plea to a lesser offense — had been “threatened” by the district attorney and sheriff that, if she took the stand and attempted to exonerate the appellant, the state’s previous consent to accept her plea to the lesser offense would be withdrawn and she would face the same charge of selling drugs alleged against the appellant. When subsequently called to the stand, that witness invoked the Fifth Amendment privilege and did not testify. This court rejected appellant’s claim that the government officials’ conduct entitled him to a new trial, finding that the government officials’ statements were “not reasonably subject to the devious construction” urged by the appellant and that the appellant’s argument was “no more than an assertion that [the witness] should have been allowed to testify that she sold the drugs without being informed of the possible detrimental consequences to herself of so doing.” Further, this court instructed, the appellant could not complain that his witness chose to exercise that right “any more than any defendant can complain that someone else chose not to take the stand freely in his trial and confess to the crime with which the defendant is charged.”

Terry’s complaint essentially is that the prosecutor’s warning to his witness resulted in that witness’s choice not to confess to the crime with which he (Terry) was charged. Even accepting Terry’s claim that the prosecutor’s statements during the interview were improper, for reasons set forth above, Terry has not shown that the prosecutor so interfered with his right to present his defense as to constitute a denial of due process. Nothing in the other opinions relied upon by Terry — United States v. Viera or the special concurrence in Hargett v. State — compels an outcome in his favor.

Decided March 16, 2011.

Stephen R. Scarborough, for appellant.

Paul L. Howard, Jr., District Attorney, Lenny I. Krick, Christopher M. Quinn, Assistant District Attorneys, for appellee.

Judgment affirmed.

Miller, P. J., and McFadden, J., concur.

       409 U. S. 95 (93 SC 351, 34 LE2d 330) (1972).

       Id.

       Id. at 96.

       Id.

       Id. at 97.

       Id. at 98.

       Id. (citation and punctuation omitted).

       Id. at 97.

       Id. at 98.

        United States v. Williams, 205 F3d 23, 29 (2d Cir. 2000), citing, inter alia, United States v. Golding, 168 F3d 700, 703-705 (4th Cir. 1999) (government intimidation dissuaded witness from testifying and prosecutor further abused her power by commenting on witness’s failure to testify); see United States v. Vavages, 151 F3d 1185, 1190-1192 (9th Cir. 1998) (prosecutor dissuaded witness from testifying and commented on defendant’s failure to present corroborating witnesses, and trial judge failed to scrutinize basis for witness’s invocation of Fifth Amendment right against self-incrimination).

        Williams, supra.

        United States v. Serrano, 406 F3d 1208, 1215 (II) (A) (10th Cir. 2005) (citations, punctuation and emphasis omitted).

       Id. at 1216; see Hood v. Carsten, 267 Ga. 579, 580-581 (481 SE2d 525) (1997) (due process is flexible and calls for such procedural protections as the particular situation demands, and the amount of process required must necessarily depend on the circumstances in each case).

        United States v. Valenzuela-Bernal, 458 U. S. 858, 872 (III) (102 SC 3440, 73 LE2d 1193) (1982) (citation and punctuation omitted), cited in 'Williams, supra at 31.

       See Griffin v. Davies, 929 F2d 550, 553 (III) (10th Cir. 1991) (to establish a due process violation based on denial of right to compulsory process, there must be a plausible showing that an act by the government caused the loss or erosion of testimony that was both material and favorable to the defense).

       See Webb, supra at 98; see generally Williams, supra at 30.

       See Serrano, supra at 1216.

       See Edmond v. State, 283 Ga. 507, 510 (6) (661 SE2d 520) (2008) (prior inconsistent statement of a witness who is present and available for cross-examination may be admitted as substantive evidence or as impeachment evidence if the time, place, person, and circumstances attending the former statement are called to the witness’s mind with as much certainty as possible).

       On motion for new trial, Terry did not call to the stand his defense witness.

        Webb, supra at 98 (emphasis supplied); see generally United States v. Simmons, 670 F2d 365, 371 (DC Cir. 1982) (there is no due process right to knowingly present perjured testimony); Williams, supra at 29-30 (noting preventing perjury, as an example of such a “countervailing public interest” with regard to a defendant’s right to present a defense and the concomitant right to compulsory process; noting also that the right to present a defense is designed to serve the truth-seeking function of the trial process and does not grant criminal defendants license to knowingly present perjured testimony). Cf., e.g., United States v. Heller, 830 F2d 150, 153-155 (11th Cir. 1987) (record showed that government intimidation deprived defendant of an important defense witness and induced witness to provide false testimony against defendant); Murray v. State, 157 Ga. App. 596, 597 (2) (278 SE2d 2) (1981) (on motion for new trial, potential defense witness who refused to testify stated in affidavit that, prior to being called into courtroom during appellant’s trial, she wanted to testify but refused to do so because of alleged “threats” from the district attorney and the sheriff, coupled with the trial court’s instructions that she could not be forced to testify).

        United States v. Smith, 997 F2d 674, 679 (10th Cir. 1993); see United States v. Thompson, 130 F3d 676, 687 (V) (C) (5th Cir. 1997) (due process violation does not arise merely because the government warns a defense witness of the consequences of committing perjury); United States v. Teague, 737 F2d 378, 382-384 (IV) (4th Cir. 1984) (notwithstanding contact between the prosecutor and an attorney for a witness made in an effort to prevent perjury, no Webb violation occurred, where defendant was not deprived of his witness’s testimony and the transcript reflected that the witness gave all of the favorable testimony that the defendant could have expected); Simmons, supra (“It is hardly a threat for a prosecutor to advise a potential witness, who is telling two stories with respect to a defendant’s criminal involvement, that he might be prosecuted for perjury if he testifies falsely.”); United States v. Harlin, 539 F2d 679, 681 (I) (9th Cir. 1976) (no Webb violation, based upon trial judge’s warning to co-defendant’s counsel that was neither coercive, threatening, grossly improper nor prejudicial).

       Supra.

       Id. at 597.

         Id.

       Id. at 598.

       Id.

       819 F2d 498 (5th Cir. 1987) (reversal was warranted because the prosecutor improperly threatened to indict the defendant’s witness and improperly mentioned to the jury that the threatened witness had failed to testify, and the trial court did not provide any curative instruction after defense counsel objected to prosecutor’s remarks).

       285 Ga. 82, 89 (674 SE2d 261) (2009) (Sears, J., concurring) (citing Webb, supra).