author: Barnes, Presiding Judge.

text:
    A14A0777.
    CHISHOLM v. GEORGIA DEPARTMENT OF LABOR et al.
    (764 SE2d 432)
   Barnes, Presiding Judge.

Sheralyn R. Chisholm’s employer had a policy requiring employees to report arrests within five days of their occurrence. Chisholm was discharged from employment when she reported her arrest seven days late. Following the grant of her application for interlocutory appeal, Chisholm now appeals the superior court’s order affirming a decision by the Board of Review of the Department of Labor (the “Board of Review”) to disqualify her from receiving unemployment benefits because of her failure to report her arrest within the five-day deadline. Because Chisholm could not have reasonably expected that a short, immaterial delay in reporting her arrest to her employer would result in her termination, we reverse.

Judicial review of an administrative decision requires the court to determine that the findings of fact are supported by any evidence and to examine the soundness of the conclusions of law that are based upon the findings of fact. When this Court reviews a superior court’s order in an administrative proceeding, our duty is not to review whether the record supports the superior court’s decision but whether the record supports the final decision of the administrative agency.

(Citations, punctuation and footnote omitted.) Davane v. Thurmond, 300 Ga. App. 474, 475 (685 SE2d 446) (2009). Mindful of these principles, we turn to the record in the present case.

The evidence adduced at the administrative hearing showed that in November 2010, the Georgia Department of Behavioral Health & Developmental Disabilities (the “Behavioral Health Department” or the “Department”) hired Chisholm to work as a nurse educator at its regional hospital in Columbus. During her orientation, Chisholm signed a form acknowledging her responsibility to review and comply with the Department’s personnel policies, including Policy Number 1201, Standards of Conduct and Ethics in Government (the “Standards of Conduct”). The Standards of Conduct totaled 11 pages and included the following section:

D. DISCLOSURE OF INFORMATION
1. All applicants/employees ,are required to disclose felony convictions on APPLICATIONS FOR EMPLOYMENT and convictions and/or pending charges on STATE SECURITY QUESTIONNAIRE/LOYALTY OATH Forms.
a. Falsification or misrepresentation of information, including criminal history, is prohibited and may result in an offer of employment being withdrawn from an applicant or separation of an employee.
b. Material falsification or misrepresentation of any information, including criminal history, will result in an offer of employment being withdrawn from an applicant or separation of an employee. ‘Material” refers to information which directly influences and/or impacts the hiring decision based on records, credentials and/or qualifications.
2. Employees are required to notify their supervisor or human resource representative of any arrests and/or convictions within five calendar days of the date of arrest or conviction. A determination of appropriate action will be made on a case by case basis.

(Emphasis in original.)

Chisholm later transferred to the Behavioral Health Department’s regional hospital in Atlanta. Subsequently, on October 24, 2012, Chisholm was arrested. Over the next few days, Chisholm and her husband called Chisholm’s supervisor on two occasions when she had shifts scheduled at the hospital and notified the supervisor that she would be unable to work, but did not give a reason for her absence.

After returning to work, Chisholm mentioned her arrest to a co-worker, who suggested that she do some research and find out if the Behavioral Health Department had an arrest disclosure policy. The “moment” that her co-worker made this suggestion, Chisholm researched the personnel policies on the Internet, read the disclosure policy for the first time, and immediately reported her arrest to her superiors that same day, November 5,2012. The Department does not dispute that the information that Chisholm provided to her superiors about her arrest was accurate.

Chisholm continued to work at the Atlanta hospital without incident through the end of November. However, on December 1, 2012, she e-mailed her superiors with complaints about understaffing and unsafe conditions at the hospital and requested that she be transferred to another hospital within the Behavioral Health Department. Two days later, Chisholm was informed that she had to either resign or be terminated due to her failure to report her arrest within five days as specified in the Standards of Conduct. She resigned under protest.

Chisholm applied for and initially was awarded unemployment benefits, but the Behavioral Health Department challenged the award. At the administrative hearing before an administrative hearing officer (“AHO”), Chisholm’s immediate supervisor testified that the action taken by the Department in this case was not based on Chisholm’s “work performance,” which had always “been great.” According to the supervisor, “the whole thing went to the black and white of [the] policy” requiring that an arrest be reported within five days of its occurrence, and the human resources department had made the decision that Chisholm should be terminated for violating the policy if she refused to resign. The supervisor further testified that he had been unaware that termination was even a “possibility” for failing to comply with the five-day reporting requirement.

Chisholm testified that she had been unaware of the personnel policy that arrests had to be reported to the Behavioral Health Department within five days, much less that failure to strictly comply with the time deadline could lead to termination. She conceded that during her orientation, she signed the form acknowledging that she was required to review and comply with the Department’s personnel policies, but had not reviewed the policies on her own at that time. Chisholm testified that the personnel policies were not emphasized during her orientation, and that she had been given a large number of orientation materials and had signed the acknowledgment form “like most people do” without paying “any particular attention” to the individual policies, including the policy related to the disclosure of arrests.

Lastly, an employee relations specialist with the Behavioral Health Department testified at the administrative hearing. The specialist denied that Chisholm was forced to resign as a result of her complaint over work conditions or her request for a transfer, and reiterated that Chisholm was a “great employee.” According to the specialist, the “only policy” that Chisholm had violated was the policy requiring that an arrest be reported within five days of its occurrence, and the human resources department had made the decision to terminate Chisholm for violating that policy.

Following the administrative hearing, the AHO found that Chisholm had resigned only after being informed that she would be terminated, and that, as a result, she had been discharged from her position by the Behavioral Health Department. The AHO further found that Chisholm had been discharged for her failure to comply with the personnel policy that required arrests to be reported within five days, not as retaliation for her complaints about her work conditions or her request for a transfer. The AHO noted that Chisholm had signed the acknowledgment form requiring her to review and comply with the personnel policies and went on to conclude that Chisholm was disqualified from receiving unemployment benefits under OCGA § 34-8-194 (2) (A) because of her failure “to obey orders, rules, or instructions” of her employer by not strictly complying with the five-day reporting requirement.

Chisholm appealed the AHO’s decision to the Board of Review. The Board of Review adopted the findings of the AHO and affirmed the decision that Chisholm was disqualified from receiving unemployment benefits under OCGA § 34-8-194 (2) (A). The Superior Court of DeKalb County subsequently affirmed the final decision of the Board of Review. Chisholm filed an application for discretionary appeal, which this Court granted. Chisholm now appeals, arguing that the Board of Review’s final decision to disqualify her from receiving unemployment benefits was unsupported by the administrative record.

Under OCGA § 34-8-194 (2) (A), an individual may be disqualified from receiving unemployment benefits if she is discharged by her employer “for failure to obey orders, rules, or instructions or for failure to discharge the duties for which the individual was employed as determined by the Commissioner according to the circumstances in the case.” But there is a strong public policy in favor of paying unemployment benefits to one who is discharged through no fault of her own, and, therefore, “disqualification is not appropriate unless the employer shows the discharge was caused by the deliberate, conscious fault of the claimant.” (Citation and punctuation omitted.) Davane, 300 Ga. App. at 476. See OCGA § 34-8-194 (2) (B); Millen v. Caldwell, 253 Ga. 112, 113 (317 SE2d 818) (1984); Case v. Butler, 325 Ga. App. 123, 126 (2) (751 SE2d 883) (2013); Fulton County School Dist. v. Hersh, 320 Ga. App. 808, 812 (1) (740 SE2d 760) (2013).

Furthermore,

[f]ault which is of a disqualifying nature cannot be a technical failing, a minor mistake or the mere inability to do the job. Rather, a breach of duty to constitute fault must take into consideration such factors as length of service, nature of duties, prior warnings, equal enforcement of all progressive discipline programs and any other factors which might be used to establish reasonable expectations that the discharge was imminent. The claimant must have been aware that a discharge would likely result from the violation of the rule. In the case of a discharge due to a violation of an employer’s rule, order or instruction, an employer has the burden of proving that the claimant knew or should have known that the violation of the rule, order or instruction could have resulted in termination.

(Punctuation omitted.) Ga. Comp. R. & Regs., r. 300-2-1-.01 (9) (c). See Millen, 253 Ga. at 115 (“[A] fault which is of a disqualifying nature cannot be a technical failing, a minor aberration, or the want of mere punctilio. Rather, a breach of duty, to constitute ‘fault,’ must be substantial, and such that sanction is reasonably expectable under all the circumstances of employment[.]”) (citation and punctuation omitted). Thus, an employer alleging disqualification must show that the employee had a “reasonable expectation of termination” arising from the alleged workplace violation; otherwise, “fault” for the termination is not assignable to the employee, and disqualification is inappropriate under OCGA § 34-8-194 (2) (A). Barron v. Poythress, 219 Ga. App. 775, 777 (466 SE2d 665) (1996). See Barnett v. Ga. Dept. of Labor, 323 Ga. App. 882, 885 (748 SE2d 688) (2013) (physical precedent only); Davane, 300 Ga. App. at 477. And “[although we are bound to apply the any evidence standard, whether there is fault assignable to a claimant, which is a legal requirement for disqualification, often requires a legal conclusion.” (Citation and punctuation omitted.) Case, 325 Ga. App. at 127 (2).

Here, Chisholm argues that there is no evidence in the administrative record to show that her termination was caused by her conscious, deliberate fault, or that she could have reasonably expected that her short delay in reporting her arrest would result in her termination. The Behavioral Health Department responds that Chisholm’s signing of the form acknowledging that she was required to review and comply with the personnel policies, combined with her failure to review and comply with the five-day reporting policy, was sufficient to authorize a finding of conscious, deliberate fault on her part. The Department further argues that Section D of the Standards of Conduct, which addresses the disclosure of information, put Chisholm on reasonable notice that she was subject to termination for reporting her arrest after five days had passed.

Pretermitting whether there was evidence that Chisholm’s termination was the result of conscious, deliberate fault on her part, we conclude that Chisholm could not have reasonably expected that she would be terminated for reporting her arrest to the Behavioral Health Department a few days late. The evidence is uncontroverted that Chisholm’s supervisor was pleased with her work performance, and that the sole reason for her termination was the fact that she reported her arrest to the Department seven days late under the personnel policy. It is likewise uncontroverted that Chisholm had never been informed by her supervisors or anyone else in the Department that termination could result from an employee’s failure to strictly comply with the five-day reporting requirement, and even her supervisor testified that he had been unaware that termination was a “possibility” in this context. Furthermore, there is no evidence that Chisholm’s seven-day delay in reporting had any material effect on the Department’s ability to evaluate the circumstances or seriousness of her arrest, or that the short delay caused any harm or posed any risk of harm to other hospital employees or patients. Finally, there is no evidence that Chisholm supplied any information to the Department about her arrest that was false or misleading.

In light of this record, the uncontroverted evidence shows that Chisholm’s seven-day delay in reporting was simply a “technical failing” that would not have led an employee to reasonably expect that termination would result. Ga. Comp. R. & Regs., r. 300-2-1-.01 (9) (c); Millen, 253 Ga. App. at 115. See Davane, 300 Ga. App. at 477-478 (employee could not have reasonably expected that her inability to confirm within 48 hours that she would be able to report to an out-of-town assignment would result in her termination). Compare McCauley v. Thurmond, 311 Ga. App. 636, 639 (716 SE2d 733) (2011) (concluding that employee “should have been aware that failing to meet work deadlines, entering partially blank supporting case notes, and ignoring her regional manager’s direct communications and orders subjected her to termination”). “If an employer wishes to be arbitrary about such matters, Georgia law allows it nearly free rein as far as the firing is concerned, but not as far as payment of unemployment compensation benefits to the ex-employee is concerned.” (Citation and punctuation omitted.) Davane, 300 Ga. App. at 478.

Decided October 3, 2014.

Michael P. Pryor, for appellant.

Samuel S. Olens, Attorney General, Bryan K. Webb, Senior Assistant Attorney General, Romy D. Smith, Kimberly B. Lewis, Assistant Attorneys General, for appellees.

In reaching this conclusion, we are unpersuaded by the Behavioral Health Department’s argument that Section D of the Standards of Conduct provided Chisholm with reasonable notice that she would be subject to termination for reporting her arrest a few days late. Section D.2, which requires that arrests or convictions be reported to the Department within five days, simply states that “[a] determination of appropriate action will be made on a case by case basis.” Nothing in Section D.2 would cause an employee to reasonably suspect that termination would result from a short, immaterial delay in reporting an arrest. This is particularly true when Section D.2 is contrasted with Section D.l, which expressly states that “separation of an employee” from the Department “may” result from an employee’s falsification or misrepresentation of information about her criminal history, and “will” result if the information falsified or misrepresented is “material.” Reading Sections D.l and D.2 together, an employee would reasonably expect that a mere technical violation of Section D.2 would result in a less serious sanction than “separation” from employment.

Under these combined circumstances, Chisholm had no reasonable expectation of termination, and “fault” for her discharge could not be assigned to her. It follows that the Department of Behavioral Health failed to carry its burden of showing that Chisholm was disqualified from unemployment benefits under OCGA § 34-8-194 (2) (A). “As [the Department] did not carry its burden of showing that [Chisholm] came within the disqualification exception, she is entitled under the law to unemployment compensation and the superior court erred in affirming the denial of benefits.” (Citation and punctuation omitted.) Davane, 300 Ga. App. at 478.

Judgment reversed.

Boggs and Branch, JJ., concur.

       Chisholm was arrested for failing to appear in court on charges of making harassing telephone calls. The charges stemmed from a dispute between Chisholm and the owner of the personal care home where her disabled daughter lived over the proper care and treatment of her daughter. The charges were later dropped.

       On appeal, Chisholm does not challenge the AHO’s finding, adopted by the Board of Review, that her termination was not in retaliation for her complaints about her work conditions or for her request to transfer to another hospital.


source: Caselaw Access Project

author: Miller, Judge.

license: Public Domain

text:
    A14A0868.
    WOFFORD v. THE STATE.
    (764 SE2d 437)
   Miller, Judge.

Following a jury trial, Chad Randall Wofford was convicted of three counts of aggravated child molestation (OCGA § 16-6-4 (c)) and one count of child molestation (OCGA § 16-6-4 (a) (1)) against his girlfriend’s two daughters, V. H. and O. H. Wofford, in an out-of-time appeal, contends that (1) the evidence was insufficient to support his convictions; (2) the State failed to prove venue; (3) the trial court erred in refusing to strike a juror; (4) the trial court’s instruction to the jury on witness credibility was erroneous; and (5) trial counsel rendered ineffective assistance. For the reasons that follow, we affirm.

On appeal from a criminal conviction, we view the record in the light most favorable to the conviction. The relevant facts are set forth in State v. Wofford, 321 Ga. App. 249 (739 SE2d 110) (2013), which provides as follows:

During the time period alleged in the indictment, between January 1,2004 and September 19,2005, Wofford lived with his girlfriend, V. H. and O. H.’s mother. The girls lived out of state with their father during the 2004-2005 school year and thus attended school there during that school year. There were ongoing child custody issues, and at some point, the girls returned to live with their mother (and Wofford) in Georgia, where they began the 2005-2006 school year.
On August 29, 2005, then nine-year-old V. H. was sent from her classroom to the school counselor’s office. V. H. had gotten into trouble in her fourth grade class, and she was angry. During her session with the counselor, V. H. said that Wofford had touched her private parts. The counselor asked her where Wofford had touched her, and V. H. pointed from her neck to her knees and indicated that the touching had been underneath her clothing. V. H.’s mother was summoned to the school, and V. H. repeated her claim to her mother. The counselor called the police and spoke to a police officer. No police officer came to the school; instead, the mother took both V. H. and her younger daughter, then seven-year-old O. H. who was in the second grade, from the school so that they could go to the police station.
At about 6:00 p.m., the three of them arrived at the police station. A police officer interviewed each girl separately. When the officer was distinguishing between the truth and imagination, V. H. told him that people had not believed her when she told them that she had once gotten a portal to open into a magical realm, but that when she tried to jump through it, she got her shoes wet because the portal had closed.
Regarding her allegation made earlier that day, V. H. told the officer that she had reported to the school counselor that Wofford had given her a “bad touch.” Specifically, V. H. said, Wofford had given her a backrub, which she considered a “bad touch” because her father had never given her a backrub. The officer asked V. H. whether she wanted to tell him anything else, and she said no.
Similarly, when the officer interviewed O. H., she said that Wofford had given her a backrub. O. H. volunteered that, earlier that day, she had reported such to the school counselor, adding that her father had never given her a backrub. Having already been apprised that O. H. was perhaps a witness, but not an alleged victim, the officer ended the interview with O. H. The officer closed the investigation as to both girls, concluding that there was insufficient cause to proceed. Both interviews had been recorded onto a DVD, which was played at trial for the jury.
About two weeks later, on the afternoon of Friday, September 16, the school psychologist met with V. H. to evaluate whether the child, who had received special educational services during a prior school year, remained eligible for services that school year. During that evaluation, V. H. told the psychologist that she had lied to police concerning Wofford and that Wofford had done bad things to her. Then V. H. refused to talk further about it. The psychologist testified that, at school, V. H. was “oppositional to teachers, to staff. She would do things to get out of trouble, so in that regard she was manipulative. Whenever she was in trouble, she would try to manipulate the situation to get out of trouble.” Further, the psychologist described that when she met with V. H., the child sometimes “made fantastical types of statements. She had a very active fantasy world. .. . She would tell stories that involved witches, warlocks, having a friend who could read other people’s minds, those types of things.” Nevertheless, the psychologist relayed to the school’s assistant principal V. H.’s claim that she had lied to police.
The following Monday morning, September 19, the school’s assistant principal met with V. H., who told her that she had lied to police. V. H. was ushered back to the counselor’s office. The child was again very upset. After the assistant principal left, V. H. told the counselor that she had lied to the police. The counselor asked V. H. to write down what had happened. V. H. wrote that Wofford had licked her breast and vagina, rubbed his penis on her vagina, that white liquid had come out of his penis, and that he had made her watch videos of individuals having sex; V. H. also wrote that Wofford had done these acts at night, when her mother was at work. The counselor called the police again. This time, the counselor did not call the child’s mother.
A police detective with specialized training in investigating child physical and sexual abuse went to the school and talked with the counselor, was given V. H.’s handwritten note, and separately interviewed V. H. and O. H. V. H. affirmed that she had written the note he had received from the counselor. When O. H. was interviewed, she said that she had something to report, but did not feel comfortable speaking it. So she wrote that Wofford had licked her breasts and private part and that Wofford had done something to her sister V. H., but she did not know what. The detective took both girls to a sexual assault center to proceed with extensive interviews and physical examinations. (The detective also contacted the children’s mother, as well as the Department of Family and Children Services (DFCS).) Meanwhile, V. H. wrote a second note: “Dear mommy, I’m sorry that I lied. Love, [V. H.].” V. H. never gave the note to her mother; instead, the note was soon passed to the detective.
At the sexual assault center, the police detective interviewed each girl separately. V. H. said that, on numerous occasions, Wofford had touched her vagina, put his mouth on her vagina and breasts, and forced her to put her mouth on his penis. She said that she had touched Wofford’s penis and described it with words such as “hard,” “rubbery,” and “squishy.” Five or six times, V. H. recounted, Wofford’s penis had “squirted” what she described as “white liquid” that was “warm” and also “sticky.” V. H. claimed that, about a month before, Wofford had tried to put his penis in her vagina. The sexual encounters with Wofford, V. H. estimated, had been going on for about a year, typically occurring when her mother was at work. She said that Wofford had threatened to harm her if she ever told anyone about what he was doing. During the interview, V. H. was asked about the note she had written to her mother; the child said that, when she previously told the (first investigating) officer that Wofford had only given her a backrub, she was lying for her mother; the child expressed concern that DFCS and the “court” would get involved with their family and that her mother would lose custody of her. In addition, V. H. said, her mother had “bribed” her with candy and “McDonald’s.” The interview was recorded onto a DVD, which was played at trial for the jury.
When the police detective interviewed O. H., she said that Wofford had massaged her buttocks inside her panties and had touched and licked her vagina. She stated that this had occurred about three months before, when she was on a school break. She also claimed that, in her presence, Wofford had watched movies that depicted adults having sex, that he had “tickled” his private part, and that white liquid had come out of his private part. O. H. told the detective that, two or three times, Wofford had squeezed her hand around his private part, which she described as “squishy,” with “bones” in it, and soft on the top. The child described that Wofford had used a sexual device on her, at one point inserting it into her vagina. O. H. said that she had not told the truth when she previously talked to a police officer because talking to people she did not know made her nervous and because she was afraid that Wofford would go to jail. This interview was recorded onto a DVD, which was played at trial for the jury.
That same day, September 19, 2005, each girl was examined by a nurse who was qualified at trial as an expert in sexual assault medical examinations. The nurse testified that V. H. had told her that Wofford had touched her inappropriately, that his private part had touched her private part, that Wofford had placed her mouth on his penis, that she had seen sticky, white liquid come out of his penis, and that he had threatened her not to tell anyone. O. H. told the nurse that Wofford had licked her private part and had made her touch and rub his penis. The nurse found no sign on either girl of vaginal penetration or residual injury. But according to the nurse, in cases of delayed reporting, which the nurse defined as reporting more than 72 hours after an alleged sexual incident, “only in [five] percent of the time do we find injury.”
The next week, the police detective interviewed V. H. again. During that interview, V. H. said that Wofford had touched her private part with a vibrating machine.
V. H. and O. H. testified at trial. V. H. was then 13 years old and testified that Wofford had rubbed his penis on her vagina and inserted it into her vagina, rubbed a vibrator on her vagina and inserted it into her vagina, forced her mouth onto his penis, and placed his mouth on her vagina. These incidents occurred when her mother was at work. Wofford had threatened her that he would kill her, her mother, her sister, and her grandmother if she told anyone. Angry at Wofford because of what he was doing to her and wanting him out of the home, she would make up “random excuses” to her mother about why Wofford should have been made to leave. Meanwhile, she resolved to otherwise deal in secret with Wofford’s sexual abuse. But when she suspected that he also had been inappropriately touching O. H., she exposed Wofford’s sexual abuse because she wanted to protect her younger sister.
V. H. was asked at trial why, after initially stating to the school counselor that Wofford had touched her inappropriately, she told the police officer that Wofford had only given her a backrub. She answered that, on the way to the police station, her mother promised her candy and “McDonald’s” if she would say that Wofford had only given her an uncomfortable backrub and had not touched her underneath her clothing. V. H. testified that what she said to the first police officer — that Wofford had only given her a backrub atop her clothing — was a lie. Additionally, V. H. revealed at trial that, during that time (August and September [2005]), her parents were battling over child custody issues and she was worried that she would be taken from her mother and sent to live with her father, which she did not want. But even after recanting her initial allegation, she testified at trial, she again told school personnel about Wofford’s conduct, and she acknowledged at trial that she had written the note: “Dear mommy, I’m sorry that I lied. Love, [V. H.].”
O. H. was [12] years old at trial. She testified that on various occasions during the time Wofford lived with them, he licked her vagina, rubbed his private part against her private part, masturbated in her presence while watching a pornographic movie, and placed her hand on his private part one night while she pretended to be asleep. She had never told her mother about these sexual encounters until after Wofford was arrested because V. H. had told her that Wofford had threatened to kill her mother if either one of them told.

Wofford, supra, 321 Ga. App. at 249-253.

1. Wofford contends that the evidence is insufficient to support his convictions given the inconsistencies and contradictions in V. H.’s and O. H.’s testimony and their prior statements and the lack of physical evidence. We disagree.

“A person commits the offense of child molestation when such person ... does any immoral or indecent act... in the presence of or with any child under the age of 16 years with the intent to arouse or satisfy the sexual desires of either the child or the person[.]” OCGA § 16-6-4 (a) (1). To prove that Wofford was guilty of aggravated child molestation, the State was required to establish that he committed child molestation involving “an act of sodomy.” OCGA § 16-6-4 (c). “Sodomy requires contact between the sex organs of one person and the mouth or anus of another.” (Citation and punctuation omitted.) Green v. State, 249 Ga. App. 546, 549 (1) (a) (547 SE2d 569) (2001).

Wofford was charged with two counts of aggravated child molestation against V. H. based on his acts of placing her mouth on his penis (Count 2) and placing his mouth on her vagina (Count 3). He was also charged with one count of child molestation against V. H. based on his act of touching her vagina with a vibrator (Count 5).

At the time of trial, V. H. was 13 years old. V. H. testified that Wofford touched her body from her breasts to her vagina with his mouth, penis, and hands, and a vibrator. V. H. also testified that Wofford rubbed his penis on her vagina, placed his mouth on her vagina, made her place her mouth on his penis, and placed a vibrator on and inside her vagina.

Wofford was charged with one act of aggravated child molestation against O. H. based on his act of placing his mouth on her vagina (Count 4). At the time of trial, O. H. was 12 years old. O. H. testified that Wofford licked her vagina, rubbed his penis against her, masturbated in front of her, and put her hand on his penis.

The victims’ testimony alone is sufficient to sustain Wofford’s convictions. See Newton v. State, 296 Ga. App. 332, 335 (1) (a) (674 SE2d 379) (2009); see also former OCGA § 24-4-8. While Wofford cites to inconsistencies and conflicts in the victims’ testimony and their prior statements, it is the jury’s role to resolve these inconsistencies and conflicts. See Newton, supra, 296 Ga. App. at 335 (1) (a). As to the lack of physical evidence, the “lack of corroboration only goes to the weight of the evidence and the credibility of the testifying witness, which is solely within the purview of the jury.” (Citation and punctuation omitted.) Manuel v. State, 289 Ga. 383, 385 (1) (711 SE2d 676) (2011). Accordingly, the evidence was sufficient to authorize a jury to find Wofford guilty beyond a reasonable doubt of child molestation and aggravated child molestation.

2. Wofford contends that the State failed to prove venue in Gwinnett County. We disagree.

Generally, a criminal action must be tried in the county in which the crime was committed, and the State may establish venue by whatever means of proof are available to it, including direct and circumstantial evidence. As an appellate court, we view the evidence in a light most favorable to support the verdict and determine whether the evidence was sufficient to permit a rational trier of fact to find beyond a reasonable doubt that the crime was committed in the county where the defendant was indicted.

(Citations omitted.) Chapman v. State, 275 Ga. 314, 317 (4) (565 SE2d 442) (2002).

Here, the victims testified that at the time of the offenses, they lived in an apartment and attended school where Jennifer Clabaugh worked. Other evidence showed that Clabaugh was a school counselor at Peachtree Elementary School, which is part of the Gwinnett County School System, and the victims were registered as living at 3846-A Elm Side Village Lane in Norcross when they attended Peachtree Elementary. A Gwinnett County Police Department Officer who conducted the investigation testified that the Norcross apartment was located in Gwinnett County. Based on the above evidence, the jury was authorized to conclude that the crimes occurred in Gwinnett County. See Ogletree v. State, 322 Ga. App. 103, 108 (1) (b) (744 SE2d 96) (2013) (holding that victim’s testimony that abuse occurred at a party coupled with witness’s testimony that party occurred in Troup County proved venue).

3. Wofford next contends that the court erred when it refused to strike Juror No. 38 from the jury pool. We do not agree.

For a juror to be excused for cause, it must be shown that he or she holds an opinion of the guilt or innocence of the defendant that is so fixed and definite that the juror will be unable to set the opinion aside and decide the case based upon the evidence or the court’s charge upon the evidence. A trial court’s determination as to whether to strike a juror for cause will not be set aside absent some manifest abuse of the court’s discretion. An appellate court must pay deference to the finding of the trial court and this deference includes the trial court’s resolution of any equivocations or conflicts in the prospective juror’s responses on voir dire. The fact that at some point during voir dire, a prospective juror expressed some doubt as to her own impartiality does not demand as a matter of law that she be excused for cause.

(Citations and punctuation omitted.) Leonard v. State, 292 Ga. 214, 216-217 (3) (735 SE2d 767) (2012).

During voir dire, Juror No. 38 expressed concerns about his ability to be fair, given the nature of the charges against Wofford. Specifically, Juror No. 38 said that when he heard the charges, he put his own daughters in the position of the victims. However, he reiterated multiple times that he thought he could listen to the facts and evidence and apply the law to the facts of the case in a fair and impartial manner. Juror No. 38 also indicated, in response to questions from both the State and defense counsel, that he had not made up his mind about the case. The trial court denied Wofford’s challenge for cause, finding that Juror No. 38’s responses indicated that he was not biased and had not prejudged the case.

The fact that Juror No. 38 expressed, at one point, some doubt in his ability to be impartial does not require that he be excused for cause. Leonard, supra, 292 Ga. at 216-217 (3). “Nor is excusal required when a potential juror expresses reservations about his or her ability to put aside personal experiences.” (Citation omitted.) Holmes v. State, 269 Ga. 124, 126 (2) (498 SE2d 732) (1998). As Juror No. 38’s opinion was not so fixed and definite that the juror would be unable to decide the case based upon the evidence and the court’s instructions, the trial court did not abuse its discretion in refusing to strike the juror for cause. See Amador v. State, 310 Ga. App. 280, 281-282 (1) (713 SE2d 423) (2011) (upholding trial court’s refusal to strike a juror who indicated that it would be difficult to be impartial in a case involving allegations of abuse against a child, but that she could follow the court’s instructions).

4. Wofford contends that the trial court erred in instructing the jury that it could consider intelligence in deciding witness credibility. We discern no error.

The trial court charged the jury:

As you pass upon the witnesses’ credibility, you should consider all the facts and circumstances of this case. You may consider the [witnesses’] manner of testifying. You may consider their intelligence, their interest or lack of interest in the result of the case. You may consider [the witnesses’] means and opportunity for actually knowing the facts they testified about. You may consider the very nature of the facts they testified about. You may consider the probability or the improbability of their testimony and the occurrences they testified about. You may consider any [witness’s] personal credibility if it legitimately appeared to you from the trial of this case.

Wofford did not object to the instruction.

Where, as here, there is no objection to a jury charge as given, the defendant must show plain error. See OCGA § 17-8-58 (b); White v. State, 291 Ga. 7, 8 (2) (727 SE2d 109) (2012). “Under this standard, we must determine whether there is an error that has not been affirmatively waived, is clear and obvious, affects the defendant’s substantial rights, and seriously affects the fairness, integrity or public reputation of the judicial proceedings.” (Citation omitted.) Hickey v. State, 325 Ga. App. 496, 498-499 (2) (753 SE2d 143) (2013).

This charge was substantially similar to the pattern jury instruction on credibility. See Suggested Pattern Jury Instructions, Vol. II: Criminal Cases (4th ed.), § 1.31.10, quoted in McKenzie v. State, 293 Ga. App. 350, 351-352 (2) (667 SE2d 142) (2008). This Court has held that the pattern instruction should not include a reference to intelligence as that portion is problematic and confusing. McKenzie, supra, 293 Ga. App. at 352 (2). Nonetheless, the charge is not so harmful as to require reversal. Howard v. State, 288 Ga. 741, 746-747 (6) (707 SE2d 80) (2011) (inclusion of intelligence as one of the factors in credibility charge does not amount to plain error); McKenzie, supra, 293 Ga. App. at 352 (2). Accordingly, Wofford has failed to show plain error.

5. Wofford contends that his trial counsel was ineffective. We disagree.

In order to prevail on a claim of ineffective assistance, [Wofford] must show that counsel’s performance was deficient and that the deficient performance so prejudiced [Wofford] that there is a reasonable likelihood that, but for counsel’s errors, the outcome of the trial would have been different. [Wofford] must overcome the strong presumption that counsel’s conduct falls within the broad range of reasonable professional conduct. In reviewing a lower court’s determination of a claim of ineffective assistance of counsel, an appellate court gives deference to the lower court’s factual findings, which are upheld unless clearly erroneous; the lower court’s legal conclusions are reviewed de novo.

(Citations and punctuation omitted.) Hampton v. State, 279 Ga. 625, 626-627 (619 SE2d 616) (2005).

(a) First, Wofford contends that his counsel was ineffective in failing to object to the admission of V. H.’s prior consistent statements.

The Child Hearsay Statute as set out in former OCGA § 24-3-16 provides that the out-of-court statement of a

child under the age of 14 years describing any act of sexual contact or physical abuse performed with or on the child by another or performed with or on another in the presence of the child is admissible in evidence by the testimony of the person or persons to whom made if the child is available to testify in the proceedings and the court finds that the circumstances of the statement provide sufficient indicia of reliability.

Here, V. H.’s school counselor testified that after the initial investigation was closed, she met with V. H., and V. H. told her that she had lied to police. The counselor asked V. H. to write down what had happened, and V. H. did so. V. H. wrote that Wofford licked her breast and vagina, rubbed his penis on her vagina, ejaculated, and made her watch pornography, and she saw Wofford masturbating and watching pornography with O. H., who was nude. The trial court admitted V. H.’s written statement into evidence without objection.

Wofford contends that his trial counsel erred in failing to object to the portion of V. H.’s note regarding the abuse she witnessed Wofford commit against O. H. Pretermitting the issue of whether counsel erred, Wofford has not shown prejudice from trial counsel’s failure to object to the admission of V. H.’s note. Both V. H. and O. H. testified at trial and were cross-examined about their prior statements, and videotapes of both girls’ interviews were played for the jury. Thus, the jury was allowed to form its own assessment of V. H.’s and O. H.’s credibility. See Damerow v. State, 310 Ga. App. 530, 537 (4) (a) (i) (714 SE2d 82) (2011). Notably, the jury acquitted Wofford of the charge that he raped V. H., indicating that the jury was able to objectively consider the evidence. See id. Accordingly, Wofford has not shown that the result of his trial would have been different if V. H.’s prior statement had not been admitted.

(b) Wofford also contends that his counsel was ineffective in failing to object to the jury instruction on intelligence. As discussed above, no reversible error occurred with respect to the jury charge. Accordingly, Wofford cannot succeed on his alternative claim that trial counsel rendered ineffective assistance in failing to object to that instruction. See Howard, supra, 288 Ga. at 747 (6).

(c) Wofford also argues that his counsel rendered ineffective assistance in failing to file a motion for discharge and acquittal sooner and failing to present evidence that the delay prejudiced defendant and that, but for these errors, the outcome of Wofford’s first appeal in Wofford v. State, 299 Ga. App. 129 (682 SE2d 125) (2009), would have been different.

Every constitutional speedy trial claim is subject to a two-tiered analysis as set forth in the United States Supreme Court decisions Barker v. Wingo, 407 U. S. 514 (92 SC 2182, 33 LE2d 101) (1972) and Doggett v. United States, 505 U. S. 647 (II) (112 SC 2686, 120 LE2d 520) (1992). As for the first tier of the analysis, it must be determined if the delay in question is presumptively prejudicial. If not, there has been no violation of the constitutional right to a speedy trial and the second tier of analysis is unnecessary. If, however, the delay is determined to be presumptively prejudicial, then the [trial] court must engage the second tier of analysis by applying a four-factor balancing test to the facts of the case. Those four factors include: (1) whether the delay is uncommonly long; (2) reason for delay/whether the government or the defendant is more responsible; (3) defendant’s assertion of the right to a speedy trial; and (4) the prejudice to the defendant. On appeal, the relevant standard of review is whether the trial court abused its discretion.

(Citations omitted.) Rafi v. State, 289 Ga. 716, 716-717 (2) (715 SE2d 113) (2011).

Wofford specifically asserts that he was prejudiced by the delay in trial because a psychologist, Lori Francis, who interviewed V. H. around the time of the offense and prepared a report, died before trial, and trial counsel could not, therefore, introduce her report at trial. In order to establish prejudice however, Wofford must “present specific evidence showing that the unavailable witness could supply material evidence for the defense.” (Citation and punctuation omitted.) Hill v. State, 315 Ga. App. 833, 840 (2) (b) (4) (729 SE2d 1) (2012). Wofford has made no proffer as to what Francis would have specifically testified about or why that testimony would have been favorable to the defense. See State v. Porter, 288 Ga. 524, 530 (2) (c) (4) (705 SE2d 636) (2011) (holding that the defendant failed to show prejudice where he did not show that a missing witness would have provided testimony favorable and relevant to his defense). Accordingly, Wofford has not shown that the delay in trial prejudiced his case and, on this record, there is no reason to believe that the outcome of his speedy trial motion would have been different but for counsel’s alleged errors.

(d) Wofford also asserts that the outcome of his trial would have been different if counsel had subpoenaed two teachers who knew V. H. and O. H. This Court considered this very argument in Wofford’s second appeal, and concluded that trial counsel was not ineffective in failing to subpoena these teachers. Wofford, supra, 321 Ga. App. at 254, 258-259 (1) (a). This ruling is therefore the law of the case, and we will not reconsider the matter. See Hicks v. McGee, 289 Ga. 573, 578 (2) (713 SE2d 841) (2011) (any ruling by the Court of Appeals shall be binding in all subsequent proceedings in that case).

(e) Wofford also argues that appellate counsel was ineffective in failing to file a cross-appeal in Wofford, supra, 299 Ga. App. 129. This argument is nonsensical, since Wofford was the appellant in that case. It appears that Wofford means to assert that his appellate counsel was ineffective in filing a cross-appeal in Wofford, supra, 321 Ga. App. 249, but he does not point to any claims that he would have raised there that have not been considered in the instant appeal.

Decided October 3, 2014.

Kenneth L. Gordon, for appellant.

Daniel J. Porter, District Attorney, Robby A. King, Assistant District Attorney, for appellee.

(f) Finally, Wofford contends that this Court should consider the cumulative effect of counsel’s errors and hold that counsel was ineffective.

We “evaluate only the effects of matters determined to be error, not the cumulative effect of non-errors.” Bulloch v. State, 293 Ga. 179, 183 (2) (744 SE2d 763) (2013). Here, even if trial counsel and appellate counsel were deficient in some respects, there is no reasonable probability that, but for those deficiencies, the outcome of Wofford’s trial and appeals would have been different. See id.

In sum, the evidence was sufficient to support Wofford’s convictions, the State proved venue, the trial court did not err in refusing to strike Juror No. 38, the court’s instruction on witness credibility did not require reversal, and Wofford failed to show prejudice from counsels’ alleged deficiencies. Accordingly, we affirm Wofford’s convictions.

Judgment affirmed.

Doyle, P. J., and Dillard, J., concur.

       The jury found Wofford not guilty of one count of rape (OCGA § 16-6-1) against V. H.

       This case has a long and complicated procedural history. Wofford was indicted in December 2005. In May 2008, Wofford filed a motion for discharge and acquittal on speedy trial grounds. This Court affirmed the trial court’s denial of Wofford’s speedy trial motion in Wofford v. State, 299 Ga. App. 129 (682 SE2d 125) (2009). The case proceeded to trial and Wofford was convicted. The trial court thereafter granted Wofford’s second amended motion for new trial on the basis that trial counsel was ineffective in failing to call two witnesses who would have testified to V. H.’s character and reputation for truthfulness. The State appealed, and this Court reversed in State v. Wofford, 321 Ga. App. 249 (739 SE2d 110) (2013), holding that trial counsel was not ineffective. Wofford thereafter filed a motion for an out-of-time appeal, which the trial court granted, permitting Wofford to file the instant appeal.

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

       Although Wofford renewed objections to the charge that he made at the charge conference, he had not objected to the jury instruction on witness credibility.

       Effective January 1, 2013, the law governing child hearsay is now codified at OCGA § 24-8-820.

       At the hearing on Wofford’s motion for new trial, trial counsel testified that he failed to object to the portion of V. H.’s note detailing the abuse she witnessed because counsel was unfamiliar with Woodard v. State, 269 Ga. 317 (496 SE2d 896) (1998), which had struck down the portion of the Child Hearsay Statute that allowed hearsay evidence from a child who witnesses molestation. Accordingly, at the time of Wofford’s trial in 2009, V. H.’s statements detailing the abuse she witnessed against O. H. were inadmissible under Woodard, although the portion of Woodard striking down the statute was later overruled in Bunn v. State, 291 Ga. 183 (728 SE2d 569) (2012).


author: ANDREWS, Presiding Judge.

text:
    A14A0966.
    CHAVEZ v. THE STATE.
    (764 SE2d 447)
   ANDREWS, Presiding Judge.

A Gwinnett County jury found Antonio Cacique Chavez guilty of one count of rape (OCGA § 16-6-1), one count of aggravated sexual battery (OCGA § 16-6-22.2), two counts of aggravated child molestation (OCGA § 16-6-4 (c)), and one count of child molestation (OCGA § 16-6-4 (a)). The trial court denied Chavez’s motion for new trial as amended, and Chavez appeals, arguing that he received ineffective assistance of trial counsel due to a host of alleged errors. We affirm.

Viewed in a light most favorable to the jury’s verdict, the evidence adduced at trial revealed that the victim lived with her mother, brothers, sister-in-law and nephew at a residence in Gwinnett County. The family moved to the house when the victim was approximately eight years old. At the same time, Chavez moved into the residence and subsequently began a sexual relationship with the victim’s mother. Initially, the victim liked Chavez because he played games with her and helped take care of her when her mother worked a night-shift job. Her feelings for Chavez changed, however, when he did “bad stuff” to her.

The ‘Toad stuff” began with Chavez asking the victim to play with him and then removing her pants and touching her “private part” over her underwear. The incident made the victim feel “scared,” but she did not tell anyone due to Chavez’s threat that they would get in trouble. Some time thereafter, Chavez continued his abuse of the victim by putting his “private part on [the victim’s] private part” under her clothes and inserting his penis inside her vagina. The victim also explicitly described Chavez’s ejaculate, Chavez digitally penetrating her vagina and moving his fingers around, Chavez making the victim place her hands on his penis, and instances of oral intercourse in which Chavez placed the victim’s mouth on his penis and inserted his tongue in the victim’s vagina. Chavez also showed pornographic videos to the victim. These occasions made the victim feel “nasty” and made her want “to throw up.” The victim also witnessed acts of sexual intercourse between Chavez and her mother.

After several instances of abuse, the victim finally told her sister-in-law about Chavez’s actions, after which she felt “happy” and “relieved.” The sister-in-law reported the abuse to the victim’s mother, and the three of them proceeded to a local hospital where staff reported the incident to law enforcement.

At trial, the victim’s second cousin testified as a similar transaction witness. Chavez lived with the cousin’s family in Kansas and was evicted when his abuse of the cousin was discovered; Chavez then moved in with the victim and her family in Gwinnett County. The cousin described a similar initial affection for Chavez, followed by instances of sexual abuse culminating in her outcry to her brother and parents and resulting in Chavez’s expulsion from their home.

In his sole enumeration of error, Chavez contends that he received ineffective assistance of trial counsel.

Under Georgia law,

[t]o obtain reversal of a conviction based on a claim of ineffective assistance of counsel, a defendant has the burden of proving that counsel’s performance was deficient, and that, but for the deficiency, there was a reasonable probability the outcome of the trial would have been different. To establish deficient performance, a defendant must show that counsel’s performance fell below an objective standard of reasonableness under the circumstances confronting counsel at the time without resorting to hindsight. In considering adequacy of performance, trial counsel “is strongly presumed to have rendered adequate assistance and made all significant decisions in the exercise of reasonable professional judgment.”

(Citations and punctuation omitted.) Reyes v. State, 322 Ga. App. 496, 502 (5) (745 SE2d 738) (2013). If an appellant fails to satisfy either prong of the test for ineffective assistance of counsel, it is not incumbent upon this Court to examine the other prong. See, e.g., Thomas v. State, 318 Ga. App. 849, 857 (5) (734 SE2d 823) (2012).

1. Failure to Object to Testimony by Corporal Edwin J. Ritter.

First, Chavez argues that trial counsel was ineffective for failing to object to testimony by Gwinnett County Sheriff’s Corporal Edwin J. Ritter that commented on the victim’s credibility. Specifically, Chavez highlights the following testimony during Ritter’s cross-examination:

Q. Some of the things that you mentioned specifically when you talked about the recording that you did here, there’s always a concern about coaching, that the child has been coached. Was there anything in that interview that gave you the impression that that had happened, the mother’s information perhaps?
A. I was a little concerned at first when I was establishing a rapport with [the victim] when she just came out and said that the defendant made her — or did these things to her.
Q. What about the language she used when she said he’s the person I have a problem with?
A. Yeah. I questioned that in my mind. And then later on in the interview when she was able to give specific details that would be age inappropriate, I believed what was going on.

(Emphasis supplied.) The question followed other questions from Chavez’s counsel concerning Ritter’s experience with victims “who made allegations that, in your opinion, were false” and Ritter’s training related to questioning victims to limit influencing the victim’s story. Trial counsel did not object to Ritter’s statement that he “believed what was going on.”

It is true that “[t]he credibility of a witness is a matter to be determined by the jury under proper instructions from the court,” OCGA § 24-9-80 (2010), and that witnesses may not opine whether a party is telling the truth. See Shelton v. State, 251 Ga. App. 34, 38 (3) (553 SE2d 358) (2001). The jury in this case was so charged. However, Ritter’s testimony simply responded to Chavez’s counsel’s inquiries concerning Ritter’s training and whether the victim may have been coached. Moreover, the victim testified and was subject to cross-examination, and the video recording of the victim’s interview was presented to the jury, allowing it to independently evaluate her credibility. Regardless of whether trial counsel should have objected to Ritter’s testimony, in view of the overwhelming evidence of Chavez’s guilt, we cannot say that Ritter’s limited statement affected the outcome of the trial. See Jones v. State, 292 Ga. 593, 600 (7) (d) (740 SE2d 147) (2013); Damerow v. State, 310 Ga. App. 530, 536-537 (4) (a) (i) (714 SE2d 82) (2011); Brock v. State, 183 Ga. App. 277, 279 (358 SE2d 613) (1987). Chavez has therefore failed to show a reasonable probability that he would not have been convicted but for the error, and, accordingly, ineffective assistance of trial counsel has not been shown on this basis.

2. Failure to Object to Burden Shifting in Prosecutor’s Closing Argument.

Next, Chavez contends that he received ineffective assistance of trial counsel due to counsel’s failure to object to comments by the prosecutor that allegedly shifted the burden of proof to the defense. He likewise complains that trial counsel rendered ineffective assistance by failing to preserve the issue for appeal following a subsequent objection. We are not persuaded.

During closing arguments, while referring to Chavez’s testimony, the prosecuting attorney argued that, “[y]ou know, ladies and gentlemen, you’ve got to give me a reason. If you’re going to find this man not guilty, you got to give me a reason why not one but two girls would make this up about him.” Trial counsel did not object to this statement. Later in the prosecutor’s argument, he stated, “I mean, ladies and gentlemen, you have to give me a reason to acquit, but you can’t. And you shouldn’t be concerning yourselves with questions about why a child would lie.” Trial counsel objected and asked to approach the bench. The ensuing bench conference was not transcribed, and the record contains neither a ruling on trial counsel’s objection nor a request for a curative instruction or any other remedial measure.

“[A] prosecutor is granted wide latitude in the conduct of closing argument, the bounds of which are in the trial court’s discretion.” Matthews v. State, 294 Ga. 50, 53 (3) (b) (751 SE2d 78) (2013). Here, the prosecutor’s statement was merely an interpretation of the trial court’s charge on the definition of reasonable doubt (“A reasonable doubt is a doubt based upon common sense and reason. It does not mean a vague or arbitrary doubt, but is a doubt for which a reason can be given.”). Irrespective of whether Chavez’s trial counsel erred in not obj ecting to the argument or in failing to preserve alleged error for appeal, however, we find no prejudice. To the contrary, the record confirms that

the trial court fully and correctly instructed the jury on the burden of proof. Thus, even if defense counsel would have objected to the prosecutor’s statements, the outcome of the trial would not have been different. Qualified jurors under oath are presumed to follow the instructions of the trial court.

(Citations and punctuation omitted.) Davis v. State, 294 Ga. 486, 488 (3) (b) (754 SE2d 67) (2014). See also Jeffers v. State, 290 Ga. 311, 312-313 (3) (721 SE2d 86) (2012); Mikell v. State, 286 Ga. 722, 724 (2) (a) (690 SE2d 858) (2010). Hunt v. State, cited by Chavez, does not compel a different result. 268 Ga. App. 568, 574 (5) (602 SE2d 312) (2004) (prosecutor’s closing argument, while improper, did not warrant reversal because error was harmless). Accordingly, Chavez’s claim of ineffective assistance due to trial counsel’s failure to object to the prosecutor’s argument or to subsequently preserve the alleged error is without merit.

3. Failure to Object to Irrelevant Law in Prosecutor’s Closing Argument and Jury Charge.

Finally, Chavez argues that trial counsel provided ineffective assistance by failing to object to irrelevant law contained in the prosecutor’s closing argument and in the trial court’s jury charge. In particular, Chavez contends that mention of the crimes of incest and aggravated sodomy — two crimes that were not charged in the indictment — “violated [his] due process rights.” Again, Chavez has failed to satisfy his burden to prove ineffective assistance of counsel.

During closing argument, the prosecutor stated:

One thing the judge will tell you is that... convictions for rape, incest, aggravated sexual battery, child molestation, aggravated child molestation and aggravated sodomy may be based upon the uncorroborated testimony of the victim, if the testimony’s sufficient to convince you, the jury, of the defendant’s guilt beyond a reasonable doubt.

After identifying each of the charges in the indictment and instructing the jury on the definition of each, the trial court included the following in its charge:

Convictions for rape, incest, aggravated sexual battery, child molestation, aggravated child molestation and aggravated sodomy may be based upon the uncorroborated testimony of the victim if the testimony is sufficient to convince you, the jury, of the defendant’s guilt beyond a reasonable doubt.

Chavez was not charged with incest or aggravated sodomy.

Generally, “[w]hen an error in the charge of the court is shown to exist, it is presumed to be prejudicial and harmful, and this court will so hold unless it appears from the entire record that the error is harmless.” Overstreet v. State, 250 Ga. App. 336, 340 (3) (551 SE2d 748) (2001). However, “[i]t is not necessary in considering a charge to assume a possible adverse construction, for a charge that is sufficiently clear to be understood by jurors of ordinary capacity and understanding is all that is required.” (Punctuation omitted.) Feblez v. State, 181 Ga. App. 567, 568 (2) (353 SE2d 64) (1987). Moreover, “[i]t is a fundamental rule in Georgia that jury instructions must be read and considered as a whole in determining whether the charge contained error.” (Punctuation omitted.) Henderson v. State, 320 Ga. App. 553, 562 (8) (740 SE2d 280) (2013).

In this case, there is no error. The legal principles stated by the prosecutor and the trial court, while referencing inapplicable criminal offenses, simply recited the basic principle that “[a] victim’s testimony, even without more, can be sufficient to sustain a conviction.” Alford v. State, 243 Ga. App. 212, 213 (1) (534 SE2d 81) (2000). See also Gibbs v. State, 256 Ga. App. 559, 560 (568 SE2d 850) (2002). Moreover, the trial court recited the charges against Chavez; read the indictment to the jury; and properly instructed the jury on the presumption of innocence, that no conviction could result “until each element of the crime as charged is proven beyond a reasonable doubt,” that the State bore the burden “to prove every material allegation of the indictment and every essential element of the crime charged beyond a reasonable doubt,” and that the burden of proof never shifts to the defendant. See Sharpe v. State, 291 Ga. 148, 151 (4) (728 SE2d 217) (2012); Wright v. State, 327 Ga. App. 451, 452 (757 SE2d 890) (2014); Henderson, 320 Ga. App. at 562 (8); Tiller v. State, 314 Ga. App. 472, 475 (3) (724 SE2d 397) (2012). The trial court also stated that

[i]f, after considering the testimony and evidence presented to you, together with the charge of the Court, you should find and believe beyond a reasonable doubt that the defendant... did... commit the offenses as alleged in the indictment, you would be authorized to find the defendant guilty.

See Tiller, 314 Ga. App. at 475 (3). Similarly, the trial court noted that the proposed verdict form set out each count of the indictment separately. Finally, the verdict form provided to the jury contained only those charges included in the indictment. See Sharpe, 291 Ga. at 151 (4); Wright, 327 Ga. App. at 452; Tiller, 314 Ga. App. at 475 (3).

When viewed in its entirety, the trial court’s charge properly limited the jury’s consideration to the offenses contained within the indictment. See Mikell, 286 Ga. at 724 (2) (b); Tiller, 314 Ga. App. at 475 (3). It necessarily follows that trial counsel’s failure to make a meritless objection does not constitute deficient performance. See Mikell, 286 Ga. at 724 (2) (b). Notwithstanding the lack of error, we further conclude that Chavez has failed to demonstrate a reasonable probability that the result would have been different but for counsel’s alleged error.

Chavez’s reliance upon Harwell v. State, 270 Ga. 765, 766 (512 SE2d 892) (1999), is misplaced because the passing mention of the inapplicable crimes did not rise to the level of a due process violation. Unlike Harwell, the indictment in this case did not charge Chavez with committing a crime in a specific manner while the trial court’s jury instruction “defines the crime as an act which may be committed in a manner other than the manner alleged in the indictment.” Id. As noted above, the trial court’s jury instruction simply recited a general proposition of law which included references to additional criminal offenses. What is clear is that the trial court never charged the jury on these additional offenses, and the jury was not exposed to the additional offenses in its review of the indictment and of the trial court’s charge in its entirety. Harwell is therefore inapplicable.

Decided October 3, 2014.

Matthew D. Crosby, for appellant.

Daniel J. Porter, District Attorney, Nigel R. Lush, Assistant District Attorney, for appellee.

In sum, on each of his allegations of ineffective assistance of counsel, Chavez has not satisfied his burden to prove that trial counsel’s performance was deficient and that, but for the deficiency, there was a reasonable probability that the outcome of his trial would have been different.

Judgment affirmed.

McFadden, J., concurs. Ray, J., concurs in Divisions 1 and 2 and in judgment only in Division 3.

       Chavez does not contest that this evidence was sufficient for a rational trier of fact to find him guilty of the crimes charged beyond a reasonable doubt. Jackson v. Virginia, 443 U. S. 307 (99 SCt 2781, 61 LE2d 560) (1979).

       In view of these factors, the testimony did not usurp the jury’s power, and Guest v. State, cited by Chavez, is therefore inapposite. 201 Ga. App. 506, 507 (1) (411 SE2d 364) (1991). See Geiger v. State, 258 Ga. App. 57, 62 (3) (e) (573 SE2d 85) (2002); Stamey v. State, 194 Ga. App. 305 (1) (a) (390 SE2d 409) (1990).

       The trial court’s jury instructions on the definition of reasonable doubt quoted verbatim the pattern charge. See Suggested Pattern Jury Instructions, Vol. II: Criminal Cases (2007), § 1.20.10.

       Although the parties submitted written requests to charge, the record does not include a charge conference during which the suspect charge was discussed.

       To accept Chavez’s argument that the jury could have convicted him based upon the passing references to incest and aggravated sodomy, we would be required to conclude that the jury was aware of the elements of incest and aggravated sodomy and became confused, thereafter convicting him of the wrong offenses. The record contains no such charges, and Chavez’s argument is therefore unpersuasive.


text:
    A14A1207.
    BARSTAD v. THE STATE.
    (764 SE2d 453)
   Miller, Judge.

Following a jury trial, James Barstad was convicted of burglary (OCGA § 16-7-1 (a) (2010)), theft by taking (OCGA § 16-8-2), and obstruction of an officer (OCGA § 16-10-24 (b)). Barstad appeals from the denial of his motion for new trial, alleging the following: the evidence did not support his convictions; he received ineffective assistance of counsel; and the trial court erred in sentencing him as a recidivist. After a thorough review of the record, we affirm.

“Following a criminal conviction, we view the evidence in the light most favorable to the jury’s verdict, and the defendant is no longer presumed innocent.” (Citation and punctuation omitted.) Pyburn v. State, 301 Ga. App. 372 (687 SE2d 909) (2009). So viewed, the evidence shows that between June 30 and July 6,2010, the victim and her family were on vacation. When the victim returned to her house in Douglas County, she noticed that the house had been ransacked and a window was broken. The victim discovered that the following had been stolen from her house: $300-$400 in cash, two flat screen televisions, all of the victim’s j ewelry, two Coach purses, a Wii gaming system and several Wii games. The victim also noticed an open Coke Zero can on the kitchen counter. The victim testified that the soda can was not on the counter when she left on vacation.

The victim pointed out the Coke Zero can to the investigating officer, who took the can into evidence. The can was subsequently-processed for DNA testing. The officer also surveyed the house and concluded that the assailant had entered the victim’s house via a downstairs window.

Another officer, who had been investigating a series of burglaries in Douglas County, suspected that Barstad was involved in the crimes. Barstad lived with his girlfriend, Barbara Black, during the time of the burglary in this case. The. investigating officer went to Black’s residence in late July, and she informed the officer that Barstad was in Florida. After the officer advised Black about his investigation, Black gave police officers consent to search her house. During the search, police officers discovered two watches, a pearl necklace, and a silver bracelet that the victim later identified as having been stolen from her house.

After Barstad returned from Florida, police officers returned to Black’s house in an attempt to execute an arrest warrant on Barstad. When Barstad answered the door, a police officer identified himself, informed Barstad that he had an arrest warrant, and asked Barstad to turn around and put his hands behind his back. Barstad stepped further into the house and refused to stop when requested to do so. The police officer then warned Barstad that he would use his taser if Barstad did not stop moving. Barstad continued to move toward the back of the house, and, when he reached for the back door, the police officer used his taser to subdue Barstad. Another police officer then arrested Barstad.

A buccal swab was subsequently taken from Barstad, and the buccal sample was compared to the DNA found on the Coke Zero can found in the victim’s house. A forensic scientist concluded that the DNA found inside the can was an exact match for Barstad or his identical twin.

At trial, the State presented similar transaction evidence showing that, in June 2008, Barstad committed the offense of attempted burglary in Douglas County. During that offense, a witness reported suspicious behavior when Barstad took the screen off a window to a house. Following the presentation of evidence, the jury found Barstad guilty of burglary, theft by taking, and obstruction of a law enforcement officer.

1. Barstad contends that the trial court erred in concluding that the evidence was sufficient to sustain his convictions for burglary and theft by taking. Specifically, Barstad argues that the only evidence linking him to the crimes was the DNA sample, and the State failed to exclude his brother as the perpetrator of the crimes. Barstad’s claim is wholly without merit.

A person commits the offense of burglary when, without authority and with the intent to commit a felony or theft therein, he enters orremainswithinabuildingoranyroomorpartthereof. OCGA § 16-7-1 (a) (2010). A person commits the offense of theft by taking when he unlawfully takes the property of another. OCGA § 16-8-2.

For a conviction based on circumstantial evidence to stand,

the proved facts shall not only be consistent with the hypothesis of guilt, but shall exclude every other reasonable hypothesis save that of the guilt of the accused. However, it is well established that questions of reasonableness are generally for the fact-finder and where the circumstantial evidence is sufficient to exclude every reasonable hypothesis save that of the guilt of the accused, the appellate court will not disturb the fact-finder’s guilty verdict unless it is unsupportable as a matter of law.

(Punctuation and footnotes omitted.) Roberts v. State, 309 Ga. App. 681, 683 (1) (710 SE2d 878) (2011). Evidence of recent, unexplained possession of stolen goods maybe sufficient to give rise to an inference that the defendant committed the offenses of burglary and theft by taking. See Chambers v. State, 288 Ga. App. 550, 551 (654 SE2d 451) (2007) (burglary); Jefferson v. State, 273 Ga. App. 61, 63 (1) (614 SE2d 182) (2005) (theft by taking).

In this case, Barstad’s DNA, or that of his identical twin, was found on the Coke Zero can left inside the victim’s house in which a window had been broken and numerous items stolen. There was no evidence to explain how the DNA was left at the scene of the crime other than when the offenses were committed. Although Barstad argues that the DNA could have possibly been left by his brother, a forensic biologist testified that only identical twins would have the same DNA, and there is no evidence that Barstad had an identical twin. Moreover, “[t]he State is not required to remove every possibility of innocence of the crime charged, and it is not required to disprove bare possibilities that the crime could have been committed by someone else.” (Citation omitted.) Nangreave v. State, 318 Ga. App. 437, 439 (1) (734 SE2d 203) (2012).

Nevertheless, the DNA evidence was not the only evidence from which the jury could infer Barstad’s guilt. The victim’s stolen property was found in a house where Barstad was residing, and the homeowner stated that the recovered items were not hers and that Barstad would often hide things inside her house. Additionally, when police officers tried to execute an arrest warrant on Barstad, he attempted to flee, and such evidence provides circumstantial evidence of guilt. See Durham v. State, 309 Ga. App. 444, 445 (1) (710 SE2d 644) (2011).

Based on the above evidence, along with the evidence that Barstad committed a similar offense, the jury was authorized to conclude Barstad committed the offenses of burglary and theft by taking. See Roberts, supra, 309 Ga. App. at 683 (1) (evidence sufficient to sustain conviction for burglary where defendant’s blood was found at the scene of a business that had been broken into and defendant had committed similar transactions); Jefferson, supra, 273 Ga. App. at 63-64 (1) (evidence of unexplained recent possession of stolen property and similar transactions authorized the jury to find defendant guilty of theft by taking).

2. Barstad contends that the trial court erred by sentencing him as a recidivist because the State failed to provide him with notice of the offenses it intended to use as recidivism evidence and the tendered convictions did not meet the statutory definition. We disagree.

Here, in its discovery response filed five months prior to trial, the State included Barstad’s Georgia Crime Information Center (“GCIC”) report, and the State specifically stated that all convictions would be used in aggravation of sentencing and that it would recommend a sentence of “60 years to serve 20 years pursuant to [the] repeat offender provisions of [OCGA] § 17-10-7 (c)[.]” Around the same time that it filed its discovery response, the State served Barstad with a specific notice of intent to seek repeat offender punishment, listing Barstad’s prior convictions for attempted burglary, possession of cocaine, felony shoplifting, and burglary.

At the sentencing hearing, Barstad objected to the possession of cocaine conviction, arguing that he was not the defendant listed in that case. The trial court continued the sentencing hearing to provide the State an opportunity to prove identity. At a subsequent hearing, the State conceded that the possession of cocaine conviction was erroneously listed on the notice of intent. The State then presented proof that Barstad had two felony convictions in Florida for grand theft and aggravated assault upon a police officer. Barstad conceded that he was convicted of grand theft and aggravated assault, but objected to the consideration of these convictions on the grounds that he had not been provided notice that these convictions would be used for recidivist purposes. The trial court overruled Barstad’s objection, concluding that the State had provided adequate pre-trial notice that it was seeking recidivist punishment based on, among other things, its discovery filing that included Barstad’s GCIC report and specifically indicated that it would use the convictions in that report to seek recidivist punishment. The trial court then sentenced Barstad as a repeat offender under OCGA § 17-10-7 (c), requiring him to serve the maximum sentence for burglary without the eligibility for parole until he served the maximum sentence.

(a) Barstad’s argument that he was not provided adequate notice is without merit. OCGA § 17-16-4 (a) (5) provides:

The prosecuting attorney shall, no later than ten days prior to trial, or at such time as the court orders but in no event later than the beginning of the trial, provide the defendant with notice of any evidence in aggravation of punishment that the [S]tate intends to introduce in sentencing.

In this case, the State provided notice several months before trial that it was seeking recidivist punishment and attached Barstad’s GCIC report. This Court has repeatedly held that convictions listed on an attached GCIC report suffice as proper notice of aggravating sentencing evidence. See, e.g., Parks v. State, 294 Ga. App. 646, 652 (11) (669 SE2d 684) (2008); Young v. State, 245 Ga. App. 684, 686-687 (3) (538 SE2d 760) (2000).

Barstad provides no authority, nor could we find any, to support his contention that the State’s ability to pursue recidivist punishment is strictly limited to those convictions it listed in its specific intent notice. Notwithstanding Barstad’s contentions, the sufficiency of the State’s notice is a matter of substance over form, because “[t]he important requirement is that the defendant be given an unmistakable advance warning that the prior convictions will be used against him at sentencing so that he will have enough time to rebut or explain any conviction record.” (Citations, punctuation and footnotes omitted; emphasis supplied.) Evans v. State, 290 Ga. App. 746, 748 (2) (660 SE2d 841) (2008). Given that the State filed multiple notices indicating that it was seeking recidivist punishment and it informed Barstad that all of his convictions could be used for such purposes, the trial court did not err in concluding that the State’s notice was adequate.

(b) Barstad next contends that the trial court could not combine his attempted burglary conviction in Georgia with his two Florida convictions for grand theft and aggravated assault upon a police officer. Barstad argues that OCGA § 17-10-7 (c) authorizes a recidivist sentence when a defendant has three prior felony convictions that are either all from Georgia or all from a foreign jurisdiction. We cannot, however, reach this issue because Barstad failed to timely raise it below for consideration at his sentencing hearing or at his motion for new trial hearing. See von Thomas v. State, 293 Ga. 569, 572-573 (2) (748 SE2d 446) (2013) (noting that the Supreme Court of Georgia and this Court have routinely held that a defendant may waive challenges to a recidivist sentence). See also Mister v. State, 286 Ga. 303, 309 (8) (687 SE2d 471) (2009) (concluding that defendant waived claim that sentence constituted cruel and unusual punishment by not raising the issue below).

3. Barstad also contends that trial counsel was ineffective for failing to request funds to hire an independent DNA expert to challenge the DNA evidence obtained at the victim’s house. We disagree.

In order to succeed on a claim of ineffective assistance of counsel,

[Barstad] must show that his counsel’s performance was professionally deficient and that but for counsel’s unprofessional conduct, there is a reasonable probability the outcome of the proceedings would have been different. A reasonable probability is a probability sufficient to undermine confidence in the outcome.

(Citations and punctuation omitted.) Pyburn, supra, 301 Ga. App. at 373 (2).

Although Barstad argues that a DNA expert would have likely changed the outcome of his trial, he did not call an expert to testify at the motion for new trial hearing. Consequently, Barstad did not establish that a DNA expert’s testimony would have yielded a different result. See Thornton v. State, 305 Ga. App. 692, 694 (1) (a) (700 SE2d 669) (2010) (defendant failed to show that trial counsel’s failure to obtain a continuance to obtain fingerprint analysis prejudiced him because he did not call an expert witness at the motion for new trial hearing). Moreover, the DNA evidence was not the sole link between Barstad and the crimes because the victim’s stolen property was found at Barstad’s residence. Therefore, Barstad has failed to show that trial counsel’s failure to request funds for a DNA expert constituted ineffective assistance of counsel. See Pyburn, supra, 301 Ga. App. at 376 (2) (b) (defendant failed to establish ineffective assistance of counsel where he failed to show that expert would have identified any inadequacies in the State’s DNA evidence and where DNA evidence was not the sole link between defendant and crime). Accordingly, we affirm.

Decided October 3, 2014.

Boyce Larsen, Todd S. Boyce, for appellant.

Brian K. Fortner, District Attorney, James A. Dooley, Emily K. Richardson, Assistant District Attorneys, for appellee.

Judgment affirmed.

Doyle, P. J., and Dillard, J., concur.

       The jury acquitted Barstad of additional charges of burglary and theft by taking.

       Barstad does not reference or provide argument or legal authority addressing the sufficiency of the evidence as to his obstruction conviction. Therefore, Barstad has abandoned any challenge he may have had regarding the obstruction offense. See Jones v. State, 289 Ga. App. 219, 221 (1), n. 1 (656 SE2d 556) (2008). Nevertheless, we have reviewed the trial evidence and conclude that the evidence was sufficient to convict Barstad of obstructing a law enforcement officer. See Cofield v. State, 304 Ga. App. 165, 168 (3) (695 SE2d 696) (2010) (flight after a lawful command to stop constitutes obstruction of an officer).

       At the motion for new trial hearing, Barstad conceded that he did not have an identical twin.

       In a separate part of his brief, Barstad seeks to raise additional issues that were not enumerated as error by appellate counsel. Since Barstad is represented by counsel and has no right to represent himself at the same time, we consider only the issues presented by counsel because a party is not permitted to raise issues on appeal separate from his counsel. See, e.g., Vadde v. State, 296 Ga. App. 405, 410 (4) (674 SE2d 323) (2009); Peterkin v. State, 222 Ga. App. 329, 330 (1) (474 SE2d 231) (1996).


author: McFadden, Judge.

text:
    A14A0803.
    VULCAN STEEL STRUCTURES, INC. et al. v. McCARTY et al.
    (764 SE2d 458)
   McFadden, Judge.

Vulcan Steel Structures, Inc. and affiliated companies (“Vulcan”) appeal the order declaring the restrictive covenants in an agreement with former employee Gary John McCarty to be unenforceable. We hold that the nonsolicitation of customers covenant in the agreement is unenforceable because it prohibits McCarty from accepting business from unsolicited clients. And the 2008 agreement is not subject to blue-penciling, since it was entered into before the effective date of the act revising the law related to restrictive covenants in contracts. Holton v. Physician Oncology Svcs., 292 Ga. 864, 870 (3), n. 4 (742 SE2d 702) (2013). Accordingly, because the nonsolicitation of customers covenant is unenforceable, none of the covenants in the agreement are enforceable. We therefore affirm.

The facts relevant to the appeal are not in dispute. McCarty was employed by Vulcan from 1996 until May 9, 2013. On October 13, 2008, McCarty signed an agreement that contained confidentiality, noncompete, and nonsolicitation covenants. The nonsolicitation of customers covenant in the agreement provided:

I agree that while employed and for two (2) years following termination of my employment, I shall not, on my own behalf or on behalf of any person or entity solicit, contact, call upon, communicate with or attempt to communicate with any customer of my employer or any representative of any customer or prospect of my employer, with the intent of providing any product competitive with engineered steel building products marketed or manufactured by my employer during the period of two (2) years immediately preceding termination of my employment. Provided that the restriction set forth in this paragraph shall only apply to customers or prospects of my employer, and representatives of customers and prospects of my employer, with whom I had material contact during such two year period. “Material contact” exists between me and each customer or potential customer of my employer if interaction took place between us in an effort to further a business relationship with or for my employer.

When McCarty left Vulcan and was hired by Hornet Steel Buildings, Inc., his current employer, Vulcan filed this lawsuit against McCarty, Hornet, and two other Hornet employees. It alleged, among other things, that McCarty had breached the noncompete and non-solicitation covenants in the agreement. The defendants sought a declaration that the agreement was unenforceable as well as the dismissal of all claims that depended on the enforceability of the agreement. The trial court granted that relief, and Vulcan filed this appeal.

“[T]he reasonableness of a restrictive covenant is a question of law, which is subject to de novo review. Moreover, [under the former law] restrictive covenants that are ancillary to employment contracts receive strict scrutiny and are not blue-penciled.” Murphree v. Yancey Brothers Co., 311 Ga. App. 744, 747 (716 SE2d 824) (2011) (citations and punctuation omitted).

1. The nonsolicitation of customers covenant.

Vulcan argues that the trial court erred in ruling that the nonsolicitation of customers covenant is unenforceable. We disagree. Generally, a nonsolicitation covenant may not validly preclude the employee from accepting unsolicited business from customers of his former employer.

[An employer] may properly protect itself from the risk that former employees might appropriate its customers by taking unfair advantage of client contacts developed while working for [that employer], but the company cannot prevent them from merely accepting overtures from those customers.

Orkin Exterminating Co. v. Walker, 251 Ga. 536, 539 (2) (b) (307 SE2d 914) (1983) (covenant that prohibited former employee from “servicing ... any customer or customers for the purpose of selling” services within territory impermissibly had the effect of preventing him from “merely accepting overtures from those customers,” id. at 537). The law is clear: “solicitation requires some type of affirmative action; therefore, a nonsolicitation provision may not contain a bar on the acceptance of business from unsolicited clients.” Waldeck v. Curtis 1000, 261 Ga. App. 590, 593 (583 SE2d 266) (2003) (citations omitted).

The specific language at issue here prevents McCarty from

communicat[ing] with . . . any [Vulcan] customer ... or any representative of any customer or prospect of [Vulcan], with the intent of providing any product competitive with engineered steel building products marketed or manufactured by [Vulcan] during the period of two (2) years immediately preceding termination of [his] employment.

The plain language of the covenant bars McCarty from communicating with Vulcan customers, whether or not he initiated that communication, for the purpose of providing any product competitive with Vulcan’s. Because this covenant “prohibits not only solicitation of [Vulcan’s] former clients, but also the acceptance of business from unsolicited former clients, regardless of who initiated the contact,” it is unreasonable. Waldeck, 261 Ga. App. at 590-592 (covenant prohibiting former employee from “actually effect [ing] the sale to any Customer Account of, or accepting] any offer from any Customer Account for, any product that is one of the [former employer’s] [p]roducts or that is substantially similar to or competitive with any of the [former employer’s] [p]roducts” was unreasonable). See also Orkin Exterminating Co., 251 Ga. at 537-539 (2) (b) (covenant that prohibited former employee from “servicing . . . any customer or customers [of former employer] for the purpose of selling” services impermissibly had the effect of preventing him from “merely accepting overtures from those customers”) (citation omitted); Paragon Technologies v. InfoSmart Technologies, 312 Ga. App. 465, 467 (718 SE2d 357) (2011) (covenant that prohibited appellee from accepting unsolicited work from appellant’s former clients unenforceable). Cf. Murphree, 311 Ga. App. at 744-745, 749 (1) (upholding covenant stating that former employee could not “for the purpose of competing with the [former employer], in any way, directly or indirectly, solicit, divert, or take away, or attempt to solicit, divert or take away” certain of former employer’s customers because the covenant “prohibited [former employee] from initiating affirmative action to compete with [former employer] by contacting former customers, but the clause would not have precluded him from accepting unsolicited business from the forbidden clients”) (citations and punctuation omitted).

Vulcan argues that the trial court erred in ruling the nonsolicitation of customers covenant to be unenforceable because the crucial language in the covenant at issue here is almost identical to the language in the nonsolicitation covenant the Supreme Court upheld in W. R. Grace & Co. v. Mouyal, 262 Ga. 464 (422 SE2d 529) (1992). But the issue in W. R. Grace was not whether the covenant was void for prohibiting unsolicited contact, but whether it was void because of “the absence of an explicit geographical limitation.” Id. at 465 (footnote omitted). The court did not address the issue present here.

To hold as Vulcan proposes would be to conclude that Orkin Exterminating Co., 251 Ga. 536, was overruled sub silentio when the Supreme Court decided W. R. Grace. See VATACS Group v. HomeSide Lending, 276 Ga. App. 386, 393 (3) (623 SE2d 534) (2005). Nothing leads to the conclusion that W. R. Grace purported to overrule the substantive law set forth only nine years earlier in Orkin Exterminating Co. that restrictive covenants cannot prevent an employee from accepting unsolicited business from his former employer’s customers, and we decline to read such into W. R. Grace. Indeed, the Supreme Court itself has noted the problem with applying W. R. Grace beyond its holding regarding the “ ‘absence of an express geographic description of the territorial restriction contained in the no-solicitation clause of the employment contract.’ ” See Palmer & Cay of Ga. v. Lockton Cos., 280 Ga. 479, 481 (2) (629 SE2d 800) (2006) (quoting W. R. Grace).

As Vulcan observes, we relied on W. R. Grace in Covington v. D. L. Pimper Group, 248 Ga. App. 265 (546 SE2d 37) (2001), to uphold a nonsolicitation covenant that prohibited a former employee from “communicating with” any client or prospective client of his former employer, the same language at issue here. We observed that the Supreme Court in W. R. Grace had upheld a covenant with almost verbatim language, and concluded that “[a]s the Supreme Court found in W. R. Grace, . . . the covenant at issue [was] reasonable in terms of duration, territorial coverage and scope of activity sought to be precluded.” Id. at 269 (2). But as discussed above, the analysis in W. R. Grace focused on the absence of a geographical limitation in the covenant, not the scope of prohibited activity, an issue that was not addressed at all. Further, Covington did not acknowledge the law that a nonsolicitation provision may not contain a bar on the acceptance of business from unsolicited clients. And Covington predated Palmer & Cay, 280 Ga. 479, where the Supreme Court noted the limitations in applying W. R. Grace. For these reasons, we conclude that to the extent Covington held that a nonsolicitation provision validly may bar the acceptance of business from unsolicited clients, it was wrongly decided. It is therefore overruled.

Decided October 6, 2014.

Michael S. Bennett, Sr., James T. Bennett, for appellants.

Coleman Talley, C. Hansell Watt TV, for appellees.

2. Because the nonsolicitation covenant is unenforceable, the entire agreement is unenforceable.

“[Former] Georgia law is clear that if one covenant in an agreement subject to strict scrutiny is unenforceable, then they are all unenforceable.” Cox v. Altus Healthcare & Hospice, 308 Ga. App. 28, 32 (2) (e) (706 SE2d 660) (2011) (citation and punctuation omitted). Consequently, because the nonsolicitation of customers covenant is unenforceable, the trial court correctly concluded that none of the covenants are enforceable.

Judgment affirmed.

Phipps, C. J., Andrews, P. J., Barnes, P. J., Ellington, P. J., Doyle, P. J., Miller, Dillard, Boggs, Ray, Branch and McMillian, JJ., concur.


text:
    A14A1203.
    GONZALEZ v. GEORGIA DEPARTMENT OF TRANSPORTATION.
    (764 SE2d 462)
   ANDREWS, Presiding Judge.

Alexia A. Gonzalez was a passenger in an automobile being driven on Interstate 16 in Candler County when the driver lost control in rainy weather, and the automobile left the road and crashed into an adjacent tree. Gonzalez, who was injured in the single-vehicle accident, sued the Georgia Department of Transportation (DOT) claiming that the driver lost control when the automobile hydroplaned on rain water, and that the DOT proximately caused the accident and her injuries by negligently breaching a duty to construct, maintain, or improve the cross-slope design of Interstate 16 so that the rain water would have drained from the roadway and prevented the automobile from hydroplaning.

The DOT answered and filed two motions: (1) a motion to dismiss the suit pursuant to OCGA § 9-11-12 (b) (1) for lack of subject matter jurisdiction on the basis that the DOT was immune from the negligence claims under the design standards exception to the State’s waiver of sovereign immunity set forth in OCGA § 50-21-24 (10) of the Georgia Tort Claims Act; and (2) a motion for summary judgment on the basis that: (a) there was no evidence that the DOT was negligent, or (b) there was no basis to find that any negligent act or omission by the DOT was a proximate cause of the accident. Without ruling on the DOT’s motion asserting sovereign immunity from the negligence claims, the trial court granted the DOT’s motion for summary judgment on the merits of the negligence claims. The trial court found a lack of sufficient evidence to create a jury issue as to whether “standing water” on the roadway caused the automobile to hydroplane, and essentially ruled as a matter of law that Gonzalez failed to prove that any alleged DOT negligence was a proximate cause of the hydroplaning accident. Gonzalez appeals from this ruling arguing that her negligence claims were not necessarily based on evidence of “standing water” on Interstate 16, but on insufficient cross-slope to adequately drain falling rain water from the roadway. In response, the DOT argues that the trial court’s order granting summary judgment should be affirmed on various other grounds not addressed in the court’s order — including an inadequate evidentiary basis for testimony from Gonzalez’s expert on road design that the driver lost control because the automobile hydroplaned.

For the following reasons, we decline to address the merits of the negligence issues presented in this appeal; we vacate as premature the trial court’s order granting the DOT’s motion for summary judgment on the merits of the negligence claims; and we remand the case to the court to address the threshold issue presented by the DOT’s motion to dismiss the suit on the basis of sovereign immunity.

Whether the DOT is entitled to sovereign immunity from the suit on the basis of the design standards exception in OCGA § 50-21-24 (10), as asserted in the DOT’s motion to dismiss, “is a threshold issue that the trial court was required to address before reaching the merits of any other argument.” Albertson v. City of Jesup, 312 Ga. App. 246, 248 (1) (718 SE2d 4) (2011); Sadler v. Dept. of Transp., 311 Ga. App. 601, 603 (716 SE2d 639) (2011); State Dept. of Corrections v. Developers Surety & Indent. Co., 324 Ga. App. 371, 374 (750 SE2d 697) (2013). As a threshold matter, if the DOT is entitled to immunity under the provisions of OCGA § 50-21-24 (10), then the trial court lacks subject matter jurisdiction to try the negligence claims, and the suit must be dismissed. Dept. of Transp. v. Dupree, 256 Ga. App. 668, 670-676 (570 SE2d 1) (2002).

Decided October 6, 2014.

Savage, Turner & Pinckney, Brent J. Savage, Brent J. Savage, Jr., for appellant.

Samuel S. Olens, Attorney General, Loretta L. Pinkston, Senior Assistant Attorney General, Kirsten S. Daughdril, Assistant Attorney General, for appellee.

Judgment vacated and case remanded.

McFadden and Ray, JJ., concur.