author: Adams, Judge.

text:
    A12A0453.
    ARNOLD v. THE STATE.
    (728 SE2d 317)
   Adams, Judge.

Following a bench trial on partially stipulated evidence, Orienthal James Arnold was convicted of possession of a controlled substance, possession of less than one ounce of marijuana, speeding, and felony obstruction of a law enforcement officer. He appeals the denial of his motion to suppress and his conviction.

Arnold’s motion to suppress was first heard in a probation revocation proceeding arising out of an earlier offense. The transcript of that proceeding was stipulated into evidence in this case so that Arnold’s motion to suppress could be considered for the purposes of the trial. The arresting officer also testified.

This testimony shows that on the evening of October 21, 2010, Officer Josh Wages of the Walton County sheriff’s office was traveling in his patrol car monitoring traffic for speeding on a section of Highway 138 in Walton County. Wages saw a grey Chevrolet driving at a high rate of speed in a 55 mile per hour zone. His radar indicated that the car was traveling at 72 miles per hour, so he initiated a traffic stop. Wages asked for and got Arnold’s license and began talking to him when he observed a brown purse in the front passenger seat. Wages asked for consent to look inside the purse, which Arnold gave, and Arnold passed it to Wages. Inside, there were electrical fuses but no personal items. Wages returned to his patrol car, filled out a traffic citation, and performed a computer check of the license, which revealed that it was valid.

Wages returned to Arnold’s car to issue the citation, but just prior to doing so, he shined his light inside the car and saw, from outside the car, one or two full-length cigar wrappers and one partially smoked and flattened cigar wrapper in a cup holder on the floor in the center of the car. He clarified that the wrapper was a “Swisher Sweet” wrapper that he described as “just a cigar leaf [with which] you can roll your own tobacco”; he added, “It looks like the shell of a cigar ... with no insides in it.” Based on his past experience in law enforcement with drug identification, Wages believed the partially smoked item was a marijuana blunt. He had not smelled the odor of marijuana at this time.

Wages then asked Arnold to step out of the car, which he did, and he asked for consent to search Arnold’s person and his pockets, which Arnold gave. Wages then told Arnold of his suspicion about the marijuana, and he reached in the car, picked up the blunt, and smelled it, which led him to believe that it was, in fact, marijuana. At this point, Arnold said that it was his girlfriend’s car (which the State conceded) and that she smokes marijuana, so it was hers. Wages told Arnold that he now had probable cause to search the car, which he proceeded to do. The search revealed marijuana and crack cocaine. After completing the search, Wages attempted to place Arnold under arrest, but Arnold pushed Wages away and ran off. Wages fell to the ground and, as a result, sustained abrasions on his hand and knee. Wages then pursued Arnold but fell, further injuring himself. Wages was never able to give Arnold the ticket or return his license.

The trial judge found that the officer saw contraband in plain view and upon further investigation confirmed it to be contraband, which gave him grounds to search the car.

1. A trial judge’s findings of fact on a motion to suppress should not be disturbed if there is any evidence to support them; determinations of fact and credibility must be accepted unless clearly erroneous; and the evidence must be construed in favor of the trial court’s findings and judgment. Tate v. State, 264 Ga. 53, 54 (1) (440 SE2d 646) (1994); Jackson v. State, 258 Ga. App. 806, 807-808 (2) (575 SE2d 713) (2002).

The officer obviously had authority to stop Arnold for speeding. And there was evidence to support the trial court’s finding that there was contraband in plain view. Wages saw, based on his experience, what he believed to be a marijuana blunt. Whether Wages was authorized to enter the car to seize the item is controlled by Glenn v. State, 285 Ga. App. 872 (648 SE2d 177) (2007). That case explains that with respect to a vehicle, the plain view doctrine authorizes a police officer to enter a vehicle to seize an illegal item if the facts would justify the issuance of a warrant, that is, if the officer has probable cause to believe the item is contraband. Id. at 874. See generally State v. Lejeune, 276 Ga. 179, 182-183 (2) (576 SE2d 888) (2003) (re: the automobile exception). As explained in Glenn, a determination of probable cause

merely requires that the facts available to the officer would warrant a man of reasonable caution in the belief that certain items maybe contraband or stolen property or useful as evidence of a crime; it does not demand any showing that such a belief be correct or more likely true than false. A practical, nontechnical probability that incriminating evidence is involved is all that is required. [Cit.]

Glenn, 285 Ga. App. at 874. In Glenn this Court held that an officer had probable cause to enter a vehicle to seize a metal pipe wrapped with tape that he believed, based on his past experience in the drug interdiction unit, to be a marijuana smoking device. Id.

Here, as in Glenn, the suspected contraband was in plain view from outside the vehicle. “Therefore, based on the officer’s experience and the object’s similarity to other marijuana [smoking devices] seen by the officer, its incriminating nature was immediately apparent to the officer. [Cit.]” Id. at 875. See also Sapp v. State, 297 Ga. App. 218, 222 (2) (b) (676 SE2d 867) (2009) (where officer was able to see drug pipe in plain view on seat in truck, officer had probable cause to arrest defendant and search the truck). Once Wages smelled the odor of marijuana on the recovered item, he had even stronger grounds to search the vehicle.

Finally, because Wages saw the item before he had returned the license or issued the ticket, he was not exceeding the scope of the initial traffic stop by seizing the obj ect. An officer who stops a motorist for a routine traffic violation “is absolutely permitted to expand the detention into unrelated offenses. The officer may question the motorist about anything and may ask for consent to search, as long as the questioning does not unreasonably prolong the detention.” Hayes v. State, 292 Ga. App. 724, 728 (2) (665 SE2d 422) (2008). Here, because Wages had not returned the license or issued the ticket when he saw the suspected contraband in plain view, it cannot be said that he unreasonably prolonged the detention. See generally Davis v. State, 303 Ga. App. 785, 786-787 (694 SE2d 696) (2010) (stop not unreasonably prolonged while officer completes necessary paperwork and computer work associated with issuance of citation). Accordingly, we conclude the trial court did not err by denying Arnold’s motion to suppress.

2. Arnold also contends the evidence was insufficient to support the conviction of felony obstruction of an officer because, he contends, there was no evidence that he offered to do or did violence to the officer when he fled. See OCGA § 16-10-24. But the record shows that Arnold pushed Wages and that Wages suffered scratches on his hand and knee as a result.

Decided May 4, 2012.

Lisamarie N. Bristol, for appellant.

Layla H. Zon, District Attorney, Walter C. Howard, Assistant District Attorney, for appellee.

Judgment affirmed.

Barnes, P. J., and McFadden, J., concur.


source: Caselaw Access Project

author: Miller, Judge.

license: Public Domain

text:
    A12A0064.
    SEABROOK v. THE STATE.
    (728 SE2d 322)
   Miller, Judge.

Stanley Seabrook, proceeding pro se, appeals from the dismissal of his petition for a writ of error coram nobis challenging his 1994 guilty plea to the charges of aggravated assault (OCGA § 16-5-21 (a) (2)), armed robbery (OCGA § 16-8-41 (a)), and possession of a firearm by a convicted felon (OCGA § 16-11-131 (b)). On appeal, Seabrook contends that the trial court abused its discretion by dismissing his petition without holding a hearing, and that the writ of error coram nobis was the only remedy available to challenge his guilty plea and assert his claims of actual innocence and ineffective assistance of counsel. Discerning no error, we affirm.

The record shows that in September 1994, Seabrook, with the assistance of counsel, entered a negotiated Alford plea to three counts of aggravated assault, one count of armed robbery, and one count of possession of a firearm by a convicted felon. The trial court sentenced Seabrook to serve an aggregate of three years in prison and four years on probation.

On July 21, 2010, Seabrook filed the instant petition for writ of error coram nobis. In that petition, Seabrook argued that his 1994 convictions should have been vacated because he received ineffective assistance of counsel during the plea process; he was innocent of the charges; and he did not enter his plea intelligently, knowingly, and voluntarily. At the time Seabrook filed his petition, he was serving a federal sentence that was enhanced by his 1994 convictions. The trial court dismissed Seabrook’s petition, concluding that the writ offered no relief since his claims were not based on newly discovered evidence. The trial court also found that it lacked jurisdiction to consider his petition as a motion to withdraw guilty plea, and that the petition could not be considered as a writ of habeas corpus since the period for filing a habeas corpus petition had expired.

On appeal, Seabrook contends that the trial court erred in dismissing his petition without holding a hearing to determine whether his 1994 guilty plea was voluntary. He also contends that his petition was the appropriate vehicle to assert his claims of actual innocence and ineffective assistance of counsel. We disagree.

A petition for writ of error coram nobis is an obsolete writ, and its use discouraged. See Harris v. State, 269 Ga. App. 92, 93 (1) (603 SE2d 490) (2004). However, as it is the ancestor of an extraordinary motion for new trial based on newly discovered evidence, the prerequisites for issuing

a writ of error coram nobis or for granting an extraordinary motion for new trial based on newly discovered evidence appear to be identical. Before a court authorizes either, it is generally required that the moving or petitioning party base the pleading on facts which are not part of the record and which could not by due diligence have been discovered at the time of the trial.

(Punctuation and footnote omitted.) Moss v. State, 255 Ga. App. 107, 108 (564 SE2d 516) (2002).

Here, Seabrook failed to point to any newly discovered evidence that would have authorized the trial court to grant the writ. Rather, his claims regarding the validity of his plea, his attorney’s alleged ineffectiveness in the plea process, and his actual innocence “all deal with evidence which was known to [Seabrook]... at the time that he entered his plea of guilty. Thus, [Seabrook] could not properly challenge his plea under a writ of error coram nobis.” (Punctuation and footnotes omitted.) Moss, supra, 255 Ga. App. at 108.

Even if we were to consider Seabrook’s petition as a motion to withdraw his guilty plea, he was still not entitled to relief.

The superior court’s jurisdiction to entertain a motion to withdraw a guilty plea ends after the term of court in which the judgment of conviction was rendered. And it is well established that after the expiration of the term and of the time for filing an appeal from the conviction, the only remedy available to the defendant for withdrawing a plea is through habeas corpus proceedings.

Decided May 7, 2012.

Stanley Seabrook, pro se.

Larry Chisolm, District Attorney, for appellee.

(Punctuation and footnotes omitted; emphasis in original.) LaFette v. State, 285 Ga. App. 516, 516 (1) (646 SE2d 725) (2007). Since Seabrook filed his petition more than 15 years after the expiration of the term of court in which his judgment of conviction was entered, the trial court had no jurisdiction to rule on his petition as a motion to withdraw a guilty plea. See, e.g., Harris, supra, 269 Ga. App. at 93 (2). Moreover, even construing his petition as a writ for habeas corpus, Seabrook’s petition was likewise untimely. Seabrook had until July 1, 2008, to file a habeas corpus petition, but he did not file the present petition until July 2010. OCGA § 9-14-42 (c) (1) (“[A]ny person whose conviction has become final as of July 1, 2004, regardless of the date of conviction, shall have until... July 1, 2008, in the case of a felony to bring an action” for habeas corpus relief.). Since Seabrook had no remedy to challenge his guilty plea, the trial court properly dismissed his petition.

Judgment affirmed.

Mikell, P. J., and Blackwell, J., concur.

        North Carolina v. Alford, 400 U. S. 25 (91 SC 160, 27 LE2d 162) (1970).


author: Barnes, Presiding Judge.

text:
    A12A0104.
    GILLIS v. THE STATE.
    (728 SE2d 324)
   Barnes, Presiding Judge.

An Emanuel County jury convicted Ricardo Gillis of theft by receiving stolen property, and the trial court denied his motion for new trial. On appeal, Gillis contends that the verdict was contrary to the weight of the evidence. We disagree and affirm.

By contending that the verdict was contrary to the weight of the evidence, Gillis, in effect, challenges the sufficiency of the evidence. Cook v. State, 238 Ga. App. 341, 342 (1) (518 SE2d 749) (1999).

When reviewing a challenge to the sufficiency of the evidence to support 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. We do not weigh the evidence or assess witness credibility, but only determine whether any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt.

(Citations and punctuation omitted.) Bryant v. State, 309 Ga. App. 649 (1) (710 SE2d 854) (2011).

Viewed in the light most favorable to the verdict, the evidence showed that Bellamy Motorsports, Inc. sold a new four-wheeler for $3,466.93 to Harry Dunlap, who represented himself to be an agent of the Metter-Candler County Airport Authority (the “Airport Authority”). Dunlap paid for the four-wheeler using a check purportedly drawn on the bank account of the Airport Authority, and he forged his name on the check as “Joseph Taylor.” Upon receiving the check, Bellamy relinquished the four-wheeler to Dunlap and provided him with an invoice indicating that the vehicle had been sold to the Airport Authority. However, when Bellamy deposited the check, the bank refused to honor it because the bank account on which it had been drawn no longer existed, and Bellamy was never properly compensated for the four-wheeler.

One or two hours after acquiring the four-wheeler with the forged check, Dunlap met Gillis behind a motel located in Emanuel County. Dunlap, who did not know Gillis, had arranged through a third party to meet him at that location. Dunlap sold the four-wheeler to Gillis in return for “four or five hundred dollars cash and four or five hundred dollars worth of drugs.” Once Gillis had paid for the four-wheeler, Dunlap wrote out a receipt to Gillis using his real name. Dunlap also provided Gillis with the paperwork he had obtained from Bellamy, including the invoice reflecting that Bellamy had sold the four-wheeler to the Airport Authority that same day for $3,466.93. After purchasing the four-wheeler, Gillis sold it to someone living out-of-state.

Following a police investigation, Dunlap was arrested and successfully prosecuted for forging the check used as part of his scheme to steal the four-wheeler from Bellamy. As a result of the same investigation, Gillis was arrested and charged with theft by receiving stolen property.

A jury trial ensued on the charge brought against Gillis. The co-owner of Bellamy testified about the circumstances of the original sale of the four-wheeler to Dunlap and about how the check used to pay for the vehicle had bounced when Bellamy sought to deposit it. Additionally, Dunlap testified on behalf of the State, admitting that he had forged his name as “Joseph Taylor” on the check given to Bellamy; that he had falsely represented himself to be an Airport Authority representative when he acquired the four-wheeler; and that he had acquired the four-wheeler from Bellamy using a check from an Airport Authority checkbook that he had fraudulently obtained. He further testified about the circumstances of his sale of the four-wheeler to Gillis.

Gillis did not testify at the trial. However, he presented several witnesses who testified about how they had similarly purchased stolen items from Dunlap but had been unaware that the items were stolen. Gillis’s theory of the case was that Dunlap was an effective con man whose modus operandi was to persuade innocent buyers to unknowingly purchase stolen items by presenting the buyers with what appeared to be proper paperwork for the sale.

After hearing all of the testimony, the jury found Gillis guilty of theft by receiving stolen property. The trial court denied his motion for new trial. A motion for out-of-time appeal subsequently was filed and granted, resulting in the instant appeal.

In challenging the sufficiency of the evidence, Gillis does not contest that he purchased the four-wheeler from Dunlap or that it had in fact been stolen from Bellamy through the use of a forged check. Rather, Gillis maintains only that there was insufficient evidence that he knew or should have known that the four-wheeler had been stolen. We are unpersuaded.

“A person commits the offense of theft by receiving stolen property when he receives, disposes of, or retains stolen property which he knows or should know was stolen unless the property is received, disposed of, or retained with intent to restore it to the owner.” OCGA § 16-8-7 (a).

Knowledge that goods are stolen is an essential element of the crime of receiving stolen goods, and this knowledge on the part of the accused must be proved; but it may be inferred from circumstances, where the circumstances would excite suspicion in the minds of ordinarily prudent persons. Because of its very nature, this crime is one that is usually proved in whole or in part by circumstantial evidence.

(Punctuation and footnotes omitted.) Brown v. State, 265 Ga. App. 613, 614 (1) (594 SE2d 770) (2004). See Allison v. State, 299 Ga. App. 542, 545 (2) (683 SE2d 104) (2009) (“While scienter is an essential element of the crime of theft by receiving stolen property, it may be proved by circumstantial evidence or inferred from circumstances which would excite the suspicions of an ordinarily prudent man.”) (punctuation and footnote omitted).

Here, there was sufficient circumstantial evidence from which the jury could have inferred that Gillis had the requisite guilty knowledge. Specifically, there was evidence that Gillis bought the four-wheeler in the rear of a motel parking lot and paid in part in drugs. Moreover, there was evidence that the four-wheeler was new when it was stolen and that Gillis was aware of the vehicle’s fair market value based on the paperwork he received from Dunlap, yet paid for the vehicle at a price grossly less than its real value. There also was evidence that Dunlap provided Gillis with paperwork indicating that the vehicle in fact was owned by a third party that had purchased it earlier that same day.

Decided May 7, 2012.

Johnny E. C. Vines, for appellant.

S. Hayward Altman, District Attorney, Mary K. McKinnon, Assistant District Attorney, for appellee.

We conclude that this combined evidence was sufficient to enable a rational jury to find beyond a reasonable doubt that Gillis had the requisite knowledge that the four-wheeler had been stolen, and thus to convict him of theft by receiving stolen property. Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560) (1979). See, e.g., Brown, 265 Ga. App. at 614-615 (1) & n. 6 (guilty knowledge could be inferred from evidence that defendant bought property at grossly less than its real value, combined with evidence that the property was new when stolen and that the defendant knew the real value of the property when he accepted it); Williams v. State, 246 Ga. App. 347, 351 (1) (540 SE2d 305) (2000) (“Knowledge that goods are stolen may ... be deduced by the jury from the defendant’s conduct and behaviorf.]”); Barfield v. State, 149 Ga. App. 166, 167 (3) (253 SE2d 781) (1979) (evidence that property was marked with name of third party authorized jury to find that defendant had notice that the property was of “questionable origin” and belonged to someone else). Furthermore, the jury was entitled to reject the defense theory of the case that Gillis was an innocent buyer who had been duped by Dunlap into believing that the purchase transaction was legitimate. See Lackey v. State, 286 Ga. 163, 165 (1) (686 SE2d 112) (2009) (whether defendant acted with scienter is normally question for the jury). Accordingly, Gillis’s challenge to the sufficiency of the evidence is without merit.

Judgment affirmed.

Adams and McFadden, JJ., concur.


author: BARNES, Presiding Judge.

text:
    A12A0193.
    LAMB v. THE STATE.
    (728 SE2d 327)
   BARNES, Presiding Judge.

A jury convicted Cheryl June Lamb of aggravated battery, and the trial court denied her motion for new trial. On appeal, she maintains that the evidence was insufficient to support her conviction. We disagree and affirm.

On appeal from a criminal conviction, we view the evidence in the light most favorable to the verdict, and the defendant no longer enjoys the presumption of innocence. We do not weigh the evidence or determine witness credibility, but only determine if the evidence was sufficient for a rational trier of fact to find the defendant guilty of the charged offense beyond a reasonable doubt.

(Footnote omitted.) Jones v. State, 283 Ga. App. 631 (642 SE2d 331) (2007).

So viewed, the evidence showed that on September 7,2008, Lamb fell to the floor when the victim tried to prevent her from attacking the victim’s mother during a family dispute. The next day, the victim was visiting with some friends who worked at a convenience store in Johnson County when Lamb, along with several other individuals, entered the store. Lamb pointed at the victim and said, “[TJhat’s her.” Approaching the victim, Lamb screamed, “[Y]ou fixin’ to pay for what you done,” and she and the others pushed the victim to the floor. As the other individuals were hitting the victim on her head and back, Lamb was “digging” into the victim’s left eye with one of her acrylic nails. According to the victim, she lost some of her peripheral vision and could no longer see as well out of her left eye as a result of the attack by Lamb.

Lamb was indicted for committing aggravated battery by scratching the victim in the eye, rendering it useless. At trial, the victim testified to the events as set out above, and several eyewitnesses corroborated the victim’s version of events. In contrast, Lamb presented her own eyewitnesses and testified that if her nail went into the victim’s eye, it was unintentional. After hearing all of the testimony, the jury convicted Lamb of aggravated battery.

One way to commit the offense of aggravated battery is to maliciously cause bodily harm to another “by rendering a member of his or her body useless.” OCGA § 16-5-24 (a). Eyes are “members” under the aggravated battery statute. See Williams v. State, 262 Ga. App. 698, 699 (1) (588 SE2d 755) (2003); Blackman v. State, 178 Ga. App. 88, 89 (1) (342 SE2d 24) (1986). And “it is not necessary that the victim suffer the total loss of [her] member in order to be the victim of an aggravated battery.” (Punctuation and footnote omitted.) Webb v. State, 228 Ga. App. 624, 626 (3) (492 SE2d 312) (1997). See Christensen v. State, 245 Ga. App. 165, 167 (2) (537 SE2d 446) (2000). Hence, evidence of blurred or decreased vision can be sufficient to show that an eye has been rendered useless. See Payne v. State, 273 Ga. App. 483, 484 (1) (615 SE2d 564) (2005); Taylor v. State, 178 Ga. App. 817, 817-818 (1) (344 SE2d 748) (1986) (physical precedent only). Furthermore, expert medical testimony is not required in an aggravated battery case to prove the loss of the use of an eye; it is sufficient that the victim testify as to the loss of eyesight. See Williams v. State, 262 Ga. App. at 699 (1).

Decided May 7, 2012.

Keri F. Thompson, for appellant.

L. Craig Fraser, District Attorney, Robert B. Faircloth, Assistant District Attorney, for appellee.

Here, there was testimony that Lamb used her acrylic nail to dig into the victim’s left eye during the fight at the convenience store, and that Lamb’s actions caused the loss of some peripheral vision in the eye. We conclude that this testimony was sufficient to authorize a rational trier of fact to find Lamb guilty of aggravated battery beyond a reasonable doubt. Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560) (1979). While Lamb testified to a different version of events and claims on appeal that the victim’s testimony was unpersuasive and lacked credibility, it was the role of the jury, not this court, to assess credibility and resolve any conflicts between the testimony of the witnesses. See Biggins v. State, 299 Ga. App. 554, 556 (1) (683 SE2d 96) (2009). The jury clearly resolved those conflicts against Lamb, and, therefore, we affirm her conviction.

Judgment affirmed.

Adams and McFadden, JJ., concur.

       Lamb also was indicted for committing aggravated assault and making terroristic threats, but the jury acquitted her of those two offenses.


author: McFadden, Judge.

text:
    A12A0284.
    ELGIN v. SWANN.
    (728 SE2d 328)
   McFadden, Judge.

Jennifer Elgin appeals from a six-month stalking protective order entered against her pursuant to OCGA § 16-5-94 (d). We find that, although the protective order has expired, the issues raised in this appeal are not moot, the trial court employed the proper standard in evaluating the evidence, and it did not abuse its discretion in issuing the protective order. See Pilcher v. Stribling, 282 Ga. 166, 167 (647 SE2d 8) (2007) (grant or denial of motion for protective order is reviewed for abuse of discretion). Accordingly, we affirm.

Construed in favor of the judgment, see Garnsey v. Buice, 306 Ga. App. 565, 566 (1) (703 SE2d 28) (2010), the evidence showed that Jennifer Elgin and R. Q. Swann were neighbors. In July 2011, Elgin and her husband, Lamar Elgin, were in the midst of a divorce, and Swann submitted an affidavit in the divorce proceeding in which he testified to certain of Elgin’s activities that he had observed by watching her through a telescopic lens. A few days later, on July 17, Elgin drove by Swann’s house honking her car horn and yelling, “Call Lamar.” Swann, his wife, and his stepdaughter (a high school student) were in their front yard at the time. Elgin then pulled into her own driveway and got out of her car. Joined by her sister, Elgin laughed, screamed obscenities at the Swanns, and repeatedly threatened to “kick” or “whip y’all’s ass.”

Swann testified that Elgin had never before threatened him, but that her behavior on this occasion caused him to fear for his safety. On July 18, 2011, he petitioned for a stalking protective order and obtained an ex parte temporary protective order pending a hearing on his petition.

Before the hearing occurred, on August 4, 2011, Swann’s stepdaughter was driving home when she encountered Elgin driving in the opposite direction on the road in front of their houses. As Swann and his wife watched, Elgin swerved her car toward the stepdaughter’s car, causing the girl to drive her car partially off the road. Later that evening Elgin drove past the Swanns’ house and, from her vehicle, took pictures of Swann and his family sitting on their front porch. Swann worried about what else Elgin might do and felt that his family had been placed in danger and needed to be protected.

The hearing on the stalking protective order occurred on August 9, 2011. By this time, Elgin had moved out of her house and no longer lived in the neighborhood.

1. We first consider our jurisdiction over this appeal. The trial court issued the six-month stalking protective order on August 9, 2011, and it expired on February 9, 2012.

Thus, the issues raised arguably are moot, and mootness is a mandatory ground for dismissal. However, if an issue is capable of repetition yet evades review, we do not view that issue as moot. This is true for those matters in which there is intrinsically insufficient time to obtain judicial relief for a claim common to an existing class of sufferers.

(Citation omitted.) Birchby v. Carboy, 311 Ga. App. 538, 540 (2) (716 SE2d 592) (2011); see Collins v. Lombard Corp., 270 Ga. 120, 122 (1) (508 SE2d 653) (1998).

The issues presented in this appeal are capable of repetition. At its core, this appeal concerns whether evidence of discrete threats between former neighbors can show a pattern of harassing or intimidating conduct and a potential for future stalking. This question could arise again in the context of another stalking protective order. The issues presented in this appeal also are likely to evade review. A stalking protective order is limited by statute to a duration of 12 months, although it can later be renewed for a greater time period or be made permanent. See OCGA § 16-5-94 (e) (incorporating OCGA § 19-13-4 (c)). This is the same duration allowed for a protective order issued under the Family Violence Act under OCGA § 19-13-4 (c). We have held in the context of appeals from family violence protective orders that the time constraints of appellate courts often render it infeasible to reach the merits of those appeals during the relatively short duration allowed for such orders. See Birchby, 311 Ga. App. at 540 (2) (involving twelve-month protective order); Baca v. Baca, 256 Ga. App. 514, 516 (1) (568 SE2d 746) (2002) (involving six-month protective order).

Accordingly, we find that the issues raised in this appeal are not moot. Birchby, 311 Ga. App. at 540-541 (2).

2. Elgin argues that the trial court did not hold Swann to the proper burden of proof. We disagree. The court’s comments at the conclusion of the hearing reflect that the court correctly employed the “preponderance of the evidence” standard in issuing the protective order. See Garnsey, 306 Ga. App. at 565-566 (1).

3. Elgin argues that there was insufficient evidence to support the issuance of the protective order. Again, we disagree. The evidence presented at the hearing authorized the court to find that Swann had established the elements of stalking, which is defined as “following], placing] under surveillance, or contacting] another person at or about a place or places without the consent of the other person for the purpose of harassing and intimidating the other person.” OCGA § 16-5-90 (a) (1); see Garnsey, 306 Ga. App. at 565-566 (1) (to obtain stalking protective order, petitioner must establish elements of that offense).

“[H] arassing and intimidating” means a knowing and willful course of conduct directed at a specific person which causes emotional distress by placing such person in reasonable fear for such person’s safety or the safety of a member of his or her immediate family, by establishing a pattern of harassing and intimidating behavior, and which serves no legitimate purpose.

OCGA § 16-5-90 (a) (1).

The evidence supported a determination that Elgin had placed under surveillance and contacted Swann, his wife, and his stepdaughter for the purpose of harassing and intimidating them by screaming physical threats at them, taking pictures of them from the road while they were on their front porch, and swerving her car at the stepdaughter in a manner that forced the girl’s car partially off the road. See Garnsey, 306 Ga. App. at 566-567 (1) (defendant’s conduct included attempting to run neighbor off the road and repeatedly driving by or stopping in front of neighbors’ house and staring at them); DeLouis v. Sheppard, 277 Ga. App. 768, 770-771 (1) (627 SE2d 846) (2006) (defendant blasted music at neighbor’s house, confronted neighbor in intimidating manner, stared at neighbor for periods of time while she was outside, and made lewd gestures and comments toward her or in her presence); Johnson v. Smith, 260 Ga. App. 722 (2) (580 SE2d 674) (2003) (defendant placed victim under surveillance, took pictures of her, and shouted at her while she was at school). Although Elgin had not previously acted threateningly toward the Swann family, these three discrete incidents occurring within a three-week period of time (two in one day) were enough to create the requisite pattern of harassing and intimidating behavior. See Daker v. Williams, 279 Ga. 782, 785 (621 SE2d 449) (2005) (defendant’s two related instances of stalking behavior against victim occurring within the space of a week evinced a pattern of prohibited criminal behavior). The court was not required to accept Elgin’s testimony denying these actions. See DeLouis, 277 Ga. App. at 769 (in reviewing the sufficiency of the evidence supporting a stalking protective order, an appellate court does not weigh the evidence or assess witness credibility).

The evidence presented at the hearing also supported a determination that Elgin’s conduct put Swann in reasonable fear for the safety of his family. Swann repeatedly testified that Elgin’s actions caused him to feel that his family was in danger and needed protection, and given the nature of those actions his fears were not unreasonable. See Garnsey, 306 Ga. App. at 567 (1); Johnson, 260 Ga. App. at 722 (2). Although Elgin points to the fact that she moved from the neighborhood shortly thereafter, it was for the trial court to assess the degree, if any, to which her departure mitigated the reasonableness of Swann’s fears. See generally Anderson v. Mergenhagen, 283 Ga. App. 546, 548 (1) (642 SE2d 105) (2007) (the trial court is in the best position to make determinations on issues concerning the need for a protective order).

Decided May 8, 2012.

Moore & Hicks, Milon J. D. Moore, Larry L. Hicks II, for appellant.

R. Q. Swann, pro se.

Under these circumstances, the trial court did not abuse its discretion in finding that the evidence supported the grant of a stalking protective order under OCGA § 16-5-94 (d).

Judgment affirmed.

Barnes, P. J., and Adams, J., concur.


author: Dillard, Judge.

text:
    A12A0184.
    HOLMES v. THE STATE.
    (727 SE2d 520)
   Dillard, Judge.

Following a bench trial, Kelvin L. Holmes was convicted of seven counts of forgery in the first degree. Holmes appeals his convictions and the denial of his motion for new trial, arguing that the trial court erred in admitting evidence that constituted hearsay and violated his right to confrontation under the Sixth Amendment to the United States Constitution, and that the evidence was insufficient to support his convictions. For the reasons set forth infra, we agree and thus reverse Holmes’s convictions.

Viewed in the light most favorable to the trial court’s guilty verdict, the evidence shows that on September 19, 2007, Holmes opened a savings account at River City Bank in Rome, Georgia, using three United States Postal Service money orders for his initial deposit. Each of the three money orders indicated that it had been sent by a person named Dale Henderson and was payable to Holmes in the amount of $930. On September 21,2007, two days after opening the account, Holmes withdrew $2,400, and five days later, he withdrew another $290, leaving the account with a balance of $100.

One week later, on September 28, 2007, Holmes presented four more United States Postal Service money orders for deposit into the account. The money orders were, once again, each made out to Holmes in the amount of $930, but this time all four orders indicated that a person named Casa (the first name was illegible) was the payor. Holmes deposited all but $200 from the money orders, but a few days later, he returned to the bank and withdrew $3,000, leaving a balance of $620 in the account.

Shortly thereafter, River City Bank received notice that the first three money orders were fraudulent, and the instruments were, in fact, returned unpaid. Concerned by this development, the bank began making inquiries regarding the four more recently deposited money orders and learned that those similarly could not be authenticated. Subsequently, those money orders were also returned unpaid. At that point, a representative from River City Bank contacted Holmes and informed him that the money orders could not be authenticated. The bank representative also told Holmes that he and Holmes needed to have a further discussion regarding what to do about Holmes’s now-overdrawn account. And although Holmes agreed, no further discussions occurred.

Thereafter, Holmes was charged, via accusation, with seven counts of forgery in the first degree, with each count pertaining to one of the seven United States Postal Service money orders. He opted for a bench trial, which was held on May 24, 2010. During Holmes’s trial, a customer-service representative for River City Bank testified about assisting Holmes in opening his account and about Holmes’s failure to return his telephone calls after he informed Holmes that the money orders had been deemed fraudulent. In addition, the chief financial officer (“CFO”) of the bank testified regarding the process by which the bank redeems money orders. Specifically, the CFO explained that after a money order is deposited, the bank transmits an image of the money order to the Federal Reserve Bank, which in turn transmits the image to the bank upon which the money order is to be drawn. That bank then either honors the money order or returns it with certain markings to indicate the status of the transaction. The CFO further testified that in this case, the bank received returned images of the money orders, which were stamped “Apparent Counterfeit Postal Money Order Not Eligible For Late Claim or Re-Clear,” and that Holmes’s money orders were not honored.

Following the testimony of the State’s witnesses, the State moved to admit the money orders into evidence, including the copies of the money orders that bore the “Apparent Counterfeit” stamp. Holmes objected on the grounds that the stamped money orders constituted hearsay and violated his right to confrontation under the Sixth Amendment to the United States Constitution. However, the trial court disagreed and denied the objection.

After the State presented its case, Holmes testified in his own defense and claimed he did not know that the money orders were fraudulent. He testified that he received an unsolicited job offer via an e-mail from a person he did not know. The alleged job entailed receiving money orders in a Federal Express packet, depositing those money orders into a bank account, and then forwárding the money to another person after deducting ten percent of the total amount for himself. Holmes presented a copy of one of the e-mails as evidence, and claimed that he had been duped and had not intended to commit fraud. Nevertheless, at the conclusion of Holmes’s trial, the trial court found him guilty on all seven counts of forgery in the first degree. Subsequently, Holmes filed a motion for new trial, which the trial court denied after holding a hearing on the matter. This appeal follows.

1. Holmes contends that the trial court erred in admitting into evidence the United States Postal Service money orders, which bore the “Apparent Counterfeit” stamp, arguing that such evidence constituted hearsay and violated his right to confrontation under the Sixth Amendment to the United States Constitution. We agree that the stamped money orders constituted inadmissible hearsay.

We note that “[a]s a general rule, admission of evidence is a matter resting within the sound discretion of the trial court, and appellate courts will not disturb the exercise of that discretion absent evidence of its abuse.” In this case, as previously noted, the bank’s CFO testified regarding the process by which the bank transmits money orders to the Federal Reserve and, eventually, the originating payor, and how the payor either honors the money order or stamps its reasons for not honoring it on the money order itself. Afterward, when the State tendered the stamped money orders, Holmes objected, arguing that the documents were hearsay and violated his Confrontation Clause rights. But the trial court denied Holmes’s objection, agreeing with the State that the stamped money orders were admissible under the business records exception to the hearsay rule. In doing so, the trial court erred.

It is well settled that “those portions of business records which contain conclusions, opinions, estimates and impressions of third parties who are not before the court are not admissible under [the business records] exception to the hearsay rule.” And, the bank CFO’s testimony indicated that the determination that the money orders deposited and cashed by Holmes were counterfeit was a conclusion or opinion made by a third party institution, whose representatives did not testify at trial. Accordingly, the money orders stamped “Apparent Counterfeit” should not have been admissible as a business record to prove that the money orders were, in fact, counterfeit, and the trial court erred in allowing them into evidence.

2. Holmes further contends that the evidence was insufficient to support his convictions, arguing that without the stamped money orders, the State could not prove that the money orders were counterfeit. We agree.

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

Addressing Holmes’s sufficiency challenge, we note that OCGA § 16-9-1 (a) provides in pertinent part that

[a] person commits the offense of forgery in the first degree when with intent to defraud he knowingly makes, alters, or possesses any writing in a fictitious name or in such manner that the writing as made or altered purports to have been made by another person... or by authority of one who did not give such authority and utters or delivers such writing.

And here, each forgery count of the accusation charged that Holmes did

with intent to defraud, knowingly make, alter, and possess a certain writing to-wit: COUNTERFEIT UNITED STATES POST OFFICE MONEY ORDER ... in a fictitious name in such a manner that the writing as made and altered purports to have been made by another person ... by authority of one who did not give such authority and did utter said writing....

Thus, the State contended that Holmes lacked authority from either the United States Post Office or the alleged payors of the money orders to possess and utter the money orders because they were counterfeit. However, the only evidence introduced at trial to prove that the money orders were counterfeit was copies of the processed orders themselves, which bore the stamp reading “Apparent Counterfeit.” As noted in Division 1, supra, no representative of the Post Office testified to confirm the counterfeit status of the money orders, and no one testified that the alleged payors listed on the money orders (Henderson and Casa) were either fictitious persons or actual persons, who never gave authority for the money orders to be issued.

Nevertheless, during the hearing on Holmes’s motion for new trial, the trial judge responded to Holmes’s argument that the stamped money orders should have been excluded by stating that he did not rely on those documents in finding that Holmes was guilty of forgery. Rather, the trial judge explained that he found Holmes guilty because the money orders were not honored and because “no one could reasonably be expected to believe that this was [a] legitimate transaction . . . .” But money orders can be dishonored for a host of reasons, some of which involve no unlawful conduct. Moreover, while the absurdity of the e-mail solicitation that prompted Holmes’s actions certainly provided circumstantial evidence of Holmes’s intent to defraud, neither the e-mail itself nor its proposition generally constitutes sufficient evidence that the money orders were counterfeit. Thus, because there is no competent evidence establishing the essential element that Holmes possessed or made a counterfeit money order, the evidence is not sufficient to sustain his first-degree-forgery convictions. Accordingly, Holmes’s convictions must be reversed.

Decided April 25, 2012

Reconsideration denied May 9, 2012

Karen S. Wilkes, for appellant.

Leigh E. Patterson, District Attorney, Finnis K. Salmon, Assistant District Attorney, for appellee.

Judgment reversed.

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

        See, e.g., Joiner v. State, 299 Ga. App. 300, 300 (682 SE2d 381) (2009).

         See OCGA § 16-9-1 (a).

       U.S. Const. amend VI.

        Smith v. State, 302 Ga. App. 128, 130 (1) (690 SE2d 449) (2010) (punctuation omitted).

        See OCGA § 24-3-14 (b) (“Any writing or record... made as a memorandum or record of any act, transaction, occurrence, or event shall be admissible in evidence in proof of the act, transaction, occurrence, or event, if the trial judge shall find that it was made in the regular course of any business and that it was the regular course of such business to make the memorandum or record at the time of the act, transaction, occurrence, or event or within a reasonable time thereafter.”).

        Malcolm, v. State, 263 Ga. 369, 370 (3) (434 SE2d 479) (1993) (punctuation omitted).

        See Miller v. State, 266 Ga. 850, 854 (3) (472 SE2d 74) (1996) (holding that copy of drug analysis report would not be admissible as a business record because it contained the conclusion of a third party not before the court); Malcolm, 263 Ga. at 370-71 (3) (same).

       Given our finding that the stamped money orders constitute inadmissible hearsay, we need not address whether those documents are “testimonial” for Confrontation Clause purposes pursuant to Bullcoming v. New Mexico,_U. S._(131 SC 2705, 180 LE2d 610) (2011).

        Joiner, 299 Ga. App. at 300.

        Id.

        Nassau v. State, 311 Ga. App. 438, 440-41 (715 SE2d 837) (2011) (punctuation omitted).

        See Taylor v. State, 293 Ga. App. 551, 552-53 (1) (667 SE2d 405) (2008) (holding that evidence of defendant’s deliberate ignorance as to whether checks were counterfeit was sufficient to prove intent to defraud).

        See Archer v. State, 291 Ga. App. 175, 177 (1) (661 SE2d 230) (2008) (holding that State’s failure to provide evidence establishing essential element that defendant uttered or delivered a forged check required reversal of defendant’s forgery conviction); Adams v. State, 217 Ga. App. 759, 760 (1) (458 SE2d 918) (1995) (“Forgery under OCGA § 16-9-1 (a) requires proof that the [instrument] purports to have been made by authority of one who did not give such authority.” (punctuation omitted)).

        See Cuyuch v. State, 284 Ga. 290, 295 (3) (667 SE2d 85) (2008) (reversing conviction because inadmissible hearsay statements could not be considered in evaluating the sufficiency of the evidence to support defendant’s conviction).


text:
    A12A0271.
    SCHOFILL v. PHOEBE PUTNEY HEALTH SYSTEMS, INC.
    (728 SE2d 331)
   Adams, Judge.

On October 22, 2010, Bernie Schofill filed a medical malpractice action against Phoebe Putney Health Systems, Inc., d/b/a Phoebe Convenient Care, seeking to recover for injuries he allegedly received when a nurse at the health facility negligently administered an intramuscular injection. Pursuant to OCGA § 9-11-9.1, Schofill also filed the affidavit of a registered nurse (Jeinnie Avera), who opined, inter alia, that the nurse who administered the shot breached the standard of care “by going beyond the anatomical landmark range to safely administer the IM injection at the dorsogluteal site.” A few weeks later, Schofill filed an amendment to his complaint, attaching Avera’s curriculum vitae, which he said was inadvertently omitted when he filed the original complaint.

Defendant answered and filed a motion to dismiss, contending that the affidavit Schofill filed with his complaint did not meet the requirements of OCGA § 9-11-9.1 or OCGA § 24-9-67.1 (c), specifically that Avera lacked actual professional knowledge in rendering care under circumstances similar to those forming the basis of the malpractice action in this case. Schofill responded and raised various arguments, including that the filed affidavit and curriculum vitae were sufficient to satisfy the requirements of both OCGA SS 9-11-9.1 and 24-9-67.1.

Although we do not have a transcript of the hearing on the motion, it is undisputed that a hearing was held and that subsequent to that hearing, on May 2, 2011, Schofill filed an amended affidavit from Avera. On May 4, 2011, defendant filed a motion to exclude or strike the amended affidavit on the basis that it was not timely filed. Schofill filed a response on May 5,2011, contending that, pursuant to OCGA § 9-11-9.1 (e), the trial court had discretion to consider the amended affidavit even though it was filed more than 30 days after defendant’s motion to dismiss.

Several days later, on May 17, 2011, the trial court granted defendant’s motion to dismiss the complaint. In its order, the trial court determined that the first affidavit Schofill filed with his complaint did not meet the requirements of OCGA § 24-9-67.1. Further the court also found that it could not “accept” the amended affidavit because it was not filed within 30 days of the filing of the motion to dismiss and Schofill had not sought an extension of time based on excusable neglect pursuant to OCGA § 9-11-6 (b) (2) to file the amended affidavit outside the 30-day window. Schofill filed a motion to reconsider, arguing that OCGA § 9-11-9.1 (e) gives the trial court ‘blanket authority” to consider an amended affidavit as the court determines justice requires. The trial court denied that motion, finding that Schofill had merely reasserted arguments already considered and rejected by the court. Schofill now appeals, arguing that the trial court erred by refusing to accept his amended affidavit.

1. Schofill’s first enumeration is premised upon OCGA § 9-11-9.1 (e), which provides as follows:

If a plaintiff files an affidavit which is allegedly defective, and the defendant to whom it pertains alleges, with specificity, by motion to dismiss filed on or before the close of discovery, that said affidavit is defective, the plaintiffs complaint shall be subject to dismissal for failure to state a claim, except that the plaintiff may cure the alleged defect by amendment pursuant to Code Section 9-11-15 within 30 days of service of the motion alleging that the affidavit is defective. The trial court may, in the exercise of its discretion, extend the time for filing said amendment or response to the motion, or both, as it shall determine justice requires.

Relying on this language, Schofill argues that the trial court erred by refusing to exercise its discretion to accept his amended affidavit because OCGA § 9-11-9.1 (e) plainly allows a trial court to exercise discretion to consider an amended or supplemental affidavit filed outside the 30-day window “as it shall determine justice requires,” and nothing in that section requires that plaintiff first show that his or her failure to file an amended affidavit within 30 days of the motion to dismiss was the result of excusable neglect as required by OCGA § 9-11-6 (b).

Our analysis begins with the settled maxim that in interpreting statutes, we must look diligently for the intent of the legislature. Further, “when we search for this intention, we always must presume that the General Assembly means what it says and says what it means.” Northeast Atlanta Bonding Co. v. State of Ga., 308 Ga. App. 573, 577 (1) (707 SE2d 921) (2011). And lastly, we must remember that “a specific statute will prevail over a general statute, absent any indication of contrary legislative intent, to resolve any inconsistency between them.” (Citation and punctuation omitted.) GMC Group v. Harsco Corp., 293 Ga. App. 707, 709-710 (667 SE2d 916) (2008).

Turning to the statute here, our Supreme Court has held that this section “affirms the legislative intent that a plaintiff have a broad right to cure by amendment an allegedly defective affidavit accompanying a charge of professional malpractice.” Porquez v. Washington, 268 Ga. 649, 652 (1) (492 SE2d 665) (1997). Further, OCGA § 9-11-9.1 (e) applies specifically to responses or amended affidavits filed in response to a motion to dismiss based on defects in a previously filed affidavit, such as in the case at hand, while OCGA § 9-11-6 (b) is a general statute providing for extensions of time “[w]hen by this chapter or by a notice given thereunder or by order of court an act is required or allowed to be done at or within a specified time. . . .”

Further, this Court has previously determined that OCGA § 9-11-9.1 (e) “expressly allows the trial court, in its discretion, to extend the time for filing amendments to defective affidavits [,]” Kropp v. Roberts, 246 Ga. App. 497, 499 (540 SE2d 680) (2000) and grants the trial court the authority to consider an “untimely’ filed amended or supplemental affidavit.

In this case, the trial court refused to accept the amended affidavit because it “was not accompanied by a motion alleging excusable neglect [per OCGA § 9-11-6 (b)].” But based on the foregoing, the trial court erred by finding that, in the absence of a showing of excusable neglect, it had no discretion to allow Schofill to file his late-filed amended affidavit. Therefore, we must vacate and remand this case so as to allow the court an opportunity to determine whether it should exercise its discretion “as it shall determine justice requires” to consider Schofill’s amended affidavit. We stress however, that in doing so, we do not intend to intimate an opinion about the outcome of that determination.

2. Further, Schofill argues “that the trial court’s apparent belief that it was unable to consider his expert’s amended affidavit absent a showing of excusable neglect has the effect of excluding probative trial evidence.” However, because we are vacating the trial court’s order and remanding this case to allow the trial court to exercise its discretion under the proper standard, we need not consider this enumeration of error.

Judgment vacated and case remanded with direction.

Barnes, P. J., and McFadden, J., concur.

Decided May 9, 2012.

Brimberry, Kaplan & Brimberry, Mark D. Brimberry, William J. Carswell, for appellant.

Langley & Lee, Joseph P. Durham, Jr., Lauren M. Brock, for appellee.

       Schofill does not enumerate any error with respect to the sufficiency of his first affidavit.

       That section provides as follows:
      Extension of time. When by this chapter or by a notice given thereunder... an act is required or allowed to be done at or within a specified time, the parties, by written stipulation of counsel filed in the action, may extend the period, or the court for cause shown may at any time in its discretion (1) with or without motion or notice, order the period extended if request therefor is made before the expiration or the period originally prescribed or as extended by a previous order, or (2) upon motion made after the expiration of the specified period, permit the act to be done where the failure to act was the result of excusable neglect.

       The Supreme Court was considering a prior version of what is now codified at OCGA § 9-11-9.1 (e), but the language at issue is substantially the same. Further, we note that the language that is now contained in subsection (e) was formerly contained in other subsections of OCGA §9-11-9.1.

       Although the defendant cites Cogland v. Hosp. Auth. of the City of Bainbridge, 290 Ga. App. 73 (658 SE2d 769) (2008) in opposition to Schofill’s contentions, we do not think that case requires a different result. There is no indication that the issue of the trial court’s discretion under OCGA § 9-11-9.1 (e) was considered in determining whether the trial court abused its discretion by granting defendant’s motion to strike the late-filed response and affidavit, whereas in this case that issue has been put squarely before us. Id. at 75 (1).


text:
    A12A0046.
    WALKER v. THE STATE.
    (728 SE2d 334)
   Miller, Judge.

Following a jury trial, Christopher Wesley Walker (“Walker”) was convicted of family violence battery (OCGA § 16-5-23.1 (f) (1)) and family violence simple battery (OCGA § 16-5-23 (f)). Walker filed a motion for new trial, which the trial court denied. Walker appeals, contending that the evidence was insufficient to sustain his conviction for family violence battery under OCGA § 16-5-23.1 (f) (1). We disagree and affirm.

On appeal from a criminal conviction, we view the evidence in a light most favorable to the prosecution to determine whether the evidence was sufficient to prove guilt beyond a reasonable doubt. Jackson v. Virginia, 443 U. S. 307, 319 (III) (B) (99 SC 2781, 61 LE2d 560) (1979).

So viewed, the evidence shows that Walker and the victim, Kari Walker, were married for approximately 17 years until they were divorced in May 2010. Walker and Kari had four children together. In the final eight years of their marriage, Walker was physically violent with Kari on several occasions. The relevant incidents occurred in July 2009, while the Walker family was staying at Kari’s parents’ home in Blairsville, Georgia. At approximately 4:00 a.m. on July 27, 2009, when Walker and Kari were both in bed, Walker began yelling at Kari because she had ignored him while they were watching television that evening and had failed to wake him up in time to attend church that morning. After a few minutes, Walker got onto his knees and began choking Kari with both hands around her neck. After Kari cried and apologized to Walker, he stopped choking her, rolled over, and went to sleep. Kari lay in bed for about 30 minutes; later, when she heard her father making coffee in the kitchen, she got up to go speak with him about the choking incident. Kari’s father saw the red marks on her neck. Kari convinced her father not to call the police and confessed to him that Walker had been physically abusing her for the past eight years, but that she was just not prepared to leave him yet.

The next evening at Kari’s parents’ home, when Walker and Kari were once again in bed, Walker warned Kari not to ignore him again and that she needed to start talking; Kari proceeded to ask Walker to forgive her for being rude for the past few days. Walker left the room at approximately 2:30 a.m. to eat and smoke a cigarette. Shortly after Walker returned to bed at about 4:00 a.m., he got up onto his elbows and punched Kari’s left ear. The blow caused Kari to fall out of bed. Kari sat on the floor for a few minutes trying to maintain her composure and then got up to take her young daughter to the restroom. When Kari returned from the restroom, Walker was asleep. At about 5:00 a.m., Kari heard her father in the kitchen making coffee. She went to talk to him about the incident and showed him her left ear, which was ringing so badly that she had trouble hearing what her father was saying. Kari’s father described that her ear and the side of her head were very red and swollen and noticed that a piece of her left earring had been knocked off. Again however, Kari again begged her father not to call the police, explaining to him that it would make things worse and she needed to first come up with a plan on how to leave Walker.

Finally, later that day, Kari made the decision to leave Walker, and she took herself and her children to a safe house while Walker was sleeping. Once he confirmed Kari and the children’s arrival at the safe house, Kari’s father called the police for assistance in removing Walker from his home. The responding officers first visited the safe house to speak with Kari. One of the officers testified that he observed red marks and discoloration on Kari’s ear and on the side of her head; based on his training and experience, he described the marks as consistent with blunt force trauma. In light of their observations and Kari’s statements, the responding officers drove to Kari’s parents’ home and arrested Walker. Walker was charged and subsequently convicted of family violence battery under OCGA § 16-5-23.1 (f) (1) for the punching incident and family violence simple battery under OCGA § 16-5-23 (f) for the choking incident.

On appeal, Walker challenges the sufficiency of the evidence only with respect to his family violence battery conviction under OCGA § 16-5-23.1 (f) (1) for punching Kari in the ear. OCGA § 16-5-23.1 pertinently provides as follows:

(a) A person commits the offense of battery when he or she intentionally causes substantial physical harm or visible bodily harm to another.
(b) As used in this Code section, the term “visible bodily harm” means bodily harm capable of being perceived by a person other than the victim and may include, but is not limited to, substantially blackened eyes, substantially swollen lips or other facial or body parts, or substantial bruises to body parts.
(f) If the offense of battery is committed between past or present spouses . . . then such offense shall constitute the offense of family violence battery and shall be punished as follows:
(1) Upon a first conviction of family violence battery, the defendant shall be guilty of and punished for a misdemeanor [.]

OCGA§ 16-5-23.1 (a), (b), (f) (1).

Here, the accusation alleged that Walker committed battery by causing “visible bodily harm, to wit: redness and discoloration,... by striking [Kari] on the side of the head with a closed fist[.]” Indeed, Kari testified that Walker punched her left ear, causing her to fall off the bed. Kari’s father testified that Kari’s ear and the side of her head were very red and swollen shortly after Walker had punched her. And the responding police officer, who interviewed Kari later that same day, testified that he observed red marks and discoloration on Kari’s ear and on the side of her head that were consistent with blunt force trauma. This evidence was more than sufficient to authorize the jury to find that Walker caused Kari visible bodily injury as charged in the accusation and as required by the statute. Cf. Simmons v. State, 285 Ga. App. 129, 129-130 (645 SE2d 622) (2007) (concluding that evidence was sufficient to support conviction of family violence battery by intentionally causing visible bodily harm to the victim where the victim testified that the defendant hit her in the head with his fist, causing her to bleed, and the responding officer observed that the victim was visibly upset and had a cut on her head); Gilbert v. State, 278 Ga. App. 765, 766 (629 SE2d 587) (2006) (holding that there was sufficient evidence to sustain defendant’s family violence battery conviction under OCGA § 16-5-23.1 where the responding officer testified that the victim’s face was red from the defendant’s blow, as the victim’s reddened face was harm capable of being perceived by a person — the officer — other than the victim); Babb v. State, 252 Ga. App. 518, 518, 520 (5) (556 SE2d 562) (2001) (concluding that evidence was sufficient to support jury’s verdict of battery, which required a showing of substantial physical harm or visible bodily harm, where the victim’s neighbor and friend both testified that the victim’s face appeared red and puffy or swollen after defendant struck her in the face).

Decided May 10, 2012.

Stephen L. Blevins, for appellant.

William J. Langley, District Attorney, Christopher L. Lewis, Assistant District Attorney, for appellee.

Although the accusation charged Walker with battery by causing Kari “visible bodily harm,” Walker nevertheless argues that the evidence did not support his conviction in that there was no evidence showing that Walker caused Kari to suffer “substantial bruising or substantially swollen body parts” when he punched her. Walker contends that the repeated use of the word “substantially” in subsection (b) of the statute indicates a legislative intent to exclude minor wounds from the definition of “visible bodily injury.” There is no merit to Walker’s contention. Indeed, subsection (b) clearly includes nothing more than a nonexhaustive list of examples of visible bodily injuries. And “on its face, the statute encompasses behavior causing harm that is ‘capable of being perceived by a person other than the victim.’” Gilbert, supra, 278 Ga. App. at 766 (citing OCGA § 16-5-23.1 (b)). As discussed above, such was established in this case. Clearly, the evidence that Walker punched Kari in the ear, knocking her out of bed and causing her harm, i.e., redness and swelling, that was observed by both her father and the responding officer, was sufficient to sustain Walker’s conviction for family violence battery under OCGA§ 16-5-23.1 (f) (1).

Judgment affirmed.

Mikell, P. J., and Blackwell, J., concur.

       As noted previously, OCGA § 16-5-23.1 (b) defines the term “visible bodily harm” as “bodily harm capable of being perceived by a person other than the victim and may include, but is not limited to, substantially blackened eyes, substantially swollen lips or other facial or body parts, or substantial bruises to body parts.”


text:
    A12A0059.
    DAY v. THE STATE.
    (728 SE2d 337)
   BARNES, Presiding Judge.

Brian Dale Day was convicted of two counts of aggravated assault, kidnapping, aggravated sodomy, three counts of burglary, stalking, aggravated stalking, two counts of possession of a knife during the commission of a crime, possession of a firearm during the commission of a crime, and possession of a firearm by a convicted felon. He appeals, contending that the trial court erred in admitting similar transaction evidence; that the evidence of kidnapping was insufficient; and that his sentence on one of the firearms charges exceeds the statutory limit. For the reasons that follow, we affirm.

We review the evidence in the light most favorable to the jury’s verdict. Lytle v. State, 290 Ga. 177 (1) (718 SE2d 296) (2011). So viewed, the evidence showed that Day, the victim, and the victim’s children were living together, but the victim moved out of Day’s house on August 6, 2006, after she awoke on the sofa three times to find him standing over her and masturbating while watching a pornographic video on his bedroom television. The victim got up and went into her daughter’s bedroom, where she blocked the door with furniture, and she and her children moved out the next morning. While the victim was working that night, she took the trash out to the isolated trash bin behind the store early, and when she went outside to smoke a cigarette at her usual garbage disposal time of 3:00 a.m., she saw Day lurking behind the building, so she ran inside and called her parents.

The next morning, the victim spoke to Day, who denied being at the store and said he was on his way to work. The victim and her mother went to Day’s house a few hours later to retrieve her belongings, thinking he would be at work. His truck was not there, but after five minutes he came out of a back bathroom and announced his presence. The victim was frightened of him and left with her mother after telling Day he had better not been masturbating in her daughter’s presence. She later retrieved her things with help from co-workers.

Day continued to call the victim’s cell phone, but she did not answer. On September 5, 2006, the victim was asleep at her mother’s house when she awoke to find Day “standing over” her with “his penis in one hand and knife in the other hand,” masturbating. The victim sat up and talked Day into going to the kitchen with her for coffee. Day dropped the knife to pull up his pants, and the victim called 911 when he was not looking. She asked him to leave, but he would not do so. When a deputy sheriff drove up, Day ran away, and the deputy retrieved the knife, which had an eight-inch blade, from the bedroom floor by the bed. While en route to the scene, a sergeant saw what he later identified as Day’s truck parked a quarter of a mile from the victim’s house.

Day was arrested the next day, September 6, 2006, and released on bond the day after that. The victim immediately obtained a temporary family violence protective order against him, and then after Day was served with the petition and the court held a hearing at which he did not appear, the victim obtained a one-year family violence protective order against him. Day was indicted on October 3, 2006, for aggravated assault, burglary, two counts of possession of a knife during the commission of a crime, peeping tom, and stalking. The victim subsequently reported on October 24, 2006 that someone had broken into her house, pulled her window air conditioning unit out and put it in backward, but the investigating deputies were unable to obtain usable fingerprints.

Finally, on the morning of November 8, 2006, after her children left for school and her parents were at work, the victim walked out and locked her back door, intending to go to her job site until she attended a later appointment because she “didn’t feel comfortable” being there alone. She began to walk down the steps to her car when she saw Day squatting down by the stairs, holding a handgun. She began crying, and Day forced her into the house as she begged him not to hurt her. While pointing the gun at the victim, Day forced her to disrobe, placed a vibrator inside her, and put his penis in her mouth until he ejaculated in her mouth and hair. Some of his semen also spilled onto the bathroom rug, and he grabbed the rug and directed the victim to drive him to his truck. As they drove to a nearby dirt road, Day held the gun on the victim and threatened to kill her if she went to the police. He got out of her car with the rug and the vibrator, and the victim drove to the sheriff’s office to report the crimes.

A nurse swabbed the victim’s mouth and cut a swatch of her hair to send to the GBI laboratory for testing. A forensic biologist testified that the DNA profile obtained from the victim’s hair matched Day’s profile. Investigators found the victim’s rug in the woods and tire tracks off the dirt road about half a mile from the victim’s house.

The State introduced evidence of two similar transactions, both from ex-wives of Day. One ex-wife, who had married Day when she was sixteen and divorced him about four years later in 1993, testified that Day forced her to have sex with him while they were married. In 1992, after they separated, she stopped to help him when she saw him standing by his apparently broken-down truck on a road she traveled regularly. He pulled a knife on her, dragged her into the woods, and raped her. An investigator with the sheriff’s department recovered a knife in the location the ex-wife showed him. Day was arrested and gave a statement admitting he “was in the wrong” and asking his then-wife to forgive him. She later dropped the charges because, she explained, she had loved him and thought he would change, but left for good after he pulled a knife on her again. After she left, Day broke into the apartment she shared with her sister and raped her at knifepoint. She obtained a protective order, but in 1993 Day subsequently accosted her with a knife in her driveway, an attack which resulted in convictions for aggravated assault and aggravated stalking.

A second ex-wife testified that before they were married in 2000, Day put a knife to her throat and forced her to have sexual intercourse, but she did not report it because Day was seeing a counselor and she “thought it was something that could be fixed.” During her two-year marriage to Day, he repeatedly forced her to perform oral sex and have intercourse with him, after which he would cry and apologize. After she made him move out, he returned and forced himself on her while her six-year-old son was “right outside” the door. She reported the assault to police, but did not prosecute it because she “didn’t want to have to be judged and looked down on.”

1. Day contends that the trial court erred in admitting the similar transaction evidence from his two ex-wives, which he argues was not offered for a proper purpose and was more prejudicial than probative. Day argues that the probative value of his ex-wives’ testimony about his sexual assaults using a knife was “marginal” and outweighed by its prejudicial impact because the victims’ credibility was questionable. Day also argues that the probative value of his first ex-wife’s testimony was limited because the transactions occurred more than a decade earlier, because she never “pressed charges,” and because he was never tried or convicted of any offenses against her. The trial court determined that the similar transaction evidence was admissible and probative of Day’s course of conduct and method of operation, intent, motive, bent of mind, lustful disposition, and lack of consent.

Before evidence of a similar transaction is admissible in a criminal trial, the State must show: (1) that it seeks to introduce the similar transaction for an appropriate purpose, (2) that sufficient evidence establishes that the accused committed the similar transaction, and (3) that a sufficient connection or similarity exists between the transaction and the crime charged, “so that proof of the former tends to prove the latter.” Williams v. State, 261 Ga. 640, 642 (2) (b) (409 SE2d 649) (1991). “[T]he evidence is not to be admitted if it is done so merely to raise an improper inference about the character of the accused.” Humphrey v. State, 281 Ga. 596, 598 (2) (642 SE2d 23) (2007).

Evidence of prior bad acts involving sexual offenses is admissible “to show defendant’s bent of mind toward the sexual activity with which he was charged or defendant’s lustful disposition.” (Emphasis omitted.) Helton v. State, 206 Ga. App. 215, 216 (424 SE2d 806) (1992). Further,

[i]n cases of domestic violence, prior incidents of abuse against family members or sexual partners are more generally permitted because there is a logical connection between violent acts against two different persons with whom the accused had a similar emotional or intimate attachment.

(Footnote omitted.) Thomas v. State, 246 Ga. App. 448, 449 (1) (540 SE2d 662) (2000). Finally, “[e]vidence of an earlier assault on a woman is material to the issue of consent or the lack thereof, and has a direct bearing on appellant’s bent of mind.” (Citation omitted.) Goodroe v. State, 238 Ga. App. 66, 68 (2) (b) (518 SE2d 139) (1999).

In this case, both of Day’s ex-wives and the victim he had been living with testified that Day repeatedly held a knife on them to force them to perform sexual activities. The similarities between the prior bad acts and the acts for which Day was on trial were relevant to the issue of consent, Goodroe, 238 Ga. App. at 69 (2) (b), and were not too remote in time to be admissible.

Given that the similar transaction evidence reflects appellant’s behavior towards prior spouses, we conclude that any prejudice from the age of these prior incidents was outweighed by the probative value of the evidence under the particular facts of this case and the purpose for which the similar transactions were offered.

Hall v. State, 287 Ga. 755, 757 (2) (699 SE2d 321) (2010).

2. Day contends that there was insufficient evidence of the asportation element of kidnapping under Garza v. State, 284 Ga. 696 (670 SE2d 73) (2008), arguing that the movement of the victim from her house to her car was of minimal duration and merely incidental to one of the aggravated assault charges.

Garza sets out four factors to consider when determining whether the evidence met the asportation element of kidnapping:

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

Decided May 10, 2012.

Jennifer A. Trieshmann, for appellant.

Herbert E. Franklin, Jr., District Attorney, Elizabeth O. Evans, Assistant District Attorney, for appellee.

Garza, 284 Ga. at 702 (1). In this case, the duration of the victim’s movement while Day forced her to drive him to his truck was not brief or momentary and was not an inherent part of the aggravated assault. The movement also presented a significant increased danger to the victim apart from the aggravated assault and other offenses because it enhanced Day’s control over her and isolated her from possible rescue. See Jones v. State, 290 Ga. 670, 671 (1) (725 SE2d 236) (2012). Accordingly, we find no merit in this enumeration.

3. Day asserts that the trial court erred in sentencing him to ten years on Count 8, for the offense of possession of a firearm during the commission of a crime, which exceeds the statutory maximum sentence of five years. OCGA § 16-11-106 (b) (1). The trial court did not sentence Day to ten years for this offense, however; it sentenced him to five years for this offense, and five years for the separate offense of possession of a firearm by a convicted felon under OCGA § 16-11-131 (b). Thus, the trial court did not err in sentencing Day.

Judgment affirmed.

Adams and McFadden, JJ., concur.

       As Day’s acts occurred before the July 1, 2009 effective date of OCGA § 16-5-40 (b), the asportation test set forth in Garza applies to this case. Hammond v. State, 289 Ga. 142, 143, n. 2, 144 (1) (710 SE2d 124) (2011).


text:
    A12A0083.
    PLUMMER v. THE STATE.
    (728 SE2d 341)
   Miller, Judge.

Following a jury trial, Kelly Clark Plummer was convicted of aggravated child molestation (OCGA § 16-6-4 (c)), two counts of child molestation (OCGA § 16-6-4 (a) (1)), and cruelty to children in the first degree (OCGA § 16-5-70 (b)). Plummer filed a motion for new trial, which the trial court denied. In his sole enumeration of error on appeal, Plummer contends that the trial court erred in giving the pattern jury charge regarding conflicts in testimony. We discern no error and affirm.

Decided May 10, 2012.

Mary Erickson, for appellant.

J. Bradley Smith, District Attorney, Robin R. Riggs, Assistant District Attorney, for appellee.

The record reflects that the trial court charged the jury, in pertinent part, as follows:

When you consider the evidence in the case, if you find a conflict, you should settle this conflict [,] if you can[,] without believing that any witness made a false statement. If you cannot do so, then you should believe that witness or those witnesses whom you think are best entitled to belief. You must determine what testimony you will believe and what testimony you will not believe.

Plummer objected to the foregoing charge at trial, and he contends that the charge was an improper comment on the evidence and witness veracity.

Plummer’s contention in this regard was rejected by this Court in Johnson v. State, 296 Ga. App. 112, 113 (2) (673 SE2d 596) (2009). As stated in Johnson,

[t]he charge given by the court was taken verbatim from the Suggested Pattern Jury Instructions, Vol. II: Criminal Cases, p. 13 (3rd ed. 2003). We are unpersuaded that this charge somehow comments on the evidence [.] ... It does not suggest... that an unimpeached witness must be believed, but merely urges the jury to attempt to reconcile conflicting evidence before considering the credibility of witnesses.

(Citation and punctuation omitted.) Id.; see also Pena v. State, 247 Ga. App. 211, 218-219 (8) (542 SE2d 630) (2000). We further note that the charge was not a “presumption of truthfulness” charge, which was disapproved in Noggle v. State, 256 Ga. 383, 385-386 (4) (349 SE2d 175) (1986). See Mallory v. State, 271 Ga. 150, 151 (2) (517 SE2d 780) (1999); Hopkins v. State, 309 Ga. App. 298, 300-301 (2) (709 SE2d 873) (2011). Applying the binding precedents, we find no error in the charge as given.

Judgment affirmed.

Mikell, P. J., and Blackwell, J., concur.

       Notably, Plummer’s appellate contention does not challenge the sufficiency of the evidence supporting his convictions. We therefore refrain from reciting the trial evidence regarding the offenses, and we focus on the facts necessary to address Plummer’s enumeration of error.


text:
    A12A0311.
    ARNOLD v. THE STATE.
    (728 SE2d 342)
   Miller, Judge.

Cornelius Demond Arnold was granted an out-of-time appeal to challenge the denial of his post-sentencing motion to withdraw his guilty plea to possession of cocaine (OCGA § 16-13-30 (a)). Arnold contends that the trial court erred in denying his motion to withdraw his guilty plea since his counsel provided ineffective assistance by failing to adequately communicate the plea negotiations. For the reasons that follow, we affirm.

“[0]nce a sentence has been entered, a guilty plea may only be withdrawn to correct a manifest injustice, and a trial court’s refusal to allow withdrawal will not be disturbed on appeal absent a manifest abuse of discretion.” (Punctuation and footnotes omitted.) Earley v. State, 310 Ga. App. 110, 112 (712 SE2d 565) (2011). “[T]he trial court is the final arbiter of all factual disputes raised by the evidence. If evidence supports the trial court’s findings, we must affirm.” (Punctuation and footnote omitted.) Hubbard v. State, 301 Ga. App. 388, 388-389 (687 SE2d 589) (2009).

Here, the record shows that Arnold was charged with possession of cocaine. A public defender (“counsel”) was appointed to represent Arnold during criminal proceedings. Per counsel’s usual practice, counsel sent Arnold the State’s discovery packet, which included a plea offer. Based on the State’s discovery, and his own confirmation of Arnold’s criminal history, counsel knew that Arnold would be treated as a recidivist.

By the time Arnold received the plea offer, it had expired. However, counsel convinced the State to keep the offer open until counsel could personally speak to Arnold about the plea offer and his recidivist status. The State nevertheless included a condition that the offer would be revoked if Arnold required the State to disclose the identity of a confidential informant (“Cl”).

Counsel subsequently met with Arnold in person to explain the details of the plea offer, including the State’s condition, the meaning of a nonrecidivist offer, and the possibility of a harsher sentence if he rejected the plea offer. Despite counsel’s explanation and recommendation, Arnold refused to consider any plea offer. Consequently, counsel began to prepare for trial and requested that the State disclose the Cl’s identity. Once the State produced the Cl’s identity, counsel discovered that he had previously represented the Cl and was subsequently allowed to withdraw based on a conflict of interest. Arnold was appointed new trial counsel. Arnold entered into a nonnegotiated guilty plea, and the trial court sentenced him as a recidivist to serve 15 years.

Thereafter, Arnold filed a motion to withdraw his guilty plea, asserting that counsel failed to inform him of the State’s plea offer before it expired. Following a hearing, the trial court denied Arnold’s motion. The trial court granted Arnold’s motion for out-of-time appeal to challenge the ruling.

Arnold contends that trial counsel was ineffective for not informing him that the State had extended the plea offer deadline, that he would possibly be sentenced as a recidivist, or that the plea offer would be withdrawn if the State revealed the Cl’s identity.

To prevail on a claim of ineffective assistance of counsel under Strickland v. Washington, 466 U. S. 668 (104 SC 2052, 80 LE2d 674) (1984), the “defendant must show that counsel’s performance was deficient and that the deficient performance so prejudiced [the] defendant that there is a reasonable likelihood that, but for counsel’s errors, the outcome of the trial would have been different.” (Citations and punctuation omitted.) Johnson v. State, 287 Ga. 767, 769 (2) (700 SE2d 346) (2010). In the context of the plea bargain process, a defendant may prove that trial counsel was ineffective by showing that counsel failed to inform him that an offer to plead guilty had been made and failed to advise him of the “consequences of the choices confronting him.” (Citation and punctuation omitted.) Johnson v. State, 289 Ga. 532, 534 (712 SE2d 811) (2011). To establish prejudice in the context of the plea bargain process, the defendant must show that,

but for counsel’s deficient performance, there is a reasonable probability that he would have accepted the State’s plea offer. The requisite reasonable probability standard demands a showing that there is some indication that the defendant was amenable to the offer made by the [S]tate.

(Citations and punctuation omitted.) Id. at 535; see also Cleveland v. State, 285 Ga. 142, 145 (674 SE2d 289) (2009).

Here, counsel testified that he informed Arnold of the State’s extended plea offer and fully advised him about the process. Specifically, counsel informed Arnold that he faced a possible recidivist punishment, that the State would withdraw its plea offer if it revealed the identity of the Cl, and that if Arnold rej ected the offer, his only options were to enter a blind plea or proceed to trial. Although Arnold testified that he was not properly consulted during the plea process, the trial court was authorized to discredit Arnold’s testimony. See Cleveland, supra, 285 Ga. at 147 (“Decisions regarding credibility are uniquely the province of the trier of fact.”) (footnote omitted); Blass v. State, 293 Ga. App. 346, 347 (667 SE2d 140) (2008). The fact that Arnold now regrets his decision to reject the State’s negotiated plea offer over his counsel’s recommendation affords no basis for relief. See Vaughn v. State, 298 Ga. App. 669, 671 (680 SE2d 680) (2009) (fact that the defendant, who rejected the State’s plea offer and instead entered into a nonnegotiated plea, was displeased with his sentence did not render his counsel’s performance ineffective); Carson v. State, 264 Ga. App. 763, 764 (592 SE2d 161) (2003) (rejecting ineffective assistance claim where attorney explained to the defendant that a harsher sentence was a possible consequence of rejecting the State’s plea offer). Since Arnold failed to establish that his counsel’s performance was deficient, we need not examine whether he met his burden of proving prejudice. See Fuller v. State, 277 Ga. 505, 507 (3) (591 SE2d 782) (2004) (providing that, if an appellant fails to meet his burden of proving either prong of the Strickland test, a reviewing court need not examine the other prong). Accordingly, the trial court did not abuse its discretion in denying Arnold’s motion to withdraw his guilty plea on the grounds of ineffective assistance of counsel.

Decided May 10, 2012.

Lawrence W. Daniel, for appellant.

David McDade, District Attorney, James A. Dooley, Thomas E. Kegley, Assistant District Attorneys, for appellee.

Judgment affirmed.

Mikell, P. J., and Blackwell, J., concur.