author: Ray, Judge.

text:
    A12A1154.
    OSBORNE v. THE STATE.
    (734 SE2d 59)
   Ray, Judge.

Chase Osborne entered a guilty plea to misdemeanor charges of statutory rape, fornication, andbattery. Prior to sentencing, Osborne requested that the trial court merge the statutory rape and fornication offenses for the purpose of sentencing. After the trial court denied his merger request, Osborne proceeded to plead guilty to all three offenses. The trial court sentenced Osborne under the provisions of the First Offender Act to three consecutive 12-month sentences on probation, with the first 12 months to be served on house arrest. On appeal, Osborne contends that the trial court erred in denying his motion to merge the offense of fornication with the offense of statutory rape for the purpose of sentencing. Osborne also enumerates as error the trial court’s decision to impose consecutive sentences for each offense. For the reasons that follow, we affirm.

The undisputed facts indicate that all of the charges in this case arise from a single sexual encounter between Osborne, then 17 years of age, and the victim, then 15 years of age. On the date of the incident, Osborne went to the victim’s house to retrieve a pair of flip-flops. The victim was the only one home at the time. Once inside the house, Osborne sat down next to the victim and asked her if she wanted to have sex. When the victim said no, Osborne got on top of her, grabbed her arms, and had sexual intercourse with her. During this encounter, the victim suffered visible bruising to her arm.

1. Osborne contends that the trial court erred in failing to merge the fornication and statutory rape counts for the purpose of sentencing because the facts supporting the fornication charge were also used to support the statutory rape charge. “Whether two offenses should be merged is a question of law, and we apply a ‘plain legal error’ standard of review.”

Pretermitting whether the trial court erred in failing to merge the two offenses for the purpose of sentencing, we find that Osborne waived this issue by proceeding with his guilty plea after the trial court declined his merger request. At the plea hearing, the State recommended that Osborne serve “three years, with the first one year on house arrest as a cap; or that the defendant serve three years, with the first 180 days in jail as a cap.” Osborne acknowledged that he understood the State’s recommendation, and he chose to enter a guilty plea as to all of the offenses and requested that the trial court accept the State’s recommendation with regard to house arrest.

Prior to sentencing, Osborne made an oral motion to merge the offenses of fornication and statutory rape. The trial court denied the motion. At that point, Osborne had the absolute right to withdraw his guilty plea. Instead, he chose to proceed with his guilty plea and requested that the trial court consider imposing a lesser sentence and smaller fine than that recommended by the State.

As Osborne knowingly and voluntarily pled guilty to each of the crimes for which he was charged, we find that he waived the issue of whether the offenses of fornication and statutory rape merged as a matter of law or fact.

When a criminal defendant pleads guilty to counts of an indictment alleging multiple criminal acts, and willingly and knowingly accepts the specified sentences as to such charged counts, the defendant waives any claim that there was in fact only one act and that the resulting sentences are void on double jeopardy grounds.

In this case, Osborne chose to proceed with his guilty plea as to all offenses and requested that the trial court accept the State’s recommendation with regard to house arrest as an alternative to incarceration. Although Osborne contends that his plea was non-negotiated, this does not alter our conclusion that he waived his right to argue that the counts should have merged. Because Osborne decided to admit to the criminal acts in order to avoid trial on the question of his guilt or innocence, he accepted the benefits of this bargain, as well as the portion of the State’s plea recommendation with regard to house arrest, and it would be contrary to public policy and the ends of justice to allow him to avoid the consequences of his plea.

2. Based on his claim in Division 1 that the fornication and statutory rape charges should have merged, Osborne contends that the trial court erred in imposing a three-year sentence for misdemeanor offenses, and that the sentences were unlawfully consecutive. Based on our holding in Division 1, and for the reasons set out below, this enumeration fails.

OCGA § 17-10-1 (a) (1) “authorizes the trial court to sentence a defendant to any amount of time within the limits provided by law.” In this instance, given the ages of Osborne and the victim, the statutory rape offense is a misdemeanor. The fornication and battery offenses are also misdemeanors. Pursuant to OCGA § 17-10-3 (a) (1), each of these offenses have a maximum sentence of 12 months.

Decided November 5, 2012.

John R. Burdges, for appellant.

Daniel J. Porter, District Attorney, Jennifer L. Gower, Assistant District Attorney, for appellee.

There is no constitutionally cognizable right to concurrent, rather than consecutive, sentences. Under Georgia law, whether to impose consecutive or concurrent sentences for multiple offenses is within the trial court’s discretion, so long as the sentence for each offense is within the statutory limits.

As Osborne’s sentence falls within the statutory ranges for each offense, this enumeration is without merit.

Judgment affirmed.

Miller, P. J., and Branch, J., concur.

       OCGA § 16-6-3 (a), (c).

       OCGA § 16-6-18.

       OCGA § 16-5-23.1 (a), (c).

       OCGA § 42-8-60 et seq.

       (Citation omitted.) Herrera v. State, 306 Ga. App. 432, 434 (3) (702 SE2d 731) (2010).

       OCGA § 17-7-93 (b); State v. Evans, 265 Ga. 332, 336 (3) (454 SE2d 468) (1995).

        Carson v. State, 314 Ga. App. 225, 228-229 (2) (723 SE2d 516) (2012); Regent v. State, 306 Ga. App. 616, 618 (2) (703 SE2d 81) (2010).

        Carson, supra at 229 (2), citing Regent, supra.

        Regent, supra at 618 (2).

        Carson, supra.

       (Citation omitted.) Baldwin v. State, 217 Ga. App. 866, 869 (3) (460 SE2d 80) (1995).

       OCGA § 16-6-3 (c).

       OCGA § 16-6-18.

       OCGA § 16-5-23.1 (c).

       (Citation and punctuation omitted.) Simpson v. State, 310 Ga.App. 63, 64, n. 4(715 SE2d 675) (2011).


source: Caselaw Access Project

author: MILLER, Presiding Judge.

license: Public Domain

text:
    A12A1572.
    JONES v. THE STATE.
    (733 SE2d 400)
   MILLER, Presiding Judge.

Following a jury trial, Charles Richard Jones was convicted of rape (OCGA § 16-6-1 (a) (1)), aggravated sodomy (OCGA § 16-6-2 (a) (2)), false imprisonment (OCGA § 16-5-41 (a)), and escape (OCGA § 16-10-52 (a) (5)). Jones filed a motion for new trial, which the trial court denied. Jones appeals, contending that the trial court erred in denying his motion to sever offenses, and that the State made improper comments to the jury. Jones also contends that he received ineffective assistance of counsel. For the reasons that follow, we affirm the judgments of conviction but remand with direction that the trial court correct the scrivener’s error contained in the written sentence.

On appeal from a criminal conviction, the evidence must be viewed in the light most favorable to support the verdict, and the defendant no longer enjoys a presumption of innocence. We determine only whether the evidence authorized the jury to find the defendant guilty beyond a reasonable doubt, and in doing so we neither weigh that evidence nor judge the credibility of the witnesses.

(Citation omitted.) Brown v. State, 293 Ga. App. 633, 633-634 (667 SE2d 899) (2008).

So viewed, the evidence shows that in November 2003, the victim visited her boyfriend for the weekend and stayed at his residence. On Saturday night, November 15, 2003, the victim and her boyfriend went to a bar where they encountered Jones and stayed there for a short time. Jones and the victim’s boyfriend knew each other because they had been staying at the same detention facility under a work-release program, and the victim’s boyfriend had hired Jones to install tile at his residence. Sometime after departing the bar that night, the victim and her boyfriend returned to his residence, and he later left to report to the detention facility.

The next morning, on November 16, 2003, the victim was alone at her boyfriend’s residence when Jones knocked on the door. The victim asked Jones why he was there, and Jones told the victim that he had left some tools at the residence and wanted to retrieve them. The victim allowed Jones to enter the residence and helped him search for his tools. As the victim continued her search, Jones grabbed her from behind and held something against her back. Jones ordered the victim to remove her clothes and lie on a bed so that she would not flee. Jones then went over to the bed, straddled the victim, and forced her to perform oral sex on him. Jones then got on top of the victim and forced her to have sexual intercourse. Jones left the residence, but failed to return to the detention facility as scheduled.

The victim called her boyfriend, who reported the incident to the police. The police interviewed the victim and transported her to a facility where she underwent a physical examination and submitted samples for a rape kit.

The police officers attempted to locate Jones, who was on escape status, for several months before they were able to arrest him. The police officers obtained an order to draw blood from Jones and subsequently confirmed that samples from the victim’s rape kit matched Jones’s DNA. Jones was charged in pertinent part with rape, aggravated sodomy, false imprisonment, and escape.

At trial, Jones testified that he went to the residence of the victim’s boyfriend on the morning of November 16, 2003, to retrieve a laptop computer. Jones claimed that the victim invited him inside the residence and asked him if he liked her physical appearance. Jones stated that the victim then led him into a bedroom where she consented to perform oral sex and to sexual intercourse. Jones further claimed that the victim asked him for money in exchange for sex, and that he refused to pay her.

After the presentation of the evidence at trial, the jury returned a verdict of guilty on the rape, aggravated sodomy, false imprisonment, and escape offenses.

1. Jones contends that the trial court erred in denying his motion to sever the escape offense from the remaining offenses. We disagree.

[A] defendant has a right to severance where the offenses are joined solely on the ground that they are of the same or similar character because of the great risk of prejudice from a joint disposition of unrelated charges. However, where the joinder is based upon the same conduct or on a series of acts connected together or constituting parts of a single scheme or plan, severance lies within the sound discretion of the trial judge since the facts in each case are likely to be unique. A trial court does not abuse its discretion in denying a severance of counts where evidence of one charge would be admissible in the trial of another.

(Citations and punctuation omitted.) Carruth v. State, 290 Ga. 342, 346 (4) (721 SE2d 80) (2012).

Here, the offenses of rape, aggravated sodomy, and false imprisonment were a series of acts connected to Jones’s subsequent escape because they occurred within hours of his failure to report to the detention facility under the work-release program and were, thus, part of the immediate circumstance of the escape. See, e.g., Owens v. State, 271 Ga. App. 365, 370 (5) (a) (609 SE2d 670) (2005) (offenses that occurred within hours of escape are connected to escape offense for joinder purposes). Additionally, evidence of Jones’s escape from the detention facility would have been admissible at a separate trial on the other offenses because evidence of flight is relevant to show consciousness of guilt. See Jackson v. State, 276 Ga. App. 77, 78 (1) (622 SE2d 423) (2005).

Moreover, this case was not so complex as to impair the jury’s ability to distinguish the evidence and apply the law intelligently as to each offense. Consequently, we conclude that the trial court did not abuse its discretion in denying [Jones’s] motion to sever and motion for new trial on this basis.

(Citations and punctuation omitted.) Boatright v. State, 308 Ga. App. 266, 274 (2) (707 SE2d 158) (2011).

2. Jones also contends that the trial court erred in denying his motion for new trial on the grounds that the State made improper statements to the jury during trial and at closing argument. However, Jones concedes, and the record confirms, that he failed to object to the challenged statements at the time they occurred. Citing Parks v. State, 254 Ga. 403, 415 (13) (330 SE2d 686) (1985), Jones argues that the prosecutor’s remarks were so egregious as to require reversal despite the lack of a contemporaneous objection. Parks, however, was a death penalty case. Id. at 403. In non-death penalty cases, a defendant’s failure to object to the prosecutor’s remarks precludes enumerating it as error on appeal. See Conner v. State, 251 Ga. 113, 123 (6) (303 SE2d 266) (1983).

3. Jones contends that his trial counsel was ineffective in several respects.

To prevail on a claim of ineffective assistance of counsel, a defendant must show that counsel’s performance was deficient and that the deficient performance so prejudiced the defendant that there is a reasonable likelihood that, but for counsel’s errors, the outcome of the trial would have been different. [See] Strickland v. Washington, 466 U. S. 668, 687 (104 SC 2052, 80 LE2d 674) (1984). If an appellant fails to meet his or her burden of proving either prong of the Strickland test, the reviewing court does not have to examine the other prong. In reviewing the trial court’s decision, we accept the trial court’s factual findings and credibility determinations unless clearly erroneous, but we independently apply the legal principles to the facts. Furthermore, there is a strong presumption that the performance of counsel was within the wide range of reasonable professional lawyering, and we cannot reach a contrary conclusion unless defendant successfully rebuts the presumption by clear and convincing evidence. Judicial scrutiny of counsel’s performance must be highly deferential.

(Citations and punctuation omitted.) Bridges v. State, 286 Ga. 535, 537 (1) (690 SE2d 136) (2010). Applying these standards, we turn to address Jones’s claims.

(a) Jones contends that his trial counsel was ineffective for failing to object to the prosecutor’s improper statements and closing arguments. We address each of the challenged statements in turn below.

(i) Jones asserts that trial counsel should have objected to the prosecutor’s statements referring to his “future dangerousness.” Jones claims that the prosecutor made the improper comments when he stated:

[W]e know deep down that there is evil in this world. If there is any doubt about that, turn on the news tonight.
There are people out there that you teach your child not to talk to____There are reasons, because there are people out there that are flat out dangerous. And now it’s easy to sit in your Lazy-Boy... and hear about acts of violence, about acts of brutality, [and] about drug use.
It’s kind of like white noise [.] [Y]ou hear it so often that... you’re really numb to it. For the 12 of you this week, though, that’s not the case. You were kind of put on the front lines in dealing with real life brutality, real life acts of violence. You can’t just sit there[.]

We do not interpret these statements as an impermissible comment on Jones’s future dangerousness. Instead, the comments were proper because they were intended to appeal to the jury to convict Jones for the safety of the community or to curb an epidemic of violence in the community, and to emphasize to the jury its responsibility to enforce the law. See Clark v. State, 285 Ga. App. 182, 184 (2) (645 SE2d 671) (2007). Since the challenged comments were permissible, “counsel’s failure to object to these comments during argument was not deficient performance. And the failure to make a meritless objection cannot be evidence of ineffective assistance.” (Citations and punctuation omitted.) Hughes v. State, 302 Ga.App. 251, 253 (1) (690 SE2d 898) (2010).

(ii) Jones next asserts that the prosecutor improperly bolstered the victim’s credibility. Jones cites the prosecutor’s opening statements in which he noted that the victim would testify and referred to her physical appearance, her multiple accounting degrees, and her status as a law school student on a scholarship. These statements did not express a belief as to the victim’s veracity or credibility, as the prosecutor was merely referring to the victim’s background. “Because the prosecutor’s remarks did not convey [his] personal view of [the victim’s] credibility to the jury but instead explained what [he] expected the evidence would show, the prosecutor’s remarks were well within the proper bounds of opening statement.” Wilson v. State, 276 Ga. 674, 676 (2) (581 SE2d 534) (2003).

Jones next asserts that the prosecutor bolstered the victim’s credibility when, in redirect examination of the victim, the prosecutor asked her if she was telling the truth each time she recounted the rape incident and why she did not immediately call the police to report the incident. The prosecutor’s questions, however, came after defense counsel attempted to impeach the victim’s credibility. “Although a party normally may not bolster the veracity of an unimpeached witness, the State may rehabilitate a witness whose credibility has been attacked.” (Punctuation and footnote omitted.) Robinson v. State, 275 Ga. App. 537, 538 (1) (621 SE2d 770) (2005); see also Hall v. State, 255 Ga. App. 631, 632 (1) (566 SE2d 374) (2002).

Jones also claims that the prosecutor improperly bolstered the victim’s veracity during closing argument when he asked the jury to consider the victim’s educational background and demeanor while testifying. In making the challenged statements, however, the prosecutor was urging the jury to accept the victim’s testimony regarding the incident and to reject Jones’s testimony that the sexual encounter was consensual and that the victim asked for money in exchange for sex.

As a general rule, prosecutors are granted wide latitude in conducting closing argument, and defining the bounds of such argument is within the trial court’s discretion. This wide latitude encompasses the prosecutor’s ability to argue reasonable inferences raised by the evidence. Accordingly, it is proper for a prosecutor to urge the jury to draw inferences from the evidence regarding the credibility of witnesses.

(Citations and punctuation omitted.) Brown, supra, 293 Ga. App. at 637-638 (1) (d) (ii). Since the challenged statements did not bolster the victim’s credibility, trial counsel’s failure to make meritless objections did not constitute ineffective assistance. See Hughes, supra, 302 Ga. App. at 253 (1).

(iii) Jones also asserts that trial counsel was ineffective for failing to object to the prosecutor’s insertion of his personal opinion as to Jones’s guilt and the strength of the State’s case. Jones refers to the prosecutor’s statement, “I have met my burden [of proof] as to each and every element.” This statement was preceded by the prosecutor’s acknowledgment of his burden of proof, and was followed by the prosecutor’s statement that he had shown through trial evidence how he established each and every element of the offenses. Jones also cites the prosecutor’s comments on the victim’s demeanor following the rape.

The statement^], when read as a whole, [are] simply an urging by the prosecutor to find appellant guilty on the basis of the evidence introduced. Although expressions of personal opinion by the prosecutor are improper in closing argument, the prosecutor has wide latitude to argue inferences from the evidence. Therefore, the statement^] complained of [were] not objectionable[.]

(Punctuation and footnote omitted.) Wyatt v. State, 267 Ga. 860, 864 (2) (a) (485 SE2d 470) (1997). As such, trial counsel’s failure to object to the challenged statements did not constitute ineffective assistance. See Hughes, supra, 302 Ga. App. at 253 (1).

(iv) Jones also asserts that trial counsel was ineffective for failing to object to the prosecutor’s statements regarding victim impact and attempts to shift the State’s burden of proof.

After summarizing Jones’s defense, the prosecutor asked the jury to consider the implausibility of Jones’s defense that the victim fabricated the rape allegations to “get hack at [him] for stealing a computer.” In particular, the prosecutor asked the jury to consider whether it sounded reasonable for the victim to fabricate the charges when she would have to “act upset” when the police arrived, submit to an invasive medical examination, and testify at trial where she would be subj ected to cross-examination. The prosecutor told the jury that if it could “stomach” Jones’s defense and find it reasonable, it should “let him go.”

Read in context, the prosecutor was not offering an improper argument about the impact to the victim, but was instead arguing that based on the facts and reasonable inferences drawn from the evidence, the jury should accept the victim’s version of the occurrence and reject Jones’s version. “[I]t is proper for a prosecutor to urge the jury to draw inferences from the evidence regarding the credibility of witnesses.” (Citations and punctuation omitted.) Brown, supra, 292 Ga. App. at 637-638 (1) (d) (ii). Moreover, contrary to Jones’s claim otherwise, the prosecutor’s arguments regarding the credibility of the victim and Jones’s lack of veracity did not shift the burden of proof to Jones. See, e.g., Grant v. State, 257 Ga. App. 275, 277 (2) (570 SE2d 597) (2002). Since the prosecutor did not improperly argue victim impact or shift the burden of proof, trial counsel’s failure to object to the prosecutor’s statements did not constitute ineffective assistance. See Hughes, supra, 302 Ga. App. at 253 (1).

(b) Jones next contends that his trial counsel was deficient by mistakenly stipulating that Jones had been convicted of theft by receiving. His contention has no merit.

As an initial matter, trial counsel did not stipulate that Jones had been convicted of theft by receiving. Rather, trial counsel stipulated that Jones pled guilty to felony forgery. Trial counsel explained that he entered into the stipulation because Jones’s status on work-release would be admissible evidence as to the escape charge. Trial counsel believed that entering into the stipulation was less damaging to Jones’s defense than having law enforcement officers testify as to Jones’s participation in the work-release program. While trial counsel acknowledged at the motion for new trial hearing that in hindsight, it may have been improper to stipulate to the reasons why Jones was on work-release, “[t]rial strategy and tactics do not equate with ineffective assistance of counsel. Effectiveness is not judged by hindsight or by the result. Entering into the stipulation therefore was a reasonable trial strategy that did not amount to deficient performance.” (Citations and punctuation omitted.) Wilcox v. State, 309 Ga. App. 538, 540 (2) (a) (711 SE2d 67) (2011); see also White v. State, 265 Ga. App. 155, 157 (1) (b) (592 SE2d 920) (2004) (trial counsel’s tactical decision to enter stipulation, whether wise or unwise, will not be second-guessed on appeal).

Decided October 19, 2012

Reconsideration denied November 6, 2012

Edwin J. Wilson, for appellant.

Daniel J. Porter, District Attorney, Wesley C. Ross, Assistant District Attorney, for appellee.

(c) In his final enumeration of error, Jones asserts that trial counsel was ineffective for failing to have the jury polled. “[Jones] has not cited — and we have not found — any authority requiring trial counsel to poll the jury to provide effective representation. On the contrary, we have consistently rejected ineffective assistance claims based on the failure to conduct a poll.” (Punctuation and footnote omitted.) Williams v. State, 300 Ga. App. 839, 843 (2) (d) (686 SE2d 446) (2009); Ellison v. State, 296 Ga. App. 752, 756-757 (2) (e) (675 SE2d 613) (2009). Consequently, we reject Jones’s claim of ineffectiveness on this ground.

4. Neither party raises the issue, but it is apparent that the trial court’s written sentence form contains a scrivener’s error that should be corrected on remand. Notably, although Jones was found guilty of aggravated sodomy and not guilty of armed robbery, the written sentence indicates otherwise. The trial court nevertheless entered a sentence on the aggravated sodomy offense and not on the armed robbery charge. Under these circumstances, we remand the case for the trial court to correct the error in the written sentence. See Hickson v. State, 308 Ga. App. 50, 56 (6) (706 SE2d 670) (2011); Chaney v. State, 281 Ga. 481, 483 (2) (640 SE2d 37) (2007).

Judgment affirmed and case remanded with direction.

Ray and Branch, JJ., concur.

       Jones was ordered to serve four months in a work-release program beginning in September 2003 as a result of violating his probation, which was imposed after he pled guilty to felony forgery.

         We note that Jones’s motion to sever was untimely, as it was filed on the morning of his trial. See OCGA § 17-7-110 (“All pretrial motions... shall be filed within ten days after the date of arraignment, unless the time for filing is extended by the court.”). Nevertheless, the trial court agreed to hear and decide the motion on its merits.

       Nevertheless, since Jones argues that his trial counsel was ineffective in failing to object to the challenged remarks, we shall review his contentions of error in the context of his ineffective assistance of counsel claims in Division 3 (a) below.

       We note that Jones also argues that trial counsel was ineffective for failing to object to the prosecutor’s repeated use of the phrases “I think” or “I believe.” However, Jones did not provide record citations to support his claim. “It is a sound rule of appellate practice that the burden is always on the appellant in asserting error to show it affirmatively by the record. [Jones] has not met his burden and it is not the function of this [C]ourt to cull the record on behalf of a party in search of instances of error.” (Punctuation and footnote omitted.) Walker v. State, 296 Ga. App. 531, 537 (2) (b) (675 SE2d 270) (2009).

       Jones also asserts that his trial counsel was deficient when he failed to object to the prosecutor’s violation of the “golden rule” prohibition. Again, however, J ones provides no record citation to show where this violation allegedly occurred, and therefore has failed to show error by the record. See Walker, supra, 296 Ga. App. at 537 (2) (b).


text:
    A12A1592.
    STINSON v. THE STATE.
    (733 SE2d 390)
   MILLER, Presiding Judge.

Following a jury trial in the Clayton County State Court, Nathaniel Stinson was convicted of driving with an alcohol concentration exceeding 0.08 grams (“DUI per se” — OCGA § 40-6-391 (a) (5)). On appeal, Stinson contends that the trial court erred in denying his motion in limine and objection to exclude the results of the breath test and the field sobriety examination, along with his admissions to the police officers, since they were the fruits of an unlawful stop. For the reasons that follow, we affirm the judgment. We nevertheless remand the case to the trial court with instructions to correct the blatant errors in its written sentencing form.

When reviewing a trial court’s decision on a motion to suppress, this court’s responsibility is to ensure that there was a substantial basis for the decision. The evidence is construed most favorably to uphold the findings and judgment, and the trial court’s findings on disputed facts and credibility are adopted unless they are clearly erroneous. Further, since the trial court sits as the trier of fact, its findings are analogous to a jury verdict and will not be disturbed if there is any evidence to support them.

(Citation and footnote omitted.) Jones v. State, 259 Ga. App. 506 (1) (578 SE2d 165) (2003).

So viewed, the evidence shows that on May 14, 2011, at approximately 1:47 a.m., officers with the Jonesboro Police Department and the Clayton County Police Department were conducting a multijurisdictional roadblock at an intersection on Lake Jodeco Road in Clayton County. The officers observed a white pickup truck, driven by Stinson, approaching the roadblock. The officers described that Stinson’s truck crested to the top of the hill where the roadblock became visible, then “stopfped] very suddenly and made a very sharp right turn” onto an adjacent road. A police radio alert was sent out with the description of Stinson’s truck, and an officer left the roadblock to locate Stinson’s truck. Shortly thereafter, an officer found Stinson’s truck parked on the shoulder of the road, and Stinson had already exited the truck. Stinson was staggering outside of his truck, and stumbled into the truck’s rear fender. The officer made contact with Stinson, directed Stinson to step back inside his truck, and began running checks of the truck’s tag and Stinson’s driver’s license. Based on the home address listed on Stinson’s driver’s license, Stinson would have had to pass through the roadblock in order to take a direct route to his home.

Other officers arrived at the scene to provide back-up assistance. During the encounter, the officers smelled the odor of alcohol emanating from Stinson’s person, and Stinson looked confused. An officer further observed that Stinson’s speech was very slurred and his eyes were bloodshot. Stinson admitted that he had consumed two beers earlier that evening.

Stinson agreed to perform field sobriety tests at the scene. The officer who administered the tests observed that Stinson displayed signs of impairment during the horizontal gaze nystagmus test. During the walk and turn test, the officer again observed several signs of Stinson’s impairment. Stinson also registered a positive alco-sensor test result, revealing the presence of alcohol on Stinson’s breath. Based on the officer’s observations, Stinson was arrested for DHL

Following his arrest, Stinson was read the required implied consent notice, advising him of the State-administered chemical test and his right to an independent test. Stinson agreed to submit to the State’s chemical test of his breath using the Intoxilyzer 5000 device. The test results indicated that Stinson had 0.120 and 0.122 alcohol concentration levels.

Stinson was charged and convicted of DUI per se.

1. Stinson contends that the trial court erred in denying his motion in limine and objection to exclude evidence of the breath test results, field sobriety examination results, and his admissions to the officers. He argues that the test results and his admission to the officers that he had consumed alcohol were inadmissible since they were the product of an unlawful stop. We disagree.

“There are at least three tiers of police-citizen encounters: (1) consensual encounters; (2) brief investigatory stops that require reasonable suspicion; and (3) arrests that must be supported by probable cause.” (Citation and footnote omitted.) O’Neal v. State, 273 Ga. App. 688, 690 (616 SE2d 479) (2005).

A person has been seized within the meaning of the Fourth Amendment only if, in view of all the circumstances surrounding the incident, a reasonable person would have believed that he was not free to leave. ... In order to determine whether a particular encounter constitutes a seizure [under a second-tier encounter], a court must consider all the circumstances surrounding the encounter to determine whether the police conduct would have communicated to a reasonable person that the person was not free to decline the officer’s requests or otherwise terminate the encounter.

(Citations and punctuation omitted.) Rogers v. State, 206 Ga. App. 654, 657 (2) (426 SE2d 209) (1992). Here, the evidence indicated that Stinson’s encounter with the officers was of the second-tier requiring reasonable suspicion for the seizure. The circumstances surrounding the encounter in this case demonstrated that Stinson was being detained and was not free to leave the scene. Significantly, the evidence showed that the officers had pursued Stinson’s truck after it turned to evade the roadblock, the officers had activated their blue lights upon pulling behind Stinson’s parked truck, and an officer had directed Stinson to step back into his truck after the officer’s approach. These combined circumstances indicated that a seizure was intended. See Satterfield v. State, 289 Ga. App. 886, 888 (1) (658 SE2d 379) (2008) (concluding that a second-tier encounter occurred when the officer activated his blue lights upon pulling behind the defendant’s car and asked the occupant to step out of the car); McKinley v. State, 213 Ga. App. 738, 739 (445 SE2d 828) (1994) (concluding that a second-tier encounter occurred when the officer pulled behind the defendant’s parked car, activated the patrol car’s blue lights, and told driver to step back in his car).

To justify Stinson’s seizure under this second-tier encounter, the State was required to show that the officers had a particularized and objective basis for suspecting that Stinson was involved in criminal activity. See Satterfield, supra, 289 Ga. App. at 888 (2).

An officer may conduct a brief investigative stop of a vehicle if the stop is justified by specific and articulable facts which, taken together with rational inferences from those facts, reasonably warrant that intrusion. A court must consider whether, under the totality of the circumstances, the police officer had a particularized and objective basis for suspecting the particular person stopped of criminal activity. . . . [A]n officer’s honest belief that a traffic violation has been committed in his presence, even if ultimately proven incorrect, may nevertheless demonstrate the existence of at least an articulable suspicion and reasonable grounds for the stop. In judging the officer’s honest belief, a court should determine whether the officer’s motives and actions at the time and under all the circumstances, including the nature of the officer’s mistake, if any, were reasonable and not arbitrary or harassing. And, while normal driving that incidentally evades a roadblock does not justify an investigative stop, abnormal or unusual actions taken to avoid a roadblock may give an officer a reasonable suspicion of criminal activity even when the evasive action is not illegal.

(Citations, punctuation and footnotes omitted.) Jones, supra, 259 Ga. App. at 507 (1).

Stinson argues that the traffic stop was unjustified since there was no evidence that he had committed a traffic offense. His argument is without merit. Here, the evidence showed that Stinson made an abrupt, furtive turning maneuver in his vehicle to evade the roadblock. Regardless of whether Stinson’s abrupt maneuver turned out to be a traffic violation, “it was nevertheless a sufficiently suspicious and deliberately furtive response to the road check so as to give the officer at least a reasonable suspicion of [Stinson’s] criminal activity and to warrant further investigation.” (Citation and punctuation omitted.) Jones, supra, 259 Ga. App. at 507-508 (1). Cf. Jones v. State, 291 Ga. 35, 38-39 (2) (727 SE2d 456) (2012) (concluding that the traffic stop was unlawful since there was no evidence of an abrupt turn, sharp driving maneuver, or other evasive action to justify the officer’s belief that the defendant was trying to avoid the roadblock). Since the stop and seizure were lawful, Stinson’s motion in limine and objection were properly denied.

Decided October 18, 2012

Reconsideration denied November 6, 2012

Michael B. King, for appellant.

Tasha M. Mosley, Solicitor-General, Steven K. Snider, Assistant Solicitor-General, for appellee.

2. Although the issue was not enumerated as error, we note that the trial court’s written sentence form erroneously reflects that Stinson had “pled guilty’ to the DUI per se offense and that Stinson was “found not guilty [by the] jury’ of the improper turning offense. To the contrary, Stinson was convicted of the DUI per se offense following a jury trial, and a directed verdict was granted on the improper turning charge. The accuracy of information in court records is extremely important, and therefore, the trial court is directed to correct the aforementioned mistakes in its sentencing form upon remittitur. See Johnson v. Gooding, 242 Ga. 793, 794-795 (251 SE2d 534) (1979) (the trial court has the inherent power to correct clerical errors in its written sentencing record to reflect the truth of what transpired during its proceedings).

Judgment affirmed and case remanded with instruction.

Ray and Branch, JJ., concur.

       Stinson also was charged with improper turning without signaling (OCGA § 40-6-123 (b)) and driving under the influence of alcohol to the extent that he was a less safe driver (“DUI less safe”—OCGA § 40-6-391 (a) (1)). The trial court granted a directed verdict on the improper turning charge and merged the DUI less safe charge into the DUI per se charge. Accordingly, Stinson was not convicted of the improper turning and DUI less safe offenses. See Slack v. State, 288 Ga. 659, 661 (2) (706 SE2d 447) (2011) (ruling that a conviction does not occur until a final judgment of conviction is entered upon a guilty verdict); Wallin v. State, 270 Ga. 889, 890 (514 SE2d 828) (1999) (a defendant is not convicted of a merged offense).

       The trial court’s ruling on Stinson’s motion in limine has not been included in the appellate record. Nevertheless, since it is undisputed that the trial court denied the motion, and the trial court subsequently overruled Stinson’s objection to the breath test at trial, we shall review Stinson’s claim of error.

       Stinson also enumerates that the trial court erred in failing to give his requested jury charge on the use of a turn signal and in admitting the officer’s testimony regarding the depressant effects of alcohol on the central nervous system. His arguments, however, pertain to the improper turning and DUI less safe offenses for which he was not convicted. Consequently, these enumerations are moot and need not be addressed. See Fleming v. State, 269 Ga. 245, 247 (3) (497 SE2d 211) (1998) (concluding that the appellant’s enumerations are moot since they pertained to an offense for which he was not convicted); Farley v. State, 314 Ga. App. 660, 664(1) (b), n. 11 (725 SE2d 794) (2012) (we need not address an appellant’s challenge concerning a merged offense for which he was never convicted and sentenced).

       We note that Stinson’s vehicle was already parked on the shoulder of the road when the officer initially approached Stinson. Generally, “an officer’s approach to a stopped vehicle and inquiry into the situation are not a ‘stop’ or ‘seizure’ but rather clearly fall within the realm of the first type of police-citizen encounter.” (Citations and punctuation omitted.) Carrera v. State, 261 Ga. App. 832, 834 (584 SE2d 2) (2003); see also Palmer v. State, 257 Ga. App. 650, 651-652 (1) (572 SE2d 27) (2002). Nevertheless, as explained above, this is not a situation involving a voluntary stop since there were other circumstances establishing that Stinson was being pursued and detained during the police encounter.


author: Boggs, Judge.

text:
    A12A1015.
    GEORGIA CASH AMERICA, INC. et al. v. GREENE et al.
    (734 SE2d 67)
   Boggs, Judge.

This is the fourth appearance of this case before this court. The appellants, Georgia Cash America, Inc., audits president and CEO, Daniel Feehan (collectively “Cash America”), appeal from the trial court’s denial of their motion for summary judgment and its grant of the plaintiffs’ motion for partial summary judgment. The main issue before us on appeal is whether Cash America was the “de facto” lender of payday loans made to the plaintiffs. For the following reasons, we affirm in part and reverse in part.

The underlying facts of this case are as set forth in our prior opinion involving the same parties:

[Cash America] is a Georgia company which contracted with Community State Bank, a South Dakota bank[] to offer “payday” loans in Georgia. On August 6,2004, the plaintiffs/ appellees, each of whom borrowed money through the payday loans, filed suit against [Cash America] alleging, among other things, conversion of funds through a predatory lending scheme, ... to offer loans that violated Georgia law.[] The plaintiffs’ loan documents identified the lender as “Community State Bank” of Milbank, South Dakota (hereinafter, “the bank”). The complaint alleged that [Cash America] entered into a sham partnership with the bank in order to claim that it was only making loans on behalf of the bank and, thus, secure immunity from Georgia’s usury laws on federal preemption grounds. According to the complaint, the bank had little involvement in the loans other than lending its name to the transaction and receiving a small portion of the loan proceeds, and it alleged that [Cash America], not the bank, was the de facto lender in the payday loans. The complaint alleged that, since Georgia companies are prohibited under Georgia law from making payday loans, the loan contracts in this case were null and void. The complaint also alleged that the loan contracts were unconscionable adhesion contracts and that the arbitration agreements contained in the contracts were unenforceable. The complaint did not assert any claims against the bank or under any federal law.

(Footnotes omitted.) Ga. Cash America v. Strong, 286 Ga. App. 405, 405-406 (649 SE2d 548) (2007) (physical precedent only), cert. denied, 2007 Ga. LEXIS 709.

In Strong, the first appearance of this case, we affirmed a trial court order holding Cash America in contempt for discovery violations and striking its arbitration defense. Id. at 405-415. Cash America nevertheless moved to compel arbitration. The trial court denied the motion and Cash America filed an appeal in this court, but we dismissed the appeal for lack of jurisdiction.

The plaintiffs subsequently sought class action certification to represent the interests of all Cash America borrowers in Georgia. The trial court granted certification, and Cash America appealed. This court affirmed the grant of class certification in an unpublished opinion pursuant to Court of Appeals Rule 36 (1)-(4). Georgia Cash America v. Green, 306 Ga. App. XXIII (2010).

In the case before us, Cash America moved for summary judgment on all of the plaintiffs’ claims. The plaintiffs opposed Cash America’s motion and moved for partial summary judgment on the ground that Cash America was the de facto lender “for all payday loans made between October 1, 2001 through May 1, 2004,” and that Cash America’s collection of unlawful debt was a racketeering activity under the Georgia RICO Act. Following the argument of counsel in two separate hearings, the trial court denied Cash America’s motion for summary judgment and granted the plaintiffs’ motion for partial summary judgment.

1. Cash America first argues that the trial court erred in denying its motion to compel arbitration as moot. In the first appearance of this case, this court held that the trial court did not abuse its discretion in striking Cash America’s arbitration defenses as a sanction under OCGA § 9-11-37. Strong, supra, 286 Ga. App. at 413-414 (5) (a). Cash America nevertheless moved to compel arbitration pursuant to the terms of the loan documents. The trial court ruled that its prior order, from which Cash America appealed in Strong, rendered the motion to compel moot.

The plaintiffs argue that the trial court’s earlier ruling striking Cash America’s arbitration defense was an adjudication on the merits and carries a res judicata effect. We agree. In Strong, supra, we held that “because the court struck [Cash America’s] arbitration defenses, no further discovery was necessary in this case on the issue of the enforceability of the arbitration agreements.” Id. at 411 (3). Similarly, Cash America cannot move to compel an action that the trial court foreclosed as a penalty. In striking Cash America’s arbitration defense, the trial court essentially ruled that Cash America could not compel arbitration. And this court’s affirmance of that ruling is binding in all subsequent proceedings. See OCGA § 9-11-60 (h) (“any ruling by the Supreme Court or the Court of Appeals in a case shall be binding in all subsequent proceedings in that case in the lower court and in the Supreme Court or the Court of Appeals as the case maybe”); see also Maree v. Phillips, 274 Ga. 369, 370-371 (3) (552 SE2d 837) (2001); Strong, supra, 651 F3d at 1265-1270 (III) (C) (1)-(7) (holding that only issue to be decided was whether the arbitration agreement was enforceable in spite of the discovery abuses; “Georgia cases are clear that court orders dismissing claims or striking pleadings as a sanction for willful discovery violations function as an adjudication on the merits and carry res judicata effect. [Cit.]” Id. at 1270 (III) (C) (7)). This claim of error is therefore without merit.

2. In two enumerations, Cash America contends that the trial court erred in its rulings on the parties’ cross-motions for summary judgment. “On appeal from the grant or denial of summary judgment, we apply a de novo standard of review.” (Citation omitted.) Coca-Cola Bottlers’ Sales &c. v. Novelis Corp., 311 Ga. App. 161 (715 SE2d 692) (2011). “[T]he moving party must demonstrate that there is no genuine issue of material fact and that the undisputed facts, viewed in the light most favorable to the nonmoving party, warrant judgment as a matter of law.” (Punctuation omitted.) Lau’s Corp. v. Haskins, 261 Ga. 491 (405 SE2d 474) (1991); see also OCGA § 9-11-56 (c).

As explained in Strong,

[a] payday loan has been defined as a loan of short duration, typically two weeks, at an astronomical annual interest rate. Payday loans are the current version of salary buying or wage buying. The fees, charges, and interest on a payday loan are between 15 percent and 30 percent of the principal for a two-week loan, constituting a pretext for usury. Because the maturity date of these loans is usually set to coincide with the borrower’s next payday, the loans are often called “payday loans.”

(Citations and punctuation omitted.) Strong, supra, 286 Ga. App. at 406, n. 2. Payday loans $3,000 or less come within the scope of the Georgia Industrial Loan Act (“GILA”), OCGA § 7-3-1 et seq. USA Payday Cash Advance Centers v. Oxendine, 262 Ga. App. 632, 633 (585 SE2d 924) (2003). The purpose of the Act is “to define and prevent usury.” (Citation and footnote omitted.) Id. at 634. Usury is defined as “reserving and taking or contracting to reserve and take, either directly or indirectly, a greater sum for the use of money than the lawful interest.” OCGA § 7-4-1. GILA

was enacted to provide a source of regulated loans “for those who had been borrowing at usurious [interest] rates from loan sharks, street shylocks and wage-buyers.” GILA applies to all “persons,” defined as “individuals, copartnerships, associations, corporations, and all other legal and commercial entities,” engaged in the business of making loans in amounts of $3,000 or less, unless such persons are expressly exempted. State or federally chartered banks are excluded from regulation under GILA and exempted from the operation of its provisions.

(Citations and footnotes omitted.) BankWest v. Oxendine, 266 Ga. App. 771, 772-773 (1) (598 SE2d 343) (2004). Both GILA and this state’s usury statutes regulate lending practices. For example, OCGA § 7-4-2 defines the legal rate of interest for purposes of the usury statutes. And GILA provides: “A licensee may charge, contract for, receive, and collect interest at a rate not to exceed 10 percent per annum of the face amount of the contract.” OCGA § 7-3-14 (1). “If the maximum interest rate is over the limit set by OCGA § 7-3-14 of ten percent or the lender fails to hold an industrial license issued by the Commissioner, then ‘payday loans’ violate GILA.” (Citation, punctuation and footnote omitted.) Clay v. Oxendine, 285 Ga. App. 50, 52 (1) (645 SE2d 553) (2007).

As noted by this court,

[i]n an attempt to circumvent state usury laws, some payday lenders have contracted with federally chartered banks or state chartered banks insured by the FDIC to take advantage of federal banking laws that allow such banks to make loans across state lines without regard to that state’s interest and usury laws in “rent-a-charter” or “rent-a-bank” contracts.

(Citations omitted.) USA Payday Cash Advance Centers, supra, 262 Ga. App. at 634.

In 2004, the legislature addressed this practice and enacted Senate Bill 157, codified as OCGA § 16-17-1 et seq. (hereinafter referred to as “The Payday Lending Act”). OCGA § 16-17-1 provides in part:

(c) The General Assembly has determined that various payday lenders have created certain schemes and methods in order to attempt to disguise these transactions or to cause these transactions to appear to be “loans” made by a national or state bank chartered in another state in which this type of lending is unregulated, even though the majority of the revenues in this lending method are paid to the payday lender. The General Assembly has further determined that payday lending, despite the illegality of such activity, continues to grow in the State of Georgia and is having an adverse effect upon military personnel, the elderly, the economically disadvantaged, and other citizens of the State of Georgia. The General Assembly has further determined that substantial criminal and civil penalties over and above those currently existing under state law are necessary in order to prohibit this activity in the State of Georgia and to cause the cessation of this activity once and for all. The General Assembly further declares that these types of loans are currently illegal and are in violation of Code Section 7-4-2. The General Assembly declares that the use of agency or partnership agreements between in-state entities and out-of-state banks, whereby the in-state agent holds a predominant economic interest in the revenues generated by payday loans made to Georgia residents, is a scheme or contrivance by which the agent seeks to circumvent Chapter 3 of Title 7, the “Georgia Industrial Loan Act,”and the usury statutes of this state.
(e) Without limiting in any manner the scope of this chapter, the General Assembly declares that it is the general intent of this chapter to reiterate that in the State of Georgia the practice of engaging in activities commonly referred to as payday lending, deferred presentment services, or advance cash services and other similar activities are currently illegal and to strengthen the penalties for those engaging in such activities.

(Emphasis supplied.) OCGA § 16-17-2 (b) (4) provides in part: “A purported agent shall be considered a de facto lender if the entire circumstances of the transaction show that the purported agent holds, acquires, or maintains a predominant economic interest in the revenues generated by the loan.”

The plaintiffs’ claims here were divided into two categories based upon the effective date of the Payday Lending Act: loans made before May 14, 2004 and those made after May 14, 2004. Their complaint alleged that Cash America was the lender of payday loans both before and after the passage of the Act. In ruling on the cross-motions for summary judgment, the trial court found that there was no genuine issue of material fact that Cash America was the true, or de facto, lender prior to May 14, 2004, and that a jury issue remained as to whether Cash America was the de facto lender after May 14.

Loans Before May 14, 2004

(a) Cash America argues that the trial court erred in finding as a matter of law that it was the de facto lender of the payday loans prior to May 14, 2004. It argues that because “the loan documents identify the Banks as the lenders [,] the Banks approved the loans [,] the Banks funded the loans [,] and the checks were made payable to the Banks,” the banks were the true lenders. Cash America argues further that, prior to the enactment of the Payday Lending Act, the “ ‘bank model’ did not violate Georgia law, regardless of the proportion of loan revenues retained by the loan servicing agent.” The plaintiffs, on the other hand, argue that Cash America’s relationship with the banks was a sham, and that the evidence shows that Cash America retained the predominant economic interest in all loan revenues generated through May 2004.

In granting the plaintiffs’ motion for partial summary judgment on this issue, the court found that Cash America was the true lender of the loans because it retained 88 percent of the gross revenues of the loans, was required to provide initial funding for the loans and bear the expenses of marketing, originating and processing the loans, was required to indemnify the bank for any claims asserted by borrowers or regulatory authorities, was required to immediately repurchase any loan in default, and was required to pay the bank a monthly fee. The court concluded: “In short, Cash America retained virtually all the benefits, risks and revenues of the loans and was responsible for virtually all the expenses and liabilities.”

Cash America argues that prior to the enactment of the Payday Lending Act, “Georgia law did not regulate (1) the interest rates charged by out-of-state banks operating in Georgia, or (2) the activities of the in-state loan servicing agents for out-of-state banks.” But if Cash America was the lender in fact rather than the banks, it was bound by GILA and this state’s usury laws.

To determine if a contract is usurious, we critically examine the substance of the transaction, regardless of the name given it, or, stated another way, the theory that a contract will be usurious or not according to the kind of paper bag it is put up in, or according to the more or less ingenious phrases made use of in negotiating it, is altogether erroneous. The law intends that a search for usury shall penetrate to the substance.

(Citations and footnotes omitted.) BankWest, supra, 266 Ga. App. at 776 (1). And

where the profit received by the lender, by whatever name it may be called, and whether lawful on its face or not, is in reality a contrivance or device to obtain an amount greater than lawful interest, and is made with intent to violate the usury laws, the transaction is illegal, and . . . the name by which it is called is altogether immaterial.

(Citations omitted.) Tribble v. State, 89 Ga.App. 593, 596 (2) (80 SE2d 711) (1954).

We agree that the trial court was authorized in ruling on summary judgment to look outside of the written agreements between Cash America and the bank to ascertain the substance of the transaction. See, e.g., BankWest, supra, 266 Ga. App. at 773 (1) (to discover violation, industrial loan commissioner may examine the books, accounts and records of any person making loans of $3,000 or less). But we disagree, however, that the court could decide here as a matter of law, in light of the evidence presented, that Cash America was the true lender of the loans made prior to May 2004.

Some of the administrative service agreements (“ASAs”) between Cash America and the bank provided that the bank was the lender and that Cash America was to administer, service, and collect the loans. The bank’s duties pursuant to the ASAs included developing credit and underwriting criteria, making a determination as to whether to extend a loan, extending credit in the form of loans, funding the loans, and disbursing the proceeds of the loans. According to these agreements, Cash America’s duties included marketing and promoting the loans, soliciting potential borrowers, overseeing and administering the application process, transmitting loan applications to the bank, receiving decisions concerning the loan application and forwarding the decisions to the applicants, assisting the bank in the disbursement of the loan proceeds to the borrowers, and servicing the loans and forwarding them to the bank. The ASAs provided further that the loan payments belong to and would be held in trust for the bank and were not to be deposited in any account with Cash America funds. Cash America also agreed to indemnify and hold the hank harmless for any claims arising out of its breach and any claim that the “Loans or the activities of the parties hereunder are illegal under or prohibited by any of the Rules and any other claim asserted by or on behalf of Borrowers or a Regulatory Authority with respect to the Loans.”

The loan applications listed the bank as the lender and contained an acknowledgment to be signed by the applicant that he/she understood that the application was for a loan from the bank. The promissory notes listed the bank as the lender, and the “Additional Terms” section contained an acknowledgment that Cash America was to “assist with this loan transaction” and would accept payments on the loan to forward to the bank. The promissory notes also provided that Cash America did not have the authority to make or review loans.

In contrast, the evidence showed that Cash America advanced the funds for the loans to customers “on behalf of the bank,” and “at the end of the day, there would be an exchange with the bank where the bank would transfer” the funds back to Cash America in settlement. The ASAs provided that Cash America would assume the responsibility for collecting all unpaid loans and agreed to purchase such loans from the bank. And while Cash America indemnified the bank from all claims that the parties’ activities are illegal, the bank agreed to indemnify Cash America for only its breach or the breach of a third party servicer it retained. An exhibit labeled “Payday Loan Pricing” provided that the “loans will be priced at eighteen percent (18%),” and contained an “annual percentage rate calculation.” In a separate “Participation Agreement” that was “for the purpose of effectuating the sale of an undivided participation interest in the Loans from the [bank],” the bank agreed to sell to Cash America

an undivided ninety-five percent (95%) interest in the Loans, together with corresponding interest in any collateral and all related Loan documents. . . . The [bank] also agrees to offer and sell to [Cash America] the [bank’s] remaining interest in Mature Loans [purchased by Cash America].

These two “interests” were referred to as “Participation Interest.” These agreements provided that in consideration of Cash America’s “Participation Interest,” Cash America would be entitled to receive a “Participation Payment” equal to 8 percent per annum times the aggregate principal amount of the “Participation Interest.” The “Participation Payment” was “paid to [Cash America] on a daily basis and shall equal (1) the aggregate principal balance of the Participation Interest as of the end of the preceding day times (2) .08 divided by (3) 365.”

Cash America’s compensation for its services under the ASAs was an “Administrative Fee” due each day equal to “(i) the Base Fee ... for that day minus (ii) the Participation Payment payable to [Cash America] for that day under the Participation Agreement.” The “Base fee... is the amount determined by multiplying .864 times the Gross Revenues earned by [the] [b]ank for the given day.” Cash America also received from the bank a “Collection Bonus” based upon the loans made during a month that were repaid in full or renewed.

Daniel Feehan, president and CEO of Cash America, testified that Cash America acted as a servicer for the bank because it could not operate profitably in Georgia “because of the interest rate that could be charged.” He stated further that Cash America acted as a direct lender in the majority of the states in which it operated, and that in Georgia (and six other states) it acted only as a marketer or servicer because “[t]he existing laws in the state of Georgia did not allow us to directly make short-term cash advances out of our store-front operations.”

While the ASAs and loan documents provided that the bank was the lender, there was evidence that Cash America provided the funds for the loans, assumed the risk of loss of the loans, indemnified the banks for claims of illegality in the transactions, acted as a lender in other states, serviced loans with an interest rate higher than that statutorily allowed by a Georgia lender, received a 95 percent interest in the loans, was required to purchase all unpaid loans, and received between 75 and 95 percent of revenues as compensation for its services. Under this evidence, a jury issue remains as to whether Cash America sought to obtain an amount greater than lawful interest prior to May 2004 and was therefore the true lender. Indeed, “the question whether one intended to exact usury under cover of a contrivance or device,... is for the jury to determine.” (Citation and punctuation omitted.) Tribble, supra, 89 Ga. App. at 596-597 (2). The trial court therefore erred in granting the plaintiffs’ motion for partial summary judgment that Cash America was the lender prior to May 2004. See, e.g., BankWest, supra, 266 Ga. App. at 775 (1) (investigation warranted when servicer received majority of fee or interest on each loan, retained risk of loss on loans, indemnified bank for claims relating to loans and bank did not reciprocate indemnification, and offered its own loans in other states but affiliated with out-of-state banks in states where payday lending illegal); see also Aleman v. Sugarloaf Dialysis, 312 Ga. App. 658, 660 (1) (719 SE2d 551) (2011) (“[c]onflicts in the evidence are to be resolved by the jury”).

Loans After May 14, 2004

(b) Cash America argues that the trial court erred in failing to find as a matter of law that the banks were the lenders after May 14, 2004, because it did not retain a predominant economic interest in the loan revenues after that date. Cash America argues further that because the bank was the “true lender,” Cash America fell into the “safe harbor” provision of OCGA § 16-17-2 (b) (4) as the bank’s agent.

Entities exempt under OCGA § 16-17-2 (a) (3) may legally make payday loans in Georgia through a local agent provided that the agent is not the “de facto” lender, as established where “the entire circumstances of the transaction show that the purported agent holds, acquires, or maintains a predominant economic interest in the revenues generated by the loan.” OCGA § 16-17-2 (b) (4).

Glenn v. State, 282 Ga. 27, 28 (1), n. 4 (644 SE2d 826) (2007).

Feehan averred that after May 14, 2004, Cash America did not receive more than 49 percent of loan revenues in compensation, and the record reveals that after May 14, 2004, the ASAs between Cash America and the bank were amended to provide that Cash America would not receive more than 49 percent of revenue to ensure that Cash America’s compensation for its services is “less than a predominant economic interest in the revenues generated by the Georgia Loans, within the meaning of the New Georgia Law.” The remaining provisions of the agreements essentially remained the same, however, including the calculation of the base fee at .864 time revenue (plus “the amount determined by multiplying .25 times the Gross Revenues earned by the [b]ank with respect to Georgia Loans for the given day”). The amendment to the ASAs provided that

[i]f a court of competent jurisdiction makes a determination that the Administrative Fee provided for in this section . . . for services provided by Cash America in connection with Georgia Loans [results in a predominant economic interest in the revenues generated], the parties agree that the Administrative Fee payable for the services provided . . . shall be adjusted retroactively to an amount which is less than a predominant economic interest in the revenues.

The trial court concluded that the “factors which applied through May 14, 2004, for the most part continued to remain in place after May 14, 2004,” and that an issue of fact remained as to whether Cash America’s economic interest in the revenues was actually limited to 49 percent of revenues. As the trial court noted, Cash America attempted to limit its role to the language of the service agreements. But under OCGA § 16-17-6,

the trial court shall be authorized to review the terms of the transaction in their entirety in order to determine if there has been any contrivance, device, or scheme used by the lender in order to avoid the provisions of subsection (a) of Code Section 16-17-2. The trial court shall not be bound in making such determination by the parol evidence rule or by any written contract but shall be authorized to determine exactly whether the loan transaction includes the use of a scheme, device, or contrivance and whether in reality the loan is in violation of the provisions of subsection (a) of Code Section 16-17-2 based upon the facts and evidence relating to that transaction and similar transactions being made in the State of Georgia. If any entity involved in soliciting or facilitating the making of payday loans purports to be acting as an agent of a bank or thrift, then the court shall be authorized to determine whether the entity claiming to act as agent is in fact the lender. Such entity shall be presumed to be the lender if, under the totality of the circumstances, it holds, acquires, or maintains a predominant economic interest in the revenues generated by the loan.

(Emphasis supplied.)

While Cash America amended the ASAs to provide that its intention was for its total compensation to be less than a predominant economic interest such that it could not be presumed to be the lender, there was other evidence presented, as outlined in Division 2 (a), sufficient to create a genuine issue of material fact regarding whether Cash America actually received a 49 percent economic interest for its services and even if it did so, whether it nevertheless, by contrivance, device, or scheme, attempted to avoid the provisions of subsection (a) of OCGA § 16-17-2. The trial court therefore did not err in concluding that genuine issues of material fact exist as to whether Cash America was the true lender of the loans made after May 14, 2004. See BankWest, supra; Aleman, supra.

3. In its remaining claim of error, Cash America argues that the trial court erred in denying its motion for summary judgment as to the personal liability of Feehan. Cash America argues that Feehan was not “directly involved with the torts alleged” and “merely executed the various administrative service agreements and related documents with [the bank] in his corporate capacity.” The trial court found that a genuine issue of material fact remained regarding the claims against Feehan individually. The court reasoned that a jury could find that Feehan “personally was actively and directly involved in designing, creating and administering a scheme which resulted in the wrongdoing set out in plaintiffs’ claims in this case.”

A corporation possesses a legal existence separate and apart from that of its officers and shareholders so that the operation of a corporate business does not render officers and shareholders personally liable for corporate acts. A corporate officer who takes part in the commission of a tort by the corporation is personally liable therefor, but an officer of a corporation who takes no part in the commission of a tort committed by the corporation is not personally liable unless he specifically directed the particular act to be done or participated or cooperated therein (or if he disregarded the corporate form so as to authorize piercing of the corporate veil).

Decided November 6, 2012

Paul Hastings, Shauna T. Phillips, William K. Whitner, for appellants.

Roy E. Barnes, John R. Bevis, James C. Tribble, for appellees.

(Citations and punctuation omitted.) Clay, supra, 285 Ga. App. at 57 (3); see BTL COM Ltd. v. Vachon, 278 Ga.App. 256, 260 (1) (628 SE2d 690) (2006).

Feehan averred that he “never personally entered into a loan agreement,” and “never personally determined the rate of interest to be charged on a loan.” But the record reveals that in March 2000, Feehan submitted letters to the bank proposing the terms of one of the ASAs which included compensation to Cash America in the form of an administrative fee of 75 percent of gross revenues, and also signed various other ASAs which provided administrative fees payable to Cash America of between 86 and 88 percent. Feehan also admitted in his deposition that Cash America chose to use the bank because it could not profit in Georgia due to the interest rate cap.

Here, there was evidence that Feehan was “personally and intimately involved in drafting and negotiating the [ASAs].” BTL COM Ltd., supra, 278 Ga. App. at 260 (1). And we have held in Division 2 that a jury issue remains concerning whether Cash America was the true lender. For these reasons, and in light of the fact that the plaintiffs’ tort claims remain pending below for a jury determination, the trial court did not err in denying the motion for summary judgment as to Feehan’s personal liability for a corporate tort. See id. at 260 (1); see also Clay, supra, 285 Ga. App. at 57 (3).

Judgment affirmed in part and reversed in part.

Doyle, P. J., and Andrews, J., concur.

       From sometime in 2000 to March 2003, Cash America contracted with “First National Bank in Brookings.” Beginning in March 2003, Cash America entered into similar agreements with Community State Bank. For simplicity, we will refer to both of these entities as “the bank.”

       The fourth amended and restated complaint filed in 2009 alleged violation of the Georgia Industrial Loan Act, usury, violation of Senate Bill 157, violation of the check cashing statute, violation of the Georgia RICO Act, conversion, and conspiracy.

       These parties have also appeared repeatedly in federal court. Cash America filed a notice of removal of the case to federal district court, and filed a motion to stay and a motion to compel arbitration, but the federal court remanded the case hack to the state court. Strong, supra, 286 Ga. App. at 406-407. For a full procedural history of this case in federal court, see Community State Bank v. Strong, 651 F3d 1241, 1247-1248 (11th Cir. 2011), cert. denied, _U. S._ (133 SC 101, 184 LE2d 22) (2012).

       Cash America argues that the decision of the United States Supreme Court in AT&T Mobility LLC v. Concepcion, _U. S._ (131 SC 1740, 179 LE2d 742) (2011), demands a different result. But the issue before the court in Concepcion was whether the Federal Arbitration Act prohibited states from finding arbitration agreements unconscionable and unlawfully exculpatory because those agreements disallowed class-wide arbitration procedures. 131 SC at 1744. That issue is not presented here.

       While the Payday Lending Act became effective May 1, 2004, Cash America and other banks and payday lending institutions moved to enjoin enforcement of the new law. BankWest v. Baker, 324 FSupp.2d 1333, 1338 (N.D. Ga. 2004). The federal district court ultimately denied the motion, id. at 1339, but did grant a temporary restraining order restraining enforcement of the Act until May 15,2004, while the court considered the “voluminous filings submittedby the parties.” Id. at 1338.

       The ASAs provided that the parties would settle all amounts on a daily basis and that any payment due from one party to the other wouldhe made by an automatic clearinghouse transfer on the next business day following the transaction. The agreements provided further: “Bank acknowledges and agrees that if it issues its draft to a Borrower for the disbursement of Loan proceeds to that Borrower and Cash America then honors that draft, the amount of the draft shall be considered due and owing from Bank to Cash America on the date that Cash America honors the draft.”

       The example calculation was as follows:
      $200.00 principal at 18% = $36.00 finance charge
      APR = [(finance charge/prineipal)] X 100] X [365/loan term]
      = [($36.00/$200.00) X [365/14]
      = [0.18 X 100] X [26.0174]
      = 18 X 26.0174
      = 469.285 Annual Percentage Rate

       With regard to the ASAs between First National Bank in Brookings and Cash America between 2001 and 2003, this amount was 88 percent of gross revenues.

       Cash America ceased its payday lending operations in Georgia on April 1, 2006.


text:
    A12A1064.
    BENNETT v. GEORGIA DEPARTMENT OF TRANSPORTATION. JOHNSON v. GEORGIA DEPARTMENT OF TRANSPORTATION.
    A12A1065.
    (734 SE2d 77)
   MILLER, Presiding Judge.

Janice Bennett and Denise Johnson brought these actions against the Georgia Department of Transportation (“GDOT’) for personal injuries that they sustained in a car accident. Bennett and Johnson both alleged that the accident was proximately caused by GDOT’s negligent design, maintenance, and failure to provide proper traffic control devices at the intersection where the accident occurred. GDOT filed identical motions for summary judgment in each case, arguing that there was no evidence establishing that GDOT’s alleged negligence was the proximate cause of the accident. The trial court granted GDOT’s motions. Bennett and Johnson appeal, contending that the grant of summary judgment was erroneous since the evidence presented a genuine issue of material fact for the jury as to the proximate causation issue. We discern no error and affirm.

Summary judgment is proper when there is no genuine issue of material fact and the movant is entitled to judgment as a matter of law. On appeal from a trial court’s grant of summary judgment, we review the evidence de novo and in a light most favorable to the nonmoving party.

(Footnotes omitted.) Stevens v. Ga. Dept. of Transp., 256 Ga. App. 656 (572 SE2d 1) (2002).

So viewed, the undisputed evidence shows that the subject accident occurred on July 28, 2004, at the intersection of Highway 38 and State Road 11 in Lanier County. John Ellison was driving his vehicle northbound on State Road 11 toward the intersection. At the same time, Johnson and her passenger, Bennett, were headed westbound on Highway 38. As Ellison approached the intersection, he observed two vehicles, including Johnson’s vehicle, approaching from his right side.

The intersection contained two clearly visible stop signs and two overhead flashing red lights, indicating that Ellison was required to stop. Ellison saw one of the stop signs and saw Johnson’s vehicle approaching the intersection. Ellison was aware that the stop sign directed him to stop, but he failed to do so. According to Ellison, the other vehicles approaching the intersection seemed to be slowing down, so he thought that he would be able to go through the intersection without the need to stop. Rather than stopping at the stop sign, Ellison proceeded to drive into the intersection. Upon entering the intersection, Ellison collided into the right rear panel of Johnson’s vehicle.

Bennett and Johnson sustained injuries as a result of the accident. They both subsequently sued GDOT, alleging that it had failed to properly design and maintain adequate traffic control devices at the intersection. In support of their negligence claims against GDOT, Bennett and Johnson presented the testimony of their expert traffic engineer, who opined that a stop/go light should have been installed to control traffic at the intersection more effectively. The expert further opined that the failure to incorporate a stop/go light amounted to a defective design, caused confusion as to how the intersection worked, and was a contributing cause to the subject accident. The expert nevertheless acknowledged that the two stop signs and flashing red lights were present and visibly unobstructed at the intersection, which required Ellison to stop before entering the intersection. The expert also acknowledged that Ellison had admitted his failure to make the required stop at the stop sign.

Based upon the undisputed evidence reflecting how the accident occurred, Bennett and Johnson failed to establish that GDOT’s acts were the proximate causation for the accident and their injuries.

Whether proximate cause exists in a given case is a mixed question of law and fact. It requires both factfinding in the “what happened” sense, and an evaluation of whether the facts measure up to the legal standard set by precedent. Ordinarily, both determinations are most appropriately made by a jury upon appropriate instructions from the judge.

(Citations and punctuation omitted.) Lay field v. Dept. of Transp., 280 Ga. 848, 849 (1) (632 SE2d 135) (2006). “While the issue of proximate cause is generally a question of fact for the jury, it may be decided as a matter of law where the evidence is clear and leads to only one reasonable conclusion — that defendants] acts were not the proximate cause of the plaintiffs’ injury.” (Citation and punctuation omitted.) Watson v. Marshall, 212 Ga. App. 206, 208 (2) (441 SE2d 427) (1994).

Here, the undisputed evidence established that the accident occurred as a result of Ellison’s disregard of the clearly posted stop signs and flashing red lights, and his failure to make a full stop as required by those signs before proceeding with caution into the intersection. Significantly, Ellison provided deposition testimony describing the manner in which the accident occurred. In doing so, Ellison admitted that he saw Bennett’s vehicle approaching the intersection, he saw the stop sign, he understood that a posted stop sign requires a driver to stop, but he nevertheless failed to stop as required before driving into the intersection and colliding with Bennett’s vehicle.

While we recognize that there may be more than one proximate cause of an accident, we have held that “where a driver missed several indications of a hazard, jurors cannot speculate that putting up a sign about the hazard would have made any difference.” (Citation omitted.) Smith v. Commercial Transp., 220 Ga. App. 866, 868 (2) (470 SE2d 446) (1996); see also Stevens, supra, 256 Ga. App. at 658-659; Watson, supra, 212 Ga. App. at 208 (2). Although Ellison claimed that “[i]f there had been a red light up there,... [he] probably could [have avoided the wreck,]” there were indeed flashing red lights posted at the intersection; however, he disregarded the lights and made the unauthorized entry into the intersection. Based upon this evidence, the accident was not caused by GDOT’s failure to post adequate signs or a traffic light; rather, the accident was caused by Ellison’s admitted disregard of the stop signs and flashing red lights that were posted at the intersection. As such, GDOT’s acts were not the proximate cause of the injuries sustained by Bennett and Johnson. See Dept. of Transp. v. Jackson, 229 Ga. App. 321 (494 SE2d 20) (1997) (affirming the dismissal of the plaintiff’s claims against GDOT since the proximate cause of the automobile collision was the driver’s disregard of a stop sign at the intersection, not the alleged failure of GDOT to do more to signal the opening of the road); see, e.g., Stevens, supra, 256 Ga. App. at 658-659 (ruling that GDOT’s failure to install additional warning signs regarding a new traffic light did not proximately cause a wreck at an intersection since the driver who failed to stop missed numerous indications that he was approaching the intersection, including a white strobe light set up to warn drivers of the red light).

Contrary to Bennett’s and Johnson’s arguments, the decision in Layfield, supra, 280 Ga. at 849-852 (1), does not require a different result. In Layfield, the plaintiff brought suit against GDOT, alleging that its negligence in the construction and resurfacing of a road caused the one-car crash wherein the driver lost control of the vehicle in a rainstorm. Id. at 848. The plaintiff presented the testimony of an expert who opined that GDOT had negligently constructed and resurfaced the road, which caused a water accumulation problem on the roadway and led the driver to lose control of his vehicle upon encountering the water accumulation hazard. Id. at 848-849. The sole question presented was whether the expert’s opinion on causation was speculative. Id. at 850 (1). The Court held that the expert’s opinion on causation was not speculative and provided sufficient evidence for jury resolution as to whether the alleged negligence of GDOT was the proximate cause of the one-car crash. Id. at 851-852 (1).

The facts set forth in Layfield are clearly distinguishable since that case did not involve the driver’s uncontroverted disregard of clearly visible stop signs and signals at an intersection. Here, unlike in Layfield, there is no question as to the manner in which the accident occurred. The testimony of Ellison’s expert in this case did not refute the evidence establishing that the accident was caused by Ellison’s disregard of the clearly visible stop signs that were posted at the intersection. Notably, the expert agreed that the intersection contained two stop signs and red flashing lights that were unobstructed and required drivers to stop at the intersection. Notwithstanding the expert’s opinion that GDOT’s design of the intersection failed to incorporate a traffic light similar to that of a preceding intersection, there was no evidence that Ellison was confused about the existence of the stop sign or the requirement that drivers must stop at stop signs before proceeding into an intersection. Regardless of the absence of another traffic light, Ellison had an absolute duty to stop at the clearly visible stop signs and yield to Bennett’s vehicle pursuant to the traffic mandates of OCGA §§ 40-6-70 (a) and 40-6-72 (b). See Jackson, supra, 229 Ga. App. at 322-323 (OCGA § 40-6-72 (b) mandates that “every driver of a vehicle approaching a stop sign shall stop” and shall yield the right of way at a stop sign; “Georgia law does not allow drivers to selectively obey stop signs based upon their belief as to the appropriateness of the sign.”).

At most the [evidence] shows that [GDOT] failed to do all that could have been done to assure that drivers on [State Road 11] took heed of the stop sign [at] the intersection^]... Such action does not excuse [Ellison’s] failure to stop where clearly directed to do so as required by the Uniform Rules of the Road, particularly OCGA § 40-6-72 (b).

Id. at 323. Considering the fact that Ellison missed all of the traffic signs and signals that existed at the intersection, GDOT’s failure to install a traffic light or more signs did not proximately cause the collision. See Stevens, supra, 256 Ga. App. at 658-659; Jackson, supra, 229 Ga. App. at 322-323. The trial court’s decision granting summary judgment in favor of GDOT was proper.

Decided November 6, 2012

Jack J. Helms, Jr., for appellant.

Samuel S. Olens, Attorney General, G. Michael Banick, Sharon P. Horne, Assistant Attorneys General, Coleman Talley, Timothy M. Tanner, for appellee.

Judgment affirmed.

Ray and Branch, JJ., concur.

       In support of their claim that the intersection was defectively designed and may have been confusing to drivers, Bennett and Johnson point to evidence that other right-angle accidents had occurred at the intersection. However, there had been no investigation of those accidents to determine whether they were caused by other driving factors, and the accident reports did not reflect that the accidents were caused by the drivers’ confusion. As such, the occurrences of the other accidents did not contravene the evidence showing that the sole proximate cause of the instant accident was Ellison’s blatant disregard of the traffic signals that were clearly posted at the intersection.

       We further note that any evidence of GDOT’s subsequent traffic study and placement of another traffic light at the intersection was inadmissible. “In a negligence case, evidence of subsequent remedial action is not admissible for the purpose of showing that the defendant recognizes and admits his negligence.” (Citations and punctuation omitted.) Dept. of Transp. v. Cannady, 270 Ga. 427, 428 (1) (511 SE2d 173) (1999); see also Studard v. Dept. of Transp., 219 Ga. App. 643, 644-645 (2) (466 SE2d 236) (1995). Bennett and Johnson have failed to demonstrate that the evidence of subsequent remedial action was relevant for any purpose other than to show that GDOT recognized its negligence, and therefore, the evidence could not be considered in ruling on the motion for summary judgment. See, e.g., Henson v. Ga.-Pacific Corp., 289 Ga. App. 777, 780-781 (1) (658 SE2d 391) (2008).


text:
    A12A1107.
    LIGER v. THE STATE.
    (734 SE2d 80)
   MILLER, Presiding Judge.

Following a jury trial, Vincent Liger was convicted of rape (OCGA § 16-6-1 (a) (2)), incest (OCGA § 16-6-22 (a) (1)), and child molestation (OCGA § 16-6-4 (a) (1)). Liger appeals from the denial of his motion for new trial, contending that the evidence was insufficient to prove venue as to the child molestation charge, and that the trial court’s jury charge impermissibly expanded the manner in which the rape crime was committed. For the reasons that follow, we 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 a presumption of innocence. We do not weigh the evidence or resolve issues of witness credibility, but merely determine whether the evidence was sufficient to find the defendant guilty beyond a reasonable doubt.

(Citations and punctuation omitted.) Damerow v. State, 310 Ga. App. 530, 531 (714 SE2d 82) (2011).

So viewed, the .evidence shows that the victim was born in 1998 and was Liger’s daughter. In 2004, the victim lived with Liger in the United States Virgin Islands. Around 2005, when the victim turned seven years of age, Liger started sexually molesting her by placing his penis in her vagina and on her anus. In 2006, the victim left the Virgin Islands and moved to live with her mother in Georgia. Liger also moved to Georgia at the same time and continued to have contact with the victim. In December 2006, the victim went to reside with Liger at her aunt’s house in Paulding County. Liger continued to molest his daughter at the Paulding County residence.

In 2008, the victim told her mother that Liger had been sexually molesting her. The victim’s mother reported the abuse to the police and took the victim to a pediatrician for a physical examination. The pediatrician who examined the victim observed abnormalities in the victim’s vagina that were consistent with the victim’s reports of multiple sexual assaults.

The victim was also interviewed by a child forensic expert. During her interview, the victim recounted the multiple occasions that Liger had placed his penis in her vagina and on her anus in the Virgin Islands and at her aunt’s house. The forensic interview was recorded on video, which was admitted into evidence and played for the jury at trial. Following the presentation of evidence, Liger was convicted of rape, incest, and child molestation.

1. Liger contends that the State failed to prove venue as to the child molestation count charging him with placing his penis on the victim’s anus. We disagree.

Venue is an essential element that must be proved beyond a reasonable doubt. As with all other essential elements of a crime, weighing the evidence of venue is a function of the jury, not of this Court. Likewise, the credibility of a witness, even on the issue of venue, is to be determined by the jury.

(Punctuation and footnotes omitted.) Brown v. State, 287 Ga. App. 857, 858-859 (2) (652 SE2d 807) (2007). “Whether the evidence as to venue satisfied the reasonable-doubt standard is a question for the jury, and its decision will not be set aside if there is any evidence to support it.” (Citation and punctuation omitted.) Hargrave v. State, 311 Ga. App. 852, 853-854 (1) (717 SE2d 485) (2011).

Here, contrary to Liger’s claims, the victim did not state that he placed his penis on her anus only while they lived together in the Virgin Islands. Notably, in her forensic interview, the victim reported that between the time she was seven and eight years old, Liger had placed his penis on her anus both in the Virgin Islands and at her aunt’s house. Other evidence showed that the victim’s aunt’s residence was located in Paulding County. Although Liger claims that the victim’s description of the location of events was vague, taking the testimony as a whole, including the victim’s statements to the forensic interviewer, there was evidence authorizing the jury to conclude that the child molestation offense was committed in Paulding County. See Cardenas v. State, 282 Ga. App. 473, 475 (2) (638 SE2d 866) (2006) (where crimes have been committed continuously, evidence that the defendant committed the crimes in one county even though he may have also committed them elsewhere is sufficient to establish venue); Henry v. State, 274 Ga. App. 139, 143 (5) (616 SE2d 883) (2005) (victim’s testimony that defendant committed offenses in subject county, even though the defendant may have also committed some of the offenses elsewhere, was sufficient to establish venue).

2. Liger contends that the trial court’s instructions to the jury led the jury to believe that they could convict him of rape in a manner not charged in the indictment. We disagree.

The indictment alleged that Liger committed rape by having “carnal knowledge of [the victim], a female child less than 10 years old, when [his] penis, his male sex organ, penetrated [the victim’s] vagina, her female sex organ[.]” During the jury charge, the trial court gave Liger’s requested rape instruction, stating that

[a] person commits the offense of rape when he has carnal knowledge of a female under the age of ten. Carnal knowledge in rape occurs when there is any penetration of the female sex organ by the male sex organ.

(Emphasis supplied.) See OCGA § 16-6-1 (a).

During deliberations, the jury asked for a definition of penetra-' tion. In response, the trial court gave the jury a recharge on the definition of rape, and also charged that

the element of penetration requires proof of a slight penetration of the anterior of the female sexual organ known as the vulva or labia by the sexual organ of the male. It is not essential in a rape case for there to be proof that the vagina was entered or that the hymen was ruptured, but there must be some penetration of the female sex organ.

Liger argues that the trial court’s instruction defining penetration violated his due process rights because the jury was led to believe that it could convict him for penetration of any part of the victim’s sexual organ, rather than penetration of her vagina as alleged in the indictment. In essence, Liger argues that penetration of the vulva and labia are not sufficient to constitute penetration of the vagina, as alleged in the indictment.

A criminal defendant’s right to due process may be endangered when an indictment charges the defendant with committing a crime in a specific manner and 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. The giving of a jury instruction which deviates from the indictment violates due process where there is evidence to support a conviction on the unalleged manner of committing the crime and the jury is not instructed to limit its consideration to the manner specified in the indictment. ... While instructing the jury ... that a crime can be committed in a manner different from that charged in the indictment can constitute reversible error, a reversal is not mandated where the charge as a whole limits the jury’s consideration to the specific manner of committing the crime alleged in the indictment.

(Punctuation and footnotes omitted.) Adams v. State, 312 Ga. App. 570, 576 (2) (718 SE2d 899) (2011).

Here, in objecting to the trial court’s penetration charge, Liger specifically requested that the trial court respond to the jury’s question by repeating his requested rape charge, which stated the offense included “any penetration of the female sex organ by the male sex organ.” (Emphasis supplied.) Given that Liger received his requested rape charge, he has failed to demonstrate how the trial court’s penetration charge, which merely described the female sexual organ, violated his due process rights. The trial court’s instruction defining penetration was an accurate statement of the law, as

the penetration of the female sexual organ by the sexual organ of the male, which is necessary to constitute rape, need be only slight; it is not necessary that the vagina shall be entered, but an entering of the anterior of the organ, known as the vulva or labia, is sufficient.

Decided November 6, 2012.

Thomas V. Driggers, for appellant.

Donald R. Donovan, District Attorney, Thomas A. Cole, Dana J. Norman, Assistant District Attorneys, for appellee.

(Citations and punctuation omitted.) Loyd v. State, 288 Ga. 481, 491 (4) (c) (705 SE2d 616) (2011). Consequently, the trial court’s penetration charge did not instruct the jury that the rape could be committed in a manner different than charged in the indictment.

Moreover,

the trial court read the indictment to the jury, instructed the jury that the State had the burden of proving every material allegation in the indictment beyond a reasonable doubt, and sent the indictment out with the jury during its deliberations. And, after defining the crimes alleged, the trial court instructed the jury that it would be authorized to find [Liger] guilty if it believed beyond a reasonable doubt that he committed the crimes as set forth in the indictment. These instructions cured any complained of problem with the [penetration charge].

(Punctuation and footnotes omitted.) Adams, supra, 312 Ga. App. at 576 (2); see also Machado v. State, 300 Ga. App. 459, 462-463 (5) (685 SE2d 428) (2009).

Judgment affirmed.

Branch, J., concurs. Ray, J., concurs in Division 1 and concurs in judgment only in Division 2.


author: Andrews, Judge.

text:
    A12A1316.
    THOMPSON et al. v. OURSLER et al.
    (733 SE2d 359)
   Andrews, Judge.

While William Oursler, Jr., was a social guest at Robert and Peggy Thompson’s house, he was standing on a wooden deck attached to the side of the house when the deck suddenly detached from the house and collapsed. Oursler sued the Thompsons claiming that injuries he suffered when the deck collapsed were proximately caused by the Thompsons’ negligent failure to inspect and maintain the deck in a safe condition. Oursler’s wife joined in the suit asserting a loss of consortium claim. Pursuant to our grant of the right to an interlocutory appeal, the Thompsons appeal from the trial court’s denial of their motion for summary judgment. For the following reasons, we find that the Thompsons were entitled to summary judgment and reverse.

There is no evidence in the record as to why the deck suddenly detached and collapsed. There is no evidence that the deck was not built or maintained according to any statute, code, or regulation. There is no evidence that the deck was overcrowded when it detached and collapsed. Oursler testified that, prior to the collapse, he had been a guest on the deck numerous times and had walked underneath the deck, and that at no time did he observe anything about the deck or how it was attached to the house that caused him to suspect it was unstable or structurally unsound. Although Oursler said that the wood on the deck appeared weathered and needed to be painted or stained, he said this was only a cosmetic issue and that he had no reason to believe the wood was cracked or broken or that the deck was unsafe. There is nothing in the record showing that the Thompsons knew or should have known that the deck was unsafe.

“Georgia has adopted the rule that a social guest is not an invitee but is a licensee.” (Citations and punctuation omitted.) Moon v. Homeowners’ Assn. of Sibley Forest, 202 Ga. App. 821, 822 (415 SE2d 654) (1992). Under this rule, the Thompsons could incur liability for breach of duty to Oursler as a social guest-licensee only for wilfully or wantonly allowing a dangerous static condition in the deck to cause his injuries. OCGA § 51-3-2 (b); Flagler Co. v. Savage, 258 Ga. 335, 337 (368 SE2d 504) (1988); Hartley v. Macon Bacon Tune, 227 Ga. App. 679, 681-682 (490 SE2d 403) (1997), vacated on other grounds, 234 Ga. App. 815, 816, n. 1 (507 SE2d 259) (1998). However, “it is also usually wilful or wanton not to exercise ordinary care to prevent injuring a person who is actually known to be or may reasonably be expected to be, within range of a dangerous act being done or a hidden peril on one’s premises.” (Citation, punctuation and emphasis omitted.) Hartley, 227 Ga. App. at 682. In other words,

[a] possessor of land is subject to liability for physical harm caused to licensees by a condition on the land if, but only if, (a) the possessor knows or has reason to know of the condition and should realize that it involves an unreasonable risk of harm to such licensees, and should expect that they will not discover or realize the danger, and (b) he fails to exercise reasonable care to make the condition safe, or to warn the licensees of the condition and the risk involved, and (c) the licensees do not know or have reason to know of the condition and the risk involved.

Decided October 16, 2012

Reconsideration denied November 7, 2012

Bovis, Kyle & Burch, Wayne S. Tartline, for appellants.

Mark A. Nestor, James D. Freeman, for appellees.

(Citation and punctuation omitted.) Patterson v. Thomas, 118 Ga. App. 326, 328 (163 SE2d 331) (1968); London Iron &c. Co. v. Abney, 245 Ga. 759, 761 (267 SE2d 214) (1980). Because there is an absence of evidence in the record that the Thompsons knew or had reason to know of any dangerous condition in the deck that caused the deck to detach from the house and collapse, the trial court erred by denying the Thompsons’ motion for summary judgment. Lau’s Corp. v. Haskins, 261 Ga. 491 (405 SE2d 474) (1991).

Judgment reversed.

Doyle, P. J., and Boggs, J., concur.