author: Ellington, Presiding Judge.

text:
    A14A0885.
    NELSON v. THE STATE.
    (764 SE2d 883)
   Ellington, Presiding Judge.

Leonard Nelson entered a negotiated plea of guilty to violation of OCGA § 16-14-4 (a) of the Georgia Racketeer Influenced and Corrupt Organizations Act, see OCGA § 16-14-1 etseq. (“RICO”), and the trial court sentenced him to ten years probation. The trial court ordered as a condition of probation that Nelson pay a total of $725,000 in restitution to his victims. On appeal, Nelson contends that the trial court erred because he established by a preponderance of the evidence that he lacked the financial resources to pay restitution in the amount ordered. He also contends that the trial court erred in awarding restitution to the victim named in Counts 6 through 12 of the indictment because the trial court entered an order of nolle prosequi at the State’s request on those counts. We disagree and affirm for the reasons set forth below.

“Any dispute as to the proper amount or type of restitution shall be resolved by the ordering authority by the preponderance of the evidence.” OCGA § 17-14-7 (b). On appeal, this Court reviews the record “to determine whether each party has met his or her specified burden and whether a restitution award was supported by the preponderance of the evidence.” (Citation and punctuation omitted.) In the Interest of E. W., 290 Ga. App. 95, 96 (2) (658 SE2d 854) (2008). “It is well established that review of evidence by this Court is limited to questions of sufficiency.” (Citation and punctuation omitted.) Tindol v. State, 284 Ga. App. 45, 48 (4) (643 SE2d 329) (2007).

1. The evidence adduced at the restitution hearing showed that Nelson was a real estate investor who borrowed money from individuals, often from their retirement accounts, to pursue various real estate deals. Nelson admitted that he stole money from his investors. Numerous victims testified at the restitution hearing and established the amounts they had tendered to Nelson through their testimony and through promissory notes and other instruments Nelson signed. Following the presentation of evidence, the trial court found that Nelson “had a plan, he had a purpose. He took from all these people. He had no intention of paying them back.”

The trial court thereafter ordered that Nelson pay restitution to 22 victims in the total amount of $725,000, and that as a condition of probation Nelson make monthly payments toward that amount at $6,041.66 a month beginning on September 1,2013. The total amount of restitution was inclusive of $230,000 to which Nelson had previously stipulated as “partial restitution.” The stipulation also provided that “further restitution may be ordered after a Restitution hearing.” Nelson does not contest that he had financial resources to repay the $230,000. Nelson maintains, however, that he established by the preponderance of the evidence that he lacked the financial resources with which to pay more than the stipulated amount of restitution, and that the trial court erred in finding otherwise. We disagree.

Subject to the provisions of OCGA § 17-14-10, the trial court “shall, in sentencing an offender, make a finding as to the amount of restitution due any victim, and order an offender to make full restitution to such victim.” OCGA § 17-14-3 (a). In turn, OCGA § 17-14-10 sets forth a list of factors which the trial court shall consider in determining the nature and amount of restitution. These include “[t]he financial resources and other assets of the offender or person ordered to pay restitution...” “[t]he earnings and other income of the offender or person ordered to pay restitution,” and “[a]ny financial obligations of the offender or person ordered to pay restitution, including obligations to dependents.” OCGA § 17-14-10 (a) (1), (2), (3). The factors also include, however, the amount of damages, and the goal of restitution to the victim and rehabilitation of the offender. OCGA § 17-14-10 (a) (4), (5).

The State had the burden of demonstrating the amount of the victims’losses. OCGA § 17-14-7 (b). Nelson, however, had the burden of demonstrating his financial resources and the financial needs of his dependents. See id. Nelson testified at the restitution hearing that he had no assets of any value. According to Nelson, he was “80 percent disabled,” lived with his mother, and was unemployed. He testified that he received net disability benefits of $1,901 a month from the Department of Veterans Affairs (the “VA”), and that he paid monthly child support to his two youngest children in the amount of $725. Nelson was employed in law enforcement until 2006, when he left the field to pursue real estate.

Notwithstanding Nelson’s testimony, in its written order the trial court stated that it had expressly considered Nelson’s present financial condition, his probable future earnings capacity, and his obligations, and it determined that restitution could be made by Nelson in the amount ordered. The trial court found, among other things, that Nelson had the present condition to be gainfully employed notwithstanding his claim to be 80 percent disabled. Notably, Nelson’s testimony at the restitution hearing showed that he had worked in real estate during the period he claimed to be disabled. Further, although Nelson testified that he was without any assets, he had previously been in possession of hundreds of thousands of dollars of the victims’ money. Some of the victims’ money was used by Nelson for purposes of a “timber deal” in Mississippi and Louisiana. According to Nelson, he had a lawsuit pending against his former partner in the venture and “the timber has not been cut. So there is money still there.” He also testified that his “part of that deal” was worth $4.8 million and that any recovery would constitute an asset available to pay restitution.

In addition, following the presentation of evidence the trial court found that the State had carried its burden, but that as to Nelson’s contention that he was not able to pay, the judge stated, “I don’t believe him.” As the finder of fact, the trial court was not required to find Nelson’s testimony credible, or to conclude, given the lack of that credibility, that Nelson had carried his burden of demonstrating his financial resources. See generally Lawton v. State, 285 Ga. App. 45, 47 (645 SE2d 571) (2007) (noting that “the trial court, which sat as the finder of fact for purposes of the . . . hearing, was entitled to disbelieve” the defendant); Matheson v. State, 249 Ga. App. 200, 201 (1) (547 SE2d 774) (2001) (“In a bench trial, the trial court weighs the evidence and determines the credibility of witnesses.”). See also OCGA § 17-14-7 (b) (disputes as to the amount of restitution shall be resolved by the ordering authority). Nor does Nelson point to any authority “for the proposition that the court must determine in advance that the defendant’s net worth or financial resources projected over the intended years of repayment is mathematically sufficient to allow full payment of the amount of restitution ordered.” McMahon v. State, 284 Ga. App. 192, 194 (2) (643 SE2d 236) (2007). Rather, the record shows that the trial court, upon consideration of the factors laid out in OCGA § 17-14-10 (a), “based its restitution award on competent evidence proving the amount granted by a preponderance of that evidence.” Graf v. State, 327 Ga. App. 598, 604 (760 SE2d 613) (2014). We find no error.

2. Nelson also contends that the trial court erred in ordering him to pay restitution to Jay Cropper, the victim listed in Counts 6 through 12 of the Indictment, because the trial court entered an order of nolle prosequi on those counts. We disagree. “Because the trial court’s ruling on a legal question is not due any deference, we apply the ‘plain legal error’ standard of review.” (Punctuation and footnote omitted.) Simmons v. State, 315 Ga. App. 82, 83 (1) (726 SE2d 573) (2012).

Counts 6 through 12 of the Indictment alleged that Nelson committed theft by taking funds from Cropper on seven different occasions between July 1, 2007 and February 28, 2008. “The acts set forth” in Counts 6 through 12, among others, were alleged to be predicate acts to the RICO violation and part of the racketeering activity, and were expressly incorporated into Count 13. Nelson pled guilty to Count 13 of the indictment, which charged that he violated OCGA § 16-14-4 (a) of RICO in that he unlawfully, through a pattern of racketeering activity, or proceeds derived therefrom, acquired an interest in or control of property, including money, between January 1, 2007 and December 31, 2008. The trial court agreed to enter nolle prosequi on Counts 6 through 12 because Nelson pled guilty to Count 13.

Cropper testified at the restitution hearing concerning the predicate acts which were incorporated into Count 13. The trial court named Cropper as one of Nelson’s victims in its restitution order because Cropper was a victim. Consistently with the evidence of the actual losses incurred by Cropper, the trial court required Nelson to make restitution to Cropper in the amount of $193,000.

Decided October 16, 2014.

Page A. Pate, Jess B. Johnson, for appellant.

D. Victor Reynolds, District Attorney, John S. Melvin, Amelia G. Pray, Assistant District Attorneys, for appellee.

It is true, as Nelson points out, that “a defendant cannot be ordered to pay restitution for a count on which he was acquitted or not charged,” including counts that have been nolle prossed. (Punctuation andfootnoteomitted.) Wilder v. State, 314 Ga. App. 905, 906 (726 SE2d 154) (2012) (vacating and remanding order for a determination of whether the amount of restitution was improperly based on nolle prossed charges). Accordingly, we agree with Nelson that he could not be ordered to pay restitution for Counts 6 through 12, as those counts were nolle prossed. Nevertheless, Nelson pled guilty and was sentenced for violating OCGA § 16-14-4 (a) of RICO under Count 13 of the indictment. And it was on account of that crime that the trial court ordered restitution to the victims, including Cropper. Accordingly, we find no error.

Judgment affirmed.

Phipps, C. J., and McMillian, J., concur.

       An additional $125 was sent by the VA directly to each of his two oldest children each month.

       The trial court was not required to make written findings of fact concerning its consideration of the factors set forth in OCGA § 17-14-10, although it did so here. See Futch v. State, 314 Ga. App. 294,298 (3) (a) (723 SE2d 714) (2012) (finding that “based on an amendment to the restitution statutes in 2005, a trial court is no longer required to make written findings of fact concerning the factors to be considered in determining the restitution amount, as set forth in OCGA § 17-14-10”) (citation omitted).

       Nelson also submitted correspondence from the VAto show the amount of his disability payments. The VA’s letter, however, did not expressly reference disability.

       The acts involved the tender by Cropper to Nelson of various amounts of money for investment in properties in Georgia and Mississippi, which money Nelson then allegedly kept for his personal use.


source: Caselaw Access Project

author: Miller, Judge.

license: Public Domain

text:
    A14A1375.
    THE STATE v. MARTINEZ-PALOMINO.
    (764 SE2d 886)
   Miller, Judge.

Following a jury trial, Angel Martinez-Palomino was convicted of kidnapping (OCGA § 16-5-40 (a)), aggravated child molestation (OCGA § 16-6-4 (c)), and child molestation (OCGA § 16-6-4 (a) (l)). The State appeals from the trial court’s grant of Martinez-Palomino’s motion for new trial, as amended, on the basis that the court erred in allowing a video recording of the child victim’s forensic interview to be played during jury deliberations. The State contends that there was no error in allowing the jury to view the video because the recording was properly admitted into evidence, the child victim and the forensic interviewer testified at trial and were available for cross-examination, and defense counsel agreed to allow the video recording to be played to the jury during its deliberations. For the reasons that follow, we reverse the trial court’s grant of Martinez-Palomino’s motion for new trial because there was no error in allowing the jury to view the video.

We review the grant of a motion for new trial on special grounds involving a question of law de novo and reverse if the trial court committed legal error. State v. Clements, 289 Ga. 640 (1) (715 SE2d 59) (2011) (motion for new trial based on failure to dismiss juror); O’Neal v. State, 285 Ga. 361, 363 (677 SE2d 90) (2009) (motion for new trial based on prior denial of motion to sever).

Viewed in the light most favorable to the jury’s verdict, the evidence shows that Martinez-Palomino and his girlfriend, Raquel Magos, were friends with and lived at the same Gainesville apartment complex as the victim’s family. Martinez-Palomino was also a maintenance worker at the apartment complex.

On June 23,2010, the then 12-year-old victim left her apartment and went for a walk. On her walk, the victim encountered Martinez-Palomino and his co-worker at the apartment complex mailboxes. Martinez-Palomino asked the victim if she wanted a cup of water, and the victim responded affirmatively. The victim then went with Martinez-Palomino and the co-worker to Martinez-Palomino’s apartment.

At the apartment, Martinez-Palomino and his co-worker ate their lunch while the victim drank her water. At some point, the co-worker went out the front door to make a phone call. The victim then finished her water, thanked Martinez-Palomino, and turned to leave out the front door. Before the victim was able to reach the front door, however, Martinez-Palomino pulled her back by the waist and threw her onto the couch. Martinez-Palomino started kissing the victim on her mouth and neck and attempted to bite her mouth and ear. Martinez-Palomino then grabbed the victim by her chest, under her breasts, and forced her down the hall and into the bathroom. The victim testified that she was scared and wanted to leave.

Inside the bathroom, Martinez-Palomino pulled down the victim’s shorts and underwear to her knees. Martinez-Palomino then sat the victim down on the sink and pulled down his pants and underwear. Martinez-Palomino inserted his finger into the victim’s vagina, causing pain to the victim. Martinez-Palomino then masturbated, and as he ejaculated, someone knocked on the front door. Martinez-Palomino pulled his finger out of the victim’s vagina, cleaned himself, and pulled up his pants. When the victim tried to scream, Martinez-Palomino put his hand over the victim’s mouth and told her to shut up. Martinez-Palomino then exited the bathroom and went to answer the door. While Martinez-Palomino was at the front door, the victim pulled up her pants, fled out the back door, and returned home. The victim did not immediately tell anyone about the incident.

Later that evening, Magos confronted the victim by the apartment complex pool regarding the victim’s sexual assault. Magos told the victim that Martinez-Palomino told her what happened. Magos blamed the victim and threatened her. When Magos left, the victim began to cry, and a neighbor asked her what was wrong. The victim told the neighbor that she was sexually assaulted by Martinez-Palomino. The neighbor convinced the victim to tell her mother about the incident, and the mother reported the incident to the police.

The victim was subsequently taken to the hospital for a sexual assault examination. The examining nurse found several injuries that were consistent with the sexual assault reported by the victim. Two weeks after the incident, Dr. Julie Battle performed a forensic interview of the victim. The videotaped interview was admitted into evidence in its entirety without objection, and a portion of the video was played for the jury before it was stopped because of poor audio quality. Dr. Battle then testified that she made a very detailed report of the interview, during which the victim recounted that she was sexually assaulted by Martinez-Palomino.

At trial, while the jury deliberated, it requested to see the video recording of the forensic interview. Martinez-Palomino, who had earlier indicated that he would agree to allow the jury to see the video if requested, did not object to the playing of the video during jury deliberations. The video was then played in open court, and the jury returned to its deliberations after the video concluded.

Following the jury’s verdict, Martinez-Palomino filed a motion for new trial asserting, inter alia, that the trial court erred in allowing the jury to view the video of the forensic interview during jury deliberations. The motion for new trial was heard by a different judge who did not preside over the original trial. This new judge granted Martinez-Palomino’s motion for new trial on the special ground that the original judge erred by allowing the entire video recording of the child victim’s forensic interview to be played during jury deliberations. The State now appeals.

The State contends that the trial court erred in granting Martinez-Palomino’s motion for new trial because there was no error in allowing the jury to view the video in its entirety during jury deliberations. We agree.

As a preliminary matter, Martinez-Palomino did not object to the playing of the video during deliberations at the jury’s request. In fact, when the trial court stopped playing the recording at trial because of poor audio quality, Martinez-Palomino expressly indicated that he would not object to playing the video at a later time if the jury requested it. “A defendant will not be allowed to induce an asserted error, sit silently hoping for acquittal, and obtain a new trial when that tactic fails.” (Footnote omitted.) Buchanan v. State, 254 Ga. App. 249, 251 (2) (562 SE2d 216) (2002); see also Westmoreland v. State, 192 Ga. App. 173, 176-177 (2) (b) (384 SE2d 249) (1989) (“[a] party cannot claim error where he himself committed or invited the error”) (punctuation omitted).

Nevertheless, even assuming Martinez-Palomino did not invite the alleged error, it is well established that it is permissible for the trial judge, in his discretion, to permit the jury at its instigation to rehear requested parts of the evidence after it has retired and begun deliberations, so long as it is done in open court. Lopez v. State, 291 Ga. App. 210, 214 (3) (661 SE2d 618) (2008); Summage v. State, 248 Ga. App. 559, 561 (1) (546 SE2d 910) (2001). In this case, the trial court followed “the standard practice, [which] is to bring the jury back into open court to rehear recorded evidence[.]” Bridges v. State, 279 Ga. 351, 353 (2) (613 SE2d 621) (2005).

To show that the trial court’s actions were an abuse of discretion, Martinez-Palomino was required to show that there were “special circumstances” that would make it unjust to allow the jury to view the video. See Watkins v. State, 273 Ga. 307, 310 (3) (540 SE2d 199) (2001); Martin v. State, 240 Ga. App. 901, 904 (2) (525 SE2d 728) (1999). He failed to make such a showing. The jury already heard the victim’s testimony about the sexual abuse, as well as Dr. Battle’s testimony regarding the forensic interview. While Martinez-Palomino argues that the jury heard improper character evidence regarding his proclivity for violence and sexual promiscuousness that it did not initially hear upon the initial playing of the video, the jury was entitled to consider the victim’s out-of-court statements as substantive evidence under the Child Hearsay Statute, former OCGA § 24-3-16. See Lopez, supra, 291 Ga. App. at 212 (1). This “material evidence [did] not become inadmissible simply because it incidentally place [d] [Martinez-Palomino’s] character in issue.” (Punctuation and footnote omitted.) Johnson v. State, 268 Ga. App. 1, 6 (1) (d) (601 SE2d 392) (2004).

Moreover, trial counsel testified at the motion for new trial hearing that he did not object to the playing of the tape because there were some inconsistencies between the victim’s trial testimony and her interview statements and the victim did not appear credible during her interview, factors that trial counsel believed would be beneficial to Martinez-Palomino’s defense. Additionally, the victim testified at trial and was subject to extensive cross-examination. Therefore, Martinez-Palomino had a full opportunity to confront the victim, and his right to a fair trial was safeguarded. See Phillips v. State, 284 Ga. App. 224, 227-228 (1) (b) (644 SE2d 153) (2007) (affirming admission of videotaped interview of child victim into evidence and concluding that defendant’s confrontation rights were not violated since the victim testified at trial). Consequently, Martinez-Palomino failed to establish the existence of special circumstances making it unjust for the jury to view the video during deliberations.

Even if the trial court erred in playing the video during deliberations, “error alone is not automatically grounds for a new trial but is subject to scrutiny for harmless error.” (Citations and punctuation omitted.) Tanner v. State, 243 Ga. App. 640, 643 (2) (533 SE2d 794) (2000). Where there is strong evidence of the defendant’s guilt, the admission of improper evidence is harmless error when it is highly unlikely that such evidence contributed to the verdict. Holden v. State, 314 Ga. App. 36, 39 (2) (722 SE2d 873) (2012). Here, the victim testified that Martinez-Palomino sexually assaulted her, and the physical examination of the victim corroborated her testimony. Therefore, it is highly unlikely that the playing of the videotape that contained bad character evidence contributed to the verdict, and any error that may have occurred in playing the video during deliberations was harmless. Accordingly, the trial judge erred in concluding that Martinez-Palomino was entitled to a new trial.

Judgment reversed.

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

Decided October 17, 2014

Lee Darragh, District Attorney, Kelley M. Robertson, William C. Akins, Assistant District Attorneys, for appellant.

Arturo Corso, for appellee.

       The jury also found Martinez-Palomino guilty of aggravated sexual battery and another count of child molestation, and the trial court merged these counts into the aggravated child molestation conviction for sentencing purposes. The trial court also granted a directed verdict as to a third child molestation charge and declared a mistrial as to the offense of enticing a child for indecent purposes.

       At the outset, we address Martinez-Palomino’s motion to dismiss the appeal on the grounds that the State failed to include enumerations of error in its brief, as is required by Court of Appeals Rule 22 (a) and Rule 25 (a) (2). Notwithstanding the State’s failure to include an enumeration of errors in its brief, this Court is required to consider the appeal because we can discern from the State’s brief and the record the errors that the State is asserting on appeal. See OCGA § 5-6-48 (f). Consequently, we deny Martinez-Palomino’s motion to dismiss the appeal. See, e.g., Jackson v. State, 314 Ga. App. 272, n. 1 (724 SE2d 9) (2012); State v. Madison, 311 Ga. App. 31, 32 (1) (714 SE2d 714) (2011). We also deny Martinez-Palomino’s motion to strike the State’s response to his motion to dismiss for failure to include a certificate of service because the State re-filed its response to include such a certificate.

        Jackson, supra, 314 Ga. App. at 272.

       Former OCGA § 24-3-16 provided:
      A statement made by a child under the age of 14 years describing any act of sexual contact or physical abuse performed with or on the child by another ... is admissible in evidence by the testimony of the person or persons to whom made if the child is available to testify in the proceedings and the court finds that the circumstances of the statement provide sufficient indicia of reliability.
      There was no challenge, much less evidence presented, that the taped interview lacked an indicia of reliability, and, as indicated above, Martinez-Palomino did not object to its admission.


author: McFadden, Judge.

text:
    A14A0764.
    CARLSON v. THE STATE.
    (764 SE2d 890)
   McFadden, Judge.

After a jury trial, Chris David Carlson was convicted of felony obstruction of an officer, driving with a suspended or revoked license, and misdemeanor obstruction of an officer. He appeals the felony obstruction conviction, arguing first that the trial court committed plain error in its response to a question from the jury about the elements of that offense. Pretermitting the merits of Carlson’s analysis of the elements of felony obstruction, we conclude that he is not entitled to reversal under a plain error analysis because it is not highly probable that any error in the response affected the outcome of the proceedings. He also argues that the trial court erred by failing to instruct the jury on misdemeanor obstruction as a lesser included offense of felony obstruction. But as the evidence shows completion of the greater offense of felony obstruction, we conclude that the trial court did not err in failing to charge on misdemeanor obstruction as a lesser included offense. We therefore affirm Carlson’s convictions.

1. Facts.

Viewed in the light most favorable to the verdict, Morris v. State, 322 Ga. App. 682 (1) (746 SE2d 162) (2013), the evidence shows that a Cobb County police officer was on patrol when a Ford Explorer changed lanes in front of him without signaling. The officer ran the Explorer’s license tag and determined that the tag belonged to a Lexus, so he stopped the vehicle. Carlson was driving.

Carlson exited the vehicle, and the officer ordered him to get back in. Instead of complying with the officer’s order, Carlson ran. The officer chased after him. Carlson jumped over a fence, the officer followed, and they both fell. The officer attempted to arrest Carlson, but he resisted, punching and kicking the officer. Carlson escaped, ran off again and jumped over a retaining wall. The officer followed and reached Carlson. Carlson punched the officer in the face and kicked him. When the officer tried to handcuff Carlson, Carlson grabbed the handcuffs, threw them and ran off. The officer followed. The two rolled down an embankment, and Carlson continued to kick and punch the officer. The officer was able to straddle Carlson. Carlson grabbed a rock or a brick, which the officer thought Carlson was going to use to strike him, so the officer sprayed Carlson with pepper spray. At that point, Carlson complied with the officer’s commands, and the officer was able to handcuff him, using his second set of handcuffs. The state introduced photographs of the bruises and scratches the officer sustained during the altercation.

This evidence was sufficient to support the conviction of felony obstruction under the standard of Jackson v. Virginia, 443 U. S. 307 (99 SCt 2781, 61 LE2d 560) (1979). See OCGA § 16-10-24 (b) (“Whoever knowingly and willfully resists, obstructs, or opposes any law enforcement officer... in the lawful discharge of his official duties by offering or doing violence to the person of such officer ... is guilty of a felonyf.]”); Smith v. State, 294 Ga. App. 579, 581 (1) (669 SE2d 530) (2008) (violently struggling with officers during their attempt to arrest an accused suffices to show that the accused offered or did violence to the officers and supports a felony obstruction conviction).

2. Claim of plain error in the trial court’s response to a question from the jury about the elements of felony obstruction.

Carlson enumerates as error the trial court’s response to a question from the jury about the elements of felony obstruction. That response, Carlson argues, conflates two distinct elements of the offense: “first, the accused must offer violence or do violence to the ■officer; and second, the offer or violence must resist, obstruct, or oppose the officer in the lawful discharge of his official duties.” Cf. OCGA § 16-10-24 (b) (“Whoever knowingly and willfully resists, obstructs, or opposes any law enforcement officer, prison guard, correctional officer, probation supervisor, parole supervisor, or conservation ranger in the lawful discharge of his official duties by offering or doing violence to the person of such officer or legally authorized person is guilty of a felony and shall, upon conviction thereof, be punished by imprisonment for not less than one nor more than five years.”). But as Carlson did not object to the response at the time it was given, his burden is to show plain error. Even if Carlson’s analysis of the statute is correct and the trial court’s response was erroneous — and we do not hold or imply that this is so — Carlson cannot meet that burden.

During deliberations, the jury asked, “Can pulling away from the officer’s grasp to resist arrest be defined as offering and doing violence to the officer? Yesterday’s explanation failed to link the act of resisting an officer’s attempt to subdue him with offering and doing violence.” The trial court consulted with the prosecuting attorney and with defense counsel about how to respond. She then charged the jury:

In a lawful arrest, an officer has the right to use that force reasonably necessary to effect the arrest, and the Defendant does not have a right to resist the use of such reasonable force. To constitute obstruction of an officer as set out in count one, actual injury to the alleged victim need not be shown. It’s only necessary that the evidence show beyond a reasonable doubt that the defendant offered to or did violence to the officer.
Under this statute, the word “doing violence” means physically resisting. Now, with that said, you are to consider all the law you’ve been given in this case, all the facts you’ve been given in this case in reaching your verdict.

Carlson argues that the court’s response that “the word ‘doing violence’ means physically resisting” eliminated the requirement that the jury find that Carlson committed violence and instead authorized a guilty verdict for felony obstruction based upon a finding that Carlson physically resisted the officer, even if that physical resistance was not violent.

Since defense counsel did not object at trial, Carlson must meet the plain error standard, which is set out at OCGA § 17-8-58 (b). Under that standard, “we must determine whether there is an error that has not been affirmatively waived, is clear and obvious, affects the defendant’s substantial rights, and seriously affects the fairness, integrity or public reputation of the judicial proceedings.” Norton v. State, 293 Ga. 332, 336 (6) (745 SE2d 630) (2013) (citations and punctuation omitted). Assuming without deciding that Carlson satisfied the other factors, he “cannot show that the court’s instruction affected his substantial rights which in the ordinary case means he must demonstrate that it affected the outcome of the trial court proceedings.” Id. at 336-337 (6) (citation and punctuation omitted).

Given the evidence that Carlson’s physical resistance to the officer’s attempts to arrest him was violent physical resistance, we find it highly unlikely that the jury found Carlson guilty of felony obstruction for physically resisting the officer in a nonviolent way. The state presented unrebutted evidence that Carlson repeatedly, wilfully resisted the officer’s attempt to arrest him by punching and kicking the officer. In other words, the state presented evidence that first, Carlson did violence to the officer; and second, that the violence obstructed the officer in the lawful discharge of his official duties, as Carlson asserts was required. Moreover, the trial court previously had instructed the jury on the statutory definition of the crime, gave the jury the indictment to read, and instructed the jury that the state had the burden of proving every material allegation of the indictment. And when giving the challenged charge, the court reminded the jury that it was to consider all the law it had been given.

Decided October 20, 2014.

James M. Miller, for appellant.

D. Victor Reynolds, District Attorney, Amelia G. Pray, Assistant District Attorney, for appellee.

Carlson has not shown that it is highly probable that the allegedly inaccurate instruction affected the outcome of the proceedings. See Gilliland v. State, 325 Ga. App. 854, 857-858 (2) (c) (755 SE2d 249) (2014). See also Hicks v. State, 287 Ga. 260, 264 (4) (695 SE2d 195) (2010) (no plain error where highly probable that challenged jury charge did not contribute to verdict); Rouen v. State, 312 Ga. App. 8, 10 (2) (717 SE2d 519) (2011) (in light of overwhelming evidence, highly probable that the absence of an instruction on accident did not contribute to the verdict). He therefore has not established plain error entitling him to reversal.

3. Refusal to charge on the lesser included offense of misdemeanor obstruction.

Carlson argues that the trial court erred by failing to charge the jury on misdemeanor obstruction as a lesser included offense of felony obstruction. See OCGA § 16-10-24 (a) (“Except as otherwise provided in subsection (b) of this Code section, a person who knowingly and willfully obstructs or hinders any law enforcement officer in the lawful discharge of his official duties is guilty of a misdemeanor”). But because the evidence showed completion of the greater offense of felony obstruction of an officer, the trial court was not required to charge the jury on the lesser included offense of misdemeanor obstruction of an officer. White v. State, 310 Ga. App. 386, 390-391 (3) (714 SE2d 31) (2011); Williams v. State, 301 Ga. App. 731, 733-734 (4) (a) (688 SE2d 650) (2009).

Judgment affirmed.

Andrews, R J., and Ray, J., concur.


author: DOYLE, Presiding Judge.

text:
    A14A0916.
    DURHAM v. THE STATE.
    (764 SE2d 898)
   DOYLE, Presiding Judge.

Travis Tyrone Durham pleaded guilty to trafficking in cocaine and possession of cocaine with intent to distribute. Fifteen days later, Durham, acting pro se, moved to withdraw his guilty plea, arguing that his guilty plea was involuntary and requesting legal representation and a hearing on his motion. Durham later filed two amended motions to withdraw his guilty plea, asserting additional grounds. Thereafter, the trial court denied his motions without a hearing, without appointing Durham counsel, without informing him of his right to counsel, and without obtaining a valid waiver of Durham’s right to counsel during the proceeding on the motion to withdraw his guilty plea.

1. Durham now appeals, contending that he was denied his Sixth Amendment right to counsel during the proceedings on his motion to withdraw his guilty plea. As the State concedes, this case is controlled by Fortson v. State, which

held that a proceeding to withdraw a guilty plea is a critical stage of a criminal prosecution, and “the right to counsel attaches when a defendant seeks to withdraw a guilty plea, thus entitling that defendant to assistance of counsel.” Thus, the Court reasoned, the trial court must inform the defendant of the right to counsel and ascertain whether that right has been waived. [Absent a valid waiver, the defendant is entitled to legal counsel.] The Court in Fortson also rejected application of the harmless error analysis, being “instead persuaded by those majority of cases holding that reversal and remand is the appropriate remedy for violations of this constitutional right.”

In light of Durham’s unheeded request for counsel and a hearing, “we reverse and remand this case to the trial court for a [hearing] on [Durham’s] motion to withdraw his guilty plea to be conducted in conformity with [Fortson].”

2. Durham’s remaining enumerations of error are moot in light of our holding in Division l.

Judgment reversed and case remanded.

Miller and Dillard, JJ., concur.

Decided October 20, 2014.

Travis T. Durham, pro se.

Layla H. Zon, District Attorney, JillianR. Hall, Assistant District Attorney, for appellee.

       272 Ga. 457 (532 SE2d 102) (2000).

        Kennedy v. State, 267 Ga. App. 314, 314-315 (599 SE2d 290) (2004), quoting Fortson, 272 Ga. at 460 (1), 461 (2). See also dissenting opinion in Fortson, 272 Ga. at 462, finding no merit in the substance of Fortson’s motion to withdraw his guilty plea.

        Fortson, 272 Ga. at 461 (2).

       See Ford v. State, 312 Ga. App. 80, 81 (2) (717 SE2d 676) (2011).


author: McFADDEN, Judge.

text:
    A14A1316.
    OWEN v. BANK OF THE OZARKS.
    (764 SE2d 893)
   McFADDEN, Judge.

This appeal is from a grant of summary judgment to a bank on two promissory notes signed by appellant in favor of the bank’s predecessor. Appellant’s defenses are barred by the D’Oench, Duhme doctrine, which generally renders oral agreements between debtors and failed banks unenforceable against banking authorities and their assignees. Consequently there are no genuine issues of material fact, and we 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. OCGA § 9-11-56 (c). “A de novo standard of review applies to an appeal from a grant of summary judgment, and we view the evidence, and all reasonable conclusions and inferences drawn from it, in the light most favorable to the nonmovant.” Wooden v. Synovus Bank, 325 Ga. App. 876, 876-877 (756 SE2d 19) (2014) (citation omitted).

So viewed, the record shows that appellant Benjamin Carl Owen executed two promissory notes in favor of First Choice Community Bank. On April 10, 2009, he executed a note for $288,000, and on December 22, 2009, he executed a note for $513,560.97. On April 29, 2011, First Choice failed, and the FDIC was appointed as its receiver. The FDIC assigned Owen’s notes to appellee Bank of the Ozarks (“the bank”), via allonges and a Purchase and Assumption Agreement.

Owen defaulted on the notes, and the bank demanded payment. After Owen failed to pay, the bank filed the instant complaint. Finding that Owen did not dispute the existence of the loans, his execution of the loan documents, and the bank’s calculation of the balance due, the trial court determined that the bank had established a prima facie case as a matter of law. See L. D. F. Family Farm v. Charterbank, 326 Ga. App. 361, 363 (756 SE2d 593) (2014). The court then held that Owen had not established a valid affirmative defense and granted summary judgment in favor of the bank. Owen appeals.

Owen argues that whether the parties had modified the repayment terms of the notes was a question of fact. Specifically, he argues that First Choice had agreed that Owen would pay interest on the loans during their terms; that Owen would pay the principal when the properties securing the loans were sold; and that First Choice would continue to renew the loans until then. As evidence of this agreement, Owen points to his own affidavit. Owen does not allege that this agreement was in writing, nor does he point to any writing in the record reflecting the agreement. He also argues that because of this oral agreement, the bank was estopped from enforcing the terms of the notes and had a duty to mitigate its damages by foreclosing on the properties securing the notes.

The trial court ruled that Owen’s defenses were barred by the doctrine announced in D’Oench, Duhme & Co. v. Fed. Deposit Ins. Corp., 315 U. S. 447 (62 SCt 676, 86 LE 956) (1942) and by 12 USC § 1823 (e), a provision of the Financial Institutions Reform, Recovery and Enforcement Act that codified the D’Oench, Duhme doctrine. See First Union Nat. Bank v. Hall, 123 F3d 1374, 1379 (III) (B), n. 9 (11th Cir. 1997). We agree.

Under D’Oench, Duhme, in general, “oral agreements between debtors and failed banks will not be enforced against banking authorities” and their assignees. Gravitt v. Bank of the Ozarks, 326 Ga. App. 461, 464 (1) (756 SE2d 695) (2014) (citations omitted).

D’Oench, Duhme and its progeny enable the FDIC, and banks that acquire insolvent banks’ assets from the FDIC, to make quick and accurate appraisals of the value of insolvent banks’ assets by protecting the FDIC and its transferees against undisclosed agreements that would unexpectedly diminish the value of those assets.

First Union, 123 F3d at 1379 (III) (B) (footnote omitted).

Owen argues that the D’Oench, Duhme doctrine does not apply because in its agreement with the FDIC, the bank voluntarily accepted the modifications to the terms of the loans. He points to paragraph 2.1 (n) in the Purchase and Assumption Agreement between the FDIC and the bank. That paragraph, entitled Liabilities Assumed by Assuming Institution, provides:

The Assuming Institution expressly assumes at Book Value (subject to adjustment pursuant to Article VIII) and agrees to pay, perform and discharge, all of the following liabilities of the Failed Bank as of the Bank Closing Date, except as otherwise provided in this Agreement (such liabilities referred to as “Liabilities Assumed”): all asset-related offensive litigation liabilities and all asset-related defensive litigation liabilities, but only to the extent such liabilities relate to assets subject to a Shared-Loss Agreement, and provided that all other defensive litigation and any class actions with respect to credit card business are retained by the Receiver.

Decided October 20, 2014

Dangle, Parmer & Rooks, Thomas E. Parmer, for appellant.

Stites & Harbison, Ronald J. Stay, for appellee.

(Emphasis supplied.) A Commercial Shared-Loss Agreement is attached as an exhibit to the Purchase and Assumption Agreement. But Owen does not point to any evidence (or even argue) that his loans were subject to the Shared-Loss Agreement. In the absence of specific allegations or evidence that the loans are shared-loss loans, the record provides no support for his claim that Paragraph 2.1 (n) applies to except his obligation from the D’Oench, Duhme doctrine.

Even assuming that Owen’s loans are subject to the Shared-Loss Agreement, he has not shown that he can avail himself of Paragraph 2.1 (n), because he has not shown that he is an intended beneficiary of that provision in particular or of the contracts between the FDIC and the bank in general. See Archer Western Contractors v. Estate of Pitts, 292 Ga. 219, 226-227 (2) (735 SE2d 772) (2012) (third-party beneficiary can only enforce those promises made directly for his benefit). The Shared-Loss Agreement expressly provides that it

is for the sole and exclusive benefit of the parties and their respective permitted successors and permitted assigns and there shall be no other third party beneficiaries. Nothing in this Agreement shall be construed to grant to any other Person any right, remedy or claim under or in respect of this Agreement or any provision hereof.

Owen cannot overcome the application of the longstanding D’Oench, Duhme doctrine by relying on contractual language which the bank and the FDIC never intended to benefit him. See Bank of the Ozarks v. Crockett, 2013 U. S. Dist. LEXIS 107035 (Case No. 3:13-CV-23, M.D. Ga. decided July 31, 2013); Caires v. JPMorgan Chase Bank, 880 FSupp.2d 288, 301-302 (1) (b) (D. Conn. 2012). Given our holding that the oral agreement is not enforceable, Owen’s remaining arguments have no merit.

Judgment affirmed.

Andrews, P. J., and Ray, J., concur.


text:
    A14A1464.
    CAMPBELL v. THE STATE.
    (764 SE2d 895)
   McFadden, Judge.

Juwann Campbell appeals from his convictions for armed robbery(OCGA§ 16-8-41), hijacking a motor vehicle (OCGA § 16-5-44.1), and possession of a firearm during the commission of a felony (OCGA § 16-11-106). He argues that the trial court inadequately responded to improper comments in the state’s closing argument and the trial court improperly restricted his cross-examination of a state’s witness. We find no abuse of discretion and affirm.

Viewed in the light most favorable to the verdict, the evidence showed that on November 1, 2011, several men used guns to force cousins Latrell and Fletcher Scott out of the parked car in which they were sitting. The men then drove away in the car. Latrell Scott recognized one of the men as someone who went by the nickname “Little J,” whom she identified at trial as Campbell.

1. Prosecutor’s statements during closing argument.

At trial, Campbell pointed out the lack of forensic evidence tying him to the crime. In response, the prosecutor made two statements in closing argument relating to Campbell’s ability to call as a witness a forensic police officer who had investigated the case. Campbell argues that the statements were improper. Although the trial court sustained Campbell’s objections to the statements, Campbell argues that OCGA § 17-8-75, which prohibits counsel from making “statements of prejudicial matters which are not in evidence,” required a stronger response and that the trial court erred in failing to either grant a mistrial or give appropriate curative instructions. We disagree.

OCGA § 17-8-75 provides:

Where counsel in the hearing of the jury make statements of prejudicial matters which are not in evidence, it is the duty of the court to interpose and prevent the same. On objection made, the court shall also rebuke the counsel and by all needful and proper instructions to the jury endeavor to remove the improper impression from their minds; or, in his discretion, he may order a mistrial if the prosecuting attorney is the offender.

In implementing this Code section, trial courts have broad discretion.

The decision of whether to grant a mistrial because of improper conduct by counsel rests with the trial judge. [His] decision will not be overturned absent a manifest abuse of discretion. This court has repeatedly held that if the trial judge acts immediately, and in the exercise of [his] discretion takes such action as in [his] judgment prevents harm to the accused as a result of such improper statements, a new trial will not be granted unless it is clear that such action failed to eliminate from consideration of the jury such improper statements.

Pullin v. State, 258 Ga. App. 37, 42 (3) (572 SE2d 722) (2002) (citations and punctuation omitted).

The first statement to which Campbell objected regarded a matter not in evidence — that the forensic police officer “was standing out in the hallway throughout this trial.” The trial court immediately sustained Campbell’s objection, rebuked the prosecutor, and instructed the jury not to consider the statement. The trial court did not abuse his discretion in this response to Campbell’s objection. See Wyley v. State, 169 Ga. App. 106, 108 (311 SE2d 530) (1983) (“The trial court’s denial of a motion for mistrial is not an abuse of discretion where the trial court immediately rebukes the counsel and instructs the jury to ignore the improper comments.”) (citation omitted).

The second statement to which Campbell objected occurred shortly thereafter, when the prosecutor, after referring to the forensic police officer, stated: “Understand this. The burden of course is on the State, but both parties have subpoena power. Both parties can bring a witness —[.]” Although the trial court sustained Campbell’s objection that this statement was an improper burden-shifting argument, in fact the statement was not improper. See Johnson v. State, 271 Ga. 375, 383 (15) (a) (519 SE2d 221) (1999) (prosecutor’s argument in closing directed at defense counsel’s failure to rebut or explain state’s evidence neither impermissibly shifted the burden of proof to the defendant nor improperly commented on defendant’s failure to testify); Hutchinson v. State, 179 Ga. App. 485, 486 (2) (347 SE2d 315) (1986). The trial court did not err in failing to take further action in response to this statement of the prosecutor in closing argument.

2. Cross-examination.

Campbell argues that the trial court impermissibly restricted his cross-examination of victim Latrell Scott. Defense counsel sought to ask Scott why she had refused to meet with some police officers in the course of the investigation, to which Scott would have responded that she was on probation. The trial court ruled that defense counsel could elicit testimony about Scott’s refusal to meet with the officers but not about the fact of her probation. Campbell argues that this was error, asserting that the fact that Scott was on probation implicated her credibility as a witness, when taken in conjunction with her unwillingness to speak with the officers, and was evidence from which the jury might infer that Scott had been engaged in a drug transaction.

Decided October 20, 2014.

Amy L. Ihrig, for appellant.

Meg E. Heap, District Attorney, Isabel M. Pauley, Assistant District Attorney, for appellee.

OCGA § 24-6-609 (a) limits the convictions with which a witness other than the accused can be impeached. It pertinently states:

For the purpose of attacking the character for truthfulness of a witness: (1) Evidence that a witness other than an accused has been convicted of a crime shall be admitted subject to the provisions of Code Section 24-4-403 [regarding relevancy] if the crime was punishable by death or imprisonment in excess of one year under the law under which the witness was convicted[.] ... (2) Evidence that any witness has been convicted of a crime shall be admitted regardless of the punishment, if it readily can be determined that establishing the elements of such crime required proof or admission of an act of dishonesty or making a false statement.

OCGA § 24-6-609 (a). In this case, Scott was on probation for the offense of misdemeanor shoplifting, and it does not appear from the record that Campbell made a showing that the shoplifting conviction involved fraud or deceit. Cf. Martin v. State, 300 Ga. App. 39, 41 (2) (684 SE2d 111) (2009) (requiring defendant to show that witness’s misdemeanor shoplifting conviction involved fraud or deceit for it to be used to impeach a witness under former OCGA § 24-9-84.1 (a) (3), which contained language similar to OCGA § 24-6-609 (a) (2)). Accordingly, the trial court did not abuse his discretion in limiting Campbell’s cross-examination to prevent mention of Scott’s probation. See id.

Judgment affirmed.

Andrews, P. J., and Ray, J., concur.


text:
    A14A0735.
    GARY v. DOLLAR THRIFTY AUTOMOTIVE GROUP.
    (763 SE2d 354)
   Miller, Judge.

This appeal arises from a subrogation suit filed by Dollar Thrifty Automotive Group (“DTAG”) against pro se defendant Joe E. Gary, Jr., to recover damages DTAG paid following a January 2007 automobile accident in which Gary was driving a DTAG rental vehicle. Following a bench trial, the trial court awarded damages to DTAG in the amount of approximately $50,000 in principal along with post-judgment interest. On appeal, Gary argues that the trial court erred in not ruling that DTAG’s lawsuit was barred by res judicata and in failing to require DTAG to comply with his discovery requests. For the reasons that follow, we affirm.

On appeal from the entry of judgment in a bench trial, we view the evidence in the light most favorable to the trial court’s verdict. Cox Interior v. Bayland Properties, 293 Ga. App. 612, 613 (1) (667 SE2d 452) (2008). Although the bench trial was not transcribed, the evidence shows that, in January 2007, Gary rented a vehicle from DTAG. Gary was driving the DTAG rental vehicle when he was involved in an automobile accident. Gary purchased a damage waiver plan that relieved him of liability for damage to the rental vehicle, but he did not purchase supplemental liability insurance from DTAG to cover bodily injury or property damage to third parties. In February 2007, DTAG sent Gary correspondence advising him to immediately report the accident to his insurance company, Shield Insurance Company (“Shield”). There is no evidence that Gary informed Shield of the accident at that time.

In July 2011, DTAG filed the instant subrogation claim against Gary for damages it paid as a result of the accident. DTAG subsequently filed a motion for summary judgment, arguing that, under the rental agreement, Gary was required to indemnify DTAG. In November 2011, the trial court granted DTAG’s motion for summary judgment on the issue of liability, and the case was scheduled for a bench trial on the issue of damages.

Thereafter, Shield moved to intervene and to stay the instant case until its coverage obligations could be determined in a separate declaratory judgment action. The trial court granted Shield’s motions.

In the declaratory judgment action, the trial court found that, although Gary had available coverage for the accident under his policy, Shield was not obligated to provide such coverage because Gary failed to provide timely notice of the underlying accident. Shield subsequently filed a motion to dismiss it as a party to this case and to terminate the stay on the basis that it had been granted summary judgment in the declaratory judgment action. The trial court in this case granted Shield’s motion to dismiss and terminated the stay.

Gary moved to compel discovery and to dismiss DTAG’s lawsuit on the basis that the declaratory judgment granted to Shield precluded further litigation of DTAG’s claims because the trial court in the declaratory judgment case ruled that he was unable to pay DTAG. There is no evidence that the trial court ruled on Gary’s motions. The case proceeded to a bench trial, resulting in the trial court’s award of damages to DTAG in the amount of approximately $50,000 in principal, along with post-judgment interest. This appeal ensued.

On appeal, Gary contends that the trial court erred in not granting his motion to dismiss on the grounds that DTAG’s suit was barred by res judicata or collateral estoppel. Additionally, he alleges that the trial court erred in denying his motion to compel discovery. The record reveals no ruling by the trial court on any of Gary’s motions. Additionally, since the trial was not transcribed and there was no authorized substitute submitted, there is no way to discern whether Gary objected to proceeding to trial without a ruling or otherwise made an effort to elicit a ruling. Accordingly, Gary’s enumerations of error present nothing for us to review. See Ware v. Fidelity Acceptance Corp., 225 Ga. App. 41, 42 (1) (482 SE2d 536) (1997) (appellant waived claim of error where there was no evidence that the trial court ruled on several motions, including a discovery motion, or that appellant objected to proceeding to trial without a ruling on the motions).

Even if the trial court’s failure to rule on Gary’s motions could be construed as a denial of the same, no error occurred. Gary’s res judicata and collateral estoppel arguments are based on his erroneous belief that DTAG is precluded from recovering damages because of a finding made in the declaratory judgment action that he was unable to pay for the damages resulting from the accident. Res judicata and the related doctrine of collateral estoppel, however, require identical parties or those in privity with them. See, e.g., Butler v. Turner, 274 Ga. 566, 568 (1) (555 SE2d 427) (2001). “Aprivy has generally been defined as one who is represented at trial and who is in law so connected with a party to the judgment as to have such an identity of interest that the party to the judgment represented the same legal right.” (Citations omitted.) Id.

Here, DTAG was not a party to the declaratory judgment action. Although Gary contends that the “trial court erred by not classifying [him] as one of six classes of privies,” he makes no showing that DTAG was in privity with Shield. Since the declaratory judgment involved a coverage dispute under the Shield policy, whereas the instant case concerns a contractual issue under the DTAG rental policy, Shield cannot be said to be in privity with DTAG because their interests were not fully congruent. See Butler, supra, 274 Ga. at 568 (1) (“[B]efore privity can be established, the interests of the party must fully ‘represent’ the interests of the privy and be fully congruent with those interests.”) (citations and punctuation omitted). Consequently, res judicata and collateral estoppel do not apply.

Likewise, there is no merit to Gary’s claim that the trial court erred in refusing to grant his motion to make DTAG cooperate in discovery. In his motion, Gary argued that DTAG failed to answer all questions propounded to it and attached a copy of the questions relating to DTAG’s damages. A review of the attached discovery request reveals that it was comprised mostly of statements challenging the validity of DTAG’s damages, rather than propounding questions. Nevertheless, Gary has failed to establish reversible error from the trial court’s refusal to grant his motion to compel, because any relevant information as to DTAG’s damages was presumably presented at the bench trial, and there is no evidence that any delay prejudiced his defense. See Infinite Energy v. Cottrell, 295 Ga. App. 306, 309 (2) (671 SE2d 294) (2008) (no reversible error in trial court’s refusal to consider motion to compel where discovery information sought was introduced at trial, defendant had ability to review the material, and there was no evidence that the defendant was prejudiced by the delay in obtaining the information). Accordingly, we affirm the trial court’s judgment.

Decided August 29, 2014

Reconsideration denied October 21, 2014.

Joe E. Gary, Jr., pro se.

Carlock, Copeland & Stair, Adam L. Appel, for appellee.

Judgment affirmed.

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

       As a threshold matter, we address the deficiencies in Gary’s brief, which fails to comply with our Rule 25. Notably, Gary does not provide citations to the record, nor does he address each enumeration of error in his argument section. See Court of Appeals Rule 25 (a) (1), (c) (1). Although Gary is proceeding pro se, he is not relieved of his obligation to conform to this Court’s rules. Bourff v. Green Tree Servicing, 321 Ga. App. 320, 321 (1) (741 SE2d 175) (2013). Briefs that do not conform to our rules hinder our ability to determine the basis and substance of an appellant’s appeal. Id. Nonetheless, we will review Gary’s claims of error to the extent that we can ascertain his arguments. Id.

       More specifically, Gary relies on the following language from the trial court’s declaratory judgment order:
      Here, the insurance policy in question states that damages arising out of an accident are covered. Foreseeable consequences are those which are probable, according to ordinary and usual experience, those which, because they happen so frequently, may he expected to happen again. One is not bound to anticipate or foresee and provide against that which is unusual or that which is only remotely or slightly probable. Despite [Shield’s] efforts to distance the breach of contract claim from the underlying cause, it is a foreseeable and natural consequence of the automobile accident that gave rise to [Gary’s] liability. [Gary’s] inability to pay by himself, without the aid of insurance, for the damages resulting from that liability is a foreseeable consequence of an auto accident, and therefore, the automobile accident was the proximate cause of his breach of contract with [DTAG],

       Although Gary argues that the trial court ruled upon his res judicata argument at the bench trial, the record does not support his claim because there is no trial transcript.

       Gary does not challenge the trial court’s grant of summary judgment to DTAG on the issue of liability under the rental agreement or the trial court’s calculation of damages following the bench trial. Therefore, any challenge to the trial court’s findings of liability or determination of damages is abandoned. See Young v. Turner Heritage Homes, 241 Ga. App. 400, 401 (2) (526 SE2d 82) (1999) (matters not enumerated as error are deemed abandoned).


author: Boggs, Judge.

text:
    A14A0873.
    CITY OF STOCKBRIDGE v. STUART.
    (765 SE2d 16)
   Boggs, Judge.

The City of Stockbridge (“the city”) appeals from a trial court order granting Lee Stuart, the then Mayor of the City of Stockbridge (“the mayor”), injunctive and declaratory relief, and attorney fees, in this dispute involving the extension of Ray Gibson’s employment contract as the city administrator. For the following reasons, we affirm.

The record reveals that in April 2011, the mayor and the city council adopted an ordinance creating the position of city administrator. This ordinance, which amended the city’s Code of Ordinances, provided that the mayor desired to delegate certain of his powers and duties to that position pursuant to Section 3.21 of the Stockbridge City Charter (“the charter”) (Ga. L. 1991, pp. 4359-4392). The new ordinance also provided:

(a) Within sixty (60) days of a vacancy in the position of city administrator, the mayor shall recommend to the council at least two (2) qualified candidate(s) for the position of city administrator. In the event the council rejects the mayor’s recommended candidates, the mayor shall have an additional fifteen (15) days to interview qualified candidates and make additional recommendations to the council. The council may accept or reject the mayor’s additional recommended candidates.
(b) The council shall employ a city administrator pursuant to a written contract and shall fix the city administrator’s compensation therein. Said administrator shall serve at the pleasure of the mayor and city council....

In May 2011, the city adopted a resolution approving the appointment of Ray Gibson as city administrator. The resolution provided that the mayor “wishes to appoint Ray Gibson to fill the vacant position of City Administrator through December 31,2011.” The city’s contract with Gibson provided that the term of employment was from May 3, 2011 to December 31, 2011, and also provided that the city administrator serves at the pleasure of the mayor and city council; that the mayor may recommend, and the city council may remove or suspend, the city administrator; and that “the Mayor may recommend and upon his recommendation, thereafter the City Council may terminate [the] City Administrator’s employment at any time, as provided in this Agreement. If the City Council terminates the City Administrator’s employment, then this Agreement shall terminate.”

In December 2011, the city council, by resolution, extended Gibson’s employment contract for three months, until March 30, 2012. The mayor did not sign this resolution, but the parties agree that he acquiesced in this extension of Gibson’s contract.

On March 5,2012, however, the mayor submitted two candidates for Gibson’s position for consideration by the city council in accordance with the ordinance, because in his view, the position would be vacant as of March 31, 2012. But during a meeting the day after the mayor’s submission, the city council introduced a resolution to extend Gibson’s contract to December 31, 2013. The mayor again refused to sign the resolution, and on March 26, 2012, he filed a verified complaint against the city seeking an interlocutory injunction, a declaratory judgment, and attorney fees. Subsequently, on April 3, 2012, the mayor again presented his nominations for the position of city administrator to the city council.

The mayor’s complaint sought a declaration that the city council’s actions to extend Gibson’s contract were illegal and ultra vires, and to temporarily and permanently enjoin the city from the “illegal appointment of Ray Gibson as City Administrator beyond March 30, 2012.” The mayor also sought to enjoin the city from filling the position of city administrator except in accordance with the ordinance.

Following three hearings on the matter, the trial court entered an order granting the mayor a permanent injunction, restraining and enjoining the city from “taking any action that in any way relies on the validity of the extension of Gibson’s term of office or his employment contract as City Administrator.” The court also granted the mayor’s request for a declaratory judgment finding that the actions by the city council

seeking to unilaterally extend the Contract of Ray Gibson were without authority, were ultra vires, and are void. Ray Gibson’s Contract expired by its terms on March 31, 2012, and the resolution seeking to extend his Contract is null and void. It is further declared that only the Mayor may nominate or appoint individuals to the position of City Administrator and the City Council may then accept or reject such nominees.

Finally, the court awarded the mayor attorney fees pursuant to Boswell v. Bramlett, 274 Ga. 50, 52-53 (3) (549 SE2d 100) (2001).

1. While an appeal from the relief granted to the mayor is arguably moot now that Gibson is no longer employed by the city, we must nevertheless address the merits of the city’s appeal in light of the trial court’s award of attorney fees to the mayor on the ground that he “was successful in asserting his position.” See Babies Right Start v. Ga. Dept. of Public Health, 293 Ga. 553, 555 (2) (a) (748 SE2d 404) (2013) (claims for injunctive relief to stop disqualification and for a declaratory judgment that disqualification was improper, were moot because term of disqualification expired; relief would have no effect); see also Green Party of Tennessee v. Hargett, 767 F3d 533 (II) (E) (1) (6th Cir. 2014) (pursuant to federal statute allowing attorney fees for “prevailing party,” where plaintiffs succeed in obtaining relief sought, even though intervening event rendered case moot on appeal, plaintiffs are still “prevailing parties” for purposes of attorney fees); Donovan v. The Punxsutawney Area School Bd., 336 F3d 211, 218 (IV) (3rd Cir. 2003) (although claim for declaratory and injunctive relief is moot, attorney fee claim presents live controversy). Compare Babies Right Start, supra (prayer for attorney fees without actual award of fees, does not preclude a determination that case is moot).

2. The city argues that the trial court erred in granting the mayor injunctive and declaratory relief. “The grant or denial of injunctive relief is a matter within the discretion of the trial court, and appellate review of the trial court’s decision is limited to a determination of whether the trial court abused its discretion.” (Citation omitted.) Teague v. City of Canton, 267 Ga. 679, 680 (1) (482 SE2d 237) (1997). And “[i]n a declaratory judgment action, the trial court is specifically authorized to grant injunctive relief to preserve the status quo pending the adjudication on the merits.” (Citations omitted.) Scott v. Prime Sales & Leasing, 276 Ga. App. 283, 287 (2) (623 SE2d 167) (2005).

We begin our analysis with the relevant provisions of the Stock-bridge City Charter. Section 3.22 (2) of the charter provides that the mayor shall “[ajppoint and remove, for cause, with confirmation of appointment or removal by the council, all officers, department heads, and employees of the city except as otherwise provided in this charter.” And Section 3.21 provides that the mayor “shall have the authority to delegate any one or more executive or administrative powers to a person or persons employed by the city and qualified in management and administration.”

The record here reveals that on April 18, 2011, the mayor, pursuant to Section 3.21 of the charter, delegated certain of his authority and powers by ordinance to the position of city administrator. The mayor then, pursuant to the city council’s May 2, 2011 resolution, appointed Gibson to the position, and the city council approved that appointment. The city then entered into an employment contract with Gibson effective May 3, 2011 to December 31, 2011. The resolution and the contract both provided or anticipated that Gibson’s contract would terminate on December 31, 2011. And the parties either consented to, or acquiesced in, the extension of Gibson’s contract through March 30, 2012. The question presented here, then, is whether the city council had the authority to unilaterally extend Gibson’s contract beyond the end of the contract term.

The city argues that only the terms of Gibson’s contract expired and that his appointment never expired, that both the charter and the ordinance gave the city council the final authority to hire and fire the city administrator, and that while the ordinance is silent regarding the procedure to terminate the city administrator, it must be assumed that Sections 3.22 (2) and 4.10 (e) (council may override mayor’s suspension or removal of directors) of the charter governs terminations.

Gibson’s employment contract with the city provides that it can be extended “on a day to day or month to month basis in a separate written Agreement executed by both parties if approved by the City pursuant to the procedure allowed for by the Charter and Ordinances of the City.” But neither the charter nor the ordinance provide a procedure for the extension of a city employee’s contract. The procedure for the employment of a city employee, however, is governed by the charter — the mayor appoints and the city council confirms — which is consistent with both the ordinance’s creation of the position of city administrator and the city council’s approval of the mayor’s appointment of Gibson. While the ordinance provides that within 60 days of a vacancy, the mayor shall recommend candidates to fill the position which the city council can accept or reject, and the city council points to other language it claims gives it the authority to hire and fire the city administrator, neither the language relied upon by the city nor any other language in the ordinance, resolution, or contract, can alter the mayor’s authority to appoint a city employee pursuant to the charter. “[W]hat can not be done by an ordinance can not be done by a contract.” (Citation and punctuation omitted.) CSX Transp. v. City of Garden City, 277 Ga. 248, 249 (1) (588 SE2d 688) (2003).

The city argues that because the employment contract was between Gibson and the city, and the charter granted the city council the power to contract on behalf of the city, the extension of Gibson’s contract was within the city council’s power. While pursuant to Section 1.12 (b) (7) of the charter, the city has the power to enter into contracts with private persons, that power is not unlimited. See City of McDonough v. Campbell, 289 Ga. 216, 218 (2) (710 SE2d 537) (2011). The contract here, for the position of city administrator, exists by virtue of the mayor’s delegation of his authority and his power to appoint officers and employees of the city. Therefore any employment of Gibson, beyond what was provided for in the charter and ordinance, must be governed by the same procedure set forth in the charter for the mayor’s delegation of authority and power to appoint. The city could not extend the mayor’s delegation of his administrative powers without his permission to do so. Cf. id. (while charter allows city to enter into contracts of employment, it could not bind hands of successor councils). There is no evidence here that the mayor delegated his powers and authority to the position of city administrator after March 30, 2012, nor is there evidence of any appointment and confirmation of Gibson to the position after that date. Rather the evidence showed that the mayor expressly delegated his authority to the position through December 31, 2011, and acquiesced in the same through March 30, 2012.

In providing that employees of the city are appointed (and removed) by confirmation, the charter anticipates that the mayor and the city council will act in concert. Neither party could act alone in the extension of Gibson’s contract. See City of Jonesboro v. ShawLightcap, Inc., 112 Ga. App. 890, 892 (1) (147 SE2d 65) (1966) (when charter authorized governmental action by mayor and council as a body, mayor could not act alone to bind city). The city was therefore without authority to unilaterally extend Gibson’s contract beyond that date. See id.

Because the city council could not unilaterally extend Gibson’s contract, the trial court did not err in concluding that any extension beyond March 30, 2012, was ultra vires, or void, and in granting the mayor the relief sought. See, e.g., City of Baldwin v. Woodard & Curran, 293 Ga. 19, 27 (2) (c) (743 SE2d 381) (2013) (city contract ultra vires and void where mayor signed but city council never approved as required by the city charter). This holding therefore requires us to consider the trial court’s award of attorney fees.

3. The city argues that the trial court erred in awarding the mayor attorney fees in the amount stated because the fees were not supported by competent evidence, and the authority allowing for fees should not apply to a city officer. The mayor’s verified complaint contained a prayer for attorney fees and costs of litigation. The parties waived a hearing on the issue and agreed to present argument regarding attorney fees by brief and affidavit. The mayor’s counsel then filed an affidavit asserting that the legal work he provided to the mayor amounted to $22,297 in attorney fees and $522.21 in costs, and that the amount billed to the mayor was “reasonable and appropriate in the legal marketplace.” Attached to counsel’s affidavit is an invoice listing the dates of service, the task completed, the hours expended, the cost for the hours expended, and the initials of the attorney who performed the task.

After consideration of the evidence, the trial court awarded the mayor $8,500 in attorney fees, less than half of the amount requested, in accordance with Boswell, supra, 274 Ga. 50. In Boswell, the Supreme Court of Georgia held that

a local government must pay a local official’s attorney fees (1) when the official, acting in his official capacity, is required to hire outside counsel to assert a legal position the local government attorney cannot assert because he or she has a conflict arising from his or her representation of the local government, and (2) when the official is successful in asserting his or her position. This is not because of any bad faith or improper conduct on the part of the local government. Rather, attorney fees in this instance are simply an expense of government operation.

(Citations, punctuation and footnotes omitted.) Id. at 52-53 (3).

The city urges this court to hold that because OCGA § 45-9-21 (e) (2) (defense of actions in lieu of insurance) applies to attorney fees specifically for a county officer, inter alia, we should interpret Boswell to apply only to a county officer. But Boswell does not rely upon this Code section for its holding and provides specifically that its rule applies to “an official, acting in his official capacity.” Id. at 52 (3). Boswell relies upon Gwinnett County v. Yates, 265 Ga. 504, 508-509 (2) (458 SE2d 791) (1995), and Griffies v. Coweta County, 272 Ga. 506, 509 (2) (530 SE2d 718) (2000), neither of which is limited in its application. We find no authority limiting the application of Boswell only to county officers, and we decline to do so here.

The city argues that the evidence is insufficient because other attorneys’ initials are noted on the invoice and those attorneys did not submit affidavits. But counsel averred that he was lead counsel in this case, and that the legal representation was performed by bim and his firm. Counsel also stated that “the invoices attached to this Affidavit represent a true, correct, and accurate accounting of the time spent by myself and my firm in this case and the expenses incurred.” Counsel asserted further that “[t]he amount of time spent by this law firm in this matter was reasonable and necessary in relation to the dispute encountered between the Mayor and the City of Stockbridge.” This was sufficient to establish that counsel had personal knowledge of the number of hours of work that had been performed by the members of his firm. See Fulton County Bd. of Assessors v. Greenfield Investment Group, 314 Ga. App. 523, 526 (2) (724 SE2d 828) (2012) (testimony presented by managing partner of firm that his partner did majority of work and of the reasonableness of his partner’s rate, which he set, along with the firm’s billing records, was sufficient evidence of amount of fees recoverable).

Decided October 21, 2014.

Fincher Denmark Williams & Minnifield, Steven M. Fincher, Winston A. Denmark, for appellant.

Hecht Walker, Gregory K. Hecht, Joseph W. Cloud, for appellee.

The city cites to Paul v. Destito, 250 Ga. App. 631 (550 SE2d 739) (2001), for the proposition that counsel’s affidavit was inadmissible to prove the time spent by other attorneys. But this court in Paul affirmed the trial court’s decision to grant a j.n.o.v. on the issue of the amount of attorney fees because there were no billing records or any other evidence describing how the attorneys spent their time, and counsel’s cursory testimony regarding the number of hours other attorneys spent on the case and hours they charged was insufficient for a jury to calculate fees. Id. at 642 (9) (case remanded for rehearing on amount of expenses).

The city also complains that the affidavit did not describe the legal work or expenses, that some of the entries relate to other matters, and that the time entries on each day are not itemized by task. But the invoice contained entries that adequately described the tasks performed in this case and the time spent on each task that would support the trial court’s award of $8,500. See Greenfield Investment Group, supra, 314 Ga. App. at 526 (2).

The trial court therefore did not abuse its discretion in concluding that the mayor was entitled to attorney fees pursuant to Boswell, because he was acting in his official capacity and was required to hire outside counsel to assert a legal position the city attorney could not assert on his behalf, and, as we have held in Division 2 that the trial court did not err in granting the mayor injunctive and declaratory relief, he was successful in asserting his position. Boswell, supra, 274 Ga. at 52-53 (3).

Judgment affirmed.

Barnes, P. J., and Branch, J., concur.

       In the same order, the trial court denied the city’s petition for a writ of mandamus. The cross-appeals in this action were originally filed in the Supreme Court of Georgia, but that court found that the denial of mandamus relief is moot because the mayor “has left office and a new city administrator has been appointed.” The court then transferred the appeal of the injunctive and declaratory relief and award of attorney fees to this court on the ground that those issues are not within its jurisdiction.

       Each resolution to extend Gibson’s employment contract provided that the resolution was “effective on the date of its approval by the City Council and Mayor as provided in the City Charter.”

       It is undisputed that Gibson is no longer employed as city administrator and that Stuart is no longer mayor. The parties assert that Gibson voluntarily left office on May 24, 2012.

       We note that Section 2.10 of the charter provides that the legislative authority of the government of the city, unless otherwise provided, is vested in a city council composed of the mayor and five councilmembers.

       The city attorney represented the city in this action.


text:
    A14A0928.
    KENEMER v. THE STATE.
    (765 SE2d 21)
   Boggs, Judge.

James Gregory Kenemer was convicted with a co-defendant of possession of tools for the commission of a crime, theft by taking, and criminal trespass. His motion for new trial was denied, and he files this out-of-time appeal, asserting as his sole enumeration of error the insufficiency of the evidence with respect to his conviction for possession of tools for the commission of a crime. We find the evidence sufficient and affirm.

In reviewing the sufficiency of the evidence,

the relevant question is whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt. This familiar standard gives full play to the responsibility of the trier of fact fairly to resolve conflicts in the testimony, to weigh the evidence, and to draw reasonable inferences from basic facts to ultimate facts. Once a defendant has been found guilty of the crime charged, the factfinder’s role as weigher of the evidence is preserved through a legal conclusion that upon judicial review all of the evidence is to be considered in the light most favorable to the prosecution.

(Citations and footnote omitted; emphasis in original.) Jackson v. Virginia, 443 U. S. 307, 319 (III) (B) (99 SCt 2781, 61 LE2d 560) (1979).

So viewed, the evidence shows that around 2:30 a.m. on September 13, 2010, an employee of a hauling company called the police when he discovered two men in the act of taking metal from storage containers in the back yard of the business. The men removed the metal with the aid of flashlights and placed it in the back of a small red pickup truck. They left the scene before the police arrived, but were stopped a short distance away while still within sight of the employee. An officer with the Dalton Police Department testified that the driver, whom he identified as Kenemer, and his passenger were placed under arrest after a “felony traffic stop” based on the “theft-related call” from the witness. A search of Kenemer revealed a “wire cutter type plier tool” in his pocket; on the passenger floorboard of the truck the police found another pair of wire cutters, a flashlight, a lantern which was “open and turned on,” and a pair of work gloves with the name “Kenemer” on them. There was mud on the wire cutters, the seat, and the truck tires, and the gloves were “somewhat wet and damp ... like they’d been used recently.” The officer testified, based on his experience, that he had encountered gloves, wire cutters, and flashlights while investigating crimes in the past, that those items were primarily associated with property crimes as opposed to “person type crimes,” and that they were consistent with the crime he was investigating in this case.

OCGA § 16-7-20 (a) provides: “A person commits the offense of possession of tools for the commission of crime when he has in his possession any tool, explosive, or other device commonly used in the commission of burglary, theft, or other crime with the intent to make use thereof in the commission of a crime.” Kenemer was charged with possessing “gloves, lights, and cutting tools, devices commonly used in the commission of a crime, to wit: theft, with the intent to make use thereof in the commission of said crime.”

Kenemer relies on several cases to contend that the tools he possessed were not shown to be “commonly used in the commission of a crime,” but those decisions are inapposite here. Burnette v. State, 168 Ga. App. 578, 580 (2) (b) (309 SE2d 875) (1983), contrary to Kenemer’s assertion, was not decided on the issue of whether the household tools found in Burnette’s truck were “commonly used.” We expressly declined to rely on that point, and instead held that “assuming for the sake of argument that such tools are commonly used to commit burglaries, there is no evidence in the instant case to show that appellant possessed such tools with the intent to use them in the commission of a crime.” (Emphasis supplied.) Id. And the decision has been distinguished frequently on this second element of OCGA § 16-7-20, because “[i]n Burnette, the tools were rusty, no evidence was adduced that they had been used recently, and the . . . premises showed no sign of forcible entry.” Ranson v. State, 198 Ga. App. 659, 660 (2) (402 SE2d 740) (1991) (full concurrence in Division 2).

Here, as in Ranson, the tools were in the cab of the truck, and they showed signs of recent use, “thereby indicating that the tools had been used to” commit the theft. 198 Ga. App. at 661 (2). See also Anderson v. State, 264 Ga. App. 362, 363-364 (1) (590 SE2d 729) (2003) (distinguishing Burnette-, tools loose on floor of vehicle and appliance in house had been moved and opened to facilitate cutting of wires); Manous v. State, 205 Ga. App. 804, 805 (1) (423 SE2d 721) (1992) (same; glass cutter, lock picks, screwdriver and gloves connected with appellant and signs of forced entry); Moore v. State, 197 Ga. App. 9, 10 (1) (397 SE2d 477) (1990) (same; fresh scratches on doorframe although officer also testified that screwdrivers “were popular for use in burglaries”). Alternatively, a showing of intent may be made by evidence, as here, that an individual was observed using one or more of the tools while committing the crime. See Spradlin v. State, 279 Ga. App. 638, 640-641 (2) (631 SE2d 828) (2006) (two men observed cutting security chain; bolt cutters found in front seat of truck occupied by appellant and a companion); Jenkins v. State, 259 Ga. App. 47, 51 (2) (a) (576 SE2d 300) (2002) (appellant carried flashlight during burglary).

Kenemer also specifically attacks the police officer’s testimony in this case as inadequate to show “common” use. We take this opportunity to clarify an issue that has been tacitly acknowledged in the many cases construing OCGA § 16-7-20, but never directly addressed.

In the vast majority of cases construing this Code section, whether a tool is commonly used in the commission of a crime is “within the ken of the average juror.” Norwood v. State, 265 Ga. App. 862, 864-865 (2) (595 SE2d 537) (2004) (jury could determine from tools admitted into evidence whether they were “burglary tools”); cf. Miller v. State, 292 Ga. App. 641, 642-643 (2) (666 SE2d 35) (2008) (“whether or not a cut is consistent with having been made by a sharp instrument” within ken of jury). In such cases, expert testimony is not required, and jurors are entitled to use their knowledge and experience to decide both elements set out in the Code section — common use and intent.

Of course, there are some cases in which this general rule does not apply. On the one hand, it is probable (although we need not decide the question here) that lockpicks, “slim jims,” blackjacks, masks, and similar items are “commonly used” for the commission of crime as a matter of law. In fact, wire cutters and gloves have been explicitly held to “satisfy the first element [of the statute] as they are commonly used in the commission of burglary, theft, or other crimes. [Cits.]” Kennon v. State, 232 Ga. App. 494, 496 (3) (502 SE2d 330) (1998). On the other hand, some items are so specialized, Nyane v. State, 306 Ga. App. 591, 592 (1) (703 SE2d 53) (2010) (bulletproof vest), or so widely used in completely unrelated ways, Garrett v. State, 263 Ga. App. 310 (587 SE2d 794) (2003) (pieces of two-by-four lumber), that their common use in crime — or even that they are “tools” or “devices” — is not within the ken of the average juror and expert testimony to that effect may be required.

Decided October 21, 2014.

G. Brandon Sparks, for appellant.

Herbert M. Poston, Jr., District Attorney, Susan L. Franklin, Assistant District Attorney, for appellee.

But this is not such a case. Here, it was well within the jury’s ability to determine both whether the tools were “commonly” used in the commission of a crime, and whether Kenemer had the necessary intent to use them in that manner. Photographs of the items, separately and in their original locations in the truck, as well as some of the items themselves were admitted into evidence, and the jury could determine whether they were commonly used in crime. In Norwood, supra, 265 Ga. App. at 864-865 (2), the defendant contended that the State failed to prove that bolt cutters found in a vehicle near his seat were a tool commonly used in crime, and that no evidence was presented that he possessed a crowbar or that the crowbar was used in the burglary at issue. We held that the bolt cutter was “entered into evidence and viewed by the jury. The evidence was sufficient for the jury to find that these items were burglary tools.” (Citations and footnote omitted.) Id. The evidence here is likewise sufficient.

Judgment affirmed.

Barnes, P. J., and Branch, J., concur.

       The jury found Kenemer not guilty of possession of a controlled substance and possession of a firearm while in possession of a controlled substance. The State nol prossed the charge of possession of a firearm by a convicted felon.

       The following statement in Burnette is mere dicta: “While it is true that such items could be used in the commission of a burglary, we are not prepared to hold that such tools are ‘commonly used in the commission of burglary,’ as required by [OCGA] § 16-7-20 (a).” Id. at 580 (2) (b).

       Kenemer also argues that the officer’s testimony that, in his experience, the tools in question were used “primarily” in property crimes does not establish that the tools were “commonly” used in the commission of the crime at issue. But such parsing of language is not necessary where, as noted above, this question was within the knowledge of the average juror and expert testimony was unnecessary.