text:
    A11A2427.
    HARRIS v. THE STATE.
    (724 SE2d 864)
   PHIPPS, Presiding Judge.

Following his indictment for aggravated assault on a peace officer, among other crimes, Lewis Harris moved to dismiss the charges against him on the ground that his constitutional right to a speedy trial had been violated. The trial court denied the motion, and Harris appeals. For the reasons set forth below, we vacate the judgment and remand the case with direction.

Harris was arrested on May 14, 2006, and, in connection with events occurring on that date, he was subsequently indicted on March 12, 2010, for aggravated assault on a peace officer, possession of a firearm during the commission of a felony, possession of a firearm by a convicted felon, and possession of cocaine with intent to distribute. On July 27, 2010, Harris moved to dismiss the indictment based on the alleged violation of his right to a speedy trial. The trial court held a hearing on the motion to dismiss on May 9, 2011, and it denied the motion in an order entered on June 17, 2011.

In deciding a constitutional speedy trial claim, courts must engage in a balancing test by considering “(1) the length of the delay; (2) the reasons for the delay; (3) the defendant’s assertion of the right to a speedy trial; and (4) prejudice to the defendant. Barker v. Wingo, 407 U. S. 514 (92 SC 2182, 33 LE2d 101) (1972).” “The existence of no one factor is either necessary or sufficient to sustain a speedy trial claim, and a trial court’s findings of fact and its weighing of disputed facts will be afforded deference on appeal.” Accordingly, with the Barker factors in mind, we review the trial court’s ruling for abuse of discretion.

(a) Presumptive prejudice. The length of the delay figures into the Barker analysis in two respects. The court should first consider the length of the delay to determine if it crosses the threshold distinguishing ordinary delay from presumptively prejudicial delay. “If such a presumption is not warranted, the analysis need go no farther because the accused’s speedy trial claim fails; if, however, the delay invokes the presumption of prejudice, then the analysis proceeds to the examination of all Barker v. Wingo factors” Here, more than five years passed from the date of Harris’s arrest to the denial of his speedy trial motion. The trial court correctly concluded that this pretrial delay was presumptively prejudicial and required examination of the remaining Barker factors.

(b) The Barker factors.

(i) Length of the delay. If the threshold inquiry is met, the length of the delay should be considered by the trial court again “by factoring it into the prejudice prong of the Barker analysis, with the presumption that pretrial delay has prejudiced the accused intensifying over time.” The presumptive prejudice arising from the delay is “part of the mix of relevant facts, and its importance increases with the length of delay,” but it “cannot alone carry a Sixth Amendment claim without regard to the other Barker criteria.”

Harris argues that the trial court erred because it failed to consider if the delay in this case was uncommonly long and because it did not assign any weight to the delay. As our Supreme Court has said, “[i]t is important that trial courts not limit their consideration of the lengthiness of the pretrial delay to the threshold question of presumptive prejudice and remember to count it again as one of four criteria to be weighed in the balancing process at the second stage of the Barker-Doggett analysis.” Here, the trial court did not go beyond the threshold analysis to consider the length of the delay as part of the four-part balancing process, and thus did not consider if the length of delay was uncommon or assign any weight to the length of the delay. The state admits that, notwithstanding the omission from the trial court’s order, the pretrial delay in this case was uncommonly long and weighs heavily against it. Accordingly, “[t]o the extent the trial court overlooked this factor in the four-factor balancing process, it erred.”

(ii) Reasons for the delay. The second factor of the Barker analysis requires consideration of “the reason for the delay and whether this is attributable to the defendant or the state.” The trial court found that the state did not attempt to deliberately delay the triad, but that there was no explanation for its three-year and ten-month delay in failing to seek an indictment. The trial court also found that the state’s negligence was the reason for the pre-indictment delay and weighed that delay slightly against the state. However, the trial court assigned the reason for the delay following the indictment “to neither party.”

As a rule, “[w]here no reason appears for a delay, we must treat the delay as caused by the negligence of the State in bringing the case to trial.” The state’s negligence in causing the delay is generally considered relatively benign. Harris argues that the delay in this case was nevertheless not benign because the state’s conduct was not inadvertent. “[D]elays resulting from deliberate decisions made by the State . . . cannot be considered benign and must be weighted more heavily against the State.” In support of his argument, Harris points out that police investigators had contacted the district attorney’s office many times in an effort to ensure that the office took action in prosecuting the case. The trial court acknowledged this evidence in its order, but found that the government’s delay was nevertheless not deliberate. That members of the district attorney’s office were aware of the case against Harris does not show that their delay in indicting Harris was necessarily more than negligent, and we defer to the trial court’s findings in this respect.

We cannot, however, conclude that the trial court properly attributed the delay following the indictment to neither party. At the hearing, the trial judge indicated that the delay after the case was transferred to the court shortly after the indictment was “my responsibility.” Nevertheless, the primary burden is on both the prosecutor and the court to bring the case to trial, and the state bears the ultimate responsibility for its dockets. Accordingly, as with the pre-indictment delay, the trial court should have weighed the post-indictment delay against the state, although the reason for that delay was not shown to be more than unintentional and relatively benign.

(iii) Assertion of the right. A defendant may benefit from a delay in trial, and we have “recognized that a defendant has a responsibility to assert his right to a speedy trial.” Given that more than four years passed from the time of his arrest until Harris asserted his speedy trial rights, the length of that delay would normally be required to be weighed heavily against him. Further, “a defendant may assert his constitutional right to a speedy trial at any time after he is arrested; he need not wait until indictment.” Nevertheless, “a trial court has the discretion to mitigate the weight given this factor when a defendant fails to assert his right during the period between arrest and indictment if he was out on bond and without counsel.”

Here, the trial court weighed Harris’s delay in asserting his speedy trial rights against him, but only slightly, noting as mitigating factors the lengthy delay between the arrest and the indictment and that, once Harris retained counsel, his attorney filed a demand within two months. We find no error in the trial court’s analysis and weighing of this factor.

(iv) Prejudice to the defendant. In analyzing this last factor, the trial court found a presumption of actual prejudice arising out of the more than five-year pretrial delay. It then considered the three types of prejudice associated with an unreasonable delay before trial, which are oppressive pretrial incarceration, anxiety and concern of the accused, and the possibility that the defendant’s defense will be impaired. The trial court concluded that lengthy pretrial incarceration and anxiety were not at issue, and it then considered if Harris’s defense had been impaired by the delay. As the trial court noted, “the inability of a defendant adequately to prepare his case skews the fairness of the entire system.”

The record shows that Harris was alleged to have pointed and shot a handgun in the direction of a police officer. At the hearing on the motion to dismiss, Harris proffered that the incident occurred at a hotel formerly known as the Executive Inn, which had later been condemned. Therefore, Harris contends, he is unable to conduct any meaningful investigation. He also points out that although officers took statements from witnesses, the front desk clerk was not interviewed and remains unidentified. The state counters, as the trial court noted, by showing that the hotel building remains accessible and that Harris did not demonstrate what the front desk clerk could have offered on behalf of the defense. Generally, “[t]o prove prejudice due to the unavailability of. . . witnesses, the defendant must show that the unavailable witnesses could supply material evidence for the defense.” Giving deference to the trial court’s findings, we conclude that it did not err in ruling that Harris did not show actual prejudice. The trial court went on, however, to state, that “Harris has failed to demonstrate actual prejudice” and “ [ble-cause the Court weighs this last factor more heavily, [Harris’s] Motion is hereby denied.”

In a case involving a similarly lengthy pretrial delay, the Supreme Court of Georgia concluded that a defendant’s inability to make a particularized showing of a decreased ability to present a defense could not be weighed heavily against him. “Although the passage of time is not alone sufficient to sustain a speedy trial claim, greater pretrial delays simultaneously increase the degree of prejudice presumed and decrease the expectation that the defendant can demonstrate tangible prejudice to his or her ability to present a defense.” Accordingly, “[t]o the extent that the trial court found to the contrary, it was in error.”

(c) Balancing the factors. The trial court balanced the Barker factors by finding the length of the delay “attributable” to the state, weighing the reason for the delay slightly against the state, and weighing the assertion of the right to a speedy trial slightly against Harris. The trial court then noted that Harris had failed to show actual prejudice and, weighing this factor “more heavily,” denied Harris’s motion to dismiss the indictment.

Decided March 2, 2012.

Jennifer S. Hanson, Bruce S. Harvey, for appellant.

Paul L. Howard, Jr., District Attorney, Lenny I. Krick, Assistant District Attorney, for appellee.

We review the trial court’s balancing of the four Barker factors, and its ultimate judgment, for abuse of discretion. But “where . . . the trial court has clearly erred in some of its findings of fact and/or has misapplied the law to some degree, the deference owed the trial court’s ultimate ruling is diminished.” We find no error in the trial court’s findings of fact, but we conclude that the trial court erred in attributing the reason for the delay following the indictment to neither party, in failing to reconsider the length of the delay in applying the four-part Barker test, and in weighing heavily Harris’s inability to come forward with evidence of actual prejudice to his defense. We conclude that the latter two errors were material in this case. We cannot, however, conclude that the trial court had no discretion to reach a different judgment, particularly given the length of the delay and that Harris’s assertion of the right to a speedy trial was mitigated. Therefore, we vacate the judgment and remand the case to the trial court with direction that it exercise its discretion anew and, upon making findings of fact and conclusions of law consistent with Barker, enter its written order on Harris’s motion to dismiss.

Judgment vacated and case remanded with direction.

Andrews and McFadden, JJ., concur.

        Fallen v. State, 289 Ga. 247, 248 (710 SE2d 559) (2011) (citation and punctuation omitted). See Doggett v. United States, 505 U. S. 647, 651 (II) (112 SC 2686, 120 LE2d 520) (1992) (the four separate inquiries are “whether delay before trial was uncommonly long, whether the government or the criminal defendant is more to blame for that delay, whether, in due course, the defendant asserted his right to a speedy trial, and whether he suffered prejudice as the delay’s result”) (citation omitted); Ruffin v. State, 284 Ga. 52, 55 (2) (a) (663 SE2d 189) (2008).

        State v. White, 282 Ga. 859, 861 (2) (655 SE2d 575) (2008) (citation omitted).

       Id.

       See Fallen, supra at 248 (1).

        Higgenbottom v. State, 290 Ga. 198, 200 (1) (719 SE2d 482) (2011) (citation omitted).

       “Where a trial has not occurred, the delay should be calculated from the date of arrest or other formal accusation to the date on which a defendant’s speedy trial motion was granted or denied . . . .” State v. Porter, 288 Ga. 524, 526 (2) (b) (705 SE2d 636) (2011). For a serious crime lacking any unusual complexity, which appears to be the case with respect to the charges against Harris, “one year generally marks the point at which expected deliberateness in the prosecution of a criminal matter turns into presumptively prejudicial delay.” Ruffin, supra at 55 (2) (a) (footnote omitted).

        Fallen, supra at 248 (1) (citation and punctuation omitted).

       Id. (citation and punctuation omitted).

        Ruffin, supra at 56-57 (2) (b) (i).

       See id. at 57 (“The uncommon length of the pretrial delay thus merits consideration beyond its use as a liminal screening mechanism.”); Teasley v. State, 307 Ga. App. 153, 158 (2) (a) (704 SE2d 248) (2010) (“we find nothing in the trial court’s order to show that it considered whether the delay before trial was uncommonly long given the circumstances of the case”).

       See Teasley, supra (pretrial delay of three years and two months weighs heavily against the state).

        Ruffin, supra at 59 (2) (b) (i). In some cases, we have concluded that the trial court effectively weighed this factor in an appellant’s favor notwithstanding the court’s failure to specifically consider the length of the delay beyond the threshold question of presumptive prejudice. See Brewington v. State, 288 Ga. 520, 522-523 (3) (b) (i) (705 SE2d 660) (2011); Harrison v. State, 311 Ga. App. 787, 790 (3) (a) (717 SE2d 303) (2011). Here, however, we are unable to conclude that the trial court effectively weighed the length of the delay against the state or in Harris’s favor.

        State v. Johnson, 274 Ga. 511, 512 (555 SE2d 710) (2001) (citation and punctuation omitted).

        Boseman v. State, 263 Ga. 730, 733 (1) (b) (438 SE2d 626) (1994) (citation omitted).

        Fallen, supra at 248 (2).

        Hayes v. State, 298 Ga. App. 338, 344 (2) (b) (680 SE2d 182) (2009) (citation omitted).

       See Jones v. State, 283 Ga. App. 838, 840 (2) (642 SE2d 865) (2007).

       See State v. Giddens, 280 Ga. App. 586, 588 (634 SE2d 526) (2006).

       Id.

        Mayfield v. State, 264 Ga. App. 551, 557 (1) (593 SE2d 851) (2003) (citation and punctuation omitted).

       See Brown v. State, 287 Ga. 892, 895 (1) (c), 896 (2) (c) (700 SE2d 407) (2010) (co-defendants’ respective two- and three-year delays in asserting right to speedy trial weighed heavily against them).

        State v. Pickett, 288 Ga. 674, 676 (2) (c) (3) (706 SE2d 561) (2011) (citation omitted).

       Id. (citation omitted).

       See Hester v. State, 268 Ga. App. 94, 99 (3) (601 SE2d 456) (2004) (given mitigating factors of the state’s delay in indicting the defendant and the delay in appointment of counsel, the trial court could weigh against the defendant her delay in asserting her speedy trial rights, but it could not weigh the factor heavily against her).

        Pickett, supra at 677 (2) (c) (4).

       See Teasley, supra at 161 (2) (d) (citation and punctuation omitted).

        Wofford v. State, 299 Ga. App. 129, 132 (4) (682 SE2d 125) (2009) (citation and punctuation omitted).

        Williams v. State, 277 Ga. 598, 601 (1) (d) (592 SE2d 848) (2004) (five year pretrial delay).

       Id.

       Id.

        White, supra.

        Porter, supra at 533 (4) (e) (citation and punctuation omitted).

       See Pickett, supra at 679 (2) (d).

       Compare Wilkie v. State, 290 Ga. 450 (721 SE2d 830) (2012) (affirming denial of speedy trial claim notwithstanding five-and-a-half-year length of delay, noting, among other things, that defendant was “dilatory in asserting his rights”).

        Pickett, supra at 680 (2) (d).


source: Caselaw Access Project

author: Andrews, Judge.

license: Public Domain

text:
    A10A0703.
    FLORES et al. v. EXPREZIT! STORES 98-GEORGIA, LLC et al.
    (724 SE2d 870)
   Andrews, Judge.

In Flores v. Exprezit! Stores 98-Georgia, LLC, 304 Ga. App. 333 (696 SE2d 125) (2010), we affirmed the trial court’s grant of summary judgment dismissing a Georgia dram shop act (OCGA § 51-1-40) claim brought against defendants owning or operating a convenience store on the basis that the dram shop act did not apply to a convenience store’s sale of closed or packaged containers of alcohol to an adult. In Flores v. Exprezit! Stores 98-Georgia, LLC, 289 Ga. 466 (713 SE2d 368) (2011), the Supreme Court reversed our judgment and held that OCGA § 51-1-40 did apply to that claim. Accordingly, the judgment of the Supreme Court is made the judgment of this Court. In light of the Supreme Court’s ruling that OCGA § 51-1-40 applies to the claim, we now address additional enumerations of error raised in Flores, 304 Ga. App. 333 asserting that the trial court erred by granting summary judgment for other reasons and by denying a motion seeking sanctions for spoliation of evidence.

The complaint pursuant to OCGA § 51-1-40 was brought by Elias Flores and Maria Flores Vazquez individually and on behalf of their minor child, Nancy Flores, for injuries suffered by the child in a collision between a van in which the child was a passenger and a car driven by 24-year-old Billy Joe Grundell. The Floreses alleged that Grundell lost control of his car, crossed the centerline of the road, and caused a head-on collision with the approaching van in which their child was injured and six people were killed including Grundell. Flores, 304 Ga. App. at 333. There was evidence that “[a] post-collision analysis of Grundell’s blood showed that he was driving with a blood alcohol concentration of 0.181 grams per 100 milliliters, an amount in excess of the legal limit.” Id. In support of their claim pursuant to OCGA § 51-1-40, the Floreses contend that, about four hours before the collision, Grundell drove to a convenience store owned or operated by Exprezit! Stores 98-Georgia, LLC and others; that Grundell entered the store and purchased packaged beer while noticeably intoxicated; and that he drove off and later consumed the beer before he caused the collision.

The dram shop act (OCGA § 51-1-40) provides in relevant part:

(a) The General Assembly finds and declares that the consumption of alcoholic beverages, rather than the sale or furnishing or serving of such beverages, is the proximate cause of any injury, including death and property damage, inflicted by an intoxicated person upon himself or upon another person, except as otherwise provided in subsection (b) of this Code section.
(b) A person who sells, furnishes, or serves alcoholic beverages to a person of lawful drinking age shall not thereby become liable for injury, death, or damage caused by or resulting from the intoxication of such person, including injury or death to other persons; provided, however, a person who willfully, knowingly, and unlawfully sells, furnishes, or serves alcoholic beverages to a person who is not of lawful drinking age, knowing that such person will soon be driving a motor vehicle, or who knowingly sells, furnishes, or serves alcoholic beverages to a person who is in a state of noticeable intoxication, knowing that such person will soon be driving a motor vehicle, may become liable for injury or damage caused by or resulting from the intoxication of such minor or person when the sale, furnishing, or serving is the proximate cause of such injury or damage. . . .

1. Under these provisions, the Floreses sued to establish Exprezit!’s liability for injuries their child suffered in the collision on the following contentions: (1) that, prior to the collision, Exprezit! knowingly sold packaged beer to Grundell, a person of lawful drinking age; (2) that Exprezit! sold the beer to Grundell while he was in a state of noticeable intoxication; (3) that Exprezit! knew Grundell would soon be driving a motor vehicle; (4) that, prior to the collision, Grundell was intoxicated as a result of consuming beer Exprezit! sold to him; and (5) that the collision and resulting injuries were caused by or resulted from Grundell’s intoxication, and therefore ExprezitPs sale of the beer to Grundell about four hours prior to the collision was a proximate cause of the collision and the injuries. The trial court granted Exprezit!’s motion for summary judgment on the basis that the Floreses failed to produce sufficient evidence to create a factual question on two elements of the claim: (1) that Exprezit! sold beer to Grundell and (2) assuming Exprezit! sold beer to Grundell, that the sale was a proximate cause of the collision and injuries. We find that the evidence was sufficient to create a jury issue and reverse the trial court’s grant of summary judgment to Exprezit!.

The only Exprezit! employee working at the store testified that she saw Grundell drive up to the store, enter the store and stay near the cash register area, and then leave the store and drive away, but she denied selling beer or any alcoholic beverage to Grundell. The Floreses produced evidence from other witnesses who saw Grundell enter the store and then exit the store carrying packaged beer. Because none of the witnesses produced by the Floreses could testify that they actually saw Grundell purchase the beer inside the store, the trial court ruled that this was insufficient to create a factual issue in the face of direct testimony from the Exprezit! employee that there was no sale of beer to Grundell. “Circumstantial evidence has no probative value to establish a fact where it is consistent with direct, unimpeached evidence showing the nonexistence of such fact.” Rosales v. Davis, 260 Ga. App. 709, 712 (580 SE2d 662) (2003); Blount v. Sutton, 114 Ga. App. 767, 770 (152 SE2d 777) (1966). In other words,

[bjefore circumstantial evidence can have any probative value to rebut or contradict direct and positive testimony of an unimpeached witness of the alleged facts in question, such evidence must point at least more strongly to a conclusion opposite to the direct testimony. It is not sufficient that such circumstantial evidence points equally one way or the other.

Griffin v. Blackshear Bank, 66 Ga. App. 821, 825 (19 SE2d 325) (1942). We find that direct evidence showing Grundell entered the store and shortly thereafter exited the store carrying packaged beer was also circumstantial evidence that Grundell purchased the beer in the store, and that the circumstantial evidence at least pointed more strongly to a conclusion opposite to the direct testimony from the Exprezit! employee that there was no sale of beer. Accordingly, the evidence was sufficient to create a jury issue as to whether Exprezit! sold beer to Grundell. Id.

The trial court also found that, even if Exprezit! sold beer to Grundell about four hours prior to the collision, as a matter of law, the evidence was insufficient to show that the sale of said beer was a proximate cause of the collision and resulting injuries. The Floreses produced testimony from a witness that, after Grundell drove away from the Exprezit! store with the packaged beer he carried out of the store, he drove to two different locations where, prior to the collision, he consumed a portion of that beer and appeared intoxicated. Other evidence showed that Grundell was driving at the time of the collision with a blood-alcohol level in excess of the legal limit. We find the evidence was sufficient to create a jury issue as to whether a proximate cause of the collision and resulting injuries was Exprezit!’s sale of packaged beer to Grundell and his intoxication from consumption of that beer prior to the collision.

2. The Floreses contend that the trial court erred by denying their motion claiming that Exprezit! engaged in spoliation of evidence by failing to preserve the store’s surveillance video and sales receipts from the day that Grundell allegedly purchased the beer from the store, and that this entitled them to a rebuttable presumption that the evidence would have been harmful to Exprezit!. “Spoliation refers to the destruction or failure to preserve evidence that is necessary to contemplated or pending litigation.” Craig v. Bailey Brothers Realty, 304 Ga. App. 794, 796-797 (697 SE2d 888) (2010) (citations and punctuation omitted).

Decided March 5, 2012.

Edward J. Bauer, Brandon R. Day, M. Katherine Durant, for appellants.

Fain, Major & Brennan, Gene A. Major, Young, Thagard, Hoffman, Smith & Lawrence, John H. Smith, Jr., Weinberg, Wheeler, Hudgins, Gunn & Dial, Y. Kevin Williams, John B. Jackson, Michael A. Sexton, Charles L. Clay, Jr., Buckley Brown, Robert C. Sender, Douglas L. Gibson, for appellees.

To meet the standard for proving spoliation, the injured party must show that the alleged tortfeasor was put on notice that the party was contemplating litigation. The simple fact that someone is injured in an accident, without more, is not notice that the injured party is contemplating litigation sufficient to automatically trigger the rules of spoliation.

Id. (citation and punctuation omitted). In other words, in the absence of pending litigation, notice of the mere “potential for litigation” is not enough. Silman v. Assocs. Bellemeade, 286 Ga. 27-28 (685 SE2d 277) (2009); Kitchens v. Brusman, 303 Ga. App. 703, 707 (694 SE2d 667) (2010). “The trial court has wide discretion in resolving spoliation issues, and we will not disturb its ruling absent abuse.” Paggett v. Kroger Co., 311 Ga. App. 690, 692 (716 SE2d 792) (2011).

The collision at issue occurred on January 3, 2004, and, in the normal course of business, Exprezit! taped over the video seven days later and discarded the sales records within two or three weeks. This was long before the Floreses filed suit on December 29, 2005. We find no abuse of discretion in the trial court’s conclusion that the record showed Exprezit! had no notice that the Floreses were contemplating litigation when the evidence was discarded. Accordingly, we affirm the trial court’s ruling that there was no spoliation.

Judgment affirmed in part and reversed in part.

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

       The complaint named as defendants Exprezit! Stores 98-Georgia, LLC and Exprezit! Convenience Stores, LLC, along with two individuals employed at the store, Sandra Delk and Phylis Gayle Smith. We collectively refer to these defendants as Exprezit!

       The Floreses also produced evidence that Grundell was intoxicated while he was at the store.


author: Miller, Judge.

text:
    A11A1561.
    PERRY v. THE STATE.
    (724 SE2d 874)
   Miller, Judge.

Following a jury trial, Benjamin F. Perry was convicted of sale of cocaine (OCGA § 16-13-30 (b)). The trial court denied Perry’s motion for new trial. On appeal, Perry contends that (i) the trial court erred in admitting his prior convictions for possession of cocaine as similar transaction evidence; (ii) the trial court erred in admitting his prior drug convictions since the State’s similar transactions notice was untimely and failed to list witness names and contact information; and (iii) his trial counsel was ineffective. We discern no reversible error and affirm.

On appeal from a criminal conviction, the evidence must be viewed in the light most favorable to the verdict, and the appellant no longer enjoys the presumption of innocence; moreover, an appellate court does not weigh the evidence or determine witness credibility but only determines whether the evidence is sufficient under the standard of Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560) (1979). Conflicts in the testimony of the witnesses, including the State’s witnesses, are a matter of credibility for the jury to resolve. As long as there is some competent evidence, even though contradicted, to support each fact necessary to make out the State’s case, the jury’s verdict will be upheld.

(Punctuation and footnote omitted.) Brown v. State, 274 Ga. App. 302 (1) (617 SE2d 227) (2005).

So viewed, the trial evidence showed that on July 28, 2008, narcotics agents with the Chattooga County Sheriffs Office conducted an undercover drug investigation and coordinated a controlled buy using a confidential informant. Prior to the controlled buy, the informant and her vehicle were searched. The officers confirmed that she did not have any drugs or other contraband in her possession. The officers then gave the informant funds for her use in consummating the controlled buy and equipped her with surveillance equipment to record the transaction.

The confidential informant drove to an area known as “the block” and made contact with Perry, whom she had known for approximately two years. During the encounter, Perry sold the informant what was later confirmed to be crack cocaine weighing less than one gram.

After completing the transaction, the informant delivered the crack cocaine to the narcotics agents. The narcotics agents downloaded the audiotape recording of the controlled buy. Perry was later arrested and charged with the sale of cocaine offense.

At the ensuing trial, the informant testified and described the controlled buy transaction that she had consummated with Perry. The audiotape recording of the controlled buy transaction was played for the jury. In addition, the State presented similar transaction evidence of Perry’s 2002, 1999, 1998, and 1994 prior convictions for sale of cocaine and possession of cocaine. At the conclusion of the trial, the jury returned a verdict finding Perry guilty as charged of the sale of cocaine offense.

1. Perry contends that the trial court erred in admitting his prior convictions for possession of cocaine as similar transaction evidence where only the certified convictions were offered to prove similarity.

Before evidence of prior crimes is admissible, the State must show at a pretrial hearing held pursuant to Uniform Superior Court Rule [“USCR”] 31.3 that (1) it intends to introduce evidence of the prior crime for an appropriate purpose; (2) there is sufficient evidence to establish the defendant committed the independent offense or act; and (3) there is a sufficient connection or similarity between the independent offense or act and the crime charged so that proof of the former tends to prove the latter.

(Citations and punctuation omitted.) Jones v. State, 206 Ga. App. 307 (425 SE2d 384) (1992). We have held that “certified copies of convictions are admissible when they are helpful in proving the identity of the defendant as the perpetrator of a similar transaction offense and are not the sole evidence of a previous crime” (Citations omitted; emphasis supplied.) Shuman v. State, 244 Ga. App. 335, 337 (3) (535 SE2d 526) (2000). Accordingly, in Jones, supra, 206 Ga. App. at 307-308, we upheld the trial court’s admission of the defendant’s prior convictions for possession of cocaine when the State presented testimony from several police officers relating to two prior convictions and introduced certified copies of the convictions.

The State in this case did not present any testimony at trial establishing Perry’s prior convictions for possession of cocaine. Rather, the State’s evidence was limited to the introduction of copies of Perry’s guilty pleas and convictions for the two prior drug possession offenses. Significantly, “the [SJtate’s establishment of a prima facie case of similarity does not satisfy its obligation to present proof on that issue at trial.” Stephens v. State, 261 Ga. 467, 469 (6) (405 SE2d 483) (1991). Where only the conviction itself is offered, the required proof of the similar transaction evidence is insufficient. See id.; see also Brown v. State, 274 Ga. 31, 32 (1) (549 SE2d 107) (2001) (ruling that “[t]he only evidence linking appellant to the [prior crime of possession of crack cocaine] was a certified conviction, which is insufficient, standing alone, to establish the required nexus” for similar transaction evidence). Accordingly, the trial court’s admission of the 1994 and 1999 convictions was erroneous.

Notwithstanding the error, however, we are not required to reverse Perry’s instant conviction since it was highly probable that the error did not contribute to the guilty verdict. It is axiomatic that to constitute reversible error, the appellant must show harm as well as error. See Bowdry v. State, 211 Ga. App. 626, 627 (440 SE2d 59) (1994) (“Erroneous admission of similar transaction evidence, however, may be harmless.”) (citation omitted). Here, the State presented the testimony of the confidential informant and the audiotape recording of the drug transaction, both of which established Perry’s guilt of the sale of cocaine charge. Moreover, the State presented competent evidence of Perry’s 2002 and 1998 prior convictions for sale of cocaine. During the trial, the State introduced the testimony of the officers involved in the investigations leading to the prior sale of cocaine convictions, along with copies of those convictions. Perry’s enumeration of error does not contend that his prior convictions for sale of cocaine were admitted for an improper purpose or not sufficiently similar to the current offense, which also involved his sale of cocaine. In light of the overwhelming competent evidence establishing Perry’s guilt of the sale of cocaine offense, it is unlikely that the erroneous admission of the prior possession offenses contributed to the verdict. See id.

2. Perry next claims that the trial court erred in admitting his prior drug convictions as similar transaction evidence since the State’s notice was untimely and failed to provide the names and contact information for the witnesses involved in the similar transactions. Again, we discern no reversible error.

“Notices of the [SJtate’s intention to present evidence of similar transactions or occurrences . . . shall be given and filed at least ten [10] days before trial unless the time is shortened or lengthened by the judge.” (Emphasis supplied.) USCR 31.1. “We have interpreted this rule as clothing the trial court with discretion which will not be controlled absent abuse. Even if the time was shortened in this case, the rule permits it.” (Citation and punctuation omitted.) Bryant v. State, 226 Ga. App. 135, 138 (3) (a) (486 SE2d 374) (1997).

The record in this case shows that the State filed its notice of intent to introduce similar transaction evidence four days prior to trial. The State’s notice requested the trial court to shorten the time for giving its notice and indicated that no prejudice resulted to the defense since the State had previously discussed its intent to introduce the similar transactions with Perry’s counsel one year prior to the trial. In addition, the State had notified Perry’s counsel of Perry’s criminal history and its intent to introduce the similar transactions in aggravation of punishment several months prior to trial. Notably, four days prior to trial, Perry filed his jury charge requests that included a charge on similar transaction evidence, which reflected his awareness of the State’s intent to introduce the similar transaction evidence. Based upon the circumstances presented, the trial court granted the State’s request to shorten the time for the State’s notice. No abuse of the trial court’s discretion has been shown. See Caraway v. State, 286 Ga. App. 592, 595-596 (4) (649 SE2d 758) (2007) (“While the [S]tate did not give ten days notice as required by Uniform Superior Court Rule 31.1, that rule authorizes the trial judge to shorten the time required for giving notice of a similar transaction.”) (punctuation and footnote omitted); Woodward v. State, 262 Ga. App. 363, 364-366 (1) (585 SE2d 687) (2003) (the trial court did not abuse its discretion in shortening the time for filing the State’s similar transactions notice since the defendant had the requisite notice despite the late filing, and defense counsel and the prosecutor had discussed the prior offense several months before trial); Ware v. State, 191 Ga. App. 538, 538-539 (1) (382 SE2d 383) (1989) (same). Compare Stephan v. State, 205 Ga. App. 241, 244 (2) (422 SE2d 25) (1992) (trial court erred in admitting similar transaction evidence when State announced intent to introduce the evidence on the day of trial and failed to inform appellant of the purpose for which the similar transaction evidence was offered).

Perry further argues that the State’s notice was deficient in that it failed to include the witnesses’ names, their contact information, and the jurisdictions where the prior convictions arose. His argument, however, is unavailing. Significantly, the State’s notice referenced the indictments from the prior cases, which contained the pertinent information identifying the witnesses and showing that each case had been prosecuted in Chattooga County. The State had also filed a notice of intent to introduce Perry’s prior convictions in aggravation of punishment, which contained the same references identifying the similar transactions. Moreover, the State had provided Perry’s criminal history during discovery. The State’s notice referencing the prior indictments sufficiently provided the required information. See Collier v. State, 266 Ga. App. 345, 350 (1) (c) (596 SE2d 795) (2004) (although the State’s notice should have been more specific, the trial court did not err in admitting the similar transaction evidence since the defendant failed to show how his defense was harmed as a result of the state’s failure to comply fully with the notice requirements); Talmadge v. State, 236 Ga. App. 454, 456 (1) (b) (512 SE2d 329) (1999) (the trial court properly determined that the defendant had been given the required notice of the State’s intention to introduce the similar transactions under USCR 31.1 where copies of the prior indictment and the defendant’s plea agreement were attached).

3. Perry further contends that his trial counsel provided ineffective assistance.

In order to prevail on a claim of ineffective assistance of counsel, a criminal defendant must show that counsel’s performance was deficient and that the deficient performance so prejudiced the client that there is a reasonable likelihood that, but for counsel’s errors, the outcome of the trial would have been different. Strickland v. Washington, 466 U. S. 668 (104 SC 2052, 80 LE2d 674) (1984). The criminal defendant must overcome the strong presumption that trial counsel’s conduct falls within the broad range of reasonable professional conduct. The trial court’s determination with respect to effective assistance of counsel will be affirmed unless the trial court’s findings are clearly erroneous.

(Citations and punctuation omitted.) Turner v. State, 273 Ga. 340, 342 (2) (541 SE2d 641) (2001). Perry has not met the requisite burden in this case.

(a) Perry first argues that trial counsel was ineffective in failing to object to the agent’s testimony identifying the male voice on the audiotape as belonging to Perry. Notwithstanding Perry’s argument, no reversible error has been shown.

Although voice identification testimony is generally considered to be direct evidence, Georgia courts have construed such testimony to be opinion evidence, which, of course, is inadmissible unless the witness discloses the basis for his opinion. We also note that a witness may identify a defendant by voice recognition even though his knowledge of the accused’s voice was acquired after the event to which the witness testified. And the probative value to be accorded such evidence is a matter for the jury’s determination.

(Citations and punctuation omitted.) Thomas v. State, 222 Ga. App. 120, 120-121 (2) (473 SE2d 251) (1996). Here, after the audiotape was played for the jury, the lead agent for the undercover operation testified that the voices on the audiotape recording were those belonging to the informant and Perry. The lead agent testified that he was familiar enough with Perry’s voice to recognize it, but he failed to disclose the basis for his purported familiarity. As such, the State failed to lay a sufficient foundation for the lead agent’s voice identification testimony. Compare Stevanus v. State, 185 Ga. App. 7, 10 (2) (363 SE2d 322) (1987) (witness’s voice identification testimony was properly admitted since the evidence showed that the witness had conversed with the defendant on numerous occasions and, thus, had ample opportunity to be familiar with his voice).

Nevertheless, prior to the playing of the audiotape, the informant testified that she was equipped with an electronic recording device during the controlled buy transaction, and the informant identified Perry as being the person who sold her the cocaine during the transaction. To the extent that the agent’s inadmissible testimony was merely cumulative of the informant’s competent testimony identifying Perry as the individual who sold her the cocaine during the recorded operation, the trial court’s error in admitting the agent’s testimony was harmless. See generally Scott v. State, 206 Ga. App. 23, 26 (1) (c) (424 SE2d 328) (1992) (“Evidence is harmless where admissible evidence of the same fact is before the jury.”) (citations and punctuation omitted); Ansley v. State, 198 Ga. App. 452, 453 (402 SE2d 73) (1991) (same).

(b) Perry further argues that trial counsel was ineffective due to a conflict of interest. In this regard, Perry points to evidence that trial counsel previously represented the informant in her criminal drug action. Although the informant’s case was later reassigned to another public defender in the circuit prior to Perry’s trial, Perry argues that trial counsel nevertheless operated under a non-waivable imputed conflict. We disagree and conclude that Perry has failed to make the requisite showing that an actual conflict of interest existed.

Included within the constitutional right to counsel is the right to representation that is free from conflicts of interest. In order for appellant to prevail on his claim that his attorney was operating under a conflict of interest that violated his right to counsel, he must show an actual conflict of interest that adversely affected his attorney’s performance. . . . Where, as here, the alleged conflict of interest is based upon defense counsel’s prior representation of a prosecution witness, we must examine the particular circumstances of the representations to determine whether counsel’s undivided loyalties remain with the current client, as they must.

(Citations and punctuation omitted.) Turner, supra, 273 Ga. at 342 (2) (a); see also Cuyler v. Sullivan, 446 U. S. 335, 348-349 (IV) (B) (100 SC 1708, 64 LE2d 333) (1980). The factors that may arguably interfere with effective cross-examination and the effective assistance of counsel, include:

(1) concern that the lawyer’s pecuniary interest in possible future business may cause him or her to avoid vigorous cross-examination which might be embarrassing or offensive to the witness; . . .
(2) the possibility that privileged information obtained from the witness in the earlier representation might be relevant to cross-examination[; and]
[(3)] . . . whether the subject matter of the first representation is substantially related to that of the second.

(Punctuation and footnotes omitted.) Hill v. State, 269 Ga. 23, 24 (2) (494 SE2d 661) (1998).

Here, application of the aforementioned factors militate against Perry’s claim of a conflict of interest. As an initial matter, the record shows that trial counsel had only represented the informant at the time of her arraignment, and thereafter, her case was reassigned to another public defender. Trial counsel had no conversations or involvement in the informant’s case after the reassignment, which occurred over a year and a half before Perry’s trial. There is no evidence that trial counsel held any hope of future pecuniary gain from the informant, since trial counsel was a public defender and was not being paid by the informant for representation. Moreover, there was no evidence suggesting that trial counsel obtained privileged information from the informant in the earlier representation that would have been relevant to cross-examination. Nor was there evidence suggesting that trial counsel was prevented from conducting a thorough cross-examination of the informant regarding the drug transaction in this case. To the contrary, the trial transcript reflects that trial counsel did in fact challenge the informant’s credibility in a thorough cross-examination by introducing testimony and evidence that she had a pending drug charge and was possibly assisting the prosecutor with a motive toward helping her own case. In addition, the informant’s drug charges were wholly separate and distinct from those involved in the instant case against Perry. “These factors, considered together with the remoteness of trial counsel’s earlier representation of [the informant], lead us to reject [Perry’s] claim that [his] trial counsel was impermissibly conflicted.” (Punctuation omitted.) Hill, supra, 269 Ga. at 25 (2); see also State v. Abernathy, 289 Ga. 603, 603-605 (1) (715 SE2d 48) (2011) (the trial court erred in granting the defendant’s motion for new trial based on a finding that trial counsel was employed in the same circuit public defender’s office as initial counsel for the State’s key witness, since defendant failed to show the existence of an actual conflict of interest); Craddock v. State, 173 Ga. App. 133, 133-134 (1) (325 SE2d 804) (1984) (defendant failed to show that trial counsel’s simultaneous representation of the informant in an unrelated criminal matter amounted to an actual conflict of interest or actually impaired trial counsel’s performance or representation in his case; the “mere possibility of conflict is insufficient to impugn a criminal conviction amply supported by competent evidence.”) (citations and punctuation omitted).

We likewise discern no merit in Perry’s argument that, under Georgia Rules of Professional Conduct, Rule 1.10 (a) (2001), a non-waivable imputed conflict of interest arose when the informant’s case was reassigned to another public defender. In the absence of an actual conflict of interest, however, counsel from the same public defender’s office are not automatically disqualified from representing multiple defendants. See Abernathy, supra, 289 Ga. at 604 (1); Burns v. State, 281 Ga. 338, 340 (638 SE2d 299) (2006); Thomas v. State, 305 Ga. App. 801, 802-803 (1) (701 SE2d 202) (2010). As previously stated, Perry has failed to show an actual conflict of interest and, thus, his claim for a non-waivable imputed conflict of interest is unavailing. See Abernathy, supra, 289 Ga. at 604-605 (1).

Decided March 5, 2012.

Jennifer A. Trieshmann, for appellant.

Herbert E. Franklin, Jr., District Attorney, Christopher Arnt, Assistant District Attorney, for appellee.

Furthermore, we note that trial counsel raised this issue prior to the commencement of trial. At that time, Perry confirmed that he had discussed the conflict with trial counsel, and expressed his desire to waive the possible conflict and to proceed to trial with the representation of his trial counsel.

[W]here a defendant states on the record that he has discussed the case with counsel, that there is no conflict of interest and that he is satisfied to proceed, any error was induced by the defendant’s statements, and induced error is impermissible. A party can not during the trial ignore what he thinks to be an injustice, take a chance on a favorable verdict, and complain later.

(Punctuation and footnote omitted.) Gardner v. State, 289 Ga. App. 359, 362 (657 SE2d 288) (2008). Since no actual conflict of interest has been shown, Perry’s ineffective assistance claim fails. See id.; see also Abernathy, supra, 289 Ga. at 604-605 (1); Craddock, supra, 173 Ga. App. at 133-134 (1).

Judgment affirmed.

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

       The State argues that in certain types of cases, such as those involving child sexual abuse, a certified copy of the defendant’s prior conviction alone is sufficient to establish the required similarity. It is true that we have held that “because of the liberal admission of similar transaction evidence in cases involving sexual offenses, especially those against children or teenagers, a certified copy of a prior conviction for a sex crime against a child may, with no other evidence, sufficiently prove that the prior crime is similar to the current crime.” (Punctuation and footnote omitted.) Washington v. State, 286 Ga. App. 268, 269-270 (2) (648 SE2d 761) (2007). The instant case, however, did not involve a sexual offense. Rather, this case involves a drug offense. Under these circumstances, our Georgia Supreme Court has held that the State’s presentation of certified copies of the prior drug convictions, alone, is insufficient to establish the required similarity. See Brown, supra, 274 Ga. at 32 (1).

       After conducting a USCR 31.3 hearing, the trial court ruled that Perry’s prior convictions for sale of cocaine were admissible as similar transaction evidence to show Perry’s course of conduct and intent. See Mangum v. State, 308 Ga. App. 84, 88 (2), n. 13 (706 SE2d 612) (2011) (“Independent crimes are admissible to show motive, intent, plan, identity, bent of mind or course of conduct.”) (citation and punctuation omitted).

       Georgia Rules of Professional Conduct, Rule 1.10 (a) (2001), provides that “[w]hile lawyers are associated in a firm, none of them shall knowingly represent a client when any one of them practicing alone would be prohibited from doing so by” the rules governing conflicts of interest.


text:
    A11A1718.
    SMITH v. THE STATE.
    (724 SE2d 885)
   Miller, Judge.

A jury convicted Raymond Smith of false imprisonment (OCGA § 16-5-41 (a)). The trial court denied Smith’s motion for new trial. On appeal, Smith contends that (i) the evidence was insufficient to sustain his conviction; (ii) the trial court’s jury instructions erroneously defined false imprisonment in a manner not alleged in the indictment; (iii) the trial court’s jury instructions failed to adequately define the element of “legal authority” for the false imprisonment offense; and (iv) trial counsel was ineffective in failing to object to the trial court’s inadequate jury instructions. We discern no error and affirm.

On review from a criminal conviction, we view the evidence in the light most favorable to the prosecution to determine only whether any rational trier of fact could have found the essential elements of the crimes charged beyond a reasonable doubt. We do not assess witness credibility or weigh the evidence, but determine only its sufficiency.

(Citations omitted.) Port v. State, 295 Ga. App. 109 (671 SE2d 200) (2008).

So viewed, the trial evidence showed that Smith resided with the twenty-year-old female victim and her mother. Smith and the victim’s mother had been in a relationship for twelve years, and the victim considered Smith to be her stepfather.

On the evening of September 5, 2008, Smith was alone with the victim at the residence. The victim testified that she had fallen asleep in her bedroom and was suddenly awakened to find Smith naked and on top of her. The victim struggled with Smith, and eventually was able to raise herself out of the bed. The victim then ran toward the bedroom door in an effort to escape, but Smith blocked her from leaving. The victim described that Smith “stepped in front of [her] each way [she] went.” When the victim “tried to go to the left, [Smith] blocked her; [she] tried to go to the right and he blocked [her]” again. Although the victim begged Smith to allow her to leave the bedroom, Smith refused and told the victim that he was “not going to let [her] leave.” Thereafter, the victim managed to step around Smith and fled from the bedroom. The victim ran out of the residence, and reported the incident to her mother and to local law enforcement authorities.

Smith was later arrested and charged with the false imprisonment offense. At the ensuing trial, Smith testified in his defense. Smith claimed that after taking a shower, he returned to his bedroom and observed that money he had stashed on his bedroom dresser was missing. According to Smith, he suspected that the victim had stolen his money and, while naked, he went into her bedroom to confront her about the theft. Smith testified that when he confronted the victim, she ran around him and left the bedroom. Smith denied the accusations that he had blocked the victim’s bedroom door and had prevented the victim from leaving the bedroom.

At the conclusion of the trial, the jury returned a verdict finding Smith guilty of the false imprisonment offense.

1. The evidence set forth above was sufficient to sustain Smith’s conviction. “A person commits the offense of false imprisonment when, in violation of the personal liberty of another, he arrests, confines, or detains such person without legal authority.” OCGA § 16-5-41 (a). “[T]his statute on its face does not require that the imprisonment be for a specific length of time; ... [a] brief detention is sufficient. Whether the detention amounted to false imprisonment was for the jury to decide.” (Punctuation and footnotes omitted.) Rehberger v. State, 235 Ga. App. 827, 828 (1) (510 SE2d 594) (1998). The victim’s testimony that Smith blocked and prevented her from leaving the bedroom sufficiently established Smith’s commission of the false imprisonment offense. See Port, supra, 295 Ga. App. at 110 (1); see also OCGA § 24-4-8 (“The testimony of a single witness is generally sufficient to establish a fact.”).

Smith nevertheless contends that the evidence was insufficient to establish that he lacked legal authority to confine the victim. In this regard, Smith argues that he was legally authorized to conduct a “citizen’s arrest” to question the victim about the theft of his money. His contentions are without merit.

The grounds for a “citizen’s arrest” are governed by OCGA § 17-4-60, which pertinently provides that “[a] private person may arrest an offender if the offense is committed in his presence or within his immediate knowledge.” Moreover, OCGA § 17-4-61 (a) mandates that “[a] private person who makes an arrest pursuant to Code Section 17-4-60 shall, without any unnecessary delay, take the person arrested before a judicial officer, as provided in Code Section 17-4-62, or deliver the person and all effects removed from him to a peace officer of this [S]tate.” The trial evidence did not support Smith’s contention that his confinement of the victim was lawful under these provisions. Significantly, Smith testified that he was not present when the money was allegedly taken. His suggestion that the victim had committed the theft was based upon mere speculation. Smith’s claim that he wanted “to question” the victim reflected that he was uncertain and did not have immediate knowledge that the victim had been the perpetrator of the alleged theft, as required for a lawful citizen’s arrest. Compare Merneigh v. State, 242 Ga. App. 735, 738-739 (4) (531 SE2d 152) (2000) (concluding that a store employee’s arrest of a defendant for shoplifting was lawful under OCGA § 17-4-61 (a) since the employee witnessed the shoplifting incident and the defendant activated the store’s security system as he attempted to exit the store). Moreover, Smith testified that he had no intention of reporting the alleged theft to the police. As such, there was no evidence that Smith’s confinement of the victim complied with the requirements of a citizen’s arrest under OCGA § 17-4-61 (a). See, e.g., Conoly v. Imperial Tobacco Co., 63 Ga. App. 880, 884-885 (12 SE2d 398) (1940) (concluding that the defendant’s citizen’s arrest of a minor child was unlawful and amounted to a false imprisonment since there was no evidence that the child had committed an offense in the defendant’s presence and the defendant did not thereafter take the child before any magistrate, as required). Rather, the trial evidence showed that Smith had confined the victim in the bedroom without lawful authority. Smith’s false imprisonment conviction was thus authorized. See OCGA § 16-5-41 (a); Port, supra, 295 Ga. App. at 110 (1).

2. Smith next contends that the trial court’s jury instructions erroneously defined false imprisonment in a manner not alleged in the indictment. Again, we discern no reversible error.

The trial court instructed the jury that “[a] person commits the offense of false imprisonment when, in violation of the personal liberty of another, he arrests, confines, or detains such person without legal authority.” The indictment pertinently charged that Smith had committed false imprisonment in that he “did unlawfully confine [the victim] without legal authority.” Smith contends that by reading the entire statutory definition of the false imprisonment offense, the trial court’s instruction allowed the jury to find him guilty in a manner not alleged in the indictment. Smith, however, did not specifically object to the trial court’s instruction at trial. Consequently, he failed to properly preserve this issue for appellate review.

Under OCGA § 17-8-58 (a), “[a]ny party who objects to any portion of the charge to the jury . . . shall inform the court of the specific objection and the grounds for such objection before the jury retires to deliberate. . . .” Failure to do so “shall preclude appellate review of such portion of the jury charge, unless such portion of the jury charge constitutes plain error which affects substantial rights of the parties.” See [OCGA § 17-8-58 (b)]. [Smith] clearly did not conform to the requirements for preserving objections under OCGA § 17-8-58, and the issue is not properly preserved for review.

(Punctuation omitted.) Guajardo v. State, 290 Ga. 172, 175 (3) (718 SE2d 292) (2011).

Notwithstanding Smith’s failure to preserve the issue at trial, however, we must consider whether the jury instruction constitutes plain error which affected Smith’s substantial rights. See OCGA § 17-8-58 (b); Guajardo, supra, 290 Ga. at 175-176 (4).

As a general rule, it is not error to charge an entire Code section even though part of the section may be inapplicable. But, when the indictment specifies the commission of a crime by only one of several methods possible under the statute, it may be reversible error to charge the entire Code section if a reasonable possibility exists that the jury may convict the defendant of committing the crime in a manner not alleged in the indictment. Jury instructions must be read and considered as a whole however; and, when an entire statutory definition is given, we will not find error if the instructions sufficiently limit the jury’s consideration to the elements of the offense as charged in the indictment.

(Citations omitted.) Stephens v. State, 255 Ga. App. 680, 684 (6) (569 SE2d 250) (2002).

Although Smith argues that there is a distinction between the terms “arrest,” “confine,” and “detain” in the false imprisonment statute, we need not reach this issue. Notably, the record shows that as part of the jury instructions, the trial court read the indictment to the jury, provided the indictment to the jury to aid them in their deliberations, and further instructed the jury that the State was required to prove each element of the false imprisonment offense as alleged in the indictment. Since “the trial court properly limited the elements of the crimes to those charged in the indictment, we find no error.” (Citations omitted.) Stephens, supra, 255 Ga. App. at 685 (6); see also Hammonds v. State, 263 Ga. App. 5, 7 (2) (587 SE2d 161) (2003).

3. Smith further claims that the trial court’s jury instructions failed to adequately define the element of “legal authority” for the false imprisonment offense. Smith, however, did not request a jury instruction on the issue. Moreover, he did not specifically object to the trial court’s instructions on the issue at trial. As a result, he has waived this claim of error on appeal. See OCGA § 17-8-58 (a), (b); Guajardo, supra, 290 Ga. at 175 (3); Howard v. State, 288 Ga. 741, 743 (2) (707 SE2d 80) (2011).

Nor has Smith shown plain error pursuant to OCGA § 17-8-58 (b). Smith’s defense against the false imprisonment charge was not premised upon a claim that he had legal authority to confine the victim. Rather, Smith’s defense was that the victim “made the story up,” and his trial testimony denied having committed any act to confine the victim. Furthermore, as explained in Division 1 above, there was no evidence supporting Smith’s current claim that he was authorized to make a citizen’s arrest of the victim pursuant to OCGA § 17-4-61 (a). Under these circumstances, no reversible error has been shown in the trial court’s failure to separately define the “legal authority” element of the false imprisonment offense. Cf. Howard, supra, 288 Ga. at 743 (2) (holding that the trial court’s failure to separately define simple assault, which is an essential element of aggravated assault, would not have affected the outcome of the case since the defendant’s defense was mistaken identity and did not challenge the evidence showing that a simple assault had occurred); Smith v. State, 283 Ga. 237, 240 (3) (657 SE2d 523) (2008) (holding that the trial court did not err in failing to instruct the jury as to the defendant’s defense of accident since defendant vehemently denied having committed any act to harm the victim).

4. Lastly, Smith argues that trial counsel was ineffective in failing to object to the trial court’s jury instruction based upon its inadequate definition of the “legal authority” element of the false imprisonment offense. Again, no reversible error has been shown.

In order to prevail on an ineffective assistance of counsel claim, [Smith] must show both that counsel’s performance was professionally deficient and that there is a reasonable probability that the outcome of his trial would have been different if not for the deficient performance. Strickland v. Washington, 466 U. S. 668 (104 SC 2052, 80 LE2d 674) (1984).

Reese v. State, 289 Ga. 446, 451 (6) (711 SE2d 717) (2011). “We affirm the trial court’s ruling on a defendant’s claim of ineffective assistance of counsel unless that determination is clearly erroneous.” (Footnote omitted.) Wilburn v. State, 278 Ga. App. 76, 77 (2) (628 SE2d 174) (2006).

At the hearing on Smith’s motion for new trial, trial counsel testified that she did not object to the trial court’s jury instruction on false imprisonment or request additional instructions defining the “legal authority” element because the defense theory was that no act of confinement occurred. Trial counsel stated that Smith had informed her that he never confined or detained the victim against her will, and that she based her trial strategy upon this information. In his trial testimony, Smith consistently maintained that he did not prevent the victim from leaving the bedroom.

Generally, decisions about which defense theories to pursue and which jury charges to request are strategic and “provide no grounds for reversal unless such tactical decisions are so patently unreasonable that no competent attorney would have chosen them.” (Punctuation and footnote omitted.) Wilburn, supra, 278 Ga. App. at 78 (2) (b); see also Taul v. State, 290 Ga. App. 288, 293 (4) (b) (659 SE2d 646) (2008); Milliken v. State, 230 Ga. App. 810, 812 (2) (b) (498 SE2d 127) (1998). In light of Smith’s testimony that the victim had not been confined at all, trial counsel was not ineffective in failing to pursue jury instructions based on an inconsistent theory that Smith had in fact confined the victim, but was legally authorized to do so. Since the hearing evidence established that trial counsel made a reasonable strategic decision regarding the jury instructions matter, the instant claim for ineffective assistance of counsel fails. See Wilburn, supra, 278 Ga. App. at 78 (2) (b).

Judgment affirmed.

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

DeCided March 5, 2012.

Sheueli C. Wang, for appellant.

Robert D. James, Jr., District Attorney, Leonora Grant, Assistant District Attorney, for appellee.


author: PHIPPS, Presiding Judge.

text:
    A11A1944.
    BRIGHT v. THE STATE.
    (725 SE2d 327)
   PHIPPS, Presiding Judge.

Following a jury trial, Roy Bright was convicted of burglary. He filed a motion for new trial, urging general grounds, which he later amended and particularized. The court denied the amended motion, and Bright filed a notice of appeal. On appeal, Bright contends that the trial court erred by admitting evidence of similar transactions and by admitting hearsay evidence, and that his trial counsel rendered ineffective assistance. For the reasons that follow, we affirm.

We view the evidence on appeal in the light most favorable to the verdict and no longer presume the defendant is innocent. We do not weigh the evidence or decide the witnesses’ credibility but only determine if the evidence is sufficient to sustain the convictions. We construe the evidence and all reasonable inferences from the evidence most strongly in favor of the jury’s verdict.

Viewed in that light, the evidence showed that at around 9:00 p.m. on November 20, 2008 a security officer at a condominium complex of newly constructed units was performing a check of one of the buildings when he saw a minivan backing into the garage of a unit in the building next door. He watched as the garage door lowered after the minivan entered. A few minutes later, the lights went out in the entire unit. The security officer testified that the entire building (in which the unit was located) was unoccupied and that no one was authorized to be in the unit, which was awaiting sale and contained appliances such as a washing machine, refrigerator, stove, microwave, and dishwasher.

The security officer radioed for backup, and two officers arrived within ten to fifteen minutes. As they approached the unit, one of the backup officers went to the rear, and the security officer and the other backup officer went to the front. The security officer knocked on the front door, identified himself, and ordered any individuals inside to come out. There was no response, and he advised again. And again, there was no response. Both officers then went from the front door to the garage door. The security officer opened the door and saw the minivan in the garage. Using their flashlights, they checked the garage and determined that there was no one inside the vehicle or in the garage. The backup officer observed, however, that the rear seats of the van were folded down, increasing the amount of room in the vehicle. The officers entered the kitchen and foyer area of the unit through the garage door. Still using their flashlights, they cleared the bottom floor and determined that there was no one downstairs in the unit.

The security officer then went back into the garage and turned switches on the circuit breaker; the lights in the unit came back on. The officers went back inside and noticed that located on the kitchen counter top were some tools, including pliers, screwdrivers, and gloves, which had not been there when the security officer had earlier in the evening conducted an inspection of the unit. Construction in the unit appeared to be complete, and there was no apparent reason for these tools to be there. The officers opened the back patio door to allow the other backup officer to enter the unit.

The security officer identified himself and gave loud, verbal commands for anyone inside to “put your hands up and come out.” There was no response. All three officers proceeded up the stairs, with the security officer still identifying himself and ordering anyone inside to come out. After the third loud command, a man’s voice could be heard saying “we know, we give up.” When the officers arrived upstairs, they entered a bedroom, where Bright and another man came out of a closet and lay down on the floor. Both men were arrested.

At trial, the court permitted the state to present similar transaction evidence concerning two incidents: one from Fulton County, another from Forsyth County. The evidence of the Fulton County transaction showed that on February 12, 2010, police officers responded to a “possible burglary in progress” call at a vacant, newly constructed house that “had appliances and everything ready to be sold.” Upon arrival, they exited the patrol vehicle, walked up to the residence and observed that the front door was open and appeared to have been kicked in. The officers entered the house and saw Bright and another individual inside the garage. A vehicle was inside the garage, and in it were two toilets and two five-gallon buckets of paint, all belonging to the vacant house. Inside the house, next to the kitchen sink, the officers found a black bag containing tools such as screwdrivers, wrenches, pipes, a crowbar, and a flashlight. There appeared to have been an attempt to steal the garbage disposal located underneath the sink.

The evidence of the Forsyth County transaction showed that in September 2009, an officer responded to a report of a burglary of a home, described as a “finished construction” for sale by the builder. The back door appeared to have been “breached ... by force.” The perpetrators were unknown. New appliances from inside the home had been removed. Crime scene technicians processed the scene, and shoe prints were photographed and lifted. One officer who observed the prints testified that the shoe prints were very defined and detailed. He testified that the pattern on the print was a “repeating zig zag type pattern” with two lines across the zig zags, forming a frame around the word “Rhingo.” The officer later interviewed Bright (at a different location) and observed that the bottom of his shoes matched the shoe print he had observed at the burglarized home. The officer testified that upon receiving an expert comparison of the shoe print and Bright’s shoes, he obtained a warrant for Bright’s arrest.

1. Bright contends that the trial court erred in admitting the similar transaction evidence. He argues that the notice was insufficient as to both incidents and that the evidence was insufficient to establish that he committed the Forsyth County incident. We will not disturb a trial court’s determination that similar transaction evidence is admissible absent an abuse of discretion.

(a) Bright contends that as to both the Fulton County and Forsyth County incidents, the similar transaction notice was insufficient because it did not include the names of the victims or copies of the indictments. Bright contends that particularly as it concerns the Fulton County incident, the notice was additionally insufficient because it did not list Fulton County as the county where the incident occurred; but instead listed “APD.” Bright points out that the case number for both incidents was incorrect, “so that defense counsel could not . . . use them to find the omitted information.”

Georgia Uniform Superior Court Rule (USCR) 31.3 (B) pertinently requires that notice of the prosecution’s intent to present evidence of similar transactions “shall state the transaction, date, county, and the name(s) of the victim(s) for each similar transaction or occurrence sought to be introduced. Copies of accusations or indictments, if any, and guilty pleas or verdicts, if any, shall be attached to the notice.” “The purpose of the notice requirement contained in USCR 31.3 is to provide a criminal defendant adequate notice of the state’s intent to use similar transactions to enable the defendant to resolve questions regarding admissibility of such evidence before trial.”

In this case, the notice was comprised of a chart with four columns and headings as follows: “Defendant,” “Arrest,” “Case Number,” and “Disposition.” Six rows were filled in beneath the headings; the last two are at issue here.

On the fifth row, in the column designated “Defendant,” the word “Bright” was typed. In the column designated “Arrest,” the following was typed: “Burglary; Forsyth 09/08/09.” In the column designated “Case Number,” the following was typed: “B00055180.” In the column designated “Disposition,” the following was typed: “Unknown at this time.”

On the sixth row, in the column designated “Defendant,” the word “Bright” was typed. In the column designated “Arrest,” the following was typed: “Burglary, APD 02/12/10.” In the column designated “Case Number,” the following was typed: “1004395.” In the column designated “Disposition,” the following was typed: “Unknown at this time.” No copies of accusations, indictments, guilty pleas, or verdicts were attached to the notice. The prosecutor stated that the state provided the defense with a copy of Bright’s Georgia Crime Information Center report of his criminal history; the defense did not refute this statement.

The state failed to fully comply with USCR 31.3 (B) in that the notice it gave as to both incidents did not state the victims’ names and did not include copies of indictments. And as to the Fulton County incident, the notice did not state the county where the transaction occurred. Bright argues that “[wjithout this particular knowledge, defense counsel could not adequately raise questions as to the admissibility of the evidence sought to be admitted, thus frustrating the purpose of the Rule,” which requires the state to provide the information. However, the state’s failure to fully comply with USCR 31.3 (B) “does not require automatic reversal or exclusion of the similar transaction evidence, but is subject to testing for harm.”

Here, at the motion for new trial hearing, trial counsel testified that prior to trial he discussed the case with his client and did not recall being surprised by anything his client said to him. They had opportunities to discuss trial strategy and for Bright to tell his trial counsel of any witnesses he wanted at trial. Counsel testified that he had not sought to obtain the incident reports from the similar transaction arresting agencies although, as a former Fulton County prosecutor, he knew how to do so. As to the designation of “APD” regarding the Fulton County similar transaction, the trial attorney stated during trial that he assumed it meant the Atlanta Police Department, and he testified at the motion for new trial hearing that Bright had informed him of prior burglary arrests in Fulton County.

The trial court found that because the victims of the similar transactions were corporate entities that owned all of the newly constructed homes in their respective subdivisions, the state’s failure to provide the names of the corporations was of little or no consequence because the corporations could not be interviewed or called to the stand. And although a representative from the corporate entities could have testified, at trial there was no testimony from any representatives. Consequently, Bright failed to demonstrate any harm by the state’s failure to provide the names of the corporate entities in the similar transaction notice.

The fact that the incident report numbers were incorrect is of no consequence because the rule does not require that the state provide that information. In any event, it would not have made a difference because trial counsel testified that he had not sought to obtain copies of the reports from the arresting agencies. Indeed, counsel testified that when the case was called to trial part of his trial strategy was to go forward with the trial because it appeared to him that the prosecution was not prepared and may have been unaware of additional burglary similar transactions that could be introduced. Thus, the evidence did not show that the incorrect incident report numbers rendered Bright unable to obtain the police reports to adequately raise questions as to the admissibility of the evidence sought to be admitted.

Concerning the state’s failure to attach copies of indictments, the rule requires that they be attached “if any.” The trial court found it was undisputed that at the time the state served notice of its intent to introduce evidence of similar transactions, neither the Fulton County case nor the Forsyth County case had been indicted, so there were no indictments to provide to the defense. No evidence was presented to the contrary. The court found, and the record showed, that the state’s motion provided as much information as the state possessed at the time. The trial court did not abuse its discretion in admitting the similar transactions evidence on this ground.

(b) Bright contends the trial court erred in admitting evidence of the Forsyth County transaction because evidence of “only the single shoeprint” was insufficient to establish that he committed the crime.

For evidence of independent offenses or acts to be admitted at trial, the State must establish three things at a hearing: (1) the evidence must be introduced for a proper purpose; (2) the evidence must establish by a preponderance of the evidence that the defendant perpetrated the similar transaction; and (3) the two transactions must be sufficiently similar or connected so that the existence of the former transaction tends to prove the latter transaction. Here, Bright argues that the second element was not met.

Harm as well as error must be shown when similar transaction evidence is improperly admitted. Where there is strong evidence of the defendant’s guilt, such that it is highly unlikely that the admission of similar transaction evidence contributed to the verdict, the admission of improper evidence is harmless error.

Given Bright’s unauthorized presence in the closet of a vacant, newly constructed home which was awaiting sale and contained valuables; the presence of a van with its rear seats folded down, backed into the garage of the home; Bright’s refusal to initially show himself upon demand by the officer; the presence of recently placed tools for the commission of a crime near the entry of the home; and the properly admitted similar transaction evidence that Bright had been caught with similar tools after an unauthorized entry of another vacant, newly constructed home in Fulton County with fixtures from that home in his vehicle, it is highly probable that the Forsyth similar transaction evidence, even if admitted in error, did not contribute to the verdict.

Decided March 5, 2012.

Gerard B. Kleinrock, for appellant.

Robert D. James, Jr., District Attorney, Leonora Grant, Assistant District Attorney, for appellee.

2. Bright contends that the trial court erred by admitting hearsay evidence when a witness was allowed to answer the following question: “And based on the results of [the crime lab’s shoeprint analysis] what, if anything, did you do?” The witness, an investigator for the Forsyth County similar transaction, responded that he had obtained warrants for Bright’s arrest.

We find that any error by the trial court would constitute harmless error because, as stated above in Division 1, it is highly unlikely that the admission of the Forsyth County similar transaction evidence contributed to the jury’s finding of guilt.

3. Bright contends that concerning the admission of the Forsyth County similar transaction, his trial attorney rendered ineffective assistance by failing to renew an objection at trial, by failing to clarify an objection to hearsay, and by failing to object on additional grounds.

To succeed on this claim, Bright was required to show both that his counsel was professionally deficient in failing to make the objections and that there is a reasonable probability that the verdict would have been more favorable to Bright if they had been made. Because any possible error regarding the similar transaction was harmless, however, this enumeration is without merit.

Judgment affirmed.

Andrews and McFadden, JJ., concur.

        Ellis v. State, 282 Ga. App. 17, 18 (1) (637 SE2d 729) (2006) (citations omitted).

        Ellis, supra at 22 (3).

        Brown v. State, 307 Ga. App. 99, 102-103 (2) (b) (704 SE2d 227) (2010) (footnote omitted).

        Ellis, supra at 23 (3) (a) (citation and punctuation omitted).

       See Parrish v. State, 237 Ga. App. 274, 279-280 (4) (514 SE2d 458) (1999) (trial court did not err in admitting similar transaction evidence where state’s notice to the defendant indicated the year of the offense, the nature of the offense, and that the victim was the defendant’s ex-wife; notice failed to provide the location and county where the offense occurred; although not in technical compliance with the rule, the state’s notice served the purpose of the rule, to provide the defendant fair and adequate notice of the listed transaction so that questions of admissibility may be raised and addressed prior to trial).

       See Fitz v. State, 275 Ga. App. 817, 821-822 (2) (a) (622 SE2d 46) (2005) (no harm in admitting similar transaction evidence where the state’s notice of intent to introduce a similar transaction notice failed to list two of the victims of the prior burglaries who later testified at trial; the state disclosed its intent to call them as witnesses during the pre-trial similar transaction hearing; thus, defendant had the requisite notice to satisfy the purpose of the rule and was not harmed by the omissions) (reversed on other grounds by Schofield v. Holsey, 281 Ga. 809, 812 (II), n. 1 (642 SE2d 56) (2007).

       See Parrish, supra.

       See, e.g., Ramsey v. State, 214 Ga. App. 743, 745 (2) (448 SE2d 790) (1994).

        Willis v. State, 287 Ga. 703, 707 (4) (699 SE2d 1) (2010).

        Holden v. State, 314 Ga. App. 36, 39 (2) (722 SE2d 873) (2012) (punctuation and footnote omitted).

       See Thompson v. State, 271 Ga. 105, 107 (1) (519 SE2d 434) (1999) (evidence of an accused’s unlawful entry into a building where valuable goods are stored may give rise to an inference of an intent to commit a theft therein, particularly where no other motive is apparent for the entry); Phagan v. State, 243 Ga. App. 568, 570 (2) (533 SE2d 757) (2000).

        Holden, supra at 39 (2); Satterwhite v. State, 250 Ga. App. 313, 316-317 (2) (b) (551 SE2d 428) (2001); Dixon v. State, 240 Ga. App. 644, 647 (1) (e) (524 SE2d 734) (1999); Carr v. State, 251 Ga. App. 117, 118 (1) (553 SE2d 674) (2001) (physical precedent only).

        Holden, supra at 40 (3).

        Brown v. State, 288 Ga. 902, 907 (5) (708 SE2d 294) (2011).

        Dixon, supra at 647 (2).


author: MlKELL, Presiding Judge.

text:
    A11A2042.
    ROLLF v. THE STATE.
    (724 SE2d 881)
   MlKELL, Presiding Judge.

Convicted by a jury, inter alia, of attempted murder of his wife, Tamara Thurman, three counts of felony cruelty to three children, and one count of misdemeanor cruelty to a fourth child, Russell Dean Rollf appeals from the trial court’s denial of his motion for new trial, contending that he was denied due process and subjected to cruel and unusual punishment because the state did not charge him with aggravated assault with intent to murder and misdemeanor child cruelty, instead of attempted murder and felony cruelty to children.

1. Viewed in favor of the jury’s verdict, the evidence was that, in June 2008, Thurman and Rollf were attempting to reconcile after a period of separation. Thurman and her four children, S. R., eight years old, B. T, six years old, D. R., three years old, and H. T, one year old, were taken to the Savannah Motor Lodge by Thurman’s mother, Linda Enfinger, on June 23, 2008, around 11:30 p.m., to be with Rollf.

Both Rollf and Thurman were drinking during the evening. Around 5:00 a.m., they began arguing and, because Rollf was making threats toward her, Thurman said she wanted to go back to her mother’s house. After Thurman attempted to use the outside pay phone, which was not working, she returned to the room to try to use Rollfs cell phone, and he punched her in the nose. Thurman obtained Rollfs cell phone and called Enfinger at 5:40 a.m. to come get her and the children. Thurman then went into the bathroom to examine her nose. Rollf walked up behind her, grabbed her by her hair, and dragged her back into the motel room. According to S. R., Rollf grabbed a butcher knife and “[h]e put her [Thurman] on the floor and cut her.” Thurman felt something “real sharp and hot” go across her neck and began bleeding profusely. As she struggled to get up, Rollf came at her again with the knife and sliced her left hand between her thumb and index finger so severely that her thumb was dangling from her hand. Thurman went to the bathroom and got a towel to wrap around her neck, got down on her knees, and begged Rollf to call 911. Because Rollf did not initially respond, Thurman told him she would take the blame if he would just get some help. According to S. R., all of the children were screaming and hollering. Rollf did call 911, and Corporal Darlene Jones of the Savannah-Chatham Metropolitan Police responded. She found Rollf and Thurman sitting on the floor with a towel wrapped around Thurman’s neck and blood everywhere. When she asked what had happened, Rollf responded that Thurman had cut herself, at which point Thurman said he did it to her. Jones also described all of the children as upset and crying. Jones could actually see Thurman’s pulse through the large cut on her neck.

The tape of Rollfs 911 call was played at trial and, at several points, crying children were heard in the background. Asked about the children, Rollf responded “they’re fine. They’re not fine ‘cause it’s very traumatic.” Rollf also reported that he had been cut when he tried to get the knife away from Thurman. The paramedic who treated Rollf at the scene observed that he had several shallow superficial cuts on his neck and torso that had already stopped bleeding on their own. There were no cuts on Rollfs hands. A medical expert opined that Rollfs injuries were consistent with self-infliction. The paramedic treating Thurman described her neck injury as life-threatening and noted that she was going into decom-pensated shock when he arrived. The bath towel which had been wrapped around her neck was completely saturated with blood.

Evidence was introduced of two similar incidents which occurred in Florida in 2005. On April 27, 2005, Thurman reported that Rollf had struck her, pulled her to the ground by her hair, and kicked her. Photos showing her injuries were introduced. Rollf told the officer that Thurman caused the injuries to herself. On August 11, 2005, officers again responded, finding Thurman hysterical and bleeding from her ear and nose. Rollf had also punched two holes in the bedroom wall.

The evidence of attempted murder and cruelty to children was legally sufficient.

2. We consider Rollfs two enumerations, premised on the rule of lenity, together.

(a) Rollf was charged in count one of the indictment with criminal attempt to commit murder in that he “did knowingly and intentionally perform acts which constituted a substantial step toward the commission of said crime, to wit: did cut Tamara Thurman’s neck with a knife . . . .” Count two of the indictment charged aggravated assault in that he did “unlawfully assault Tamara Thurman with a knife, an object which when used offensively is likely to result in serious bodily injury, said person being the spouse of the accused . . . .” Count two was merged into count one at sentencing.

The Supreme Court of the United States has referred to the rule of lenity as a sort of junior version of the vagueness doctrine, which requires fair warning as to what conduct is proscribed. The rule of lenity applies when a statute, or statutes, establishes, or establish, different punishments for the same offense, and provides that the ambiguity is resolved in favor of the defendant, who will then receive the lesser punishment. However, the rule does not apply when the statutory provisions are unambiguous.

Pretermitting the issue of whether there is any ambiguity in either the statutes defining attempted murder or aggravated assault, both criminal attempt to commit murder and aggravated assault are felonies. “[T]he rule of lenity does not apply to convictions for two felony offenses.”

(b) Rollf was charged with three counts of felony cruelty to children for causing the emotional trauma of the three older children and one count of misdemeanor cruelty to children for attacking Thurman in the presence of the youngest child.

The rule of lenity applies where the same conduct would support either a misdemeanor or a felony conviction and requires that both crimes could be proved with the same evidence. First degree cruelty to children requires proof that the perpetrator acted with malice and that the children suffered cruel or excessive physical or mental pain while third degree cruelty to children requires only that the perpetrator do an act with knowledge that a minor child is present and can see or hear the act.

Decided March 5, 2012

Steven L. Sparger, for appellant.

Larry Chisolm, District Attorney, Frank M. Pennington II, Assistant District Attorney, for appellee.

Therefore, the two crimes cannot be proven by the same evidence, and the rule of lenity does not apply.

Judgment affirmed.

Dillard and Boggs, JJ., concur.

       Rollf represented himself at the trial.

       While S. R. and D. R. are the biological children of Rollf, there was some uncertainty about the identity of the father of the other two children.

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

       OCGA § 16-4-1 (“A person commits the offense of criminal attempt when, with intent to commit a specific crime, he performs any act which constitutes a substantial step toward the commission of that crime.”); OCGA § 16-5-1 (a) (“A person commits the offense of murder when he unlawfully and with malice aforethought, either express or implied, causes the death of another human being.”)

       OCGA § 16-5-21 (a) (2) (“A person commits the offense of aggravated assault when he or she assaults: . . . [w]ith a deadly weapon or with any object, device, or instrument which, when used offensively against a person, is likely to or actually does result in serious bodily injury!.]”).

       (Citations and punctuation omitted.) Banta v. State, 281 Ga. 615, 617-618 (2) (642 SE2d 51) (2007).

       OCGA §§ 16-4-6 (a); 16-5-21 (j).

       (Footnote omitted.) Rouen v. State, 312 Ga. App. 8, 11 (3) (717 SE2d 519) (2011); Poole v. State, 302 Ga. App. 464, 467 (2) (691 SE2d 317) (2010).

       OCGA § 16-5-70 (b) (“Any person commits the offense of cruelty to children in the first degree when such person maliciously causes a child under the age of 18 cruel or excessive physical or mental pain.”).

       OCGA § 16-5-70 (d) (2) (“Any person commits the offense of cruelty to children in the third degree when: . . . [s]uch person, who is the primary aggressor, having knowledge that a child under the age of 18 is present and sees or hears the act, commits a forcible felony, battery, or family violence battery.”).

        Falagian v. State, 300 Ga. App. 187, 190-191 (2) (684 SE2d 340) (2009); Selfe v. State, 290 Ga. App. 857, 862 (3) (660 SE2d 727) (2008).

       Cf. Staib v. State, 309 Ga. App. 785, 793-794 (3) (711 SE2d 362) (2011) (holding rule of lenity not applicable to felony charges of cruelty to children and misdemeanor charge of contributing to the delinquency of a minor).


text:
    A11A2207.
    BENTLEY v. THE STATE.
    (724 SE2d 890)
   Miller, Judge.

Following a jury trial, Jerry Wayne Bentley was convicted of child molestation (OCGA § 16-6-4 (a) (1)). Bentley filed a motion for new trial, which the trial court denied. Bentley appeals, contending that the State failed to prove venue, and that his trial counsel was ineffective for introducing evidence that Bentley had recently been released from prison. We discern no error and affirm.

On appeal from a criminal conviction, we view the evidence in the light most favorable to the verdict, and the defendant no longer enjoys 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 in May 2006, Bentley and his thirteen-year-old daughter, J. B., were driving in his car when Bentley rubbed the inside of J. B.’s leg and touched her genital area over her clothing. J. B. told her mother about the incident, and her mother reported the incident to the police. After interviewing J. B., police officers from the Paulding County Sheriffs office arrested and charged Bentley with child molestation.

At trial, the State presented evidence of a similar incident that occurred in 1994, in which Bentley committed the offense of statutory rape. After the presentation of evidence, the jury returned a verdict finding Bentley guilty of the child molestation offense.

1. Bentley contends that the State failed to prove venue in Paulding County. We disagree.

“Generally, a criminal action must be tried in the county in which the crime was committed, and the State may establish venue by whatever means of proof are available to it, including direct and circumstantial evidence.” (Citation, punctuation and footnote omitted.) Scott v. State, 302 Ga. App. Ill, 112 (1) (a) (690 SE2d 242) (2010).

Here, J. B. testified that the molestation incident occurred near a church close to Yorkville. A police officer from the Paulding County Sheriffs Office, who was investigating the crime, testified that he and the victim located the church in question about a week prior to trial, and that the church was within Paulding County.

Where the victim testifies where the crime took place, and an officer identifies that location as being within a certain county, the officer’s testimony is not hearsay. In addition to this direct testimony of venue, the testimony that the officer investigating the crime was a [Paulding County] officer provided further evidence that the crime took place in [Paulding County] since public officials are believed to have performed their duties properly and not to have exceeded their authority unless clearly proven otherwise.

(Citations, punctuation and footnotes omitted.) Bravo v. State, 269 Ga. App. 242, 245 (2) (603 SE2d 669) (2004); see also Scott, supra, 302 Ga. App. at 112 (1) (a) (holding that while the officer’s county of employment did not, by itself, establish venue, the totality of the evidence was sufficient to prove venue). Consequently, the State provided ample evidence to establish venue in this case.

2. Bentley next contends that his trial counsel was ineffective for introducing evidence that Bentley had been released from prison for a separate offense less than a year prior to the child molestation incident in this case. We disagree.

To prevail on a claim of ineffective assistance of counsel, Bentley must demonstrate both that trial counsel’s performance was deficient and that the deficient performance was prejudicial to his defense. Strickland v. Washington, 466 U. S. 668 (104 SC 2052, 80 LE2d 674) (1984); Thomas v. State, 291 Ga. App. 795, 804 (6) (662 SE2d 849) (2008). “Failure to satisfy either prong of the two-part Strickland test is fatal to an ineffective assistance claim.” (Footnote omitted.) Nelson v. State, 302 Ga. App. 583, 586 (2) (691 SE2d 363) (2010).

Decided March 5, 2012.

Timothy B. Lumpkin, for appellant.

Donald R. Donovan, District Attorney, Thomas D. Lyles, Assistant District Attorney, for appellee.

Here, Bentley failed to establish that his trial counsel was deficient.

[Strategic or tactical decisions at trial are the exclusive province of the lawyer, and decisions concerning whether to place the defendant’s character in issue are matters of strategy or tactics such as do not equate with ineffective assistance of counsel.

(Punctuation and footnote omitted.) Nelson at 588-589 (2). At the hearing on Bentley’s motion for new trial, trial counsel testified that the defense strategy was to elicit testimony showing that the victim’s mother made false accusations of child molestation in furtherance of her threats to send him back to prison. To the extent trial counsel needed to refer to Bentley’s recent release from prison to expose the motive of the victim’s mother, her trial strategy did not amount to ineffective assistance of counsel. See id. (trial counsel was not ineffective for introducing videotape that included damaging statements to the defendant where trial counsel’s strategy in using the evidence was to show the victim’s wild imagination and proclivity to exaggerate). Since Bentley failed to show that his counsel was deficient, his ineffective assistance claim fails. See id. at 586 (2).

Judgment affirmed.

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