text:
    A11A1492.
    DILLON et al. v. REID.
    (717 SE2d 542)
   Miller, Presiding Judge.

Danny L. Reid and his neighbors, Michael W and Jennifer T. Dillon, own property abutting Lake Lanier. Reid sued the Dillons claiming that they were in breach of an agreement, made for the express and direct benefit of Reid, to place their floating dock 132 feet away from a certain existing dock (the “Lot 10 dock”). Reid claimed that the Dillons had moved their floating dock so close to the Lot 10 dock that Reid could not receive a permit from the Army Corps of Engineers (the “Corps”) to place his own dock between the Dillons’ dock and the Lot 10 dock. Following a hearing, the trial court granted Reid’s motion for an interlocutory injunction and ordered the Dillons to move their dock so that it was no closer than 132 feet from the Lot 10 dock, consistent with the terms of the agreement. The Dillons appeal, and we affirm because the trial court did not abuse its discretion in balancing the equities and granting the injunction, thereby preserving Reid’s opportunity to apply for a dock permit before the deadline for doing so expired.

The evidence shows that on July 7, 2003, the Dillons entered into a Lot/Land Purchase and Sales Agreement with Bill Barnett, manager of Ivy Shaw, LLC. Under the terms of the Sale Agreement, the Dillons agreed to buy Lot 2 of the Ivy Shaw Landing subdivision in Forsyth County. Lot 2 included a fee simple “walking path” to Lake Lanier intended to provide access to the water and to qualify the property for a boat dock.

The Sale Agreement was subject to several special stipulations, including that it was contingent upon verbal approval of the Corps for placement of a 32 foot by 32 foot double slip boat dock. Barnett and the Dillons met with a Corps ranger at the proposed dock site before closing. The ranger verbally approved the dock location, which she marked by tying a ribbon around a tree near the shore line.

The special stipulation also required the Dillons to submit to the “seller and or Developers a site plan showing the exact location of a 32x32 double slip boat dock.” For purposes of water access, Lot 2 was adjacent to Lot 1, which was then owned by Ivy Shaw; Lot 1 was adjacent to Lot 10. According to Barnett, the site plan was important because there needed to be enough space, consistent with Corps rules, to place a boat dock for Lot 1 between the Lot 2 dock and the Lot 10 dock. The Corps’ shoreline management plan for Lake Lanier required a 50-foot buffer area between any proposed floating dock and any existing facility, measured by the nearest point between them.

Shortly before closing, the Dillons submitted a site plan showing the location of the Lot 2 dock. The plan depicted a dock labeled “Future 32x32 (Lot 1),” with a 50-foot buffer space on each side between the site of the Lot 2 dock and the existing Lot 10 dock, such that there was 132 feet between the closest point of the site of the Lot 2 dock and the Lot 10 dock. The site plan was signed by Michael Dillon and Barnett on July 29, 2003, and on that same date Lot 2 was deeded by Ivy Shaw to the Dillons. On September 2, 2003, the Dillons placed their dock in line with the ranger’s ribbon.

On or about March 21, 2005, Reid bought Lot 1 from Ivy Shaw. In 2007, Reid asked his son, Brad Reid, to assist him in obtaining a dock permit from the Corps. Brad Reid discovered that the Dillons’ dock was too close to the Lot 10 dock to allow for the Lot 1 dock to be placed between the two. In July 2007, after some unsuccessful discussions with Michael Dillon, Brad Reid formally demanded that the Dillons move their dock so it was no less than 132 feet from the Lot 10 dock. The Dillons refused to move their dock. That same year, the Corps placed a moratorium on the permitting of new docks, and Reid did not pursue the matter until after Reid was selected by the Corps in a 2009 lottery to apply for a dock permit.

As of 2010, the distance between the closest point of the Lot 2 dock and the Lot 10 dock was approximately 100 feet. Michael Dillon admitted to having moved the dock, but only to “chase the water” when the lake level dropped as allowed by Corps rules. According to Brad Reid, however, the Dillons were “moving [the dock] down the shoreline.”

On February 25, 2010, Reid sued the Dillons in the Superior Court of Forsyth County for breach of contract, injunction, and damages in light of the Dillons’ failure to locate their dock in accordance with the Sale Agreement. On October 25, 2010, the trial court held an evidentiary hearing to consider Reid’s motion for an interlocutory injunction. The trial court found that (i) the Dillons remained bound by the terms of the Sale Agreement to fulfill conditions and stipulations not fulfilled prior to or at the closing; (ii) Reid was a third-party beneficiary of the Sale Agreement; (iii) the Dillons’ failure to locate their dock at least 132 feet from the Lot 10 dock was a breach of contract; and (iv) the breach damaged Reid by preventing him from having his dock permit approved by the Corps. The trial court ordered the Dillons to move their dock to a location no closer than 132 feet from the closest point of the Lot 10 dock pursuant to the Sale Agreement.

1. As a threshold matter, we address the Dillons’ claim that “the trial court lacked subject matter jurisdiction due to federal preemption, [and] it should have dismissed [Reid’s] case.” We disagree.

“The nature of any specific preemption claim will depend on congressional intent in enacting the particular preempting statute.” (Punctuation omitted.) Intl. Longshoremen’s Assn. v. Davis, 476 U. S. 380, 391 (II) (B), n. 9 (106 SC 1904, 90 LE2d 389) (1986). “[T]his Court reviews de novo whether federal law preempts state law claims.” (Citation omitted.) Gentry v. Volkswagen of America, 238 Ga. App. 785, 786 (521 SE2d 13) (1999). Reid presents a breach of contract claim based upon provisions of the Sale Agreement entered into by the Dillons, as well as a claim for injunctive relief, and the superior court has “jurisdiction in all cases, except as otherwise provided in [the Georgia] Constitution,” Ga. Const, of 1983, Art. VI, Sec. IV Par. I, and authority “[t]o exercise the powers of a court of equity[.]” OCGA § 15-6-8 (2). The Dillons do not point to any federal law that would preempt the trial court as an appropriate forum for adjudicating the rights and remedies of the parties in this action. Compare Local No. 438, Construction &c. Union v. Curry, 371 U. S. 542, 548 (83 SC 531, 9 LE2d 514) (1963) (finding “a judgment of the Georgia court finally and erroneously asserting its jurisdiction to deal with a controversy which is beyond its power and instead is within the exclusive domain of the National Labor Relations Board”); Stivali v. Aquiport Aylesbury, 244 Ga. App. 389, 391 (1) (535 SE2d 551) (2000) (trial court lacked subject matter jurisdiction over claim that appellees violated the terms of the bankruptcy court’s order lifting the stay).

Further, we disagree with the Dillons that Congress intended to preempt the trial court’s jurisdiction to issue an injunction requiring them, in essence, to move their floating dock approximately 32 feet. As shown by the Dillons, the Corps has authority over the permitting of docks on Lake Lanier, and placement of docks in violation of the terms of a permit is prohibited. See 16 USC § 460d; 36 CFR §§ 327.19 (b), 327.20, 327.30. Although not proven, we acknowledge the possibility that the movement of the Dillons’ dock would cause them to be in violation of Corps rules and thus cause the loss of their dock, and that such is relevant to the balancing of equities. But it does not follow that the Corps ranger’s approval of the dock site precluded the application of Georgia law. For instance, the regulations provide that “[a]ll other Federal, state and local laws and regulations remain in full force and effect where applicable to those water resources development projects.” 36 CFR § 327.0. The Corps also provides in its shoreline management plan for Lake Lanier that “[t]he State of Georgia and its political subdivisions retain statutory responsibility to enforce state and local laws.” Based upon these provisions, we cannot discern a Congressional intent to preclude state action concurrently with the statutory and regulatory scheme establishing the Corps’ authority over docks on Lake Lanier. See, e.g., Cummings v. Chicago, 188 U. S. 410, 427-431 (3) (23 SC 472, 47 LE 525) (1903) (although parties had the consent of the Secretary of War to erect a dock in the Calumet River and could not build the dock without such consent, Congress did not intend by the River and Harbor Act of 1899 to supersede the original authority of the States so as to allow the construction of the dock without the concurrent consent of the State of Illinois); Danos v. Thompson, 272 Ga. App. 69, 72 (2) (611 SE2d 678) (2005) (considering on the merits an injunction precluding appellant from using boat docks or reapplying for future dock permits from Corps).

2. The Dillons claim that the trial court erred in granting the interlocutory injunction, because Reid failed to show that he would be irreparably harmed if the injunction was not granted, and because there was not a substantial likelihood that Reid would prevail on the merits. Again, we disagree.

An interlocutory injunction is designed to preserve the status quo pending a final adjudication of the case, and in so doing, the trial court must balance the conveniences of the parties pending the final adjudication, with consideration being given to whether greater harm might come from granting the injunction or denying it. The decision whether to grant or deny interlocutory injunctive relief is in the discretion of the trial court, and we will not disturb the trial court’s order in the absence of a manifest abuse of that discretion.

(Citations and punctuation omitted.) Bijou Salon & Spa, LLC v. Kensington Enterprises, 283 Ga. App. 857, 860 (643 SE2d 531) (2007). “However, where there is no conflict in the evidence, the judge’s discretion in granting or denying the interlocutory injunction becomes circumscribed by the applicable rules of law.” (Punctuation and footnote omitted.) Green v. Waddleton, 288 Ga. App. 369, 370 (1) (654 SE2d 204) (2007).

(a) The Dillons maintain that there was no evidence that Reid would be harmed if the Dillons’ dock remained in place.

“There must be some vital necessity for the injunction so that one of the parties will not be damaged and left without adequate remedy.” (Footnote and emphasis omitted.) Hipster, Inc. v. Augusta Mall Partnership, 291 Ga. App. 273, 275 (1) (661 SE2d 652) (2008). Such necessity existed here. At the time of the October 25, 2010 hearing on Reid’s motion for interlocutory injunction, Reid’s November 2, 2010 deadline for applying for a dock permit, as contemplated by the Corps’ lottery, was fast approaching. Evidence showed that Reid could not obtain a permit so long as the Dillons’ dock remained at its current location, which was too close to the Lot 10 dock to allow the required space to place Reid’s dock. The trial court logically concluded that Reid “would be foolish to apply” for a permit under those conditions, as such would be futile. By ordering the Dillons to immediately move their dock, the trial court preserved Reid’s opportunity to secure a dock permit. Any harm to the Dillons, on the other hand, rested on what the Dillons’ attorney characterized as “a real danger ... a chance” that, if moved, their dock would lose its “grandfathered” status and so subject the dock to the enforcement of Corps rules for which it was allegedly in violation.

The Dillons contend that the trial court’s order did nothing for Reid because Lot 1 was not eligible for a dock permit under the Corps’ “100-foot rule,” and there would be no irreparable harm to Reid if the Dillons’ dock remained in place. The Corps’ shoreline management plan provides that “[t]he selected site for any floating facility must be at the nearest point of shoreline to the adjacent owner’s private property” with a deviation of not more than 100 feet left or right of such point if “water depth or spacing is a problem.” Michael Dillon testified that if Reid was allowed to construct a dock it would be more than 100 feet from Lot 1, and so in violation of the 100-foot rule. On the other hand, Barnett, a nonparty, testified that it was possible for Reid to locate the dock within 100 feet of his property. The trial court was not required to accept Michael Dillon’s testimony over that of Barnett. See generally Hammock v. Issa, 310 Ga. App. 547, 550 (713 SE2d 717) (2011) (“The trial court is the judge of the credibility of the witnesses and ... we will not disturb the trial court’s decision to reject [a witness’s] opinion.”) (punctuation and footnote omitted). Accordingly, the trial court was not required to conclude that an injunction would be of no benefit to Reid while placing the Dillons’ interests at risk, or that the relative equities of the parties so favored the Dillons that the grant of an injunction was an abuse of discretion.

(b) The Dillons also contend that Reid was unlikely to prevail on the merits, and that the grant of injunctive relief was therefore improper. “Although not controlling, the trial court may consider the merits in balancing the equities.” (Citation omitted.) Pittman v. Coosa Med. Group, 300 Ga. App. 529 (685 SE2d 753) (2009). The trial court did consider the merits in its order granting the motion for interlocutory injunction and, as addressed in Divisions 3 through 6 below, the trial court did not abuse its discretion in granting the injunction in light of its findings on the merits of the case.

3. The Dillons argue that the trial court erred in granting injunctive relief because Reid’s claims were not asserted until after the statute of limitation had expired on his breach of contract claim. We disagree.

The statute of limitation for actions on simple written contracts is six years. OCGA § 9-3-24; Cotton States Mut. Ins. Co. v. Atkinson, 120 Ga. App. 695, 697 (172 SE2d 188) (1969). The time of breach controls, not the time the damages result or are discovered. Gamble v. The Lovett School, 180 Ga. App. 708, 710 (350 SE2d 311) (1986). The defense of statute of limitation is an affirmative defense under OCGA § 9-11-8 (c), and the Dillons had the burden of showing that Reid’s claim was barred thereby. Cleaveland v. Gannon, 284 Ga. 376, 381 (2) (667 SE2d 366) (2008).

Reid filed his complaint on February 25, 2010. The trial court found based on photographic evidence that Reid’s cause of action accrued sometime in late 2006 or early 2007, when the Dillons moved their dock west of the location where their dock was to be located pursuant to the site plan. Therefore, the trial court concluded, Reid’s claim was filed within the limitation period.

The Dillons contend that any breach of contract occurred when the dock was placed in September 2003. Testimony and photographic evidence showed that the Dillons placed their dock at the location approved by the Corps ranger. However, it does not appear that anyone measured the distance between the Lot 2 dock and the Lot 10 dock in 2003. Barnett, however, testified that he had placed stakes where each dock would need to be located “to get all the docks in there.” According to Barnett, the ranger approved placement of the Lot 2 dock in the approximate location of the stake for that dock. The Dillons argue that the only relevant testimony shows that a breach, if any, occurred in 2003, given Michael Dillon’s testimony that he had not moved the dock from its original location. Michael Dillon also admits, however, that he had moved the Dillons’ dock to “chas[e] the water,” and Brad Reid testified that the Dillons moved the dock down the shoreline. In light of the evidence, the trial court did not err in failing to conclude that the Dillons had established that Reid’s breach of contract claim was filed outside the applicable limitation period.

4. The Dillons claim that the trial court erred in granting any relief to Reid because Reid was not a third-party beneficiary of the Sale Agreement and lacked standing to raise a breach of contract claim against the Dillons. We disagree.

“The beneficiary of a contract made between other parties for his benefit may maintain an action against the promisor on the contract.” OCGA § 9-2-20 (b). “[T]he third-party beneficiary need not be specifically named in a contract; the dispositive issue is whether the parties’ intention to benefit the third party is shown on the face of the contract.” (Footnotes omitted.) Northen v. Tobin, 262 Ga. App. 339, 344 (2) (b) (585 SE2d 681) (2003); see Plantation Pipe Line Co. v. 3-D Excavators, 160 Ga. App. 756, 757 (287 SE2d 102) (1981) (accord). However, “[t]he mere fact that [the third party] would benefit from performance of the agreement is not alone sufficient.” (Citations and punctuation omitted.) Armor Elevator Co. v. Hinton, 213 Ga. App. 27, 30 (2) (443 SE2d 670) (1994).

The site plan submitted by the Dillons and approved by Barnett includes the depiction of a boat dock for Lot 1, labeled “Future 32x32 (Lot 1),” and the distances written on the site plan are relative to the Lot 1 dock. Thus, on its face the site plan’s location of the Lot 2 dock was intended to benefit the owner of Lot 1 by protecting that owner’s ability to place a dock between the Lot 2 dock and the Lot 10 dock. The Dillons argue that the parties could not have intended to benefit Reid as a future owner of Lot 1. Reid, however, though not specifically named, remained within the limited class of persons intended to be benefitted by the site plan approved under the stipulation to the Sale Agreement. See Plantation Pipe Line Co., supra, 160 Ga. App. at 759 (although not specifically named in the contract, “plaintiff is a member of a relatively small group of intended beneficiaries”). The trial court did not err in concluding that Reid had standing to assert the breach of contract claim.

5. The Dillons claim that the trial court erred in entering the injunction because Barnett waived Reid’s right to assert that the Dillons breached the Sale Agreement. See Speir v. Nicholson, 202 Ga. App. 405, 406 (1) (414 SE2d 533) (1992) (a “third-party beneficiary[’s] . . . rights are no greater than those of the promisee”). “[A]ll the attendant facts, taken together, must amount to an intentional relinquishment of a known right, in order that a waiver may exist.” (Citation and punctuation omitted.) Greater Ga. Life Ins. Co. v. Eason, 292 Ga. App. 682, 687 (2) (665 SE2d 725) (2008).

The Dillons contend that the seller, Ivy Shaw, through its agent, Barnett, waived any claim for breach of contract (and, by so doing, Reid’s claims) when the Corps ranger marked the location of the dock without any objection by Barnett. However, the evidence does not demand the finding that placement of the dock consistent with the location designated by the ranger breached the Sale Agreement or that Barnett was aware of a breach of the Sale Agreement. Accordingly, we agree with Reid that Barnett was not shown to have engaged in any act, conduct, or course of dealing requiring a finding of waiver. See English v. Muller, 270 Ga. 876 (1) (514 SE2d 194) (1999) (“Whether waiver took place is an issue for the trier of fact.”).

6. The Dillons contend that the trial court erred in admitting into evidence four photographs showing an aerial view of the Lot 2 dock and the Lot 10 dock and portions of the surrounding area. The Dillons argue that Reid failed to establish a sufficient evidentiary foundation. We disagree.

“The question of the sufficiency of the preliminary proofs to identify photographs, or to show that it is a fair or accurate representation of the objects which it purports to portray, is a question committed to the discretion of the trial judge.” (Citation, punctuation and footnote omitted.) Tyler v. State, 275 Ga. App. 115, 116 (2) (619 SE2d 804) (2005). The Dillons rely on OCGA § 24-4-48 (c), which allows admission of photographs made by unmanned cameras “when the court determines, based on competent evidence presented to the court, that such items tend to show reliably the fact or facts for which the items are offered,” and

prior to the admission of such evidence the date and time of such photograph, motion picture, or videotape recording shall be contained on such evidence and such date and time shall be shown to have been made contemporaneously with the events depicted in the photograph, videotape, or motion picture.

Id. In this case, there was not a date stamp on the photographs contemporaneous with the time that they were made, but only stamps indicating a 2010 copyright. Nevertheless, “[w]here a video or photograph lacks accurate date and time stamps, its admission may nonetheless be proper upon additional corroboration.” (Footnote omitted.) Dixon v. State, 300 Ga. App. 183, 185 (2) (684 SE2d 679) (2009). See Holloway v. State, 287 Ga. App. 655, 657 (2) (653 SE2d 95) (2007) (accord).

Here, Brad Reid testified that he obtained two of the photographs from the “MapQuest” website and two of the photographs from the “Google” website. According to Brad Reid two of the photographs were taken “around 2006/2007” and the other two “later in 2007 and 2008.” Brad Reid explained that he was familiar with the dates based on the change in lake levels. He further testified that the photographs truly and accurately depicted the locations of the docks at issue as of those time periods, and he confirmed that he had personally observed the docks. Notwithstanding that he did not have the exact same aerial view as the tendered photographs, Brad Reid explained the basis for his testimony as to the date of the photographs, and he testified that the photographs accurately depicted those locations as of those time periods. Accordingly, it was within the broad discretion of the trial court to allow the photographs to be introduced to show the locations of the docks during the time frames testified to by Reid. Isaacs v. State, 259 Ga. 717, 732 (26) (386 SE2d 316) (1989) (“Any witness who is familiar with the scene depicted can authenticate the photograph; it is not necessary that the witness be the photographer or even that the witness have been present when the photograph was taken.”); Tyler, supra, 275 Ga. App. at 116 (2) (“A photograph is authenticated by showing it is a fair and accurate representation of the scene depicted.”) (punctuation and footnote omitted). “[T]he absence of a [contemporaneous] date and time on the [photographs themselves] would go to the weight, not the admissibility, of the evidence.” Holloway, supra, 287 Ga. App. at 658 (2).

Decided October 13, 2011.

Kaufman, Miller & Sivertsen, Robert J. Kaufman, Jeremy B. Liebman, Jordan B. Forman, for appellants.

Miles, Patterson, Hansford & Tallant, Dana B. Miles, Wendy W. Kraby, Jefferson M. Starr, for appellee.

In sum, we affirm the trial court’s grant of the motion for interlocutory injunction. “The trial judge has a wide discretion in balancing the equities in a case such as this. There being evidence to support [her], no reversal will be granted thereon.” (Citation and punctuation omitted.) Pittman, supra, 300 Ga. App. at 534 (3).

Judgment affirmed.

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

       The parties do not contend that the water level was at less than full pool at the time of the hearing.

       Reid claims that the Dillons did not argue federal preemption below, but “jurisdiction of the subject matter cannot be waived, consent cannot confer jurisdiction and the lack of jurisdiction can be taken advantage of at any time.” (Citation omitted.) Champion v. Rakes, 155 Ga. App. 134, 135 (270 SE2d 272) (1980).

       Neither party suggests that the Lot 10 dock may have been moved since that time.

         The Dillons’ attorney even stated in closing argument that “[tjhere has been absolutely no evidence really of when the breach occurred.”

       The site plan depicts a 50-foot buffer between the Lot 1 dock and the Lot 10 dock, 32 feet for the Lot 1 dock itself, and an additional 50-foot buffer between the Lot 1 dock and the Lot 2 dock, the sum of which is the 132-foot distance between the Lot 2 dock and the Lot 10 dock applied by the trial court in its order.


source: Caselaw Access Project

author: McFadden, Judge.

license: Public Domain

text:
    A11A1577.
    NIX v. THE STATE.
    (717 SE2d 550)
   McFadden, Judge.

Derek Katriel Nix was convicted of possessing more than one ounce of marijuana. On appeal, he challenges the sufficiency of the evidence to support his conviction and argues that the court should have suppressed the marijuana because it was discovered during an unconstitutional search of his car. Because we find that the evidence was sufficient and that Nix consented to the search of his car during a lawful traffic stop, we affirm.

1. Nix argues that the evidence in this case did not meet the standard set forth in Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560) (1979). Under Jackson, when an appellant challenges the sufficiency of the evidence to support the conviction, “the relevant question is whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt.” (Emphasis in original.) Id. at 319 (III) (B).

So viewed, the evidence showed that, in the early morning of August 4, 2008, a police officer stopped Nix for driving with an inoperative headlight. Nix was the only person in the car. The officer asked to search the car, and Nix consented. During the search, the officer found in the car’s unlocked glove compartment three bags containing a total of 1.97 ounces of marijuana.

A friend of Nix testified at trial that the marijuana belonged to him, that he had ridden in the car with Nix to a basketball gymnasium several hours earlier, and that, while at the gymnasium, he had placed the marijuana in the glove compartment without Nix’s knowledge. The state presented evidence that contradicted the friend’s testimony on certain details of the events that evening. The state also presented evidence that Nix and his friend previously had been arrested for possession of marijuana. Nix’s friend testified that these earlier charges were dismissed when Nix claimed ownership of the marijuana and stated that his friend had no knowledge of it.

Nix contends that the only evidence of his possession of the marijuana in this case was circumstantial and the state did not adduce evidence to exclude every other reasonable hypothesis save that of his guilt. See OCGA § 24-4-6. We disagree. As the driver of the car, Nix was presumed to have exclusive possession and control of the marijuana found therein. Turner v. State, 277 Ga. App. 205, 206 (1) (626 SE2d 176) (2006). Under the equal access doctrine,

merely finding contraband in a car [driven] by a defendant is not sufficient to support a conviction if it affirmatively appears from the evidence that persons other than the defendant had equal opportunity to commit the crime. Whether evidence of equal access by others is sufficient to overcome the presumption that the driver possessed the contraband found in his vehicle depends on the strength of the evidence and is a question for the factfinder.

(Citations omitted.) Id. at 206-207 (1).

The court instructed the jury on both the presumption of possession and the equal access doctrine. As the factfinder, the jury was entitled to reject the testimony of Nix’s friend that the marijuana was his, see Wheeler v. State, 307 Ga. App. 585, 587 (1) (705 SE2d 686) (2011), and to determine that the presumption of Nix’s possession of the marijuana had not been rebutted. See Davis v. State, 272 Ga. App. 33, 34 (611 SE2d 710) (2005). The evidence was sufficient to authorize Nix’s conviction for possession of marijuana. See id.

2. Alternatively, Nix argues that the trial court should have granted his motion for new trial because the verdict was contrary to the evidence and principles of justice and equity, see OCGA § 5-5-20, and because it was decidedly and strongly against the weight of the evidence. See OCGA § 5-5-21. But, unlike the trial court, an appellate court “do|esj not have the discretion to grant a new trial on these grounds; [it] can only review the evidence to determine if there is any evidence to support the verdict.” (Citation omitted.) Drake v. State, 241 Ga. 583, 585 (1) (247 SE2d 57) (1978). As detailed in Division 1, supra, the evidence in this case was sufficient to support Nix’s conviction.

3. Nix argues that the trial court erred in denying his motion to suppress the marijuana found during the search of his car. On reviewing a trial court’s ruling on a motion to suppress, evidence is construed most favorably to uphold the findings and judgment, and the trial court’s findings on disputed facts and credibility should not be disturbed if there is any evidence to support them. Tate v. State, 264 Ga. 53, 54 (1) (440 SE2d 646) (1994). But “where the evidence is uncontroverted and no question regarding the credibility of witnesses is presented, the trial court’s application of the law to undisputed facts is subject to de novo appellate review.” (Citations omitted.) Vansant v. State, 264 Ga. 319, 320 (1) (443 SE2d 474) (1994).

So construed, the evidence showed that the arresting officer initiated a traffic stop after he observed Nix driving a car with an inoperative headlight. Nix provided the officer with his driver’s license, and the officer determined that the license was valid and that Nix had no outstanding arrest warrants. The officer testified:

I made contact with Mr. Nix again. I was talking with him, basically told him he needed to get his headlight fixed. At the time I wasn’t going to cite him. I remember telling him I was just going to give him a verbal warning. While at the vehicle, still talking with Mr. Nix, he was still breathing heavily and avoiding eye contact with me. He appeared to be nervous at the time. It’s been my experience that people that display signs of nervousness typically are concealing something. I then asked him for verbal consent to search the vehicle, and he granted me verbal consent.

Between four and seven minutes had elapsed from the time the officer initiated the stop to the time he asked for consent to search. The officer could not recall when during this period he returned Nix’s license to him.

There is no dispute in this case that the initial traffic stop for the inoperative headlight was valid. See Hines v. State, 214 Ga. App. 476, 477-478 (448 SE2d 226) (1994). Pending completion of a valid traffic stop, an officer may request consent to conduct a search. Baker v. State, 306 Ga. App. 99, 100 (1) (a) (701 SE2d 572) (2010). But,

[i]n order to pass constitutional muster, the investigative stop of a vehicle cannot be unreasonably prolonged beyond the time required to fulfill the purpose of the stop. Once that purpose has been fulfilled, the continued detention of the vehicle and its occupants is constitutional only if the officer has a reasonable articulable suspicion of other illegal activity or [if] the valid traffic stop has de-escalated into a consensual encounter.

Decided October 13, 2011.

G. Richard Stepp, for appellant.

(Citations and punctuation omitted.) Sommese v. State, 299 Ga. App. 664, 668 (1) (683 SE2d 642) (2009).

Nix contends that the purpose of the traffic stop had been fulfilled when the officer gave him a verbal warning and instructed him to repair his headlight. Thus, Nix argues, the traffic stop had already ended when the officer asked for consent to search the car. The officer’s testimony, however, reflected that he sought consent to search immediately after issuing the verbal warning. “[W]e have held that, where an officer requests consent to search contemporaneously, or nearly so, with the moment the purpose of a traffic stop is fulfilled, a trial court is authorized to conclude that the request did not unreasonably prolong the detention.” (Citation omitted.) Davis v. State, 303 Ga. App. 785, 787 (694 SE2d 696) (2010). Viewed most favorably to support the judgment, Tate, 264 Ga. at 54 (1), the evidence showed that Nix was legally detained when the officer requested consent to search. See Baker, 306 Ga. App. at 101 (1) (a) (evidence that request for consent to search was made during officer’s discussion with defendant about tag violation, shortly after officer completed his check of defendant’s license and within six minutes of initiating traffic stop, authorized finding that defendant was legally detained at the time). Compare State v. Felton, 297 Ga. App. 35, 37 (676 SE2d 434) (2009) (affirming grant of motion to suppress where evidence supported trial court’s finding that the “traffic stop had ended, the ticket had been issued and the license returned” before the defendant consented to the search) (punctuation omitted); Faulkner v. State, 256 Ga. App. 129, 131 (567 SE2d 754) (2002) (reversing denial of motion to suppress where, after writing ticket for traffic violation and returning defendant’s license and insurance documents, the officer began interrogating the defendant about the contents of his vehicle and then sought consent to search). We find no error in the trial court’s denial of Nix’s motion to suppress the evidence found during the search. See Baker, 306 Ga. App. at 101 (1) (a).

Judgment affirmed.

Phipps, P. J., and Andrews, J., concur.

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


text:
    A11A2184.
    WILLIAMS v. WILLIAMS.
    (717 SE2d 553)
   McFadden, Judge.

On February 28, 2005, the trial court entered an adoption decree granting Jennifer Williams’s petition to adopt her two stepchildren and terminating the parental rights of the children’s biological mother, April Williams (a/k/a April Hindman). Therein, the trial court found that April Williams had not provided financial support for the children or seen them since the summer of 2002 and that she could not be found despite a diligent search. Earlier, the trial court had authorized April Williams to be served by publication. See OCGA §§ 9-11-4 (f) (1) (A) (setting forth requirements for service by publication); 19-8-10 (c) (allowing service by publication of adoption petition).

Two and a half years after the entry of the adoption decree, on September 27, 2007, April Williams moved under OCGA § 9-11-60 to reopen and set aside the adoption decree, arguing that at the time of the adoption proceeding she had been incarcerated, that Jennifer Williams could have discovered her whereabouts, and that the service by publication thus had been insufficient. The trial court held that the decree was void for lack of jurisdiction because April Williams had not been properly served, and it granted the motion to reopen and set aside the adoption. We granted interlocutory review of that order. We find that the trial court erred in reopening and setting aside the adoption because April Williams challenged the adoption decree more than six months after its entry, and accordingly we reverse.

OCGA § 19-8-18 (e) provides that “[a] decree of adoption issued pursuant to subsection (b) of this Code section shall not be subject to any judicial challenge filed more than six months after the date of entry of such decree.” (Emphasis supplied.) The adoption in this case was issued pursuant to subsection (b), because it involved the surrender or termination of a biological parent’s rights. See OCGA § 19-8-18 (b).

Notwithstanding OCGA § 19-8-18 (e)’s plain language, the trial court held that the Code section did not bar April Williams’s challenge to the adoption decree, on the ground that the challenge was brought under OCGA § 9-11-60, which allows for a judgment void for lack of jurisdiction to be attacked “at any time” through a motion to set aside. OCGA § 9-11-60 (f). See generally Burch v. Dines, 267 Ga. App. 459, 461 (2) (600 SE2d 374) (2004) (invalidity of service can give rise to lack of personal jurisdiction). But for purposes of statutory interpretation, “a specific statute will prevail over a general statute, absent any indication of a contrary legislative intent, to resolve any inconsistency between them.” (Citation and punctuation omitted.) Marshall v. Speedee Cash of Ga., 292 Ga. App. 790, 791 (665 SE2d 888) (2008). In this case, OCGA § 19-8-18 (e) is the more specific statute because it addresses when a particular type of judgment — an adoption decree — may be attacked, while OCGA § 9-11-60 (fj addresses when judgments in general may be attacked. Neither statute contains language indicating a legislative intent that a motion to set aside under OCGA § 9-11-60 for lack of jurisdiction is an exception to the specific prohibition in OCGA § 19-8-18 (e) against “any judicial challenge” to an adoption decree. Cf. McDonald v. H & S Homes, 290 Ga. App. 103, 104 (658 SE2d 901) (2008) (holding that OCGA § 9-11-60 cannot be used to circumvent Federal Arbitration Act’s shorter time period for attacking arbitration award).

Decided October 13, 2011.

A. James Rockefeller, for appellant.

We also find no merit in April Williams’s contention that Jennifer Williams should be estopped from asserting OCGA § 19-8-18 (e) to bar the motion to set aside the adoption decree because she misled the trial court into allowing service by publication. That contention is an attempt to relitigate whether the necessary showing to support service by publication had been made during the adoption proceedings. It is an attempt to do precisely what OCGA § 19-8-18 (e) prohibits. We note that April Williams did not allege that Jennifer Williams had engaged in any active deception during the six months following the entry of the adoption decree that prohibited April Williams from learning of that decree or bringing a challenge against it. Accordingly, we do not address whether such an allegation could present a viable basis for tolling the six-month period set forth in OCGA § 19-8-18 (e).

Because OCGA § 19-8-18 (e) precluded April Williams from challenging the adoption decree, the trial court should have dismissed her motion to reopen and set aside that decree. We hereby reverse the trial court’s judgment and remand this case for the trial court to enter a dismissal.

Judgment reversed and case remanded with direction.

Phipps, P. J., and Andrews, J., concur.

Howard Z. Simms, District Attorney, Carmel W. Sanders, for appellee.


text:
    A10A1398.
    WHEELER v. THE STATE.
    Decided October 14, 2011.

      Jennifer A. Trieshmann, for appellant.

      Leigh E. Patterson, District Attorney, Natalee L. Staats, Assistant District Attorney, for appellee.
    (717 SE2d 682)
   McFadden, Judge.

The decision of the Court of Appeals in this case having been reversed by the Supreme Court, Wheeler v. State, 289 Ga. 537 (713 SE2d 393) (2011), our decision in Wheeler v. State, 305 Ga. App. 501 (699 SE2d 745) (2010), is hereby vacated, and the judgment of the Supreme Court is made the judgment of this court.

Judgment reversed.

Miller, P. J., and Phipps, P J., concur.


author: Smith, Presiding Judge.

text:
    A11A0854.
    DURRAH v. STATE FARM FIRE AND CASUALTY COMPANY et al.
    (717 SE2d 554)
   Smith, Presiding Judge.

In this uninsured motorist (“UM”) case, Yolanda Durrah appeals from the trial court’s order dismissing her renewal action against Carmen Hernandez and State Farm Fire and Casualty Company. For the reasons set forth below, we affirm.

“We review the trial court’s ruling on a motion to dismiss under the de novo standard of review.” (Citation and punctuation omitted.) Sadi Holdings v. Lib Properties, 293 Ga. App. 23 (666 SE2d 446) (2008). The record shows that following a car accident on May 11, 2006, Durrah timely filed a suit for personal injuries against Hernandez and State Farm, her UM carrier. Durrah personally served State Farm and served Hernandez by publication because she could not locate Hernandez.

Durrah later voluntarily dismissed her complaint without prejudice and then refiled it against Hernandez and State Farm within six months, but after the expiration of the statute of limitation. She personally served State Farm with her renewal action, but did not serve Hernandez with it in any manner. According to the trial court’s order, both Hernandez and State Farm moved to dismiss Durrah’s renewal action. The court granted Hernandez’s motion to dismiss based upon Durrah’s failure to serve Hernandez personally in the original action. Based upon its dismissal of Hernandez, the trial court concluded that Durrah could not meet her obligation to obtain a judgment against Hernandez as a condition precedent to her right to recover against her UM carrier and dismissed Durrah’s renewal action against State Farm.

1. Durrah contends the trial court erred by dismissing her renewal action against State Farm because she served Hernandez by publication for purposes of obtaining a nominal judgment against her in the first action. We disagree.

The trial court properly dismissed the case against State Farm based upon the rule that when an uninsured motorist is dismissed based upon a lack of personal service before a plaintiff obtains a nominal judgment against the UM carrier, the case against the UM carrier must be dismissed as well. See Cohen u. Allstate Ins. Co., 277 Ga. App. 437, 441 (2) (626 SE2d 628) (2006). In this case, the trial court dismissed Hernandez from the renewal action based upon a lack of personal service in the original action before the expiration of the statute of limitation. See Costello v. Bothers, 278 Ga. App. 750, 752 (2) (629 SE2d 599) (2006); Hawkins v. Wilbanks, 248 Ga. App. 264, 265 (546 SE2d 33) (2001).

The court then properly dismissed the renewal action against State Farm because no judgment could be obtained against the uninsured motorist. See Brown v. State Farm &c. Ins. Co., 242 Ga. App. 313, 314-315 (2) (529 SE2d 439) (2000); State Farm &c. Ins. Co. v. Noble, 208 Ga. App. 518, 519-520 (430 SE2d 804) (1993); Walker v. Ga. Farm &c. Ins. Co., 207 Ga. App. 874, 876 (2) (429 SE2d 289) (1993).

The renewal statute applies only to actions that are valid prior to dismissal. . . . While service by publication may be used pursuant to OCGA § 33-7-11 for purposes of complying with the condition precedent for pursuing one’s uninsured motorist insurance carrier, it is insufficient to confer personal jurisdiction.

(Citations, punctuation and footnote omitted.) Costello, supra, 278 Ga. App. at 752 (2). The lack of personal service of the uninsured motorist in the original action renders it void, and it therefore cannot be renewed. Id. Stated differently, a plaintiffs failure to obtain a nominal judgment against an uninsured motorist served by publication before voluntarily dismissing will be fatal to any attempted renewal after the expiration of the statute of limitation. As that is the case here, we affirm the trial court’s dismissal of Durrah’s renewal action against State Farm.

2. Durrah contends in the alternative that the General Assembly eliminated the condition precedent of a judgment in a 2006 amendment to the UM statute, OCGA § 33-7-11. According to Durrah, the judicially-created requirement for a judgment against the uninsured motorist stemmed from the following italicized language in former OCGA § 33-7-11 (a) (1):

No automobile liability policy . . . shall be issued ... in this state . . . unless it contains an endorsement or provisions undertaking to pay the insured all sums which said insured shall be legally entitled to recover as damages from the owner or operator of an uninsured motor vehicle.

(Emphasis supplied.)

The 2006 amendment substituted “for bodily injury, loss of consortium or death of an insured” for “all sums which said insured shall be legally entitled to recover as” in subparagraph (a) (1). Based on the deletion of the words “legally entitled to recover” from the UM statute, Durrah asserts that the General Assembly intended to abolish the requirement that a judgment be obtained against the uninsured motorist as a condition precedent to recovery from a UM carrier. Again, we disagree.

As recognized in Justice Carley’s special concurrence in Dees v. Logan, 282 Ga. 815 (653 SE2d 735) (2007), “the 2006 enactment is clearly the General Assembly’s response to Gordon v. Atlanta Cas. Co., 279 Ga. 148, 149 (611 SE2d 24) (2005).” Id. at 820. In Gordon, the Georgia Supreme Court held that former OCGA § 33-7-11 (a) (1) required an insurer to pay damages for the death of a person who was not covered under the policy, reasoning:

The language of the [former] statute is plain and it is not illogical. It clearly states that the insurer is to pay “all sums which (the) insured shall be legally entitled to recover as damages from the owner or operator of an uninsured motor vehicle.” [Cit.] All means all, every single one. Since the insured in this case is entitled to recover damages for the death of his son against the owner or driver of the uninsured vehicle, he is entitled to recover those damages against his insurer.

279 Ga. at 149. The preamble to the 2006 amendment supports Justice Carley’s conclusion in Dees, supra, because it describes that one of its purposes was “[t]o amend ... so as to change certain provisions relating to damages recoverable by an insured under uninsured motorist coverage.” Ga. L. 2006, p. 815. We therefore decline to interpret the General Assembly’s 2006 amendment, aimed at obviating the 2005 Gordon holding, as intended to also eviscerate the requirement for a judgment against the uninsured motorist that was established decades earlier. See State Farm &c. Ins. Co. v. Girtman, 113 Ga. App. 54, 55-58 (147 SE2d 364) (1966).

Moreover, the “legally entitled to recover” language in former OCGA § 33-7-11 (a) was not the only statutory language used to support the conclusion that a judgment against the uninsured motorist is a condition precedent to recovery against a UM carrier. The conclusion in Girtman was

further strengthened by the provisions of the Act which grant to the insurance company the right to be subrogated to the rights of its insured against such uninsured motorist after it has paid a claim arising under this law. If the contention of the appellee that the legal liability of the uninsured motorist to her could be adjudicated in this action should be upheld, then the long-standing principles respecting the conclusiveness of judgments, that is, that judgments shall be conclusive and binding only as between the parties and their privies, would have to be violated, or else the right granted to the insurance company by the law, to be subrogated to the claim of its insured against such uninsured motorist, would be rendered ineffectual since the insurance company would be subjected to the risk of having to relitigate the issue of the uninsured’s liability before the same or a different tribunal under different circumstances with the attendant risk of a different conclusion as to the liability of the uninsured motorist being reached. We will not attribute to the legislature an intent to reach such an illogical or unjust result.

Decided October 14, 2011.

Thomas G. Tidwell, for appellant.

Cowsert & Auery, Michael S. Broun II, for appellee.

Girtman, supra, 113 Ga. App. at 57-58.

Finally, we must construe statutes “to square with common sense and sound reasoning. It is the duty of the court to consider the results and consequences of any proposed construction and not so construe a statute as will result in unreasonable or absurd consequences not contemplated by the legislature.” (Citation omitted.) Five Star Steel Contractors v. Colonial Credit Union, 208 Ga. App. 694, 696 (431 SE2d 712) (1993). Because the construction advanced by Durrah would lead to such an absurd consequence, we decline to adopt it.

Judgment affirmed.

Mikell and Dillard, JJ., concur.

       We do not have the entire record before us because the parties submitted a joint stipulation of facts in their record appendix in lieu of the record below.

       In Girtman, we held that no suit could be brought against a UM carrier before a judgment had been obtained from the uninsured motorist. 113 Ga. App. at 58. In Moss v. Cincinnati Ins. Co., 154 Ga. App. 165 (268 SE2d 676) (1980), we noted that a 1967 amendment to the statute allowed for a simultaneous suit for coverage against a UM carrier with a tort suit against the uninsured motorist if the UM carrier elected to defend in its own name after being served with the tort suit. Id. at 168-169. Our opinion in Moss did not, however, eliminate the requirement for a judgment against the uninsured motorist as a condition precedent to coverage under the policy. See Boles v. Hamrick, 194 Ga. App. 595, 596-597 (391 SE2d 418) (1990); United States Fidelity & Guaranty Co. v. Lockhart, 124 Ga. App. 810, 811(1) (186 SE2d 362) (1971), affirmed, United States Fidelity & Guaranty Co. v. Lockhart, 229 Ga. 292 (191 SE2d 59) (1972).


text:
    A11A0878.
    A11A1435.
    GAITHER v. THE STATE. ALEXANDER v. THE STATE.
    (717 SE2d 654)
   Smith, Presiding Judge.

Nacorey Alexander and Daraldo Gaither, who are brothers, were indicted with Rashard Usher and Brandon Ward on one count of battery and four counts of aggravated assault. Alexander and Gaither were tried together, and a jury found them guilty of four counts of aggravated assault. Their amended motions for new trial were denied, and they appeal. Finding no reversible error, we affirm.

Construed in favor of the jury’s verdict, the facts show that, on August 26, 2007, Usher had an argument with the victim, his estranged wife and the mother of two of his children, the child victims in this case. During the argument, Usher grabbed the victim’s keys and cell phone and hit her in the mouth. After calling the police, the victim returned to the home where she lived with her boyfriend, the father of her unborn child. A short time later, she, her boyfriend, and the two child victims were standing together on the small front porch of their home when a black SUV that she recognized as belonging to Ward’s mother drove up to the house with four men inside.

Alexander and Ward exited the SUV( exchanged words with the victim’s boyfriend, and returned to the vehicle. All of the occupants of the SUV then emerged with firearms. Alexander, Gaither, and Usher approached the boyfriend, who backed up onto the porch steps and fell. The victim testified that “the guns were pointed at the porch, at everybody on the porch.” Gaither struck the victim’s boyfriend on the head with his pistol, and then multiple shots were fired. The victim was shot in the upper thigh, breaking her femur, and her boyfriend was shot in the right shoulder.

The victim was not sure whether Alexander or Gaither fired the first shot; the victim’s boyfriend testified that Alexander had his pistol pointed at him and that he tried to knock it away but was shot by “the other dude.” Both victims identified Alexander and Gaither as the individuals who attacked them. The children were next to their mother, crying and screaming as the shots were fired.

Case No. A11A0878

1. Gaither asserts the general grounds as to Counts 3 and 4, aggravated assault upon the two children. He contends that the evidence is insufficient because the children, who were two and three years old at the time, did not testify. For that reason, he contends, the State did not show that the children were “in reasonable apprehension of immediately receiving a violent injury.” OCGA § 16-5-20 (a) (2). But all the victims were together in a group on the “pretty small” porch, and the victim testified that the guns were pointed at “everybody on the porch.” Gaither’s “act of firing his weapon into the group made each individual in the group a separate victim.” (Citations omitted.) Pace v. State, 239 Ga. App. 506, 509 (6) (521 SE2d 444) (1999). And testimony that the children were crying and screaming when appellant fired into the group “was sufficient for the jury to conclude that they, too, had a reasonable apprehension of receiving a violent injury.” Robertson v. State, 245 Ga. App. 649, 651 (1) (538 SE2d 755) (2000) (appellant fired three times into vehicle occupied by two adults and two children, wounding one adult; testimony that children were crying sufficient to support conviction for aggravated assault on children). The evidence was sufficient to uphold Gaither’s conviction under the standard established in Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560) (1979).

2. Gaither contends the trial court erred in failing to merge the aggravated assault convictions. This enumeration of error is without merit. Although the convictions arose from the same acts, they did not merge as a matter of fact or law because each count was based upon harm to a different victim. Pace, supra; Harris v. State, 272 Ga. App. 366, 373 (6) (612 SE2d 557) (2005).

3. Finally, Gaither alleges ineffective assistance of counsel in two respects: counsel’s alleged failure to object to improper bolstering testimony and counsel’s failure to object to the jury being allowed to view transcripts of witnesses’ testimony. For Gaither “to succeed on his claim of ineffective assistance of counsel, he must show that counsel’s performance was deficient and that the deficient performance prejudiced the defense. Moreover, we accept the trial court’s factual findings and credibility determinations unless clearly erroneous.” (Citations and punctuation omitted.) Jackson v. State, 288 Ga. App. 432, 433 (1) (654 SE2d 232) (2007). Here, the trial court entered a lengthy order on Gaither’s ineffective assistance claims and made specific credibility judgments regarding the testimony of trial counsel and the evidence presented at trial, based on the trial court’s observations at trial and at the hearing on Gaither’s motion for new trial.

(a) Gaither first complains that counsel was ineffective in failing to object to the testimony of a police detective regarding the victim’s “truthfulness in her statement to [a police officer] and identification of Appellant because [the officer’s] testimony constituted harmful improper bolstering.” The State correctly points out that Gaither is attempting to expand his original allegation of ineffectiveness on appeal. In his motion for new trial, Gaither asserted only that counsel was ineffective in failing to object to the prosecutor’s questioning of the detective concerning whether the victim was truthful when she “gave her initial statement to [the officer] and identified the defendants.” (Emphasis supplied.) The trial court ruled only on that assertion.

Where new counsel raises the issue of trial counsel’s ineffectiveness on motion for new trial, any ineffective assistance of trial counsel claims not raised at that time are waived. Such claims unasserted at the trial level are procedurally barred, and once a claim is procedurally barred, there is nothing for this Court to review. Because [appellant] has waived this particular ineffective assistance claim, we do not address the same.

(Citations, punctuation and footnotes omitted.) Bell v. State, 306 Ga. App. 853, 860 (3) (703 SE2d 680) (2010). Each specific instance of failure to object must be asserted in the court below. Kohlhaas v. State, 284 Ga. App. 79, 83 (2) (b), n. 3 (643 SE2d 350) (2007) (appellant attempted to raise trial counsel’s failure to object to four statements in prosecutor’s closing argument, but raised only two in the trial court; ineffectiveness claims arising from two other statements waived). Gaither may not now expand his assertion in the trial court to include other statements by the victim or any questions directed to detectives concerning those later statements.

With respect to the claim of ineffective assistance that was preserved for review, Gaither cannot demonstrate either that counsel’s performance was deficient or that the deficient performance prejudiced the defense. In the victim’s initial statement, she identified three perpetrators by name, and omitted Gaither entirely. The testimony therefore exculpated Gaither, and we agree with the trial court’s finding that the testimony was not prejudicial; it was highly unlikely that it changed the outcome of the trial. Anderson v. State, 257 Ga. App. 602, 603 (2) (c) (571 SE2d 815) (2002) (failure to object to testimony favorable to defendant “considered a matter of trial tactics and strategy”).

(b) In Gaither’s second claim of ineffective assistance, he contends trial counsel was ineffective “in failing to object to the trial court sending transcripts of [the victims’] trial testimony back to the jury room with the jurors during deliberations in violation of the continuing witness rule. ’ ’

During deliberations, the jury sent a note to the trial court asking to review the testimony of the victims, and requesting that a copy of the transcript be sent to the jury room. The court conferred with all counsel and stated, “I would propose to tell them we can provide that to them, but we don’t have time to provide it today. It would be tomorrow morning before we could have it available, and then they can tell us whether they want it.” The court asked each counsel individually if that procedure was “agreeable,” and Gaither’s counsel responded, “Yes, your honor.” The trial court then instructed the jury: “We can prepare that for you, but I don’t think we can get it prepared for you today. It would be tomorrow morning. [The court reporter] has to transcribe that. So if you will just go back to the jury room and continue deliberations. If you do want that testimony, let us know and we’ll start working on it.” On the same day, the jury sent another note confirming that they would like the transcript. The proceedings were adjourned and resumed at 9:00 the next morning. The trial transcript for the following day indicates that a verdict was returned immediately. Nothing in the trial transcript, however, shows that the daily transcripts of the victims’ testimony were ever delivered to the jury.

At the hearing on the motion for new trial, Gaither’s trial counsel indicated that he believed the daily transcripts were prepared because he had a copy. He also had a “fuzzy” recollection, derived from a conversation with an individual he could not identify, that the transcripts were sent out to the jury on the following morning. He also believed that “shortly after they got them they came back with a verdict.”

Even assuming that the transcript of the victims’ testimony was sent out with the jury, and assuming that trial testimony rather than documentary evidence violates the continuing witness rule, Gaither has not shown that counsel was ineffective in agreeing to this procedure or that his ineffectiveness prejudiced the defense. The trial court specifically found that trial counsel could not assert that he should have objected to a procedure that he knew was “atypical” but explicitly agreed to. And Gaither has not shown how a brief review of the victims’ testimony, including cross-examination in which their credibility was called into question, affected the verdict. In addition, all counsel had already agreed that a transcript of another eyewitness’s testimony could be transcribed by the court reporter and sent out to the jury, and Gaither does not allege ineffectiveness in that instance.

Moreover, allowing the jury to read a transcript that they specifically requested was not error.

We disagree that the trial court erred in allowing the jury to read the transcript. The trial court has discretion to grant the jury’s request to rehear portions of the evidence in the courtroom after the jury has retired and begun deliberations and has discretion to allow the jury to rehear other portions of the evidence not specifically requested to avoid placing undue influence on the specific evidence requested.
Neither is it error for a trial court to allow a jury to read a transcript of testimony where the jury asks to hear the tape recording of the testimony. In order to demonstrate an abuse of the trial court’s discretion, appellant must show that there are “special circumstances” that would make it unjust to allow the jury to revisit the evidence. Appellant has shown no such special circumstances.

Watkins v. State, 273 Ga. 307, 310 (3) (540 SE2d 199) (2001) (jurors read transcript in jury box). And allowing the jury to review the transcript in the jury room rather than in the courtroom, while incorrect, “amounted only to rehearing admissible material evidence, albeit at an unauthorized place.” Nixon v. State, 234 Ga. App. 797, 799 (1) (507 SE2d 833) (1998) (recording played and transcripts reviewed in jury room during deliberations). This enumeration of error is without merit.

Case No. A11A1435

4. Alexander asserts 11 enumerations of error in his 14-page brief. We first note the severe deficiencies of this brief, which fails to comply with the rules of this court in numerous respects. See Court of Appeals Rule 25. Alexander presents an inadequate statement of facts with only one citation to the record, a single page apparently intended to constitute his enumeration of errors but containing no statement of the alleged errors and styled “TABLE OF CONTE [sic]”, and nine pages of argument for eleven enumerations of error. The arguments themselves are truncated to the point of incomprehensibility, with fragmentary and incomplete sentences that leave this court in considerable doubt as to what, exactly, Alexander may be asserting.

Briefs that do not conform to the rules regarding enumerations of error, structure of briefs, argument, or citation of authorities, as [Alexander’s] fails to do, are not merely an inconvenience or grounds for refusing to consider a party’s contentions. Such briefs hinder this court in determining the substance and basis of an appellant’s contentions both in fact and in law and may well prejudice an appellant’s appeal.... Nevertheless, we will address [Alexander’s] arguments, insofar as we are able to ascertain them from his brief.

Salazar v. State, 256 Ga. App. 50 (567 SE2d 706) (2002).

5. In a very brief argument labeled “Prosecutorial Misconduct Error,” Alexander first appears to be complaining about the trial court sustaining a prosecutor’s objection to a police officer’s testimony, but does not explain how this constitutes prosecutorial misconduct. In the next two sentences he complains that the prosecutor “spoke negatively” about his wife’s failure to testify. Alexander then refers to a telephone call made before the warrant issued for his arrest. How these wide-ranging and unsupported assertions constitute prosecutorial misconduct or even error is never explained by Alexander. Moreover, to the extent Alexander has identified the incidents complained of, he raised no objection at trial and he therefore has waived any claim of error on appeal. Furlow v. State, 272 Ga. 795, 796 (2) (537 SE2d 61) (2000).

6. In a one-sentence argument, Alexander claims the trial court erred when his co-defendant impeached the victims with their prior criminal convictions. But he offers no argument or citation of authority, nor does he explain in what manner the trial court erred or how the evidence harmed him since it impeached prosecution witnesses. Moreover, Alexander’s counsel stated at the time that he had no objection to the admission of the records of conviction. This enumeration therefore is waived. Cayruth v. State, 273 Ga. App. 166, 166-167 (2) (614 SE2d 809) (2005).

7. Alexander next objects that the trial court “allowed the continued misidentification of the defendants in the case.” But the victim testified that she had known both Alexander and Gaither for approximately five years, and her boyfriend testified that he was acquainted with Alexander. Moreover, Alexander raised no objection to either identification. Alexander’s argument — that the victims gave conflicting accounts of what happened and how many people were involved in the attack — goes not to identification as such, but to inconsistencies in their testimony. These inconsistencies were addressed extensively at trial, and the resolution of such conflicts was for the jury. Nelson v. State, 242 Ga. App. 63, 64 (1) (528 SE2d 844) (2000).

8. Alexander contends the trial court erred in admitting hearsay, citing the victim’s testimony regarding a telephone call she received from Usher. But this testimony was part of the res gestae because it explained the victim’s dispute with Usher over the children, which occurred immediately before and led directly to the confrontation and assaults.

Acts are pertinent as part of the res gestae if they are done pending the hostile enterprise, and if they bear upon it, are performed whilst it is in continuous progress to its catastrophe, and are of a nature to promote or obstruct, advance or retard it, or to evince essential motive or purpose in reference to it. And the State is entitled to inform the jury of all the circumstances surrounding the commission of the crime or crimes charged.

(Citations and punctuation omitted.) Jones v. State, 294 Ga. App. 854, 856 (3) (670 SE2d 506) (2008) (evidence of conversations and acts over period of months leading up to sale of cocaine part of res gestae). The trial court did not err in allowing this testimony.

9. In less than a single page of his brief, Alexander contends that he received ineffective assistance of counsel in three respects. His arguments are short and incomprehensible, cite little or no legal authority, and contain at best cryptic references to the trial transcript. Nevertheless, we have examined each of his contentions and find all to be without merit.

10. Alexander asserts that the trial court should have declared a mistrial on account of various statements made by the prosecutor concerning the victim’s children and her pregnancy. But Alexander raised no objections at trial, and he therefore has failed to preserve this enumeration for review. Furlow, supra. The only objection raised was to the introduction of a photograph of the child victims, not to any statements by the prosecutor.

11. Alexander next raises a claim of a Bruton error with regard to the victim’s testimony about a telephone call she received from him, in which he exculpated himself and inculpated Gaither. But the call was made by Alexander himself, not a co-defendant, and thus does not implicate Bruton with respect to Alexander. Sims v. State, 243 Ga. 83, 84 (1) (252 SE2d 501) (1979). Moreover, Alexander declined to object or to join the objection made by his co-defendant, and any claim of error therefore is waived. Smith v. State, 308 Ga. App. 190, 191 (707 SE2d 135) (2011). Finally, Alexander took the stand and testified, at his own insistence and against the advice of his counsel, thereby eliminating any basis for a Bruton objection. Murphy v. State, 246 Ga. 626, 629 (3) (273 SE2d 2) (1980); Arnold v. State, 200 Ga. App. 476, 476-477 (1) (408 SE2d 447) (1991).

12. Alexander contends the trial court erred in refusing to charge on battery and simple assault, although he requested only a charge on simple assault. Alexander makes no argument with respect to a jury charge on battery, and we therefore treat that contention as abandoned. Court of Appeals Rule 25 (c) (2) (“Any enumeration of error which is not supported in the brief by citation of authority or argument may be deemed abandoned”). And while Alexander complains that a charge on simple assault was not made as part of the trial court’s charge on aggravated assault, the trial court in fact gave verbatim the charge that Alexander complains was not given. This enumeration of error is without merit.

Decided October 14, 2011

Jennifer A. Trieshmann, for appellant (case no. A11A0878).

James E. Watkins, for appellant (case no. A11A1435).

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

13. Alexander’s remaining enumerations of error appear entirely duplicative of those already discussed and have no merit for the reasons stated above.

Judgments affirmed.

Mikell and Dillard, JJ., concur.

       Usher and Ward pleaded guilty before trial to fewer than all counts.

       The battery charge was redacted after the State nol prossed that charge.

       This allegation arises from the fact that the victims initially identified Alexander, Usher, and Ward as the perpetrators of the assault, and only later named Gaither as a fourth assailant. The complained-of statement occurred after Gaither’s counsel cross-examined both the victim and the detective on the inconsistency. On cross-examination of the victim, her truthfulness was called into question. The prosecutor asked the detective on redirect if it was unusual in his experience for victims who were injured to remember more details, such as the number of suspects, after being treated. The prosecutor then asked the detective, “Based on your experience, did you feel like she was not being truthful when she initially gave the statement to Lthe officer]?” and the officer responded, “No.” The prosecutor then asked, “Based on your experience in interviewing victims and showing photographic lineups, did you feel that she was being truthful when she identified the four individuals in the lineups?” and the officer responded, “Yes.”

       No copy of a daily transcript appears in the record.

       Gaither’s appellate counsel argues that the transcripts were “likely reviewed in [sic] numerous times in the jury room.” But this contradicts trial counsel’s testimony, the only testimony on record, that the jury returned a verdict “shortly after” they received the transcripts.

        Bruton v. United States, 391 U. S. 123 (88 SC 1620, 20 LE2d 476) (1968).


author: Adams, Judge.

text:
    A11A0906.
    CARDER v. THE STATE.
    (717 SE2d 661)
   Adams, Judge.

Tammy Faye Carder appeals from the denial of her plea in bar urged on the basis that she was denied her constitutional right to a speedy trial. For the reasons that follow, we affirm the trial court’s order.

The record and transcript show that the offenses giving rise to the charges against Carder occurred on June 18, 2005, and that Carder was arrested at that time and had retained counsel by July 11, 2005. Over three years later, on August 4, 2008, an indictment was returned against her charging her with two counts of homicide by vehicle, one count of homicide by vehicle in the second degree, two counts of serious injury by motor vehicle, one count of DUI — less safe, and one count of failure to maintain lane.

On September 22, 2008, Carder filed a motion in limine and request for a Jackson-Denno hearing; she filed a supplement to that motion on April 6, 2009. The trial court granted the motion in part, excluding evidence of Carder’s statements to the arresting officer made at the hospital after the accident and excluding her refusal to take the state-administered blood test, but the court did not exclude a statement she made to hospital personnel regarding the test. State v. Carder, 301 Ga. App. 901, 902 (689 SE2d 347) (2009). The State filed a notice of appeal to this Court from that order, Carder timely filed a cross-appeal, and the case was docketed in this Court on June 29, 2009.

On December 11, 2009 this Court issued its opinion affirming in part and reversing in part the trial court’s order, and Carder filed a motion for reconsideration of that opinion on December 18, 2009. We denied her motion on January 11, 2010, and she applied for certiorari to our Supreme Court on January 25, 2010. The Supreme Court denied her petition on June 28, 2010, issued the remittitur to this Court on July 19, 2010, and this Court issued the remittitur to the trial court on July 23, 2010.

Although the notices do not appear in the record, it appears undisputed that the case was then placed on several trial calendars, including one for the week of September 20, 2010. However, on September 15, 2010, Carder filed her plea in bar asserting a violation of her constitutional right to a speedy trial, which the trial court denied on October 11, 2010, and Carder filed the present appeal.

As both our appellate courts have recited on numerous occasions, when considering a motion to dismiss on the grounds that an accused’s constitutional speedy trial right has been violated, the court applies the test set forth in Barker v. Wingo, 407 U. S. 514 (92 SC 2182, 33 LE2d 101) (1972), and Doggett v. United States, 505 U. S. 647, 651 (112 SC 2686, 120 LE2d 520) (1992). E.g., State v. Porter, 288 Ga. 524, 525 (2) (a) (705 SE2d 636) (2011), and cites; Weems v. State, 310 Ga. App. 590 (714 SE2d 119) (2011), and cites. And “[t]he trial court’s weighing of each factor and its balancing of all four factors — its ultimate judgment — are reviewed on appeal only for abuse of discretion.” Porter, 288 Ga. at 526 (2) (a).

1. Presumptive Prejudice. The threshold consideration is “ ‘whether the interval from the accused’s arrest, indictment, or other formal accusation to the trial is sufficiently long to be considered “presumptively prejudicial.” If not, the speedy trial claim fails at the threshold.’ Ruffin [v. State], 284 Ga. [52, 55 (663 SE2d 189) (2008)].” Porter, 288 Ga. at 525 (2) (a). In this case, the State conceded both in the trial court and this Court that the over five-year delay from the time Carder was arrested to the denial of her plea in bar was presumptively prejudicial, triggering the balancing test of the second stage of the analysis. State v. Lattimore, 287 Ga. 505, 506 (696 SE2d 613) (2010); State v. Shirley, 311 Ga. App. 141 (714 SE2d 636) (2011); Teasley v. State, 307 Ga. App. 153, 157 (1) (704 SE2d 248) (2010).

2. The Barker-Doggett Balancing Test. The four factors the court must consider, and ultimately weigh, in this stage are: (1) whether the delay was uncommonly long, (2) whether the government or the accused is more to blame for the delay, (3) whether, in due course, the accused asserted the right, and (4) whether the accused has suffered prejudice as the result of the delay. E.g., Porter, 288 Ga. at 525-526 (2) (a); Teasley, 307 Ga. App. at 157 (2).

However, it is important to bear in mind that these four factors do not constitute an exhaustive list, have no talismanic qualities and must be considered together with such other circumstances as may be relevant in light of the principles behind the constitutional speedy trial guarantee. Because the second stage of the constitutional speedy trial analysis is context-sensitive and requires courts to engage in a difficult and sensitive balancing process, speedy trial cases must be approached on an ad hoc basis. Porter, 288 Ga. at 526 (2) (a); Ruffin, 284 Ga. at 56 (b); Teasley, 307 Ga. App. at 158-159 (2); State v. Ivory, 304 Ga. App. 859, 862 (2) (a) (698 SE2d 340) (2010).

(a) Whether the delay was uncommonly long. Although both appellate courts as well as trial courts sometimes overlook this first factor,

[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. This is because uncommonly long delays have a tendency to compromise the reliability of trials in ways that neither party can prove or, for that matter, identify.

(Footnote omitted.) Simmons v. State, 304 Ga. App. 39, 41 (2) (a) (696 SE2d 75) (2010). Ruffin, 284 Ga. at 56-57 (2) (b) (i).

The trial court in this case did consider this factor, and properly found, as the State conceded, that the approximately 38-month delay from the time of Carder’s arrest to the time she was indicted was uncommonly long, attributable to the State and must be weighed against it. And although, as will be discussed more thoroughly below in analyzing the reason for the delay, the remainder of the delay was not wholly attributable to the State, given the procedural history of the case and the lengthy initial delay, the trial court properly weighed this factor against the State.

(b) Reasons for the delay (whether the government or the accused is more to blame for the delay). As our Supreme Court noted in Ruffin, 284 Ga. at 59 (2) (b) (ii):

Some amount of pretrial delay is unavoidable, and even quite extended intervals between arrest or indictment and trial are sometimes both necessary and reasonable. Consequently, the reason for the delay is pivotal in evaluating the strength of a constitutional speedy trial claim, as it can color the consideration of all other factors. Thus, as the United States Supreme Court put it, “(t)he flag all litigants seek to capture is the second factor, the reason for the delay.” [United States v. Loud Hawk, 474 U. S. 302, 315 (106 SC 648, 88 LE2d 640) (1986).]

As noted above, the delay here was attributable to several factors, although a large portion of the delay was caused by the State in failing to indict Carder for over three years. The State concedes that for that reason this factor must also be weighed against it, but argues that this factor should not be given heavy weight because the delay was on account of staffing shortages in the district attorney’s office. We agree that there is no evidence here that the State deliberately attempted to hamper the defense, harass the accused or otherwise gain an improper advantage, and thus this factor should not be weighed heavily against the State. Ruffin, 284 Ga. at 59 (2) (b) (ii); Ferguson v. State, 303 Ga. App. 341, 344 (2) (c) (693 SE2d 578) (2010).

Moreover, the remainder of the delay was due to the actions, or inactions, of both parties. Although Carder filed a motion in limine and requested a Jackson-Denno hearing on September 22, 2008, she did not amend that motion until April 6, 2009, during which time the trial court noted the case had appeared on numerous trial calendars. After Carder amended her motion, the trial court acted quickly on the motion, ruling partially in her favor.

The State then exercised its right to file a direct appeal to this Court, and this Court issued its opinion on December 11, 2009, reversing a portion of the ruling which had been adverse to the State. Carder, 301 Ga. App. at 904-906 (2). Carder moved for reconsideration of our opinion and then filed an unsuccessful application for certiorari to our Supreme Court, which resulted in the remittitur not being returned to the trial court until July 23, 2010, after the Supreme Court had denied the application. Once the case was returned to the trial court, the case quickly appeared on two trial calendars, before Carder filed her plea in bar five days before the trial calendar for the week of September 20, 2010.

Thus, we agree with the trial court that this portion of the delay should not be wholly attributed to the State and that Carder allowed her motion in limine to languish for over six months before she amended it and obtained a ruling from the trial court. But we are cognizant of the fact that this motion was in part successful, as was the State’s subsequent appeal. Thus, considering the procedural history here, we find that the trial court properly exercised its discretion by weighing this factor, but not heavily, against the State.

(c) Whether the accused asserted the right in due course. The trial court weighed this factor heavily against Carder, noting that she had been represented by counsel since shortly after she had been arrested, and Carder does not directly challenge that finding, instead arguing that she had not waived her right to file her plea in bar based on constitutional speedy trial grounds by failing to request a speedy trial at an earlier date. While this is true, e.g., Hester v. State, 268 Ga. App. 94, 98-99 (3) (601 SE2d 456) (2004), this argument does not address the basis of the trial court’s ruling.

In Ferguson, 303 Ga. App. at 344 (2) (c), we noted that while requesting a speedy trial is not a prerequisite to a later assertion of a violation of the constitutional right to a speedy trial, it is, nevertheless, a factor to be considered under the Barker analysis.

It is the defendant’s responsibility to assert the right to trial, and the failure to exercise that right is entitled to strong evidentiary weight against the defendant. ... A court will weigh this factor heavily against the defendant particularly where the defendant . . . has been represented by counsel since soon after . . . arrest [cit.] and . . . does not raise the speedy trial issue until filing a motion to dismiss just before trial.

(Citation and footnote omitted.) Id. at 344 (2) (c). These are the same circumstances that exist here, and we find that the trial court did not abuse its discretion by weighing this factor heavily against Carder. Over v. State, 302 Ga. App. 215, 218 (3) (690 SE2d 507) (2010) (“[t]he accused bears the responsibility for putting the government on notice [that] he does not want a delay, and failure to do so weighs strongly against him”). Compare Hester, 268 Ga. App. at 99 (3) (trial court erred in weighing this factor heavily against the accused because this factor was mitigated by the State’s failure to indict for three years and by further delay in appointing defense counsel).

(d) Whether the accused suffered prejudice as the result of the delay. Carder is correct that given the length of the delay, there is a presumption of prejudice in this case. Porter, 288 Ga. at 531 (2) (c) (4). However, this presumptive prejudice “may be reduced or even eliminated if the State can show that the defense has not, in fact, been substantially impaired.” Id. at 532 (2) (d).

The constitutional right to a speedy trial is designed to protect three interests, and it is those three interests we evaluate in examining the prejudice component: (1) preventing oppressive pretrial incarceration; (2) minimizing anxiety and concern of the accused; (3) limiting the possibility of the impairment of the defense. State v. White, 282 Ga. 859, 862 (2) (d) (655 SE2d 575) (2008); Simmons, 304 Ga. App. at 43 (2) (d).

In this case, there is no claim of oppressive pretrial incarceration. As to the remaining interests, “ ‘[t]o establish prejudice, the defendant must show actual anxiety and concern and specific evidence of how the delay impaired his ability to defend himself.’ (Citations and punctuation omitted; emphasis in original.) Mullinax v. State, 273 Ga. 756, 759 (2) (545 SE2d 891) (2001).” Lambert v. State, 302 Ga. App. 573, 576-577 (4) (692 SE2d 15) (2010).

Carder testified that she had been going to grief counseling since sometime after the accident, that she suffered from post-traumatic stress syndrome, “major, deep depression” and anxiety. She also testified that she had been involuntarily committed to an in-patient treatment facility. However, Carder’s testimony demonstrated that this anxiety and concern was caused by the accident giving rise to the charges against her, and did not suggest they were due to the delay in the prosecution of those charges. Indeed when questioned by the prosecutor concerning whether her involuntary commitment was tied to the case being returned to the trial court after the Supreme Court denied certiorari, thus allowing the adverse portion of our opinion to stand, Carder testified that she did not even check her mail, thereby indicating these events were not the reason for her commitment. See Simmons, 304 Ga. App. at 43-44 (2) (d). Thus the trial court was within its discretion when it concluded that Carder’s anxiety and depression were not caused by the delay.

Turning to the impairment of Carder’s defense, this factor is the most serious “ ‘because the inability of a defendant adequately to prepare [her] case skews the fairness of the entire system.’ ” (Footnote omitted.) Simmons, 304 Ga. App. at 44 (2) (d). As to this issue Carder testified that her fiancé, whom she was with the morning of the accident, had died since the accident and that her father, whom she talked to after the accident, had in the ensuing years developed Alzheimer’s disease and thus these witnesses, who could have testified concerning her state of mind and condition before and after the accident, would now be unavailable to her at trial.

But, “[i]f the defendant’s argument is that a witness has become unavailable, he ‘must show that the unavailable witnesses] could supply material evidence for the defense.’ ” Ferguson, 303 Ga. App. at 345 (2) (d). Carder did not make that showing here. As to her father’s testimony, Carder testified that he came to get her at the hospital after the accident, but that he was not with her at the time of the accident. However, she also testified that her mother, who was still in good health at the time of the hearing, was with her father when he came to the hospital and that in addition she had talked to her mother twice that morning. Although it is unclear whether this testimony would be relevant, since her parents were not with her at the time of the accident, any testimony her father could have provided, even if relevant, would merely have been cumulative of her mother’s testimony and thus his absence at trial could not be said to be prejudicial to her defense.

Decided October 14, 2011.

Banks & Stubbs, Rafe Banks III, for appellant.

Penny A. Penn, District Attorney, Jennifer L. Scalia, Assistant District Attorney, for appellee.

As to her fiancé’s testimony, Carder testified that she had last seen him approximately an hour and a half before the accident, but like her parents, he was not with her at the time of the accident. Moreover, as the trial court found, Carder also testified that just prior to the accident, and after she had last seen her fiancé, she went to a Hallmark store, where she was a regular customer and well known by the staff, and was in the store for 45 minutes. Carder further testified that the accident happened just 18 minutes later. Thus, as the trial court concluded, these other available witnesses were possibly in a much better position than her fiancé to testify about her condition just prior to the accident, and could testify on her behalf for the same purpose. Thus, the trial court did not abuse its discretion by finding that no actual prejudice as a result of the delay had been demonstrated in this case.

(e) Balancing the four factors. In this case, the first two factors were weighed against the State, although not heavily, while the third factor was heavily weighed against Carder. And no actual prejudice to the defense was demonstrated.

Thus, although we do not condone the State’s negligence in failing to bring Carder to trial in a timely fashion, that consideration is outweighed by the facts that Carder suffered little actual prejudice to her defense, suffered no unduly oppressive pretrial incarceration and waited a significant amount of time before asserting her right to a speedy trial. Under these circumstances, the trial court did not abuse its discretion by rejecting Carder’s claim that her constitutional speedy trial rights had been violated. Hassel v. State, 284 Ga. 861, 863-864 (d) (672 SE2d 627) (2009); Christian v. State, 281 Ga. 474, 478 (2) (640 SE2d 21) (2007); Weems, 310 Ga. App. at 596 (2) (e); Ferguson, 303 Ga. App. at 346 (2) (e).

Judgment affirmed.

Barnes, B J., and Blackwell, J., concur.

       If the accused files a motion to dismiss on constitutional speedy trial grounds, the delay is measured from the earlier of the date the accused is arrested or indicted and the date the trial court denies the motion. Porter, 288 Ga. at 525 (2) (a); West v. State, 295 Ga. App. 15, 16 (670 SE2d 833) (2008).


text:
    A11A0999.
    WASHINGTON v. THE STATE.
    (717 SE2d 674)
   Smith, Presiding Judge.

A jury found Joseph Washington guilty on one count of child molestation and one count of bail jumping. Following the denial of his amended motion for new trial, Washington appeals, arguing that his trial counsel was ineffective and that the trial court erred in allowing certain testimony. Having reviewed these claims, we find no error and affirm.

1. Washington enumerates as error that his “counsel was ineffective in not objecting to the victim’s testimony about an unindicted act of child molestation.” Under the standard of Strickland v. Washington, 466 U. S. 668 (104 SC 2052, 80 LE2d 674) (1984),

[i]n order to prevail on a claim of ineffective assistance of counsel, the defendant must show both that counsel’s performance was deficient and that but for counsel’s unprofessional errors, there is a reasonable probability that the outcome of the trial would have been different. However, in ruling on an ineffectiveness claim, this Court need not analyze the deficient performance prong if the Court determines the prejudice prong has not been satisfied.

(Citations, punctuation and footnote omitted.) Bradley v. State, 283 Ga. 45, 46 (2) (656 SE2d 842) (2008).

Washington was charged with three counts of child molestation. Count 1 alleged that he tried to remove the victim’s pants, Count 2 alleged that he exposed his penis to the victim, and Count 3 alleged that he touched the victim’s vagina. The victim, 13 years old at the time of trial, testified that Washington, her mother’s boyfriend, committed each act as alleged in the indictment. When asked whether she could remember any other incidents involving Washington, the victim stated that on one occasion, Washington tried to force her to put his penis in her mouth.

Washington argues that trial counsel was ineffective in failing to object to this testimony on the ground that it concerned an unin-dicted offense and was highly prejudicial. We need not decide whether trial counsel should have objected because Washington failed to satisfy the second prong of the Strickland test.

The Strickland Court set forth the appropriate test for determining prejudice: The defendant must show that there is a reasonable probability that, but for counsel’s unprofessional errors, the result of the proceeding would have been different. A reasonable probability is a probability sufficient to undermine confidence in the outcome.

(Citation and punctuation omitted.) Miller v. State, 285 Ga. 285, 286 (676 SE2d 173) (2009). Here, Washington has failed to demonstrate prejudice because he makes no argument on appeal regarding this prong. See Wood v. State, 304 Ga. App. 52, 53 (3) (a) (695 SE2d 391) (2010). And in light of the jury’s acquittal of Washington on two of the three child molestation counts, we hold that he has failed to demonstrate that there is a reasonable probability that the jury would have acquitted him on the third charge had counsel objected to the victim’s testimony. See Rivers v. State, 283 Ga. 108, 111 (2) (657 SE2d 210) (2008) (“mere speculation is insufficient to satisfy the prejudice prong of Strickland”) (citations, punctuation and footnote omitted).

2. Washington contends that the trial court erred in allowing the victim to testify concerning an incident when Washington waved a gun in her presence. The “admission of evidence is a matter resting within the sound discretion of the trial court, and appellate courts will not disturb the exercise of that discretion absent evidence of its abuse.” (Citation, punctuation and footnote omitted.) Smith v. State, 302 Ga. App. 128, 130 (1) (690 SE2d 449) (2010).

The prosecutor asked the victim: “Was there ever an incident between you and [Washington] where he made a threat that made you scared to tell on [him]?” The victim stated that during an incident involving her mother, she told Washington that she was going to “tell [her] daddy,” and that in response Washington said “ ‘[t]ell your punk a** daddy he can’t do sh** to me.’ And then he — he was waving a gun.” Washington argues he had not opened the door to bad character evidence and that the victim’s testimony here was prejudicial and without probative value.

Washington’s argument here is without merit.

Evidence of the defendant’s prior acts toward the victim, be it a prior assault, a quarrel, or a threat, is admissible when the defendant is accused of a criminal act against the victim, as the prior acts are evidence of the relationship between the victim and the defendant and may show the defendant’s motive, intent, and bent of mind in committing the act against the victim which results in the charges for which the defendant is being prosecuted.

Decided October 14, 2011.

Rachelle D. Hunter, for appellant.

Julia Fessenden Slater, District Attorney, for appellee.

(Citation and punctuation omitted.) Farris v. State, 293 Ga. App. 674, 677 (2) (667 SE2d 676) (2008). Even if this evidence incidentally placed Washington’s character in issue, it was admissible to explain why the victim did not report the molestation. See Head v. State, 285 Ga. App. 471, 474 (3) (646 SE2d 699) (2007); Raymond v. State, 232 Ga. App. 228, 229 (2) (501 SE2d 568) (1998) (“Testimony which explains conduct is admissible if it is relevant to the issues involved. [Cit.]”). The trial court therefore did not err in allowing the victim’s testimony concerning this incident.

Judgment affirmed.

Mikell and Dillard, JJ., concur.

       Washington contends, in the argument section of his brief, that the trial court erred in allowing the victim’s testimony, but “an appealing party may not use its brief to expand its enumeration of errors by arguing the incorrectness of a trial court ruling not mentioned in the enumeration of the errors.” (Citation and punctuation omitted.) Collier v. State, 303 Ga. App. 31, 33 (2), n. 10 (692 SE2d 697) (2010).

       The jury acquitted Washington on two other counts of child molestation.

       Just before this testimony, the trial court ruled that the State could not elicit testimony from the victim concerning threats Washington made against the victim’s mother.