text:
    A12A2178.
    TELA v. THE STATE.
    (740 SE2d 204)
   McMillian, Judge.

Beniam Dawit Tela appeals the trial court’s denial of his motion for new trial after he was convicted by a jury of six counts of aggravated assault, four counts of possession of a firearm during the commission of a crime and one count of criminal damage to property. Tela asserts on appeal that his trial counsel was ineffective in failing to object to the introduction of improper character testimony and in failing to properly investigate his case. We affirm the trial court’s denial of the motion, however, because Tela failed to carry his burden of establishing that he received inadequate representation at trial.

Viewed in the light most favorable to the verdict, the evidence at trial showed that on the evening of May 29, 2008, Amanda Thrash, Tela’s ex-girlfriend, was visiting the home of her friend, Christopher Farley, and his parents, Anita and William Farley. Christopher Farley’s girlfriend, Ashley Godbout, was also at the Farley home that night. Shortly after Thrash arrived, Tela began calling her on her cell phone. Although she was reluctant to speak with Tela, she answered the phone after he called several times. When Tela heard Christopher Farley’s voice in the background, he became upset and things escalated after Thrash told him she was at the Farleys’ house. Tela apparently was upset that she was spending time with Christopher Farley. Farley then took Thrash’s phone and began talking to Tela in an attempt to calm him down, but the conversation erupted into an argument. When Thrash’s cell phone died, the argument continued on another phone. At some point Tela indicated that he was coming over to the Farley home to fight, and Christopher Farley told him to come over.

Sometime later, a car rode by the Farleys’ house with someone screaming profanity and insults as Thrash stood outside in the driveway with Anita Farley and Godbout. Thrash could see the figure of a person screaming and hanging halfway out of the car window, and she recognized Tela’s voice. The car drove by twice and then a series of about five to six shots rang out. She could hear Tela screaming immediately before the shots were fired. Christopher Farley recalled that he had stepped inside the house “for a second” when he heard the shots fired and heard one bullet go through the house. William Farley was also in the house. When Thrash later recharged her cell phone, she discovered a number of voice mails from Tela both before and after the incident. A tape of these messages was played for the jury. The next day, the Farleys discovered bullet holes in the side of their house and a bullet in a bedroom closet. Bullets and casings taken from the Farleys’ property were subsequently matched to a gun found in a wooded area behind Tela’s home.

In considering Tela’s claims that he received ineffective assistance of counsel at trial,

we apply the two-prong test set forth in Strickland v. Washington, [466 U. S. 668 (104 SC 2052, 80 LE2d 674) (1984)]. [Tela] must show that counsel’s performance was deficient and that, but for that deficient performance, there is a reasonable probability that the outcome of his trial would have been different. In evaluating the first prong of this test, a strong presumption exists that counsel’s conduct falls within the broad range of professional conduct. On appellate review of the trial court’s ruling, we accept the trial court’s factual findings and credibility determinations unless clearly erroneous, but we independently apply the legal principles to the facts.

(Footnote omitted.) Donald v. State, 312 Ga. App. 222, 227 (4) (718 SE2d 81) (2011).

1. Tela asserts that his trial counsel was ineffective in failing to challenge the admission of Thrash’s testimony characterizing her relationship with Tela, which he contends was improper character evidence.

Thrash testified that her relationship with Tela had ended a day or two before the shooting incident. She stated that she had dated Tela only for a period of about six months, during which they “sometimes” broke up and got back together because it was “an abusive relationship.” On cross-examination, Tela’s attorney asked Thrash if she thought Tela loved her and she replied that she did not know. Tela asserts that his trial attorney should have objected when, on re-direct, the prosecution pursued the following line of questioning:

Q. And [the defense attorney] asked you if you thought Mr. Tela loved you, and you said you weren’t sure. Can you explain what you mean by that?
A. It’s not the type of love that I grew up with. But I think he had some maybe abusive history in his past, so maybe in his mind he did. I don’t know.
Q. When you talk about you’re not sure that he loved you, did it have to do with the way he treated you?
A. Yes.
Q. How did he treat you?
A. Always verbally abusive toward me. I remember a point where he dragged me across the asphalt ground on my back, leaving scratches, leaving bruises. People don’t do that to people they love.

At the hearing on the motion for new trial, Tela’s trial counsel admitted that this evidence was harmful to Tela, and he could not say “[i]n the heat of trial” why he did not object.

But whether Tela’s trial attorney had objected or not, the evidence was admissible against Tela because

[e]vidence of prior difficulties between a defendant and a victim is generally admissible when the crime charged was perpetrated against the victim and the evidence demonstrates: (1) the relationship between the defendant and victim, and (2) the defendant’s motive, intent or bent of mind. As with any evidence, evidence of prior difficulties may not be unduly prejudicial, remote or confusing to the jury, but we perceive none of these defects here.

(Footnote omitted.) Tuff v. State, 278 Ga. 91, 92 (2) (597 SE2d 328) (2004).

Tela argues, however, that the State presented no evidence to show that Thrash was the intended victim of the crime. He asserts that the evidence showed instead that Tela was upset with and coming to fight Christopher Farley. Thus, he contends that evidence of his prior difficulties with Thrash was irrelevant. But Thrash was named as the victim in two of the aggravated assault counts charged against Tela. And the evidence at trial indicated that Tela was angry with both Thrash and Farley that night. Tela’s argument ignores testimony from Anita Farley that the person in the car screamed out Thrash’s name and called her a “whore,” a term Tela also used to describe her in the recorded voice mails. The argument also ignores other evidence indicating that he was angry with Thrash for being with Christopher Farley.

The evidence of prior difficulties between Thrash and Tela during their relationship, therefore, “most certainly demonstrated the state of the relationship between appellant and the victim, and was highly relevant to show his abusive bent of mind toward her.” (Citation and punctuation omitted.) Quintero v. State, 279 Ga. App. 497, 498 (1) (631 SE2d 723) (2006) (affirming admission of evidence of defendant’s abuse of wife during the course of their marriage). And “[t]he probative value of this evidence was not outweighed by any unfair prejudice.” Id. “[E]vidence that is otherwise relevant or material to the issues in a criminal case does not become inadmissible simply because it concerns separate offenses, or because it incidentally puts a criminal defendant’s character or reputation in evidence.” (Citation and punctuation omitted.) Attaway v. State, 259 Ga. App. 822, 828 (7) (578 SE2d 529) (2003). See also Cawthon v. State, 289 Ga. 507, 508 (2), n. 2 (713 SE2d 388) (2011).

And because it is well settled that the failure to make a meritless objection does not amount to ineffective assistance, Tela failed to establish that he was entitled to a new trial on this ground. See Scott v. State, 290 Ga. 883, 889 (7) (a) (725 SE2d 305) (2012).

2. Tela also contends that his trial attorney was ineffective in failing to properly investigate his case. He asserts that his attorney was inadequate in failing (a) to review the voice mail recordings prior to trial; (b) to object to or seek to exclude the recordings from evidence; or (c) to investigate the scene of the shooting, visit the location where the gun was found or speak to the State’s witnesses.

(a) Although Tela testified at the motion hearing that his trial attorney told him during trial that he had not listened to the recordings, the attorney testified that he did listen to the recordings “within the last two to three days before the trial.” And “[t]he trial court was authorized to reject [Tela’s] version of the facts and credit instead the testimony of his counsel.” (Citations and punctuation omitted.) Stinson v. State, 286 Ga. 499, 501 (2) (689 SE2d 323) (2010).

Tela also argues that a reference his trial counsel made at trial to an “in-custody statement” during a discussion of the voice mail recordings indicates that his attorney had not listened to the recordings prior to trial. Although the attorney did not recall why he used that language, he reiterated that he had listened to the recordings two to three days before trial. Tela’s attorney made the reference after the prosecutor informed the court that the prosecution and defense had agreed prior to trial to redact those portions of the recordings in which Tela referenced being “locked up” at some point during his relationship with Thrash. In confirming that agreement, Tela’s attorney stated, “Yes. ... I think that would be to a disadvantage to my client, just hearing that type of information, that in-custody statement.” Thus, the trial court was authorized to conclude that Tela’s trial attorney’s use of the phrase “in-custody statement,” when considered in context, referred to Tela’s statements on the tapes that he had been “locked up” and did not reflect a belief that the tapes contained a statement Tela gave while in custody.

(b) Nevertheless, the attorney stated that his failure to object to the admission of the recordings was “counsel oversight,” due to the volume of his caseload, and he made a mistake in not challenging their admission. He said he thought the introduction of the tapes would be damaging ‘because they were peppered with a lot of offensive language and some racial kind of epithets,” but he did not think they “would be the ultimate finality to the case.”

But, whether the attorney objected or not, the recordings were admissible as relevant evidence of the nature of Tela’s relationship with Thrash and his motive for the shooting. The voice mails left shortly before and after the shooting reflected his state of mind around the time of the crime.

Although motive is not an essential element in proving the crimes charged, the State is entitled to present evidence to establish that there was a motive, and evidence [of Tela’s statements on the voice mails] is relevant to prove that he had a motive for committing the crimes and is not rendered inadmissible by the fact that it incidentally puts his character in issue.

(Citations omitted.) Thornton v. State, 292 Ga. 87, 88-89 (3) (734 SE2d 393) (2012) (upholding admission of evidence of defendant’s drug use as evidence of motive). See also Thomas v. State, 274 Ga. 156, 162 (6) (549 SE2d 359) (2001) (upholding admission of crime scene videotape reflecting a magazine with a nude picture on the cover); Stephens v. State, 214 Ga. App. 183, 186 (5) (447 SE2d 26) (1994) (finding defendant’s statement to emergency room technician regarding his dire financial condition to be relevant to issue of motive for arson). Such relevant evidence is admissible, even though it may be inflammatory. See, e.g., Selley v. State, 237 Ga. App. 47, 48 (1) (514 SE2d 706) (1999) (upholding admission of defendant’s recorded statement to police even though it included references to gang activity, where such activity was a motive for the crime); Kolokouris v. State, 271 Ga. 597, 599 (3) (523 SE2d 311) (1999) (rebuttal evidence of racial bias properly admitted because relevant to issue of motive). Thus, Tela cannot demonstrate that his trial counsel was ineffective in failing to raise a meritless objection to this evidence.

(c) Tela further asserts that his trial counsel was ineffective because he failed to investigate the scene of the shooting, to investigate the location where the gun was found or to speak to the State’s witnesses.

The evidence at the motion hearing indicated that Tela’s attorney requested and received discovery in his case in February 2010 and again in April 2011, several months before his trial. The attorney testified that he discussed the case with Tela during the “limited opportunities” Tela provided. He explained that the opportunities were limited because “[o]ftentimes,” Tela would set appointment dates and then he would not show up, although Tela recalled missing only one such appointment. The attorney also stated that although Tela came to court when his case was on the trial calendar, he often would leave without speaking to his counsel. Nevertheless, they were able to meet on a number of occasions before trial and discuss the case. Additionally, the attorney attempted to contact Thrash and Christopher Farley to interview them before trial, but he was unsuccessful. He explained that often witnesses do not respond to a defense attorney’s call. The attorney conceded, however, that he did not attempt to talk to the lead investigator due to oversight and the volume of work, although he apparently had the officer’s reports because he referenced them at the hearing.

Tela’s trial attorney stated that his defense in the case was to show that no one saw Tela shooting — the crime happened when it was dusk or dark — and the witnesses gave different colors for the car. Moreover, he tried to show that if the car passed by the house once with someone yelling on the passenger side closest to the house, if it turned around in the opposite direction to pass again, that person would have been on the opposite side of the car, making it difficult to shoot. “And so I went into the case with identity, circumstance, and then trying to create as much doubt in the case” and “to create enough fog... to hopefully have his freedom not compromised.” He explained that he was hampered in the possible defenses he could pursue in the case because Tela admitted to him before trial that he shot at the Farley house that night. Tela repeated that admission at the motion hearing. Thus, the attorney said that he was actively trying to get the best plea deal he could, but Tela rejected the State’s offer of twenty years, five to serve.

The trial court found that Tela’s trial attorney’s representation “was adequate and effective given the facts and circumstances of the case with which trial counsel had to work.” The trial court noted the limitations placed on the attorney’s trial strategy by Tela’s admission that he had, in fact, committed the crimes. The court found that the trial attorney “did investigate and prepare the case, including attempting to contact the State’s witnesses, reviewing the State’s file on at least two occasions, thoroughly cross-examining the State’s witnesses, discussing the case with [Tela], and communicating the State’s plea offer to [Tela].” We find no clear error in these findings.

Moreover, we find that Tela failed to establish that but for counsel’s failure to visit the crime scene or the location where the gun was found and his failure to talk to the State’s witnesses, a reasonable probability exists that the outcome of the trial would have been different. Although he describes the resulting effect as “devastating” to the defense, he did not point to any evidence or information that would have been revealed by such investigation. Tela takes specific issue with his trial counsel’s failure to visit the crime scene to test Thrash’s ability to identify his voice as he yelled out of the car, but he makes no proffer or showing of what such a test may have revealed. Thus, Tela failed to point to any potentially exculpatory evidence his trial counsel may have missed. Because Tela failed to offer any evidence or information that he believes his trial counsel failed to uncover or present at trial, “he cannot satisfy his burden of demonstrating prejudice.” (Footnote omitted.) Franks v. State, 278 Ga. 246, 263 (2) (B) (7) (599 SE2d 134) (2004). See also Williams v. State, 258 Ga. 281, 288 (7) (368 SE2d 742) (1988).

Decided March 18, 2013.

Dorian Murry, for appellant.

T. Joseph Campbell, District Attorney, Jana W. Allen, Rosemary M. Greene, Assistant District Attorneys, for áppellee.

Accordingly, we affirm the trial court’s denial of Tela’s motion for new trial.

Judgment affirmed.

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

       Two of the aggravated assault charges were merged for sentencing.

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

       Tela’s motion counsel transcribed five of these voice mails for use at the hearing on his motion for new trial. The transcript indicates that the calls were made on May 29, 2008 at 8:51 p.m. and 11:02 p.m. and on May 30, 2008 at 12:44 a.m.; 1:03 a.m.; and 1:53 a.m. One of the investigating officers testified that the shooting occurred sometime between 9:45 and 9:55 p.m. on May 29, 2008.

       In one of the messages, Tela even invited Thrash to “go ahead and give this message to the police.”


source: Caselaw Access Project

author: Ray, Judge.

license: Public Domain

text:
    A12A2231.
    CALHOUN, GA NG, LLC v. CENTURY BANK OF GEORGIA.
    (740 SE2d 210)
   Ray, Judge.

Century Bank of Georgia (the “Bank”) and Calhoun, GA NG, LLC (“Calhoun”) are owners of adjoining tracts of land in a shopping center located on Highway 53 in Calhoun. The parties agree that they are subject to the terms, easements, and restrictive covenants memorialized in an agreement executed and recorded by their predecessors-in-title. The Bank filed a petition for declaratory judgment in the Superior Court of Gordon County, seeking a ruling that the agreement did not prevent the Bank from constructing a convenience store and a gas fueling facility on its property. The Bank later moved for summary judgment, which the trial court granted in its favor. Calhoun appeals from that order, and finding no error, we affirm.

Summary judgment is appropriate if the pleadings and evidence “show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law.” “On appeal from the grant or denial of summary judgment, we conduct a de novo review, with all reasonable inferences construed in the light most favorable to the nonmoving party.”

So viewed, the record shows that the Bank owns a 5.42-acre tract of land (Tract 2) along Highway 53, which is bounded on the west by Calhoun’s parcel of land (Tract 1). In 1993, Calhoun’s predecessor-in-title sold a portion of its property to the Bank’s predecessor-in-title to open a grocery store. On August 25,1993, in conjunction with this sale, the predecessors-in-title to the Bank and to Calhoun executed a document titled Reciprocal Easement and Restrictive Covenant Agreement (the “Agreement”). The grocery store subsequently went out of business, and the last business to operate on Tract 2 was a car dealership that closed in 2009. The Bank acquired Tract 2 by foreclosure and now seeks to construct a convenience store and gas fueling facility on the property.

The parties do not dispute that the Agreement runs with the land and is binding upon the parties that created it and their successors-in-title. The Agreement contains six sections, including Article I which describes the reciprocal easements in favor of both Tract 1 and Tract 2. The specific easements outlined in Article I of the Agreement that pertain to the Bank’s proposed development are: (1) easements across the passage over areas on Tract 2, now or hereafter constructed, for sidewalks, entrances, drives, lanes, service drives, and parking; (2) easements for utilities and drainage; and (3) easements for the maintenance of drives, lanes, or parking, now or hereafter constructed. The specific restrictive covenants, outlined in Article II of the Agreement, that pertain to the Bank’s proposed development are: (1) “no fences, walls, or barriers . . . shall be permitted which would impair the visibility of the Tracts from the adjoining roads”; (2) a requirement of five parking spaces per every one thousand square feet of building area; (3) a requirement that Tract 2 preserve the flow of traffic and parking to Tract 1; and (4) that no walls will be built between the tracts.

Article V of the Agreement, titled “No Dedication,” states that “subject to the limitations contained in Articles I and II hereof, the owners from time to time of the Tracts shall have the right to expand, alter, modify or demolish all or part of the buildings now or hereafter constructed on said Tracts, or develop said Tracts in any manner they see fit.”

In its summary judgment order, the trial court ruled:

[T]he “No Dedication” clause in Article V of the Agreement is clear and unambiguous and allows [the] [o]wners of Tract 1 and Tract 2 to construct buildings or other structures on the respective Tract in any manner they see fit, as long as the development complies with the easements and restrictive covenants set out in Articles I and II.

1. Calhoun argues that the trial court erred in finding that the Agreement contained a reservation of rights allowing the owner of Tract 2 to alter easements on its property. Thus, Calhoun contends, the trial court erred in awarding summary judgment in favor of the Bank because the Bank’s proposed development alters or eliminates fixed easements across Tract 2 that benefit Calhoun’s property, including “a significant portion of the parking area directly in front of the buildings and other improvements on [Calhoun’s] property[,]” in violation of Georgia law. We disagree.

The Supreme Court of Georgia has held that, consistent with the majority rule in this country, “an easement with a fixed location cannot be substantially changed or relocated without the express or implied consent of the owners of both the servient estate and the dominant estate.” However, the exception to this general rule “provides that the owner of the servient estate has the right to relocate an easement if the instrument creating the easement so provides.” This is so because “if the language of an express grant or reservation of an easement authorizes it, the location of an easement may be changed in accordance with the agreement.”

Accordingly, the issue before us is whether the trial court correctly concluded that the terms of the Agreement authorized the relocation of easements benefitting Tract 1. In construing the language of an express easement, we apply the rules of contract construction. The cardinal rule of contract construction is to ascertain the parties’ intent and “[w]here the contract terms are clear and unambiguous, the court will look to that alone to find the true intent of the parties.” Further, “[t]o determine the intent of the parties, all the contract terms must be considered together in arriving at the construction of any part, and a construction upholding the contract in whole and every part is preferred.” Absent an ambiguity that cannot be resolved by the rules of construction, the interpretation of contractual terms is a question of law for the court.

In SunTrust Bank v. Fletcher, Fletcher was successor-in-title to a shopping mall developer. The same developer conveyed to Sun-Trust’s predecessor-in-title a parcel of land along with the following easement: a “non-exclusive easement license, right and privilege of passage for pedestrians and vehicular ingress and egress over and across all portions of the common areas of the adjacent shopping center.” In the same deed, the developer retained certain rights with the following language: “The adjacent property owner shall have the right to relocate buildings, walkways and parking areas in any manner whatsoever and the easement.. . shall then apply to the area so established.” Fletcher put in parking spaces that blocked Sun-Trust’s drive-through lane, and SunTrust sued. On appeal, this Court held that the language in the deed reserving the right to relocate parking areas granted Fletcher the right to rearrange buildings, parking and walkways, thus forcing SunTrust to rearrange its point of egress onto its property, as long as the easement was maintained.

In Wilcox Holdings, Ltd. v. Hull, two adjoining properties were subject to a declaration that provided for a

permanent mutual reciprocal and non-exclusive easement, license, right and privilege of passage and use, both pedestrian and vehicular, for the purpose of ingress and egress over all roads and driveways and parking upon all parking areas located from time to time upon [both properties].

The declaration contained an exception that “the owners of [the tracts] shall have the right to relocate buildings, walkways and parking areas in any manner whatsoever, and the easement, license, right and privilege granted by this instrument shall then apply to the areas so established.” This Court held that, despite the objections of the adjoining landowner who lost parking spaces and the use of its drive-through window, the declaration’s language granted Hull the right to “rearrange his building and parking spaces as long as the easement is maintained.”

In the present case, Article I of the Agreement states that Calhoun, as the owner of Tract 1, has an easement over and across Tract 2’s “sidewalks, entrances, drives, lanes, service drives and parking areas, which are now or may hereafter from time to time be constructed and used for pedestrian and vehicular traffic” Article III provides that “subject to the limitations contained in Articles I and II hereof, the owners from time to time of the tracts shall have the right to expand, alter, modify all or part of the buildings now or hereafter constructed on said tracts, or develop said tracts in any manner they see fit.” Although the terms of the Agreement in the present case do not specifically address the relocation of easements, as the agreements in Fletcher and Wilcox Holdings do, it is clear from the language in Article I that the Agreement contemplates that Tract 2 might change to include, inter alia, the construction of additional sidewalks, drives, and parking areas and that Tract 1 would retain an easement across these new paths. It is also clear from Article III of the Agreement that the parties intended to include a reservation of right granting the property owners the right to expand, modify, or demolish all or part of the buildings located on their property, so long as the easements and restrictive covenants granted by the Agreement continue to apply to the areas so established. This interpretation of the parties’ intent is further supported by Article III, discussing zoning, which states that the owner of Tract 1

acknowledges and agrees that [the owner of Tract 2] may desire to demolish, construct or expand the building located on Tract 2 as depicted on the Site Plan, and the owner of Tract 1, for itself and its successors and assigns, hereby approves any such expansion and covenants and agrees that it will support. . . any necessary zoning . . . which may be necessary to accomplish such expansion. Accordingly, as in SunTrust and Wilcox Holdings, we find that the Bank’s proposed development does not violate the terms of the Agreement, so long as Tract 2 retains easements as described in the Agreement and that those easements apply to the areas so established.

Decided March 18, 2013

Adam N. Struletz, William R. Thompson, Jr., for appellant.

James F. Ledbetter, for appellee.

2. Calhoun next contends that the trial court’s grant of summary judgment was in error, arguing that the Bank’s proposed development does not comply with the terms of the Agreement relating to the intent of the Agreement or to the Agreement’s requirements pertaining to visibility and parking. However, Calhoun did not raise these objections either in its written brief in opposition to summary judgment or during the summary judgment hearing. It is well settled that “issues presented for the first time on appeal furnish nothing for us to review, for this is a court for correction of errors of law committed by the trial court where proper exception is taken.” Further, “[ajppellate courts do not consider whether summary judgment should have been granted [or denied] for a reason not raised below because, if they did, it would be contrary to the line of cases holding that a party must stand or fall upon the position taken in the trial court.”

Judgment affirmed.

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

       OCGA § 9-11-56 (c).

       (Footnote omitted.) Alston & Bird LLP v. Mellon Ventures II, 307 Ga. App. 640 (706 SE2d 652) (2011).

       (Footnote omitted.) Herren v. Pettengill, 273 Ga. 122, 123 (2) (538 SE2d 735) (2000). Accord SunTrust Bank v. Fletcher, 248 Ga. App. 729 (548 SE2d 630) (2001).

       (Citation omitted.) SunTrust, supra at 732.

       (Citations and punctuation omitted.) Id.

       See Municipal Elec. Auth. of Ga. v. Gold-Arrow Farms, 276 Ga. App. 862, 866 (1) (625 SE2d 57) (2005).

       (Citation and punctuation omitted.) Id.

       (Citations omitted.) Id.

       Id. at 167 (1).

       Supra.

       Id. at 730.

       (Emphasis omitted.) Id.

       Id. at 731-732.

       290 Ga. App. 179 (659 SE2d 406) (2008).

       Id. at 180.

       (Punctuation omitted.) Id.

       Id. at 182 (1).

       (Emphasis supplied.)

       (Emphasis supplied.)

       Compare Sloan v. Sarah Rhodes, LLC, 274 Ga. 879, 880 (560 SE2d 653) (2002) (where deed creating easement does not contain express reservation, owner of servient estate cannot substantially change or relocate fixed easement).

       Although Calhoun does mention the visibility and parking requirements in its brief in opposition to summary judgment, it does so only to argue that the Bank’s “[bjrief seems to take the position that isolated compliance with provisions of the Agreement is sufficient authorization to allow unilateral development of the property.” Calhoun never argued the issue currently before us before the trial court, whether the Bank’s proposed development fails to comply with the Agreement because the proposed fuel station and convenience store block visibility, or because the number of parking spaces may be insufficient.

       (Punctuation and footnote omitted.) Pinnacle Properties V v. Mainline Supply of Atlanta, 319 Ga. App. 94, 100 (2) (735 SE2d 166) (2012).

       (Punctuation and footnote omitted.) Id.


text:
    A12A2382.
    POWERS v. SOUTHERN FAMILY MARKETS OF EASTMAN, LLC.
    (740 SE2d 214)
   Ray, Judge.

After Sylvia Powers slipped and fell in a Piggly Wiggly grocery store owned and operated by Southern Family Markets of Eastman, LLC (“Southern”), she filed a complaint for damages against Southern in the Superior Court of Dodge County. Prior to trial, Powers filed a motion for sanctions based on alleged spoliation of video evidence and a motion to compel discovery. After oral argument, the trial court denied Powers’ spoliation motion and entered an order resolving the discovery disputes. The trial court also granted Southern’s motion in limine prohibiting both parties from making any argument or eliciting any testimony concerning the alleged spoliation of video evidence. Following a jury trial, the jury returned a verdict in favor of Southern. Powers appeals, contending the trial court erred (1) in denying her motion regarding spoliation of the video evidence and (2) in excluding all testimony regarding such evidence. In addition, Powers contends the trial court erred in its ruling on her motion to compel discovery. For the reasons explained below, we affirm.

The evidence shows that, on May 27, 2008, Powers went into the Piggly Wiggly store to shop for groceries. After paying for her selected items, Powers was attempting to exit the store when she slipped and fell. Although Powers testified that she did not see anyone mopping the floor prior to her fall, an employee of Dimitrov’s Cleaning Service, an independent contractor, had been cleaning the floors in the vicinity where Powers fell. When the store manager, Mike Law, responded to the incident, he observed two “wet floor” signs and a mop machine in the area where Powers had fallen. When he asked Powers what had happened, she told him that she knew the floor was wet, and she stated that she thought she would be okay and that she did not need any medical assistance. After Powers walked out of the store, Law went back to his office and signed an incident report, which he is required to do in the ordinary course of business whenever a slip and fall occurs. It was Law’s responsibility to perform investigations and gather information concerning incidents that occurred in the store. As a part of his investigation of this case, Law drew a diagram of the incident and took pictures of the area where the incident occurred.

After his initial investigation, Law reported the incident to Southern’s risk manager, Gina Vitello, and Southern’s third-party administrator, just as he was required to do with any type of incident that occurs on store property. In turn, the third-party administrator contacted Powers as a customer service to ensure that she was okay and to follow up on the initial investigation of the incident. During this follow-up interview, there was no indication of contemplated litigation, nor was there any indication that Powers would be seeking legal counsel or otherwise attempting to take legal action against Southern. As a result, Law did not take any affirmative steps to preserve any video from the day of the incident, and the store video was ultimately recorded over, as would normally occur with any other video footage at the store.

On August 22, 2008, approximately three months after the incident, Southern received notice of contemplated litigation when it was contacted by Powers’ attorney. However, by this time the store’s video footage from the day of the incident no longer existed.

Approximately nine months after the incident, Powers filed suit. As a part of her written discovery requests, Powers asked Southern to produce a copy of any video recording of the store from the day of the incident. In response, Southern stated that it did not have possession, custody, or control of any video recording of the incident. Thereafter, Powers filed her motion for sanctions for spoliation of evidence.

1. Powers contends that the trial court improperly denied her motion regarding spoliation of evidence, arguing that the trial court erred in finding that “because no litigation was contemplated or pending when the tape was recorded over or otherwise not preserved, ... no spoliation of evidence occurred.” We find no merit in this contention.

The trial court has wide discretion in resolving spoliation issues, and we will not disturb its ruling absent abuse.

“[S]poliation refers to the destruction or failure to preserve evidence that is necessary to contemplated or pending litigation.” However, this Court has held:

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

As stated above, the trial court found that Southern did not have notice that Powers was contemplating litigation when the video was recorded over or otherwise not preserved. Citing Baxley v. Hakiel Indus., Powers contends that Law’s actions in completing the incident report, taking pictures, and drawing a diagram of the incident scene immediately after the accident demonstrate that Southern was anticipating litigation. However, this contention is not supported by the record. Although the standardized incident form that Law signed contained pre-printed language that the report was “prepared in anticipation of litigation,” Law’s testimony reflects that, at the time he completed the incident report, he thought that Powers was unharmed and did not believe that her fall might lead to litigation. The evidence further shows that Law’s actions in investigating and reporting the incident were matters of routine practice that he was required to follow when any slip and fall occurred on the premises. Furthermore, we have held that the mere contemplation of potential liability and the completion of an accident report after an investigation do not demonstrate contemplated or pending litigation.

Under these circumstances, we cannot say that the trial court abused its discretion in finding that Southern had no notice that litigation was contemplated or pending at the time the video was not preserved and, thus, that no spoliation occurred.

2. Powers also contends that the trial court erred by not allowing her to question Law at trial about why he did not save the video from the day of the incident. We disagree.

“We review a trial court’s ruling on a motion in limine for abuse of discretion. A motion in limine is properly granted when there is no circumstance under which the evidence under scrutiny is likely to be admissible at trial.”

In light of its ruling that no spoliation of evidence occurred in this case, the trial court granted Southern’s motion in limine, prohibiting both parties from arguing or eliciting testimony regarding the prior availability or the absence of video evidence from the day of the incident. A trial court may exercise its discretion to exclude “relevant evidence if its probative value is substantially outweighed by the risk that its admission will confuse the issue, mislead the jury, or create substantial danger of undue prejudice.” Had the trial court allowed Powers to question Law about the absence of the video, it would have created the presumption under OCGA § 24-4-22 that the claims asserted against Southern were well-founded. As the record shows that no spoliation occurred and that Southern did not intentionally destroy any video footage of the incident, this presumption would mislead the jury and create undue prejudice. Furthermore, there is no evidence in the record that any of the video cameras in the store would have recorded the incident in question and, thus, there has been no showing that the video footage would have been relevant to the issues being tried in this case. Accordingly, we decline to find that the trial court abused its discretion in excluding testimony concerning the absence of video evidence.

3. In enumerations of error regarding the trial court’s ruling on her motion to compel discovery, Powers contends that the trial court erred by (1) not allowing her to have addresses for certain witnesses, and (2) requiring her to sign a confidentiality agreement before receiving Southern’s inspection policy. We discern no error.

“The trial court’s discretion in dealing with discovery matters is very broad, and this [C]ourt has stated on numerous occasions that it will not interfere with the exercise of that discretion absent a clear abuse.”

(a) Powers contends that the trial court erred by not allowing her to have the addresses for two witnesses, Zdenek Kresta and Dimitre Dimitrov, whose affidavits Southern had submitted in support of its motion for summary judgment. Powers argues that Southern should have provided this information in response to discovery requests.

The record shows that Kresta and Dimitrov were employed by the third-party defendant in this case, Dimitrov’s Cleaning Services, which was represented by separate counsel. In its ruling on the motion to compel, the trial court found:

There is no delay to [Powers] by seeking the. Third-Party Defendants’ employees’ information from the Third-Party Defendants directly. It is in control of its employees’ information and [is] a party to this lawsuit. Although the initial discovery period has expired, if [Powers] seeks the address, date of birth, and phone numbers of Mr. Dimitrov and Mr. Kresta from the Third-Party Defendants, the information shall be provided to [Powers],

Thus, it is clear from the record that Powers was allowed the opportunity to obtain the witness information that she sought. We discern no error.

(b) Powers contends that the trial court erred by requiring her to sign a confidentiality agreement before receiving Southern’s inspection policy pursuant to her discovery request. Specifically, Powers argues that Southern’s inspection policy did not warrant such protection and that imposing such a requirement “had the effect of frustrating and preventing legitimate discovery.”

In its written response to this discovery request and at the hearing on the motion to compel, Southern indicated that it would provide the requested policy if Powers would execute a confidentiality agreement stating that the policy would only be used for purposes of the instant litigation. Southern contended that the policy was confidential and proprietary, and that a confidentiality agreement was necessary to protect the information contained therein. In ruling on this issue, the trial court found:

Decided March 18, 2013.

Michael O. Mondy, for appellant.

Bullard & Wangerin, Daniel Bullard IV, Erin S. Corbett, Hall, Booth, Smith & Slover, Mark D. Maholick, Paul D. Ivey, Jr., for appellee.

[Southern] did not refuse to provide its policies outright. It instead requested [Powers] execute a confidentiality agreement stating the policies were not to be used outside the instant litigation and should be returned or destroyed when the case was final. ... [Powers] is not harmed or prejudiced in this suit by executing the confidentiality agreement. She will receive [Southern’s] policies, the very information she seeks. In turn, [Southern] earns assurances that the policies will not be used outside the litigation or released to a competitor, which [Powers] and her counsel have no reason to attempt. Therefore, the [c]ourt finds that [Powers] and her counsel shall execute the confidentiality agreement proposed by [Southern] within ten (10) days of this order if [Powers] remains interested in the policies. Once the agreement has been executed, [Southern] shall submit the policies to [Powers] within ten (10) days of the execution.

As stated above, the trial court has broad discretion in dealing with discovery matters, and this Court will affirm the actions of the trial court unless a clear abuse of discretion is shown. In addition, Powers must show on appeal that the alleged error was harmful. Here, the trial court did not frustrate or prevent legitimate discovery, as Powers asserts. Rather, the trial court granted her relief by ordering Southern to produce the requested documents once she executed the confidentiality agreement. Pretermitting whether such a confidentiality agreement was warranted in this case, Powers has failed to show how she was harmed by this requirement.

Judgment affirmed.

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

       Although the initial complaint was filed against C & S Wholesale Grocers, Inc. d/b/a Piggly Wiggly, the complaint was subsequently amended naming Southern Family Markets of Eastman, LLC d/b/a Piggly Wiggly as the defendant.

        Kitchens v. Brusman, 303 Ga. App. 703, 705 (1) (694 SE2d 667) (2010).

       (Citation and punctuation omitted.) Silman v. Assocs. Bellemeade, 286 Ga. 27, 28 (685 SE2d 277) (2009).

       (Citations and punctuation omitted; emphasis in original.) Craig v. Bailey Bros. Realty, 304 Ga. App. 794, 796-797 (1) (697 SE2d 888) (2010).

       282 Ga. 312 (647 SE2d 29) (2007).

       See Silman, supra (The Supreme Court of Georgia clarified the language in Baxley which could be construed as an expansion of the spoliation standard and reaffirmed that spoliation refers to the destruction or failure to preserve evidence that is necessary to contemplated or pending litigation.).

        Watts & Colwell Builders v. Martin, 313 Ga. App. 1, 5 (1) (720 SE2d 329) (2011).

        Paggett v. The Kroger Co., 311 Ga. App. 690, 692-693 (2) (716 SE2d 792) (2011). See also Lustre-Diaz v. Etheridge, 309 Ga.App. 104,106-107 (709 SE2d 309) (2011) (affirming the denial of spoliation remedies where, based on arguments made and evidence presented, the trial court made explicit factual finding that spoliation had not occurred, and appellate record did not provide basis for reversing that factual finding).

       (Punctuation and footnote omitted.) Hankla v. Jackson, 305 Ga. App. 391, 392 (1) (699 SE2d 610) (2010).

       (Citation and punctuation omitted.)D. G. Jenkins Homes v. Wood, 261 Ga.App. 322, 325 (2) (582 SE2d 478) (2003).

       This Code section, which was in effect at the time of trial, has been repealed by Ga. L. 2011, p. 99, § 2, effective January 1, 2013.

       See OCGA § 24-2-1, which provides that “[e]vidence must relate to the questions being tried by the jury and bear upon them either directly or indirectly. Irrelevant matter should be excluded.” This Code section, which was in effect at the time of trial, has been repealed by Ga. L. 2011, p. 99, § 2, effective January 1, 2013.

       Compare Kitchens, supra at 704-709 (1) (a)-(c) (trial court found that no spoliation of evidence occurred and granted a motion in limine to exclude evidence of spoliation. On appeal, we reversed the trial court’s finding that no spoliation occurred. In light of the reversal, we concluded that the trial court abused its discretion in excluding the evidence of spoliation.).

       (Citation and punctuation omitted.) Hayward v. The Kroger Co., 317 Ga. App. 795, 797 (2) (733 SE2d 7) (2012).

       Id.

        Medical Staffing Network v. Connors, 313 Ga. App. 645, 650 (2) (722 SE2d 370) (2012).


author: McFADDEN, Judge.

text:
    A12A2423.
    UNITED COMMUNITY BANK v. PACK et al.
    (740 SE2d 228)
   McFADDEN, Judge.

United Community Bank brings this interlocutory appeal from the denial of its motion for summary judgment in its action to declare Frank Pack the sole owner of a parcel of land he used as security for certain loans. The bank relies on the divorce decree between Frank Pack and his former wife, Jeanette Pack. But that reliance is misplaced. Whatever the effect of the divorce decree on the mutual rights and obligations of the parties to the divorce, the decree does not have the force and effect of a deed as to the subject property because it does not describe that property with the requisite specificity. We therefore agree with Frank Pack and Jeanette Pack that, notwithstanding the terms of the decree, the property remains their joint property; and the denial of the bank’s motion for summary judgment must be affirmed.

To prevail on a motion for summary judgment under OCGA § 9-11-56, the moving party must show that there exists no genuine issue of material fact, and that the undisputed facts, viewed in the light most favorable to the nonmoving party, demand judgment as a matter of law. Moreover,

on appeal from the denial or grant of summary judgment the appellate court is to conduct a de novo review of the evidence to determine whether there exists a genuine issue of material fact, and whether the undisputed facts, viewed in the light most favorable to the nonmoving party, warrant judgment as a matter of law.

(Citations omitted.) Benton v. Benton, 280 Ga. 468, 470 (629 SE2d 204) (2006).

Viewed in this light, the evidence showed that Frank Pack and Jeanette Pack were married and owned certain property jointly, including the Union County tract at issue. The Packs divorced in 2000. Pursuant to the divorce decree, Jeanette Pack was awarded

all right, title and interest in the former marital residence [,] ... [and] all right, title and interest in the following items of real property: Rich Road property located in Union County, Georgia; Lake Chatuge property located in Towns County, Georgia [;] and the flower shop and all inventory therein located in Union County, Georgia.

The decree provided that Frank Pack would “have all right, title and interest in any property jointly owned by the parties not herein awarded to Plaintiff [Jeanette Pack] as well as any property titled solely in his name and not herein awarded to Plaintiff [Jeanette Pack].” It is undisputed that the property at issue was not awarded to Jeanette Pack in the divorce decree.

Both before and after the divorce, Frank Pack pledged the property as security for loans from the bank. Frank Pack defaulted on the loans. Before the bank began foreclosure proceedings to satisfy the obligation, Jeanette Pack filed and recorded an affidavit in the real estate records asserting that she is a joint owner of the property and that she had not conveyed any interest in the property to the bank.

The bank filed the instant action to clarify the deed and to cancel the cloud on the title in order to pursue foreclosure. The bank then moved for summary judgment, asserting that the divorce decree vested title in the property solely in Frank Pack. The trial court denied the motion based upon the failure of the divorce decree to specify the property. The trial court concluded that “as a matter of law,. . . the divorce decree did not transfer Jeanette Pack’s rights to the property to Frank Pack. [The bank] has failed to show that there are no genuine issues of material fact if no rights to the property were transferred by the divorce decree.”

The bank filed an application for interlocutory appeal to the Supreme Court, which transferred the application here, finding:

The trial court did not grant or deny any request for equitable relief and thus the application [did] not invoke [the Supreme] Court’s equity jurisdiction. Nor [did] the case involve title to land. . . . Additionally, the application [did] not arise from a divorce action below and thus fail[ed] to invoke [the Supreme] Court’s divorce and alimony jurisdiction.

(Citations omitted.) We granted the application, and this appeal followed.

“A final divorce decree which conveys property has the same force and effect as a deed and establishes title, whether or not the decree is recorded.” (Citations omitted.) Price v. Price, 286 Ga. 753, 754 (1) (692 SE2d 601) (2010). It is a long-standing rule

that title to property not described in a verdict or judgment is unaffected by the decree and remains titled in the name of the owners as before the decree was entered. The rule of law is clear, parties to a divorce decree must specifically describe and dispose of .property in which both parties have an interest or the decree will not divest either party of their interest in the property.

(Citations and punctuation omitted; emphasis supplied.) Andrews v. Boykin, 273 Ga. 386, 387-388 (1) (543 SE2d 12) (2001) (quoting Newborn v. Clay, 263 Ga. 622, 623-624 (436 SE2d 654) (1993)). See also Messaadi v. Messaadi, 282 Ga. 126, 127 (1) (646 SE2d 230) (2007).

In Andrews, the parties had entered a separation agreement that was incorporated into their divorce decree and that provided “each party shall retain and have sole right to those properties now in his or her possession.” Andrews, 273 Ga. at 387. The husband was living in the property at issue, but neither the separation agreement nor the decree identified any parcel of real property. Id. The Supreme Court held that “[b]ecause this settlement agreement and decree did not specifically describe the real property at issue, title to it was unaffected by the decree and after the divorce it remained titled in both” the husband and wife. Id. at 388 (1).

The bank relies on Hollis v. Hollis, 278 Ga. 303 (602 SE2d 644) (2004), but Hollis is distinguishable. The settlement agreement incorporated into the decree in Hollis specified that each party was awarded the residence in which he or she was “currently living,” thereby sufficiently describing a particular piece of property so as to transfer title. Id. at 304-305. And in Hollis, the parties’ agreement, by its terms, referred to only two parcels of property, “the residence in which [the wife] was living and the residence in which [the husband] was living,” id. at 304, as compared to agreements that refer to more uncertain categories of properties, such as all properties in a party’s possession, Andrews, 273 Ga. at 387, or, as here, all properties not named as going to the wife. Compare Gonzalez v. Crocket, 287 Ga. 430 (696 SE2d 623) (2010) (holding that decree that described marital residence at a particular address conveyed that five-acre parcel but did not convey the adjacent 21.9-acre tract, not described in the decree, even though both parcels were subdivided from a 26.9-acre tract of land and adjacent tract did not have a separate address).

Here, the decree specified the property that was to go to Jeanette Pack. It granted to Frank Pack all other property “jointly owned by the parties not herein awarded to [Jeanette Pack] as well as any property titled solely in [Frank Pack’s] name and not herein awarded to [Jeanette Pack].” But it did not specifically describe the jointly held property. Because the Packs’ divorce decree “did not specifically describe the real property at issue, title to it was unaffected by the decree and after the divorce it remained titled in both” Jeanette Pack and Frank Pack as joint tenants. Andrews, 273 Ga. at 388 (1).

Decided March 18, 2013.

Stites & Harbison, Catherine M. Banich, for appellant.

Bruce W. Phillips, John C. Pennington, for appellees.

Judgment affirmed.

Barnes, P. J., and McMillian, J., concur.


author: Branch, Judge.

text:
    A12A1676.
    TUDOR v. THE STATE.
    (740 SE2d 231)
   Branch, Judge.

James Melvin Tudor was tried by a Whitfield County jury and convicted of two counts of aggravated sexual battery, four counts of child molestation, and one count of enticing a child for indecent purposes. He now appeals from the denial of his motion for a new trial, asserting that the evidence was insufficient to sustain his convictions. Finding that the evidence supports the jury’s verdict, we affirm.

On appeal from a criminal conviction, the defendant is no longer entitled to a presumption of innocence and we therefore construe the evidence in the light most favorable to the jury’s guilty verdict. Martinez v. State, 306 Ga. App. 512, 514 (702 SE2d 747) (2010). So viewed, the record shows that this case involved three victims: B. C., her younger sister H. C., and R. H. At the time of the incidents in question, B. C. was seven years old and H. C. and R. H. were each four years old. Tudor’s wife, Donnelle, babysat all of the victims in the couple’s home. On April 7, 2009, Donnelle left B. C. and H. C. in the care of her husband while she went to pick up her grandchildren from school. That evening, B. C. reported to her mother that when Donnelle left the home, she and H. C. were sitting on the sofa in the living room watching cartoons. After Donnelle departed, Tudor called her into the kitchen area of the home, told B. C. to lean across the kitchen table, and stuck his hand down her pants. B. C. also told her mother that H. C. was present when Tudor molested her. When questioned by her mother, H. C. confirmed that she saw B. C. bent over the kitchen table and Tudor sticking his hand down her pants.

The mother reported this incident to the Whitfield County-Sheriffs Department, which arranged for her to take B. C. to a local hospital. Once at the hospital, B. C. was interviewed by both the detective assigned to investigate her claims as well as the nurse who examined her for signs of possible sexual molestation. B. C. gave substantially similar accounts to both the detective and the nurse of what Tudor had done. Specifically, B. C. told both of them that after Donnelle left the house that day, Tudor called B. C. into the kitchen and told her to lie across the kitchen table. He then placed his hands inside B. C.’s pants, beneath her underwear, and fondled her vaginal area and digitally penetrated her anus. Despite B. C.’s protests, Tudor did not stop until Donnelle returned to the residence. Tudor gave B. C. a piece of candy, and told her several times not to tell anyone what had happened, warning her that if she did, she would not get any more candy.

B. C. also told the detective that her younger sister, H. C., was present in the kitchen when Tudor molested her. Additionally, B. C. repeated her account of what had occurred during an interview conducted by a certified forensic interviewer. This interview was recorded and that recording was introduced into evidence at trial and played for the jury. The forensic interviewer also conducted an interview of H. C., and a recording of that interview was introduced into evidence and played for the jury. During that interview, H. C. confirmed that she had been present in the kitchen when Tudor molested her sister, and that afterward Tudor had given them candy.

The nurse who examined B. C. at the hospital is certified as an advanced sexual assault nurse examiner, and she was qualified as an expert at trial. During the physical exam of B. C., the nurse observed symptoms in B. C.’s genital and anal areas that were consistent with someone fingering, rubbing, or digitally penetrating those areas. The nurse made clear that she could not state definitively whether digital penetration, other trauma, or fondling had occurred; she could only say that the physical symptoms she observed were consistent with that type of trauma.

As a result of the interviews and the physical exam of B. C. at the hospital, Tudor was arrested. Donnelle Tudor then contacted the father of R. H., another young girl whom she babysat. The father subsequently asked R. H. if Tudor had ever “played” with her. The child declined to answer the question at the time. Later that day, however, R. H. volunteered to her father that on at least one occasion she had been napping at the Tudor home and woke to find Tudor with his hand down her pants, fondling her buttocks. The father contacted the detective investigating the allegations of molestation relating to B. C., and the detective arranged for a forensic interview of R. H. During that interview, R. H. repeated her account of how Tudor had molested her. A recording of that interview was introduced into evidence at trial and played for the jury.

The State also introduced similar transaction evidence which showed that approximately ten years earlier Tudor had been accused of and investigated for sexually molesting his great-niece, C. K. Specifically, the evidence showed that Donnelle Tudor babysat C. K. five days a week, in the Tudor home, for a period of approximately four to six months. On the day in question, Donnelle went to the store and left C. K., who was then seven years old, in the care of Tudor. Tudor told C. K. to stand in front of him and when she did so, he unzipped her pants, placed his hands beneath her underwear, and fondled her vaginal area and her buttocks. Tudor then told C, K. not to tell anyone what had happened.

Tudor testified in his own defense at trial and denied all of the allegations against him.

Based on this evidence, the jury found Tudor guilty. On appeal, he contends that the evidence does not support the jury’s verdict.

1. Tudor contends that the evidence is insufficient to support his convictions for aggravated sexual battery and child molestation, because the physical evidence presented by the State to support these allegations was “inconclusive.” This argument is devoid of merit.

Physical evidence of a sexual battery or molestation of a child is not necessary to obtain a conviction for either of those crimes. See, e.g., Lee v. State, 306 Ga. App. 144, 145 (1) (701 SE2d 582) (2010) (to sustain a conviction for aggravated sexual battery, “penetration of the victim’s sexual organ need only be slight and a physical injury need not be shown”) (citation omitted); Dew v. State, 292 Ga. App. 631, 633 (1) (b) (665 SE2d 715) (2008) (“a conviction for child molestation does not require a showing that the victim was touched beneath her clothing”) (citation, punctuation and footnote omitted). Moreover, in determining whether the evidence suffices to sustain a conviction, our review is not limited to the physical evidence presented. Rather, “we ask whether, after viewing [all of] 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.” (Citation and punctuation omitted.) Louisyr v. State, 307 Ga. App. 724, 727-728 (1) (706 SE2d 114) (2011).

Here, the evidence presented included physical evidence of trauma to B. C. that was consistent with both aggravated sexual battery and molestation. That physical evidence, together with the consistency of the victims’ statements to the outcry witnesses, law enforcement, and the forensic interviewer, the similar transaction testimony, and the evidence showing opportunity, sufficed to establish each element of the charges of aggravated sexual battery and child molestation. See Inman v. State, 295 Ga. App. 461, 464-465 (2) (671 SE2d 921) (2009) (“[e] vidence that appellant’s finger penetrated the sexual organ of the victim was sufficient for the jury to find beyond a reasonable doubt that appellant committed an act of aggravated sexual battery”) (citation and punctuation omitted); Howard v. State, 268 Ga. App. 558, 559 (602 SE2d 295) (2004) (evidence, which included victim’s consistent statements to multiple persons about the defendant’s molestation of her and injuries consistent with molestation sufficed to find defendant guilty of child molestation and aggravated child molestation). And although Tudor testified that he did not commit the charged offenses, the jury was not required to believe his testimony. “As we have explained before, it is the role of the jury to resolve conflicts in the evidence and to determine the credibility of witnesses, and the resolution of such conflicts adversely to the defendant does not render the evidence insufficient.” (Citation and punctuation omitted.) Heidt v. State, 292 Ga. 343 (1) (736 SE2d 384) (2013).

2. Attempting to expand the application of the Supreme Court of Georgia’s decision in Garza v. State, 284 Ga. 696 (670 SE2d 73) (2008), regarding kidnapping offenses, Tudor argues that the evidence against him failed to satisfy the asportation element required for enticing a child for indecent purposes. We disagree, noting that enticing a child for indecent purposes is a markedly different crime from kidnapping.

Under Georgia law, “[a] person commits the offense of enticing a child for indecent purposes when he or she solicits, entices, or takes any child under the age of 16 years to any place whatsoever for the purpose of child molestation or indecent acts.” OCGA § 16-6-5 (a). Both this Court and the Supreme Court of Georgia have held that the element of “soliciting, enticing, or taking” of a child requires asportation — i.e., to satisfy this element of the crime, the evidence must show some movement of or by the child. See Cimildoro v. State, 259 Ga. 788, 789 (1) (387 SE2d 335) (1990); Heard v. State, 317 Ga. App. 663, 665 (731 SE2d 124) (2012). As Tudor concedes in his brief, evidence showing even slight movement of the victim will satisfy the asportation element of enticing a child for indecent purposes. See Moore v. State, 319 Ga. App. 696, 698 (1) (738 SE2d 140) (2013) (noting that “any evidence [of movement], no matter how slight, is sufficient to establish asportation”) (citation omitted). See also Hicks v. State, 254 Ga. App. 814, 816 (2) (563 SE2d 897) (2002) (movement of child that occurred when defendant pulled the child toward him constituted asportation under OCGA § 16-6-5 (a)).

In Garza, the Supreme Court of Georgia addressed the growing number of cases which relied on the principle that even slight movement of the victim satisfies the asportation element of the kidnapping statute, even though there had been no actual abduction or “stealing away” of the victim. Under these cases, the Supreme Court noted, “almost any crime [during] which a victim moves [following their] initial contact with the defendant would authorize a kidnapping charge.” (Citation and punctuation omitted.) 284 Ga. at 699 (1). And, the court concluded, this “expansive construction of asportation distorts the purpose of the kidnapping statute and raises serious constitutional issues.” Id. Additionally, the Garza court also expressed its concern that “an expansive construction of asportation . . . effectively eviscerates the distinction between kidnapping and false imprisonment, the latter of which is treated by our statutory code as a serious crime but one that is far less serious than the crime of kidnapping.” Id. at 700-701 (1). Thus, the Supreme Court concluded that to determine whether movement constitutes the asportation necessary for kidnapping, a court was to examine:

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

(Citation and footnote omitted.) Id. at 702 (1).

Relying on the rationale of Garza, Tudor argues that this Court should apply the four-part test set forth therein for the asportation element in the kidnapping context to the asportation element of enticing a child for indecent purposes. And under that test, he asserts, the movement of B. C. the short distance from the living room sofa to the kitchen table is insufficient to sustain his conviction for enticing a child for indecent purposes, because the movement was of short duration and because it was merely incidental to the crimes of aggravated sexual battery and child molestation.

We do not find Tudor’s argument persuasive because it fails to acknowledge that, by design, the crimes of kidnapping and enticing a child for indecent purposes punish very different conduct. As demonstrated by the plain language of the kidnapping statute, it seeks to punish the “abduction” or “stealing away” of a person for any purpose whatsoever. Thus, the Supreme Court of Georgia adopted the four-factor Garza test to

assist Georgia prosecutors and courts alike in determining whether the movement in question is in the nature of the evil the kidnapping statute was originally intended to address — i.e., movement serving to substantially isolate the victim from protection or rescue — or merely a “criminologically insignificant circumstance” attendant to some other crime.

(Citation omitted.) Id.

While slight movement of a victim during the commission of some other crime may not represent the evil the kidnapping statute is designed to address, the same cannot be said for the slight movement of a child for indecent purposes. Indeed, the statute at issue is designed to punish any movement of a child, if that movement is for the purpose of sexually molesting, assaulting, or battering the child. Thus, the Garza court’s particular concerns over the interpretation of asportation in the kidnapping context do not exist under OCGA § 16-6- 5. In light of the specific purpose for which a child must be moved to prove enticing a child for indecent purposes, there is no danger that a violation of OCGA § 16-6-5 will be charged as a result of “any crime in which a [child] victim moves” following “the point of [his] initial contact with the defendant.” Garza, 284 Ga. at 699 (1). Similarly, allowing only slight or minimal movement of the child to satisfy the asportation element of OCGA § 16-6-5 does not distort the purpose of that statute.

Decided March 19, 2013.

Lora M. Alsher, Christopher G. Paul, for appellant.

Moreover, the purpose of the enticing statute — which is to punish the movement of any child for the purpose of indecent acts against him — means that the movement it prohibits is, by definition, movement that presents “a significant danger to the victim independent of the danger posed by [any] separate offense.” Id. at 702 (1). Finally, unlike a true kidnapping, the enticement of a child for indecent purposes will often be “incidental” to other crimes, including the crimes that were committed when indecent acts were committed against the child. The fact that asportation of a child might be incidental to the molestation of that child, however, does not mean that the movement of the child, standing alone, cannot constitute a separate offense. For these reasons, we decline to extend the rationale of Garza to OCGA § 16-6-5.

Turning now to the question of whether the movement of B. C. the short distance from the living room sofa to the kitchen table satisfies the asportation element required to sustain Tudor’s conviction of enticing a child for indecent purposes, we find that it does. See Whorton v. State, 318 Ga. App. 885, 887 (1) (a) (735 SE2d 7) (2012) (evidence that defendant called victim to come from a different part of the house and into his bedroom, for the purpose of showing her pornography, satisfied the asportation element); Hicks, supra, 254 Ga. App. at 816 (2).

Judgment affirmed.

Miller, P. J., and Ray, J., concur.

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

       OCGA § 16-6-22.2(b).Forsentencingpurposes, thetrialcourtmergedoneofthesecounts with one of the counts of child molestation.

       OCGA § 16-6-4 (a).

       OCGA § 16-6-5 (a).

         The evidence at trial indicated that this case was never indicted or prosecuted because C. K.’s family moved out of the county and could not be located.

       “A person commits the offense of aggravated sexual battery when he or she intentionally penetrates with a foreign object the sexual organ or anus of another person without the consent of that person.” OCGA § 16-6-22.2 (b).

       A person commits the offense of child molestation when he “[djoes any immoral or indecent act to or in the presence of or with any child under the age of 16 years with the intent to arouse or satisfy the sexual desires of either the child or the person.” OCGA § 16-6-4 (a) (1).

       The actual holding of Garza was superseded by the legislature’s subsequent amendment to the kidnapping statute, OCGA § 16-5-40, which became effective on July 1, 2009. See Hammond v. State, 289 Ga. 142 (710 SE2d 124) (2011).

       For example, in Garza the defendant had broken into the victims’ home and held them at gunpoint. The victims never left the residence, and the movement relied on by the State to establish kidnapping was the movement that occurred when one victim fell to the floor after being struck by the defendant and the subsequent movement of that victim from the floor to a chair. 284 Ga. at 696. The defendant had also moved the second victim from one bedroom to another in the family home. Id. The Supreme Court of Georgia reversed the kidnapping convictions, finding that the movement in question was merely incidental to the crimes of aggravated assault and false imprisonment, of which the defendant had also been convicted. Id. at 701.

       The constitutional concerns noted by the Garza court included the fact that by interpreting the kidnapping statute so broadly, the courts created “the potential for cumulative punishment under more than one criminal statute for a single course of conduct, [thereby] implicating] the principle of substantive double jeopardy____”284 Ga. at 700 (1). Additionally, convicting a person of kidnapping merely because they physically moved a victim during the course of an aggravated assault or a false imprisonment “poses a potential procedural due process problem.” Id.
      Though a person of ordinary intelligence would readily know that confining others against their will or committing armed robbery are acts which the law forbids, we are concerned that the plain language of the kidnapping statute may fail to provide fair warning that forcing the victims to move, however slightly, within the situs of the crime would justify prosecution for kidnapping.
      Id.


author: MCFADDEN, Judge.

text:
    A12A1728.
    NASH et al. v. TOWNSHIP INVESTMENTS, LLC.
    (740 SE2d 236)
   MCFADDEN, Judge.

Township Investments, LLC brought an action on a promissory note executed by Norman Nash and Norris Nash. The parties filed cross-motions for summary judgment, and in the order on appeal the trial court granted summary judgment to Township and denied summary judgment to the Nashes. Because there exist genuine issues of material fact about whether the Nashes received consideration for the note, summary judgment is not appropriate in this case. Accordingly, we reverse the grant of summary judgment to Township. The Nashes have not asserted as error the trial court’s denial of their cross-motion for summary judgment, and we affirm that portion of the trial court’s order.

Summary judgment is appropriate where there is no genuine issue as to any material fact and the moving party is entitled to judgment as a matter of law. OCGA § 9-11-56 (c). “On appeal from the grant or denial of a motion for summary judgment, we review the evidence de novo, and all reasonable conclusions and inferences drawn from the evidence are construed in the light most favorable to the nonmovant.” (Citation omitted.) Spectera, Inc. v. Wilson, 317 Ga. App. 64, 66 (730 SE2d 699) (2012).

So viewed, the evidence shows that, in 2005, Township loaned $475,151.93 to Metropolitan Land Development and Investment Corporation. Norman Nash, in his capacity as Metropolitan’s Chief Executive Officer, executed a promissory note to Township for this amount, and he also signed a personal guaranty of that indebtedness. The 2005 note was renewed several times over the following years, and in each instance Norman Nash personally guaranteed Metropolitan’s indebtedness to Township. By September 2008, Metropolitan’s indebtedness to Township exceeded $670,000.

On September 8, 2008, Norman Nash and Norris Nash signed the document at issue in this case. Titled a “Promissory Note,” it pertinently provided:

For value received, the undersigned Norman J. Nash and Norris J. Nash (the “Borrowers”) jointly and severally promise to pay to the order of Township Investments, LLC (the “Lender”) the sum of Four Hundred Seventy Eight Thousand, Eight Hundred Dollars ($478,800.00) together with interest from September 8, 2008 on the unpaid principal at the rate of Eight Percent (8%) per annum, compounded monthly.

The note also included terms concerning, among other things, payment and renewal. The Nashes defaulted on the note, leading to this action. This action was based on the obligation set forth in the note from the Nashes to Township, and not on the antecedent obligations of Metropolitan that Norman Nash had personally guaranteed.

Although the Nashes acknowledge signing the note and agree that Township has presented a true and correct copy of it in this action, they argue that, notwithstanding its terms, it does not evidence an indebtedness but merely memorializes the parties’ various business dealings. However, by signing the note, the Nashes unconditionally contracted with Township to pay the note according to its terms, Lovell v. Georgia Trust Bank, 318 Ga. App. 860, 863 (2) (734 SE2d 847) (2012), and those terms cannot be modified by parol evidence. See OCGA § 13-2-2 (1) (“Parol evidence is inadmissible to add to, take from, or vary a written contract.”). A “plaintiff seeking to enforce a promissory note establishes a prima facie case by producing the note and showing that it was executed. Once that prima facie case has been made, the plaintiff is entitled to judgment as a matter of law unless the defendant can establish a defense.” (Citations and punctuation omitted.) Core LaVista, LLC v. Cumming, 308 Ga. App. 791, 795 (1) (b) (709 SE2d 336) (2011). Township has presented a prima facie case for the enforcement of the note. See Shropshire v. Alostar Bank of Commerce, 314 Ga. App. 310, 315 (3) (724 SE2d 33) (2012); Rodgers v. First Union Nat. Bank, 220 Ga. App. 821, 822 (1) (470 SE2d 246) (1996).

The Nashes, however, have asserted the defense of lack of consideration. See Foreman v. Chattooga Intl. Technologies, 289 Ga. App. 894, 895-896 (658 SE2d 470) (2008) (defense of lack of consideration can rebut prima facie case for judgment on note). Township is not entitled to summary judgment on the note if the Nashes can point to specific facts in the record establishing their affirmative defense. See Lovell, 318 Ga. App. at 865 (3); Secured Realty Investment v. Bank of North Georgia, 314 Ga. App. 628, 629 (1) (725 SE2d 336) (2012).

The terms of the note do not specify the nature of the consideration that the Nashes received in exchange for executing the note. Cf. Tyson v. McPhail Properties, 223 Ga. App. 683, 686 (3) (478 SE2d 467) (1996) (recitation of nominal consideration of $10 in option agreement signed under seal was sufficient as matter of law to support agreement). Instead, the note states that it was given in exchange “[f]or value received.” This recital is an ambiguity that, in light of the Nashes’ defense, permits the admission of parol evidence regarding the specific nature of the consideration. See Smith v. Thigpen, 298 Ga. App. 572, 573 (680 SE2d 604) (2009); Foreman, 289 Ga. App. at 896.

Township’s managing member, Gerald Ashworth, deposed that the purpose of the note was to satisfy Metropolitan’s outstanding indebtedness to Township and that Township was willing to accept the note, although it promised payment of a lesser amount than what was owed, because it was executed by Norman Nash and Norris Nash in their individual capacities. He deposed that he discussed this purpose with the Nashes and that they agreed to execute the note. (The record is unclear concerning Norris Nash’s relationship with Metropolitan. Ashworth deposed that “Norman Nash and Metropolitan Development [were] one and the same, as well as Norris.” He also understood Norris Nash to be involved with the financing of Metropolitan.) Citing Smith v. Thigpen, supra, 298 Ga. App. 572, Township argues that the satisfaction of Metropolitan’s antecedent obligation (for which Norman Nash also was personally obligated as guarantor) constituted sufficient consideration for the note executed by the Nashes. See also Gouldstone v. Life Investors Ins. Co. of America, 236 Ga. App. 813, 817 (1) (b) (514 SE2d 54) (1999) (finding sufficient consideration where corporate officer, in her individual capacity, co-signed promissory note given in payment of corporation’s antecedent obligation).

The Nashes, however, dispute Ashworth’s deposition testimony that the note was given to satisfy Metropolitan’s antecedent obligation. Norman Nash deposed that he received no value for the note, that he did not “even know what this one [(the note) was] for,” and that Township did not cancel Metropolitan’s antecedent obligation. Both of the Nashes also submitted affidavit testimony that they neither “received any money from Township” nor “agreed, either orally or in writing, to assume [the] debt of Metropolitan in exchange for said debt being lowered.”

Consequently, a genuine issue of material fact exists as to whether the Nashes executed the note in exchange for the satisfaction of Metropolitan’s antecedent obligations to Township. Given this factual dispute, the trial court erred in granting summary judgment to Township on the note, and we reverse that ruling by the trial court. See Weintraub v. Cobb Bank & Trust Co., 249 Ga. 148, 149 (2) (288 SE2d 553) (1982) (grant of summary judgment to plaintiff in action on promissory note was error where defendant proffered evidence of failure or want of consideration sufficient to create genuine issue of fact).

Decided March 19, 2013.

Webb, Tanner, Powell, Mertz & Wilson, Anthony O. L. Powell, Benjamin A. Joffe, for appellant.

Charles D. Joyner, for appellee.

Judgment affirmed in part and reversed in part.

Barnes, P. J., concurs. McMillian, J., concurs in judgment only.


text:
    A12A1904.
    WILDER v. THE STATE.
    (740 SE2d 241)
   McFADDEN, Judge.

After a jury trial, James Wilder was convicted of statutory rape, aggravated child molestation, two counts of child molestation and two counts of sexual exploitation of a child based on acts he committed with a 15-year-old girl. On appeal, this court affirmed the convictions, holding in part that Wilder’s motion to suppress incriminating evidence found in a briefcase had been properly denied pursuant to the independent source exception to the exclusionary rule. Wilder v. State, 304 Ga. App. 891, 891-894 (1) (698 SE2d 374) (2010). The Supreme Court of Georgia reversed that decision on the ground that the independent source doctrine did not apply. Wilder v. State, 290 Ga. 13, 15-17 (2) (717 SE2d 457) (2011). However, the Supreme Court remanded the case for consideration of the possible applicability of the inevitable discovery and third-party consent doctrines. Wilder, 290 Ga. at 17 (3). On remand, the trial court found that both doctrines did apply and that the motion to suppress had thus been properly denied. Wilder appeals. Because the trial court correctly ruled that the inevitable discovery doctrine applies, we affirm.

The Supreme Court, quoting from Wilder, 304 Ga. App. at 892 (1), set forth the following pertinent facts established at the suppression hearing.

[A]n investigating officer received information from the victim and another woman, April Quick, that Wilder had a briefcase containing videotapes of the victim and Wilder engaging in sex acts, and that the briefcase was at the home of Wilder’s friend, Judy Malin. Malin testified that Wilder had been at her home with the victim on one occasion and that, on another occasion, Wilder left a locked briefcase at her home and told her he would “pick it back up later.” Malin stated further the briefcase was at her home for several months before she was contacted by the officer who asked that she turn it over to him. She testified that she was reluctant, confused, and frightened, but that she “felt like she was cooperating with whatever needed to be done” and that she wanted the briefcase “out of my house.”
The officer requested that Quick retrieve the briefcase from Mai in’s home and bring it to him. Quick testified that when she gave him the briefcase, the officer gave her $20 “for my gas because I had no gas.” Once the officer had possession of the briefcase, he obtained a search warrant to search its contents. Inside the briefcase officers found DVDs containing explicit images of the victim, videotapes containing images of Wilder and the victim engaging in sexual intercourse, and copies of portions of the Georgia Code (downloaded while the victim was 15 years old) defining sodomy, statutory rape, and child molestation with the text “under the age of 16 years” highlighted.

(Citation and punctuation omitted.) Wilder, 290 Ga. at 13-14.

The Supreme Court went on to explain that

[a]s the foregoing recitation of facts reflects, there was but a single search of Wilder’s briefcase, and this search was conducted only after issuance of a search warrant, the validity of which is not at issue. Wilder’s contentions thus center on the warrantless seizure of the briefcase prior to issuance of the search warrant.

Wilder, 290 Ga. at 15 (2). The Court further noted that it was uncontested that the taking of the briefcase, although actually performed by private citizen Quick, constituted an act of the state proscribed by the Fourth Amendment because it was instigated by the investigating officer. Id. at 15 (2), n. 2.

1. Inevitable discovery doctrine.

Wilder claims that the trial court erred in concluding that the motion to suppress was properly denied under the inevitable discovery doctrine. The claim is without merit.

Under the inevitable discovery doctrine, if the [s]tate can prove by a preponderance of the evidence that evidence derived from police error or illegality would have been ultimately or inevitably discovered by lawful means, then the evidence is not suppressed as fruit of an impermissible search or seizure. In other words, there must be a reasonable probability that the evidence in question would have been discovered by lawful means, and the prosecution must demonstrate that the lawful means which made discovery inevitable were possessed by the police and were being actively pursued prior to the occurrence of the illegal conduct.

(Citations and punctuation omitted.) Schweitzer v. State, 319 Ga. App. 837, 839 (738 SE2d 669) (2013). See also Taylor v. State, 274 Ga. 269, 274-275 (3) (553 SE2d 598) (2001).

In this case, even if we presume that the warrantless seizure of the briefcase was unlawful, prior to that seizure the investigating officer had information from the minor victim and Quick that the briefcase contained videotapes of Wilder engaging in sexual activity with the victim, and that the briefcase was located at Malin’s house. That information included Quick actually having seen Wilder play a brief portion of one of the videotapes, which depicted him and the victim engaged in oral sex, and Wilder then placing the videotape in the briefcase. The officer investigated the information by, among other things, contacting Malin to confirm that the briefcase was in fact at her house. The officer called Malin two or three times to discuss the briefcase, she confirmed that Wilder had left the briefcase at her house, and she complied with the officer’s request to give the briefcase to Quick so she could turn it over to the officer.

Within 24 hours of receiving the briefcase, the officer applied for a warrant to search the contents of the briefcase. In his application and affidavit, the officer included not only the information he had obtained from Quick prior to the seizure of the briefcase, but also information provided by the victim as well as two other witnesses interviewed as part of the officer’s ongoing investigation. In light of the record before us, we find that there was a reasonable probability that the evidence in question would have inevitably been discovered by lawful means. The investigating officer possessed information about the contents and location of the briefcase, he was actively pursuing investigation of that information, and such information provided probable cause to authorize seizure of the briefcase. See Teal v. State, 282 Ga. 319, 326-327 (2) (647 SE2d 15) (2007) (inevitable discovery where investigation prior to police error resulted in information that served as basis for issuance of search warrant). Accordingly, “we discern no error in the trial court’s ruling that the contents of the [briefcase] would have been inevitably discovered as part of the [lawful investigation] of [Wilder].” Schweitzer, supra.

Decided March 19, 2013

Michael O. Morgan, for appellant.

Dennis C. Sanders, District Attorney, Kevin R. Majeska, Assistant District Attorney, for appellee.

2. Third-party consent.

Because of our holding above in Division 1, we need not consider appellant’s further claim that the trial court erred in finding the seizure lawful under the third-party consent doctrine. Even if we assume for the sake of argument that such finding was error, the trial court’s correct conclusion that the motion to suppress was properly denied pursuant to the inevitable discovery doctrine mandates affirmance of the trial court’s ruling. See generally Fincher v. State, 276 Ga. 480, 481 (2) (578 SE2d 102) (2003) (trial court’s ruling on motion to suppress will be upheld if it is right for any reason).

Judgment affirmed. Barnes,

P. J., and McMillian, J., concur.


author: PHIPPS, Presiding Judge.

text:
    A12A2133.
    RIDDICK v. THE STATE.
    (740 SE2d 244)
   PHIPPS, Presiding Judge.

After a third trial on the same charge, William Riddick was convicted of child molestation. He appeals his conviction, contending that: (1) the evidence was insufficient; (2) the trial court erred by declaring a mistrial during the first trial; (3) the trial court erred in its charge to the jury on prior inconsistent statements; and (4) his trial attorney in the third trial was ineffective. For the reasons that follow, we affirm.

1. Riddick contends that the evidence was insufficient because there was no testimonial evidence that he “put his finger in [the victim]’s vagina,” as alleged in the indictment.

“On appeal from a criminal conviction, the evidence must be viewed in the light most favorable to support the verdict, and [Rid-dick] no longer enjoys a presumption of innocence[,]”

We do not weigh evidence or determine witness credibility; that is the function of the jury. Instead, we construe the evidence in the light most favorable to the verdict to determine whether it was sufficient to authorize a rational trier of fact to find [Riddick] guilty of the[ ] offense [ ] beyond a reasonable doubt.

A person commits the offense of child molestation when he “[d] oes any immoral or indecent act to or in the presence of or with any child under the age of 16 years with the intent to arouse or satisfy the sexual desires of either the child or the person [,]” The indictment charged, pertinently, that Riddick committed the offense of child molestation by “touching [the child’s] vagina and placing his finger in her vagina.”

“Where conjunctive pleadings set forth more than one act by which the accused committed the crime, the evidence is sufficient so long as it shows at least one of the acts alleged.” “If a crime may be committed in more than one way, it is sufficient for the [s]tate to show that it was committed in any one of the separate ways listed in the indictment, even if the indictment uses the conjunctive rather than disjunctive form.”

At trial (in 2010), the then 19-year-old victim testified that she told the police in 2005 that one night Riddick, her father, with whom she had lived, had entered her bedroom and touched her vagina. The victim had also written a statement to the police in 2005 about that night. She wrote that, when she was younger, Riddick had come into her bedroom at night, moved her underwear, and “put his hand in [her] & moved it around a little bit.” The trial court admitted the written statement in evidence, which Riddick asserts was error. The state also presented evidence that Riddick had committed prior similar crimes against his two stepdaughters when they were youngsters. The evidence, even absent the written statement, was sufficient to authorize the jury to conclude that Riddick was guilty of child molestation for touching the victim’s vagina.

2. Riddick contends that the trial court erred by declaring a mistrial after the first trial, and that thus, his retrial was barred based on double jeopardy grounds.

OCGA § 16-1-8 (a) (2) pertinently provides that, “[a] prosecution is barred if the accused was formerly prosecuted for the same crime based upon the same material facts, if such former prosecution . . . [w]as terminated improperly after the jury was impaneled and sworn.” Riddick claims that the trial court improperly terminated the first trial because it erroneously concluded that his trial counsel had violated the Rape Shield Statute.

“As a general rule, a defendant’s failure to file a written plea in bar prior to a second trial waives the right to subsequently raise a challenge on procedural double jeopardy grounds.” Riddick has not shown that he raised the doctrine of procedural double jeopardy prior to his second trial. As a result, he may not raise this issue in this appeal.

3. Riddick contends that the trial court erred in its charge to the jury on prior inconsistent statements. We disagree.

Specifically, Riddick claims that the trial court admitted in evidence the child’s prior written statement to the police for impeachment purposes only and thus erred by instructing the jury that it could consider the statement not only for impeachment purposes, but also as substantive evidence. It has long been established, however, that “a prior inconsistent statement of a witness who takes the stand and is subject to cross-examination is admissible as substantive evidence, and is not limited in value only to impeachment purposes.”

The victim, in her 2005 written statement to the police, gave a detailed account of Riddick’s molestation of her. When called as a witness at trial by the state and asked to recall events from her 2005 written statement, the victim testified, “I don’t want to be here today.” She also testified, “I don’t want my daddy to go to jail.” When the victim was asked about the statement she gave to the police, she stated that she remembered making the written statement but “didn’t know that it [would] come back on me years later.” When she was asked whether Riddick had touched any of her “private areas,” she responded, “I want to go home.” When confronted with her written statement and given an opportunity to review it, she testified, “I know I wrote that then but it’s hard for me to remember right now.” And when asked whether what she wrote in the statement was true, she stated, “I don’t know. I don’t remember.” When asked whether she had lied “about all of that before,” she responded, pertinently: “I didn’t want my sisters to be mad at me.”

“If a reluctant witness testifies that [s]he does not remember whether . . . [s]he made a prior statement, the state is then entitled to introduce the prior statement as inconsistent with the in-court testimony of the witness.” The record showed that the victim was reluctant to testify against Riddick, her father. Accordingly, her written statement to the police was admissible as a prior inconsistent statement and constituted substantive evidence of Riddick’s actions. The trial court did not err in instructing the jury that it could consider the prior statement for impeachment purposes and also as substantive evidence.

4. Riddick contends that his trial attorney in the third trial was ineffective for: (a) failing to file a plea in bar of former jeopardy before the third trial based on the trial court’s grant of a mistrial in the first trial; and (b) failing to object to the trial court’s charge to the jury on prior inconsistent statements.

“To prevail on [an ineffective assistance of counsel] claim, [Rid-dick] must show that his trial counsel provided deficient performance and that, but for that unprofessional performance, there is a reasonable probability that the outcome of the proceeding would have been different.” “If [Riddick] fails to meet either prong of the test for ineffective assistance of counsel, it is not incumbent upon this [c]ourt to examine the other prong.”

(a) Riddick contends that his trial attorney in the third trial was ineffective for failing to file a plea in bar of former jeopardy before the third trial based on the trial court’s grant of a mistrial in the first trial.

Riddick’s trial attorney in the third trial was not the same attorney who represented him in the first and second trials. When the attorney entered the case, Riddick had already waived the right to raise a challenge on procedural double jeopardy grounds because he had failed to file a written plea in bar prior to the second trial. The failure of Riddick’s trial attorney in the third trial to file a meritless motion does not amount to ineffective assistance. Thus, Riddick has not shown that his attorney in the third trial performed deficiently by failing to file a plea in bar prior to the third trial.

Decided March 19, 2013.

Thomas S. Robinson III, for appellant.

Tracy Graham-Lawson, District Attorney, Elizabeth A. Baker, Assistant District Attorney, for appellee.

(b) Riddick contends that his trial attorney in the third trial was ineffective for failing to object to the trial court’s charge to the jury on prior inconsistent statements. For the reasons discussed in Division 3, such an objection would have been futile. Therefore, Riddick cannot show deficient performance of his trial attorney.

Judgment affirmed.

Ellington, C. J., and Dillard, J., concur.

       Both earlier trials resulted in mistrials.

        Jackson v. State, 252 Ga. App. 268 (1) (555 SE2d 908) (2001) (citation, punctuation and footnote omitted).

        Morgan v. State, 277 Ga. App. 670, 671-672 (1) (627 SE2d 413) (2006) (footnote omitted).

       OCGA § 16-6-4 (a) (1).

        Watson v. State, 301 Ga. App. 824, 826 (689 SE2d 104) (2009) (citations and punctuation omitted).

        Wilson v. State, 234 Ga. App. 375 (1) (506 SE2d 882) (1998) (citation omitted).

        SeeJudice v. State, 308 Ga. App. 229,231-232 (2) (707 SE2d 114) (2011) (child molestation conviction affirmed where evidence showed that defendant violated the statute prohibiting child molestation in at least two of the ways alleged in the conjunctive in the indictment); Martin v. State, 299 Ga. App. 845, 847 (1) (683 SE2d 896) (2009) (victim’s testimony alone was sufficient to establish that defendant had committed child molestation when he touched victim as alleged in the indictment, by “placing his hand on and about” her vagina).

        Alexander v. State, 279 Ga. 683, 685 (2) (b) (620 SE2d 792) (2005) (citation omitted); Ramirez v. State, 217 Ga. App. 120-122 (456 SE2d 657) (1995); Hooks v. State, 138 Ga. App. 539, 540 (3) (226 SE2d 765) (1976); Phelps v. State, 130 Ga. App. 344 (2) (203 SE2d 320) (1973).

       See Alexander, supra; Ramirez, supra; Hooks, supra; Phelps, supra.

        Gibbons v. State, 248 Ga. 858, 862 (286 SE2d 717) (1982).

        Green v. State, 298 Ga. App. 17, 21 (1) (679 SE2d 348) (2009) (citations omitted); Holiday v. State, 272 Ga. 779, 781 (2) (534 SE2d 411) (2000).

       See Polite v. State, 273 Ga. App. 235, 241-242 (8) (614 SE2d 849) (2005) (a trial court does not err in giving a jury instruction that accurately states the law and is supported by slight evidence); Davis v. State, 244 Ga. App. 345, 346 (2) (535 SE2d 528) (2000).

        Pennie v. State, 292 Ga. 249, 251 (2) (736 SE2d 433) (2013), citing Strickland v. Washington, 466 U. S. 668, 687, 694 (104 SC 2052, 80 LE2d 674) (1984).

        Thomas v. State, 318 Ga. App. 849, 857 (5) (734 SE2d 823) (2012), citing Battles v. State, 290 Ga. 226, 229 (2) (719 SE2d 423) (2011).

       See Alexander, supra; Ramirez, supra; Hooks, supra; Phelps, supra.

        Lupoe v. State, 284 Ga. 576, 580 (3) (f) (669 SE2d 133) (2008).

       Supra.

        Lupoe, supra at 579 (3) (f) (the failure to pursue a futile objection does not amount to ineffective assistance).