author: Phipps, Chief Judge.

text:
    A13A1678.
    RICHARDS v. WELLS FARGO BANK, N.A.
    (754 SE2d 770)
   Phipps, Chief Judge.

Sammy Richards, acting pro se, appeals the trial court’s January 29, 2013 order granting summary judgment in favor of Wells Fargo Bank, N.A., Successor By Merger to Wells Fargo Home Mortgage, Inc., and finding his motion for leave to file counterclaims moot. For the following reasons, we affirm the grant of summary judgment in favor of Wells Fargo. However, we vacate the trial court’s ruling denying Richards’s motion for leave to file counterclaims and remand the case for the trial court to exercise its discretion and issue a ruling on the merits of the motion.

On December 19, 2003, Richards gave Wells Fargo a deed to secure a debt on property Richards had purchased. The security deed pertinently provided that Richards did “grant and convey to [Wells Fargo] .. ., with power of sale,” the property at issue. On March 24, 2011, Richards filed in county real property records a document entitled “AFFIDAVIT REVOCATION OF POWER OF ATTORNEY Revoking All Rights for Deed Under Power Pursuant to OCGA § 10-6-141,” purporting to “revoke[ ] any and all rights given at closing to Wells Fargo,” on the basis that Wells Fargo had induced him to sign the security deed “under misrepresentation of the facts.” Then, on June 27, 2011, Richards filed a document entitled “Affidavit of Forgery Pursuant to OCGA [§] 44-2-23,” wherein he stated that the security deed was a forgery because the “document was altered to include the Notary’s witness at sometime unbeknownst to the Mortgagor/Borrower and prior to filing into Clayton County Records on 1/7/2004.”

On December 6,2011, Wells Fargo filed a Complaint for Declaratory Relief, asserting that

[i]n the Security Deed to [Wells Fargo], [Richards] specifically waived any right to judicial foreclosure, granting to [Wells Fargo]... the power to foreclose and sell the Property by non-judicial foreclosure upon [Richards’s] default as defined therein and appointing [Wells Fargo] ... as [Richards’s] agent and attorney-in-fact to exercise such power of sale.

Wells Fargo asserted, therefore, that the aforementioned affidavits Richards filed “call the validity of the Security Deed and power of sale into question and create a cloud upon [Wells Fargo’s] title to the Property.” Wells Fargo sought “a judgment declaring and confirming the validity of the Security Deed and the power of sale contained therein, which grants to [Wells Fargo] . .. the power to foreclose and sell the Property by non-judicial foreclosure upon [Richards’s] default and appointing [Wells Fargo] ... as [Richards’s] agent and attorney-in-fact to exercise such power of sale.” On September 10, 2012, Wells Fargo filed an amendment to its complaint, re-alleging therein all assertions of its original complaint, and additionally asserting a “Quiet Title” claim, seeking “an Order pursuant to OCGA § 23-3-40 et seq. removing” the affidavits Richards had recorded in the county real property records, “as clouds upon [Wells Fargo’s] title to the Property.”

On September 24, 2012, Wells Fargo moved for summary judgment. On December 5, 2012, Richards, citing OCGA § 9-11-13 (f), filed a motion for leave to file counterclaims, asserting that through oversight, inadvertence, and excusable neglect, he had failed to allege compulsory counterclaims in his answer; and that justice required the trial court to grant him leave to file the counterclaims. In its order granting summary judgment in favor of Wells Fargo, the trial court ruled that “[bjased on this court’s ruling on the Motion for Summary Judgment which resolves all issues in the action, the defendant’s Motion for Leave to File Counterclaims is MOOT.”

1. Richards contends that the trial court erred in granting summary judgment in favor of Wells Fargo because “a genuine issue of material fact existed as to whether [he] executed a waiver of [his] rights entitling [Wells Fargo] to nonjudicial foreclosure.” He argues that “[t]he recorded Security Deed omits a waiver of borrower’s rights, which is the critical instrument that gives [Wells Fargo] the right to nonjudicially foreclose. This absence alone is sufficient to create an inference that a waiver of borrower’s rights was never executed by [him].”

A de novo standard of review applies to an appeal from a grant of summary judgment, and we view the evidence, and all reasonable conclusions and inferences drawn from it, in the light most favorable to the nonmovant. If no issue of material fact exists and the moving party is entitled to judgment as a matter of law, summary judgment is proper.

Richards cites no authority for the proposition that the absence of a “waiver of borrower’s rights” instrument renders an otherwise valid power of sale in a security deed unenforceable. In this case, the security deed contained a power of sale provision which authorized Wells Fargo (which held the security deed), in the event of a default on the loan, to enforce satisfaction of the debt by foreclosure, without utilizing the judicial process. Accordingly, Wells Fargo was entitled to judgment as a matter of law, and the trial court did not err in granting summary judgment to Wells Fargo on this basis.

2. Richards contends that the trial court “erred by holding that a power coupled with an interest is not revocable at will rather than analyzing revocability in the context of fraud.” He asserts that “[a] question of material fact remains whether the Affidavit of Forgery voided the Power of Sale.”

In Gurr v. Gurr, the Supreme Court of Georgia said that “a power of sale in a security deed is a power coupled with an interest____ A power coupled with an interest is not revocable by death. Nor is it revocable at will.” Therefore, Richards did not, by the mere filing of an affidavit, void the'power of sale he had given to Wells Fargo in the security deed. Furthermore, contrary to Richards’s contention, the trial court did “analyz[e] revocability in the context of fraud” based on allegations of fraud Richards had made.

3. Richards contends that the trial court “erred in granting summary judgment because a genuine issue of material fact existed whether [he] actually conveyed the power of sale to [Wells Fargo].” He asserts that “where there is no intent to pass a certain property interest, no conveyance occurs,” and that he “submitted sufficient evidence to raise a question of fact whether [he] intended to convey the Power of Sale specifically.”

Richards failed, in his brief opposing Wells Fargo’s motion for summary judgment (and in his appellate brief), to point to any evidence to support his claim; and the appellate record contains no hearing transcript. Richards executed an affidavit, which is included in the record, wherein he admitted that he had voluntarily signed the Security Deed. Richards also fails to show that he raised this issue below and that the trial court ruled on it. Absent a ruling from the trial court as to this issue, there is nothing for us to review.

4. Richards’s contention that the trial court “erred in granting declaratory judgment to [Wells Fargo] because declaratory relief is improper where further action is required to extinguish the controversy” has no merit. Richards states in his appellate brief: “The proper cause of action was a statutory quiet action.” Wells Fargo amended its complaint to assert a “Quiet Title” claim, pursuant to OCGA § 23-3-40 et seq., and the motion for summary judgment concerned, inter alia, that claim.

5. Richards contends that the trial court erred in barring him from proceeding on his counterclaims.

(a) He asserts: “The trial court erred in finding [his] Motion For Leave moot because [Wells Fargo] was not entitled to Summary Judgment.” But, as discussed above, the trial court did not err in granting summary judgment in favor of Wells Fargo.

(b) We do find some merit, however, in Richards’s assertion that “[e]ven if [Wells Fargo] was entitled to [s]ummary [j]udgment, the trial court should have granted the Motion For Leave... because [his] counterclaims are independent from judgment in favor of [Wells Fargo].”

OCGA § 9-11-13 (f) permits a party to add a compulsory counterclaim, in the court’s discretion, upon a showing of “oversight, inadvertence, or excusable neglect, or when justice requires.” Richards moved for leave based on all four factors. But the trial court denied Richards’s motion on the basis that it was moot given the court’s grant of summary judgment in favor of Wells Fargo. “Amotion is moot when a determination is sought on a matter which, when rendered, cannot have any practical effect on the existing controversy.” “A moot [issue] is one which seeks to determine an abstract question which does not arise upon existing facts or rights.” An abstract question is “[o]ne which does not rest upon existing facts or rights.”

In ruling that the motion was moot, the trial court cited the foliowing excerpt from Kace Investments L.P. v. Hull: “[W]hile under the Code the right to amend is very broad, it may not be exercised after a case has been tried and a judgment rendered therein which has not been set aside or vacated.” Indeed, “[a] party against whom summary judgment has been granted is in the same position, as if he suffered a verdict against him.” But Race Investments L.P. does not apply to this case. What is prohibited, as explained in Summer-Minter & Assoc. (upon which this court relied in Race Investments L.P.), is a party’s attempt to recast a cause of action after judgment has been granted in favor of the opposing party. In Summer-Minter & Assoc., after the Supreme Court of Georgia reversed the trial court’s denial of the defendants’ motion for summary judgment, but before the remittitur became the judgment of the trial court, the plaintiffs amended their complaint by alleging a new theory of recovery. The Court held: “We cannot authorize these plaintiffs to launch a new lawsuit through amendment after our final decision on summary judgment any more than we can permit a defendant to employ a new defense following a ruling on summary judgment in favor of the plaintiff as to liability.”

Unlike the plaintiffs in Summer-Minter & Assoc., Richards did not file his motion following the trial court’s grant of summary judgment. Richards filed his motion for leave to file counterclaims on December 5,2012, well before the trial court’s January 29,2013 grant of Wells Fargo’s summary judgment motion. Moreover, Richards sought permission to file what he claimed were compulsory counterclaims; the right to assert a compulsory counterclaim is lost if not asserted in a primary action. At the time it was filed, the motion rested upon matters or rights not determined by the grant of Wells Fargo’s motion for summary judgment in this case. Accordingly, the trial court erred in ruling that the motion was moot.

The trial court had discretion, based upon any of the factors listedinOCGA § 9-11-13 (f), to permit the filing ofthe counterclaims; but it issued no ruling pursuant to OCGA § 9-11-13 (f).

Where a ruling of the trial court which is ordinarily one within the sound discretion of the court shows that no discretion was, in fact, exercised, and the judgment rendered is based upon an erroneous view of the law which would preclude the exercise of a discretion, a new trial results.

Decided February 10, 2014.

Sammy L. Richards, pro se.

Diment Carroll, Dana G. Diment, Michael A. Dominy, for appellee.

Therefore, the judgment of the trial court denying Richards’s motion as moot is vacated, and the case is remanded to the trial court for the court to exercise its discretion and issue a ruling on the merits of the motion.

Judgment affirmed in part and vacated in part, and case remanded.

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

       OCGA § 9-11-13 (f) provides: “Omitted counterclaim. When a pleader fails to set up a counterclaim through oversight, inadvertence, or excusable neglect, or when justice requires, he may by leave of court set up the counterclaim by amendment.”

        Naraine v. City of Atlanta, 306 Ga. App. 561 (703 SE2d 31) (2010) (citations omitted); see OCGA § 9-11-56 (c).

       See Gurr v. Gurr, 198 Ga. 493, 508-509 (4) (32 SE2d 507) (1944) (“A power of sale in a... security deed becomes a part of the security, conferred for the purpose of effectuating the same. It is a remedy by contract intended to substitute the remedy by law, should the creditor see fit to avail himself of it.”) (citations omitted).

       Supra.

       Id. at 505 (4) (citations omitted).

       See OCGA § 9-11-56 (e), pertinently providing:
      ... When a motion for summary judgment is made and supported as provided in this Code section, an adverse party may not rest upon the mere allegations or denials of his pleading, but his response, by affidavits or as otherwise provided in this Code section, must set forth specific facts showing that there is a genuine issue for trial. If he does not so respond, summary judgment, if appropriate, shall be entered against him.

       See Zywiciel v. Historic Westside Village Partners, 313 Ga. App. 397, 406 (12) (721 SE2d 617) (2011); Osborne v. City of Marietta, 302 Ga. App. 475, 477 (3) (690 SE2d 664) (2010).

       See EarthLink, Inc. v. Eaves, 293 Ga. App. 75, 78-79 (4) (666 SE2d 420) (2008).

        Carlock v. Kmart Corp., 227 Ga. App. 356, 360-361 (489 SE2d 99) (1997).

        Chastain v. Baker, 255 Ga. 432, 433 (2) (339 SE2d 241) (1986).

       Black’s Law Dictionary (6th ed. 1991).

       278 Ga. App. 477 (629 SE2d 26) (2006).

       Id. at 482 (1) (a).

        Ellington v. Tolar Constr. Co., 142 Ga. App. 218, 220 (235 SE2d 729) (1977), citing Summer-Minter & Assoc. v. Giordano, 231 Ga. 601, 604 (203 SE2d 173) (1973) (punctuation omitted).

       Supra.

        Summer-Minter & Assoc., supra at 601-603.

       Id. at 606; see Smith v. Lockridge, 288 Ga. 180, 186 (4) (702 SE2d 858) (2010).

       Richards, in his motion for leave to file counterclaims, sought to assert against Wells Fargo claims for fraud, “Georgia RICO,” breach of duty of good faith and fair dealing, “conventional quia timet and rescission for fraud,” wrongful foreclosure, damages, and equitable relief.

        See Aycock v. Calk, 228 Ga. App. 172, 175 (491 SE2d 383) (1997) (having failed to assert compulsory counterclaim in prior action either in their answer or by properly amended answer with leave of trial court, appellants lost such claim and were “now forever barred from asserting such claim against” opposing party).

       See generally Davis v. Wilson, 280 Ga. 29-30 (622 SE2d 325) (2005). Compare generally Jones v. Isom, 223 Ga. App. 7, 9 (2) (477 SE2d 139) (1996) (where trial court correctly concluded that appellants failed to serve appellee within the applicable statute of limitation and properly granted appellee’s motion to dismiss, trial court also correctly concluded that appellants’ motion for entry of default and motion for partial summary judgment were rendered moot).

        Unnever v. Stephens, 142 Ga. App. 787, 789 (2) (236 SE2d 886) (1977) (citations omitted); see Ellington, supra.

       See generally Unnever, supra.


source: Caselaw Access Project

license: Public Domain

text:
    A13A1911.
    FRANKLIN v. THE STATE.
    (754 SE2d 774)
   Phipps, Chief Judge.

A police search of the residence where Jerome Franklin lived with his girlfriend yielded a substantial amount of marijuana and related paraphernalia. Franklin was not at home when the search was conducted, but was indicted (along with the three men who were at the residence when the police arrived) for possession of more than one ounce of marijuana and possession of marijuana with intent to distribute. Franklin was tried alone, and the jury found him guilty as charged. After merging the two counts, the trial court sentenced Franklin for possession of marijuana with intent to distribute. In this appeal, Franklin challenges the sufficiency of the evidence. We affirm.

Where an appellant challenges the sufficiency of the evidence “the relevant question is whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt.” So viewed, the evidence showed the following.

The residence in question fell within the ambit of a drug investigation after police received citizen complaints about activities occurring upon the premises. A police officer specially trained in drug dealing initiated surveillance. The officer, qualified at trial as an expert in drug investigation and operations, described observations that indicated to him sales of narcotics: “[P]eople from inside the residence came out to the front curtilage and street of the residence and met with cars, made a quick hand-to-hand exchange, then the person went back into the house. And the person and the people in the vehicle left.” Thus, the officer set up a controlled drug buy. He sent an undercover investigator to the residence, where the investigator purchased a small quantity of marijuana from an individual at the home. Thereafter, the officer procured a warrant authorizing the police to search the residence for marijuana and related objects.

On December 5, 2011, the warrant was executed. When the team of law enforcement officers arrived at the residence, two men were sitting in the garage with its door open; the men raced into the house, closing the garage door. Discerning that their approach had thus been compromised, the officers abruptly breached the front door and entered the residence in an effort to secure the premises.

A strong odor of unburned marijuana permeated the house. The two men who had fled the garage — identified later as Michael Heads and Okeem Forde — were found hiding, together with a third man, in an upstairs bedroom closet. These three men would later become Franklin’s co-indictees.

With the occupants collected and being held in a single room, officers began searching the premises for marijuana and related objects. As explained by the expert narcotics officer at trial, objects that typically indicated that marijuana was being sold included “baggies of various sizes, colors, markings ... used for street level and mid level distribution”; digital scales in various sizes, which were commonly used in the sale of narcotics; large quantities of United States currency; and guns and other weapons for protection against the police and robbers. The evidence seized in this case was discovered primarily in the garage and in several bedrooms, and included the following.

In the garage, police found on a chair a large plastic bag that contained 5.84 grams of marijuana. Inside a container with the label “Nutter Butter,” police found approximately 22 small plastic bags, each of which held between 0.3 and 0.5 grams of marijuana. A locked safe located in the garage was found to contain four bags of marijuana, which bags weighed a total of approximately eighty grams. Atop the safe was a digital scale with marijuana residue on its weighing surface. Inside a toolbox was a handgun. A second handgun was located “at the scene.”

In an upstairs bedroom, delineated at trial as “the last bedroom on the right, which was painted pink,” a large digital scale was atop a desk. Inside the desk drawer were two small digital scales. In that bedroom, police found a baggie of marijuana, weighing 0.89 gram. Also in that bedroom, police found four bags; the contents of three tested positive as marijuana and weighed 26.80 grams, 28.19 grams, and 13.67 grams. The fourth bag contained 3.98 grams of green leafy material, which was not tested. In that bedroom, police also found various items bearing Franklin’s name — pieces of mail, traffic citations, and a pill bottle that contained a small amount of marijuana. And police discovered inside a shoe box on the floor $1,103 in United States currency.

In another bedroom, delineated at trial as “the front left bedroom,” police discovered $1,000 in United States currency wadded up in a shoe.

In a third bedroom, delineated at trial as the “master bedroom,” which was “the first bedroom on the right when you came up the stairs,” police found inside a jewelry box a small plastic bag containing marijuana. Inside a night stand in that room was a large plastic bag containing several small plastic bags of marijuana, weighing a total of 6.7 grams; the small plastic bags were of the same type (of small bag) as those discovered throughout the residence. Atop a shelf in the master bedroom closet, police found a small plastic bag of marijuana; and on the closet floor, police found a small plastic bag of marijuana. It had been in this closet that the three men were discovered hiding.

The expert narcotics officer recounted at trial that, when Franklin was thereafter taken into custody, he gave a statement to police. Franklin admitted that the marijuana found in the master bedroom night stand was his. He also admitted, but then abruptly denied, that the safe belonged to him. Franklin disclaimed ownership of the cash, guns, and all other marijuana found at the residence (including that found in the safe). Franklin also denied selling marijuana. The state played for the jury an audio-video recording of Franklin’s police interview.

On cross-examination of the expert narcotics officer, Franklin elicited testimony that one of the men extracted from the master bedroom closet had claimed ownership of the two small bags of marijuana discovered therein, that his (Franklin’s) girlfriend had claimed ownership of the marijuana found in the jewelry box in the master bedroom, and that the aggregate weight of the marijuana seized from the master bedroom was less than one ounce.

Franklin’s girlfriend, called as a witness for the state, testified that she owned the residence and that she and Franklin slept in the master bedroom. She testified that, while she believed that the three men found at the house during the search had been selling marijuana, Franklin had not been selling it. She admitted, however, that she and Franklin had shared and smoked marijuana. The state elicited further from Franklin’s girlfriend testimony about two of her telephone conversations with Franklin while he was in jail. On December 8, 2011, Franklin said to her that investigators would try to coax the three men found at their home to snitch on one another. Also, Franklin told his girlfriend that one of his co-indictees needed to “take [the charges in this case].” During their telephone conversation on August 11, 2012, which was a few days before the start of his trial, Franklin told his girlfriend to send a postcard to Forde instructing him to claim ownership of marijuana discovered. Franklin had concluded that, because Forde had already resolved his case by pleading guilty, Forde should claim all the drugs and drug paraphernalia. That way, Franklin explained to his girlfriend, he (Franklin) would not have to “take the hit.” During this telephone call, Franklin’s girlfriend informed him that she had been subpoenaed by the state to testify, and Franklin told her to plead the Fifth. The state played for the jury an audio-recording of their August 11, 2012 conversation.

Co-indictee Heads, testifying under a grant of testimonial immunity, named Franklin as one of the individuals who had sold drugs out of the house. On cross-examination, Franklin elicited Heads’s testimony that he frequently visited the residence and was permitted to enter any room at will.

Franklin elected not to testify, but called co-indictee Forde to the stand. Forde had been one of the two men who fled the garage when police converged upon the scene, and a small bag of marijuana had been discovered on his person after he was extracted from the closet. By the time Franklin was tried, Forde had entered a guilty plea relating to contraband confiscated during the search and was hence serving a prison sentence. Franklin elicited from Forde testimony that he (Forde) had sometimes spent nights at the residence in question; that he was allowed to enter any room at will; that pursuant to entering a guilty plea, he had admitted ownership of the marijuana found in the “Nutter Butter” container; that he had been selling marijuana out of that residence; that he had not known Franklin to sell or distribute marijuana; and that he had never seen Franklin with more than an ounce of marijuana. Although Forde affirmed on cross-examination that he owned the marijuana found in the “Nutter Butter” container, as well as some of the marijuana found in the pink bedroom, he expressly disclaimed ownership of the marijuana that was found inside the safe.

Franklin contends in this appeal that the evidence was insufficient for the jury to find him guilty of either drug charge (possession of more than one ounce of marijuana and possession of marijuana with the intent to distribute). In particular, he cites evidence that the third man extracted from the master bedroom closet had claimed ownership of the marijuana found in that closet; that Forde had claimed ownership of marijuana found in the pink bedroom, as well as the marijuana found in the “Nutter Butter” container; and that his girlfriend had claimed ownership of the marijuana found in the jewelry box. Franklin asserts that the only marijuana unaccounted for was the marijuana stored in the safe. Franklin acknowledges in his brief that “in response to questions by the police, Defendant admitted owning a safe where approximately 80 grams of marijuana were located,” but points out that he disclaimed ownership of that marijuana; further, Franklin cites evidence that when the police converged upon the residence, two men were inside the garage with the safe. Hence, according to Franklin, the state presented no evidence linking ownership of the marijuana inside the safe to him. Moreover, Franklin claims, the state adduced no evidence that “[he] had been observed actually selling any drugs.”

Franklin’s challenge to the evidence sufficiency thus hinges on what Franklin claims were weaknesses, conflicts or inconsistencies in the state’s case.

But any evidentiary weaknesses, conflicts, or inconsistencies were for the jury to resolve. We do not speculate which evidence the jury chose to believe or disbelieve. Where as here, there was sufficient evidence, even [if] contradicted, to support each fact necessary to make out the state’s case, we must uphold the jury’s verdict.

Decided February 10, 2014.

Mickey G. Roberts, for appellant.

Daniel J. Porter, District Attorney, Karen M. Harris, Assistant District Attorney, for appellee.

Accordingly, Franklin’s sole contention on appeal presents no basis for overturning the judgment of conviction.

Judgment affirmed.

Ellington, P. J., and Branch, J., concur.

       An expert in the field of chemical analysis of narcotics testified to having tested approximately 175 grams of the “green leafy material” seized, and that the material tested was marijuana.

       See OCGA §§ 16-13-2 (b) (providing for misdemeanor punishment for “possession of marijuana, which possession is of one ounce or less”); 16-13-30 (j) (1) (“It shall be unlawful for any person to possess, have under his or her control, manufacture, deliver, distribute, dispense, administer, purchase, sell, or possess with intent to distribute marijuana”).

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

       The expert in the field of chemical analysis of narcotics testified that the entirety of the “green leafy material” collected as evidence was not tested because “we’re looking for weight to the highest charge, as far as 28.35 grams, which we consider a felony. Once you reach that amount and you have multiple bags, you can stop at that point.”

        Dix v. State, 307 Ga. App. 684, 686 (1) (705 SE2d 903) (2011) (punctuation and footnote omitted) (rejecting sufficiency challenge to drug convictions based on claimed evidentiary weaknesses or inconsistencies, where evidence presented at trial met standard of Jackson, supra); see Davis v. State, 287 Ga. App. 478, 481-482 (5) (651 SE2d 750) (2007) (rejecting sufficiency challenge to drug convictions, where arguments raised questions that merely demonstrated questions of fact for the jury); see further Smith v. State, 297 Ga. App. 526-528 (677 SE2d 717) (2009); Heller v. State, 275 Ga. App. 637-638 (1) (621 SE2d 591) (2005); see also OCGA § 16-2-21 (concerning parties to a crime). The trial transcript reveals that the final charge to the jury included instructions on parties to a crime, joint and sole possession, and actual and constructive possession. Franklin raises no claim of error with respect to the jury charges.


author: McFadden, Judge.

text:
    A13A2324.
    ODION v. ODION.
    (754 SE2d 778)
   McFadden, Judge.

Gege Odion appeals the trial court’s order determining that it is an inconvenient forum and declining to exercise jurisdiction over this action for change of custody and contempt. We conclude that the trial court did not abuse its discretion in considering the eight factors of OCGA § 19-9-67 (b), the child custody inconvenient forum statute, and declining to exercise jurisdiction. We therefore affirm.

In a proceeding in the Superior Court of Gwinnett County, Gege Odion and Titilayo Odion were divorced in 2003, and physical custody of their two children was awarded to Titilayo Odion. Titilayo Odion and the children moved from Georgia in 2003, first to New Jersey and then, in 2011, to Texas. Gege Odion filed this action in 2012, seeking, among other things, physical custody of the children. Titilayo Odion filed a “Motion to Dismiss for Inconvenient Forum,” along with an answer and counterclaim for contempt. After conducting a hearing, the trial court entered an order declining to exercise jurisdiction, staying the matter, and administratively closing it.

1. Inconvenient forum.

Gege Odion challenges the trial court’s decision declining to exercise jurisdiction. Pursuant to OCGA § 19-9-67 (a),

a court with jurisdiction under the Uniform Child Custody Jurisdiction and Enforcement Act (OCGA § 19-9-40 et seq.) may decline to exercise its jurisdiction at any time if it determines that it is an inconvenient forum under the circumstances and that a court of another state is a more appropriate forum. However, OCGA § 19-9-67 (b) further provides [that b] efore determining whether it is an inconvenient forum, a court of this state shall consider whether it is appropriate for a court of another state to exercise jurisdiction. For this purpose, the court shall allow the parties to submit information and shall consider all relevant factors, including: (1) Whether family violence has occurred and is likely to continue in the future and which state could best protect the parties and the child; (2) The length of time the child has resided outside this state; (3) The distance between the court in this state and the court in the state that would assume jurisdiction; (4) The relative financial circumstances of the parties; (5) Any agreement of the parties as to which state should assume jurisdiction; (6) The nature and location of the evidence required to resolve the pending litigation, including testimony of the child; (7) The ability of the court of each state to decide the issue expeditiously and the procedures necessary to present the evidence; and (8) The familiarity of the court of each state with the facts and issues in the pending litigation.

Lucado v. Coherd, 320 Ga. App. 241, 242 (739 SE2d 749) (2013) (punctuation and emphasis omitted). “[I]n order to ensure that the court’s decision-making process was guided by the statutory requirements, the court must make specific findings either in writing or orally on the record demonstrating that the court has considered all eight of the factors.” Id. at 242-243.

Here, the trial court found that it had jurisdiction under the Uniform Child Custody Jurisdiction and Enforcement Act, OCGA § 19-9-40 et seq., because it had rendered a prior custody determination in the parties’ divorce case in 2003 and because Gege Odion is a resident ofGeorgia with significant ties to the state. SeeOCGA § 19-9-62 (a). But the court determined that it was an inconvenient forum and made specific, written findings in its order, demonstrating that it considered the eight factors. Gege Odion challenges the trial court’s consideration of and findings on several of the factors.

(a) Gege Odion enumerates as error the trial court’s finding that an order evincing family violence existed in the record. Yet in the argument section of his brief, Gege Odion acknowledges that family violence orders exist in the record; he merely challenges the evidence supporting those orders. At the hearing, the trial court heard Titilayo Odion’s testimony about occurrences of family violence. Based in part on this testimony, the trial court found that “acts of family violence have occurred in the past and are likely to continue.” In this bench trial, “the trial court acted as finder of fact as well as determiner of the law, and was free to ascertain for itself the credibility of the witnesses.” Smith v. Smith, 281 Ga. 380, 382 (1) (637 SE2d 662) (2006). And “[t]he trial court’s factual findings will be upheld if there is any evidence to support them.” Alejandro v. Alejandro, 282 Ga. 453 (1) (651 SE2d 62) (2007) (citation omitted). As Titilayo Odion’s testimony supports the trial court’s factual findings, Gege Odion has not shown error.

(b) Gege Odion argues that the trial court erred when it relied on the length of time the children had resided outside Georgia and their distance from Georgia when reaching its decision. But OCGA § 19-9-67 (b) (2) and (3) required the trial court to consider these factors in reaching its decision. See Lucado, 320 Ga. App. at 242.

(c) Gege Odion argues that the trial court erred when it relied on Titilayo Odion’s testimony concerning her financial condition. OCGA § 19-9-67 (b) (4) requires the court to consider “[t]he relative financial circumstances of the parties” when making its ruling, and the trial court did so based on the testimony. Gege Odion challenges the veracity of that testimony. As noted above, however, the trial court “was free to ascertain for itself the credibility of the witnesses.” Smith, 281 Ga. at 382 (1). As some evidence supports the trial court’s finding of the parties’ financial circumstances, Gege Odion has not shown error.

(d) Gege Odion argues that the trial court erred in finding that Texas, where Titilayo Odion and the children have lived since 2011, is a better forum given the location of evidence. Titilayo Odion testified that there were witnesses in Texas whom she would call, including the children’s teachers, their healthcare providers and the 12- and 13-year-old children themselves. This evidence supports the trial court’s finding on this factor.

(e) Gege Odion argues that the trial court erred when it decided that Texas is a better forum to expeditiously decide the issues. The trial court found that because the witnesses and evidence required to resolve the issues are in Texas, except for Gege Odion himself, Texas would be in a better position to expeditiously decide the issues. Gege Odion has not shown that the trial court erred.

Decided February 10, 2014.

Gege Odion, pro se.

Titilayo Odion, pro se.

After weighing the eight factors, the trial court found that Gwinnett County, Georgia is an inconvenient forum and that a court of Texas is the more appropriate forum to hear Gege Odion’s petition. Gege Odion has not shown that the trial court abused its discretion. See Murillo v. Murillo, 300 Ga. App. 61, 64 (684 SE2d 126) (2009) (applying an abuse of discretion standard to a court’s decision under OCGA § 19-9-67 to decline to exercise jurisdiction).

2. Remaining enumerations of error.

Given our affirmance of the trial court’s order declining to exercise jurisdiction, we do not address Gege Odion’s enumerations of error concerning the merits of his petition to change custody or his motion to add Titilayo Odion’s mother as a party to this action.

Judgment affirmed.

Doyle, R J., and Boggs, J., concur.


author: Barnes, Presiding Judge.

text:
    A13A1705.
    TAYLOR v. THE STATE.
    (754 SE2d 781)
   Barnes, Presiding Judge.

Following a jury trial Handy Taylor, Jr., was convicted of burglary and sentenced to twenty years, with ten to serve. He appeals from the denial of his motion for new trial and contends that the evidence was insufficient to sustain his conviction. Upon our review, we affirm.

“On appeal from a criminal conviction, the evidence must be viewed in the light most favorable to support the verdict, and the defendant no longer enjoys a presumption of innocence.” (Citation and punctuation omitted.) Schneider v. State, 312 Ga. App. 504 (718 SE2d 833) (2011).

So viewed, the evidence shows that at approximately 1:00 a.m. on April 6, 2008, several officers with the Macon Police Department responded to an alarm from a Pier 1 store and while there were notified about another suspected burglary at Butler Toyota which was located across the street. The security guard at Butler Toyota told officers that while he was patrolling the dealership, he observed a man climbing out of a building on the lot. He confronted the man and told him to stop, but the man ran away. The security guard called police as he was confronting the man. He testified that when the man ran away, he saw him hit the window of the Pier 1 store and continue running behind the store. He described the man as short “[w]ith white hair and a white beard” and was about his same height of 5' 2". One of the officers recognized the suspect from the description and identified him as Taylor. He testified that when the suspect was described as “unusually short with bright white hair and a bright white beard... I thought, that’s Handy Taylor.” Taylor was picked up at his residence approximately an hour after the incident and driven back to Butler Toyota where the security guard positively identified him as the man he saw crawling out of the window.

On appeal, Taylor contends that the evidence was insufficient to show that he had the intent to commit a felony or theft inside the building he was seen leaving. He maintains that there was no evidence presented that there was anything of value contained in the building and that there must be some testimony regarding valuable items being contained in the building to establish the necessary element of intent to sustain a conviction for burglary.

Burglary is committed

when, without authority and with the intent to commit a felony or theft therein, [a person] enters or remains within the dwelling house of another or any building ... or other such structure designed for use as the dwelling of another or enters or remains within any other building... or any room or any part thereof.

OCGA § 16-7-1 (a) (2008).

Whether the defendant entertained an intent to commit a theft after entering is a matter for the jury to say, under the facts and circumstances proved. As a general rule the state must, of necessity, rely on circumstantial evidence in proving intent. And the fact that the defendant may have failed in accomplishing his apparent purpose does not render a finding of burglary improper.

Nelson v. State, 277 Ga. App. 92, 95 (1) (a) (625 SE2d 465) (2005). It is true as Taylor maintains that an inference of intent to steal may be raised “where evidence shows an unlawful entry into a building where valuable goods are stored inside and no other motive is apparent.” Tate v. State, 253 Ga. App. 723, 724 (3) (560 SE2d 303) (2002). However, intent may be inferred from other evidence as well. Adams v. State, 284 Ga. App. 534, 535 (1) (644 SE2d 426) (2007). “Intent may be found by the jury upon consideration of the words, conduct, demeanor, motive and all other circumstances connected with the act for which the accused is being prosecuted.” (Footnote omitted.) Palmer v. State, 243 Ga. App. 656, 657 (533 SE2d 802) (2000).

Decided February 14, 2014.

Amanda R. Flora, for appellant.

K. David Cooke, Jr., District Attorney, Jason M. Wilbanks, Assistant District Attorney, for appellee.

In Adams, even though there was no evidence that any items were taken or that valuable goods were stored on the premises, we held that “the jury could infer an intent to steal based on the evidence of an unlawful entry into a building housing an operating business.” (Footnote omitted.) Adams, 284 Ga. App. at 535-536 (1). Likewise, although there was no evidence presented in this case that valuable items were located in the building, the jury could infer intent from evidence that the building was located on the lot of an “operating business” which would customarily contain items of value, that Taylor crawled out of the window during a time when the business was closed, and that he ran when he was confronted by the security guard. See Harris v. State, 322 Ga. App. 122, 124-125 (2) (744 SE2d 111) (2013) (although nothing taken from school gymnasium, intent to steal could be inferred because “it is well known that buildings contain valuable materials such as copper wire and pipes and that these materials are often stolen”).

Thus, the evidence was sufficient to prove intent, and a rational trier of fact could have found the essential elements of burglary beyond a reasonable doubt.

Judgment affirmed.

Miller and Ray, JJ., concur.

       The statute was significantly amended in 2012; however, “[a]ny offense occurring before July 1,2012, shall be governed by the statute in effect at the time of such offense.” Ga. L. 2012, p. 899, § 3-1.


author: BARNES, Presiding Judge.

text:
    A13A2180.
    SMITH v. THE STATE.
    (754 SE2d 783)
   BARNES, Presiding Judge.

Roy Mandell Smith was convicted of three counts of aggravated assault, one count of burglary, and several firearms charges. He contends on appeal that the evidence was insufficient and that his trial counsel was ineffective for not interviewing all of the State’s witnesses and not objecting to the admission of cell phone records on relevance grounds. For the reasons that follow, we affirm.

1. On appeal, a defendant no longer enjoys the presumption of innocence. Ellis v. State, 282 Ga. App. 17, 18 (1) (637 SE2d 729) (2006). We consider the evidence in the light most favorable to the verdict, without weighing it or deciding the credibility of witnesses. Id. So viewed, the evidence at trial established that Smith and the first victim (“the mother”) lived together from 1989 to 1996 and had two children. Their relationship was civil, and Smith, who remained in Virginia after the mother moved to Georgia, maintained contact with the children, although he did not contribute to their support and saw them rarely. In 2009, the mother “file[d] for child support” for the couple’s son, who was then 15. After Smith was served, he told the mother that she needed to drop the case before February 9, 2010 because it would “mess up his credit” and he would not be able to buy a house. On February 1, 2010, Smith waived service of a Virginia child support order directing him to pay the Virginia support enforcement agency $317 a month beginning the next month for the benefit of his son. The order also informed Smith that he had ten days to appeal it.

Smith called his daughter, who was the second victim, about six times on the weekend of February 6, 2010, which she said was unusual. He asked where she, her brother, and her mother were, and each conversation lasted a minute or two. Smith also called the mother on Saturday, February 6, 2010, and told her that it was snowing badly where he was but he was going to send her $300 that she could pick up the next day from a local Wal-Mart. The next day, the mother was unable to retrieve the money and although she called Smith, the matter was not resolved. Smith called his daughter that Sunday evening and again ascertained everyone’s location.

At 6:10 a.m. on February 8, 2010, Smith called the mother and said he had straightened out the money transfer problem and she could pick up the money that day. When asked, the mother told Smith that their son was at her parents’ house and their daughter had probably left for school. After the conversation ended, the daughter came out of her room and explained that she had missed the bus. The mother urged her to hurry and left the house to warm up her car. When she stepped outside, she saw a black truck backed into her driveway and someone began to attack her with what felt like a stun gun that was repeatedly shocking her.

The mother fell to the ground, and when she moved her head she “looked up in Roy’s face and I seen [sic] him pull that gun to shoot me and he pulled the trigger and he shot me and he kept shooting me.” She had no doubt the shooter was Smith, and testified that “[h]e was the last thing I ever set eyes on — and then [he] shot me.” The first shot went into her right eye sideways, then Smith shot her several more times. The daughter came to the door and saw Smith shooting her mother. As she started toward her mother, Smith jumped up and began to run toward her with the gun in his hand.

When Smith got off of the mother, she jumped up and ran blindly to a neighbor’s house for help. Meanwhile, Smith chased his daughter into the living room, where she fell onto her knees. When she rolled over, she recognized Smith, who was leaning over her holding the gun in her face. She pleaded with him to stop and tried to push his gun away but he shot her in the jaw. Smith continued to pull the trigger but the daughter was looking into the barrel of the gun and saw that he had run out of bullets. He hit her on the head with his gun, then ran out the front door.

The daughter opened the front door to go to her mother, but saw Smith was still nearby. He aimed his handgun at the daughter and pulled the trigger, but the gun was still empty. The daughter shut the door and called 911, then left the house through the back door and ran through the subdivision to a friend’s house. She was taken by ambulance to the hospital, where she learned that her mother was still alive. Both victims identified Smith as their attacker.

The lead detective subpoenaed Smith’s cell phone records, which indicated that his phone had been used in Virginia around the time of the attack. The records established that Smith called the same phone number 34 times between Saturday, February 6 and Monday, February 8, 2010, and the records for that second cell phone showed that it had been physically located in Georgia during that time period. At 6:10 a.m. on the day of the assault, someone called Smith’s cell phone in Virginia from the second cell phone located in Lowndes County, Georgia, and whoever answered the phone in Virginia then placed a three-way call to the victim’s cell phone in Lowndes County. The victim’s phone thus showed that the call came from Smith’s cell phone, which was located in Virginia, and not from the second cell phone, which was located in Lowndes County. The second cell phone made the last call from Lowndes County at 7:45 a.m. on February 8, 2010, and made a call from Virginia at 7:45 p.m. that evening. Several similar three-way calls had been made from Lowndes County to Virginia to Lowndes County on February 7, 2010. Smith placed the owner of the second cell phone on his visitors’ list after he was incarcerated.

After the State rested, the trial court denied Smith’s motion for a directed verdict of acquittal. Smith presented three alibi witnesses, all of whom testified they had been with Smith during different times of the day. Smith took the stand and testified that on February 6, 2010, a drug dealer who supplied the victim’s brother called Smith from Georgia and made threats, so Smith kept him on the line and used the three-way calling feature on his phone to call the victim’s brother to talk about it. He also called the victim that weekend looking for her brother and used the three-way feature again on February 8, 2010. He denied being in Georgia during that time and denied that he had placed the owner of the second cell phone on his j ail visitation list, asserting that her name was put there “due to prosecution.”

The trial was bifurcated. After the jury returned a verdict of guilty on the aggravated assault, burglary, and firearm possession charges, the State introduced into evidence certified copies of two of Smith’s felony convictions. The jury returned a verdict of guilty on the charge of possession of a firearm by a convicted felon, and the trial court sentenced Smith to serve an aggregate of 60 years in confinement.

Smith argues that the testimony of himself and his alibi witnesses established that he was not in Lowndes County when the victims were assaulted, that no credible or admissible evidence established that he was present in the county, and that therefore the evidence was insufficient to sustain the convictions. To the contrary, both victims testified that Smith was their assailant, and that testimony alone would be sufficient to authorize a rational trier of fact to find Smith guilty beyond a reasonable doubt of the charged offenses. Former OCGA § 24-4-8 (now OCGA § 24-14-8) (“The testimony of a single witness is generally sufficient to establish a fact.”). Additionally, the State presented evidence that Smith employed an elaborate three-way calling scheme so that it would appear that he called the victims from his own phone that was physically located in Virginia, while he was actually nearby.

Although Smith presented an alternative scenario, an appellate court “does not weigh the evidence or resolve conflicts in testimony. It is the jury’s role to assess the credibility of witnesses and resolve any inconsistencies in the evidence.” (Citations omitted.) Brock v. State, 293 Ga. 156, 157-158 (1) (743 SE2d 410) (2013). We conclude that a rational trier of fact was authorized to find Smith guilty beyond a reasonable doubt of the charged offenses. Jackson v. Virginia, 443 U. S. 307 (99 SCt 2781, 61 LE2d 560) (1979).

2. Smith contends that his trial counsel was ineffective for failing to interview the witnesses from the cell phone companies, and that if he had done so, he would have known more about the “substance and the limitations of the cell phone provider’s testimony.” This knowledge would have permitted trial counsel to make a more “particularized and informed objection” to the admission of the cell phone records on grounds of relevancy and probative value, instead of objecting only on the ground that the State had not laid a sufficient foundation to admit the documents under the business records exception to hearsay, he argues. If trial counsel had interviewed the witnesses, Smith argues, there is a reasonable probability that the jury would have found him not guilty because no physical evidence placed him at the crime scene.

Ineffective assistance is a deficient performance by counsel resulting in actual prejudice to the client. Head v. Hill, 277 Ga. 255, 266 (VI) (587 SE2d 613) (2003). At the motion for new trial hearing, Smith’s trial counsel testified that he knew the State would be calling the cell phone company witnesses to verify the data in the cell phone records that established the location of the two cell phones on the day of the assault and had reviewed the records himself. He also knew that the State was going to present this evidence to support its contention that Smith was located in Lowndes County when the victims were attacked. Trial counsel extensively questioned the witness from Smith’s cell phone provider about foundational matters such as how data was collected and transmitted that showed the location of the cell phone towers off which Smith’s calls had bounced, and the trial court overruled his objections to the admission of the documents as business records on the ground that the State had not established a sufficient foundation.

Smith now argues that his trial counsel should have objected to the cell phone records on relevancy grounds, but such an objection would clearly have been meritless. While he is correct that the cell phone records only implied that Smith was in Lowndes County when the assaults occurred, rather than proved it directly, this circumstantial evidence of Smith’s location was probative and relevant.

Unless the potential for prejudice in the admission of evidence substantially outweighs its probative value, Georgia courts favor the admission of any relevant evidence, no matter how slight its probative value. Evidence of doubtful relevancy or competency should be admitted and its weight left to the jury.

Decided February 14, 2014.

Oliver R. Register, for appellant.

J. David Miller, District Attorney, Tracy K. Chapman, Jessica W. Clark, Assistant District Attorneys, for appellee.

(Citation omitted.) Evans v. State, 233 Ga. App. 879, 881 (3) (506 SE2d 169) (1998). “Since the [evidence] was admissible, an objection to it would have been without merit, and failure to make a meritless objection does not constitute ineffective assistance of counsel.” Sims v. State, 281 Ga. 541, 543 (2) (640 SE2d 260) (2007).

Judgment affirmed.

Miller and Ray, JJ., concur.


author: Boggs, Judge.

text:
    A13A1836.
    SWANSTROM et al. v. WELLS FARGO BANK.
    (754 SE2d 786)
   Boggs, Judge.

Dexter Swanstrom, Jr., and D&S Auto Air & Transmission, Inc. f/k/a D&S Auto Air & Radiators, Inc. appeal from the trial court’s grant of summary judgment in favor of Wells Fargo Bank on a business line of credit. They assert that genuine issues of fact exist as to whether (1) D&S Auto Air & Transmission, Inc. maybe held liable for the debt of D&S Auto Air & Radiators, Inc. and (2) Swanstrom is individually liable for the business debt. For the reasons explained below, we affirm the trial court’s grant of summary judgment with regard to D&S Auto Air & Transmission, Inc., but reverse with regard to Swanstrom’s personal liability.

Summary judgment is proper when the record reveals no genuine issues of material fact and the moving party is entitled to judgment as a matter of law. OCGA § 9-11-56 (c). “We review the trial court’s grant of summary judgment de novo, construing the evidence and all reasonable inferences in favor of the nonmoving party.” (Footnote omitted.) Melman v. FIA Card Svcs., 312 Ga. App. 270 (718 SE2d 107) (2011). So viewed, the record shows that Dexter Swanstrom signed a “Wells Fargo Business Platinum Acceptance Certificate” on January 8, 2008 above a line labeled “Owner #1 Signature” on behalf of D&S Auto Air & Radiators, Inc. He listed his title as “Pres.” beside his signature. Immediately above his signature, the certificate stated: “I certify that I have read and agree with the Terms and Conditions on the reverse side, including the personal guaranty.” The documents in the record, however, do not contain a legible copy of the portion of the Terms and Conditions governing the personal guaranty. The record does contain a Wells Fargo Business Card Visa statement of account prepared for Swanstrom and addressed to both D&S Auto Air & Radiators and Swanstrom.

In 2012, after the business fell behind on its payments, Wells Fargo filed suit against Swanstrom and D&S Auto Air & Transmission, Inc. f/k/a D&S Auto Air & Radiators, Inc. In a joint answer, the defendants admitted an allegation in the complaint that D&S Auto Air & Transmission, Inc. was formerly known as D&S Auto Air & Radiators, Inc.

Wells Fargo conducted no discovery and moved for summary judgment in its favor, relying upon the affidavit of a Wells Fargo collections manager. The manager averred that he was personally familiar with the transactions between Wells Fargo and the defendants and asserted that the defendants owed over $23,000 based upon account statements attached to the affidavit. Swanstrom submitted an affidavit in opposition in which he averred that the documents submitted by Wells Fargo were not legible, denied that he personally guaranteed the loan, and contended that the debt “was the debt of D&S only.” The trial court granted summary judgment in Wells Fargo’s favor and ordered that it could recover from the defendants “jointly and severally.”

1. We find no merit in appellants’ contention that Wells Fargo failed to prove the existence of a contract between itself and D&S Auto Air & Transmission, Inc. Appellants admitted in their answer that D&S Auto Air & Transmission, Inc. was formerly known as D&S Auto Air & Radiators, Inc., as asserted by Wells Fargo, and Swanstrom acknowledged in an affidavit given on behalf of D&S Auto Air & Transmission, Inc. that the debt at issue belonged to D&S Auto Air & Transmission, Inc.

2. In related enumerations of error, Swanstrom asserts that Wells Fargo’s claims against him individually fail, because the record does not contain the terms of his personal guaranty. We agree.

Wells Fargo, “as the party alleging that a contract exists, has the burden of proving its existence and its terms.” (Citation and punctuation omitted.) Terry Hunt Constr. v. AON Risk Svcs., 272 Ga. App. 547, 551 (3) (613 SE2d 165) (2005). In support of its claim on the personal guaranty, Wells Fargo submitted an illegible copy of the terms and conditions governing the guaranty, which is “not entitled to evidentiary consideration. [Cits.]” Black v. Floyd, 280 Ga. 525, 526 (1) (630 SE2d 382) (2006). “[T]he true nature of the guarantor’s liability is established by the terms of the guaranty, which may render the guarantor only secondarily liable on the principal’s inability to pay, or otherwise condition or limit liability in any number of ways. [Cit.]” Holland v. Holland Heating & Air Conditioning, Inc., 208 Ga. App. 794, 796 (1) (432 SE2d 238) (1993). Without evidence of these terms, Wells Fargo cannot establish the nature and extent of Swanstrom’s liability. We must therefore reverse the trial court’s grant of summary judgment in favor of Wells Fargo with regard to Swanstrom.

Decided February 18, 2014.

Kristopher Shepherd, for appellants.

Lefkoff, Rubin, Gleason & Russo, Craig B. Lefkoff, Philip L. Rubin, for appellee.

Judgment affirmed in part and reversed in part.

Doyle, P. J., and McFadden, J., concur.


author: DOYLE, Presiding Judge.

text:
    A13A1845.
    SMITH v. THE STATE.
    (754 SE2d 788)
   DOYLE, Presiding Judge.

Following a jury trial, Renarda Smith was convicted of armed robbery (one count), aggravated assault (three counts), and possession of a firearm during the commission of a crime (four counts). Smith appeals from the denial of his motion for new trial, contending that (1) the evidence was insufficient to support the verdict, (2) he received ineffective assistance of counsel, and (3) the State improperly intimidated a potential witness and prevented him from testifying. Discerning no error, we affirm.

1. When an appellate court reviews the sufficiency of the evidence,

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

So viewed, the evidence shows that one evening at approximately 11:00 p.m., two men armed with pistols entered the Lovers Lane Citgo in Newton County and demanded money from an employee behind the counter. The employee opened the cash register, and one of the robbers took the money. The two men fled in a Jeep Cherokee that was waiting nearby, and a bystander who saw the men exit the store with guns called 911 and followed the Cherokee in her own vehicle. As she followed the Cherokee, police responded, located the Cherokee based on her description, and executed a stop of the vehicle. Two passengers bailed out of the car and fled on foot; the driver, who was identified as Smith, was handcuffed and arrested at the scene.

Based on these events, Smith was convicted of the indicted crimes. On appeal, he argues that the evidence was insufficient to support the conviction because he was merely present at the scene and did not know that a robbery would be committed. But at trial there was evidence that Smith knew that his two passengers were armed and that he “kind of sort of” knew what they were going to do. This supports a finding that Smith participated in the robbery as the getaway driver. “Any conflicts or inconsistencies in the evidence [were] for the jury to resolve. As long as there is some competent evidence, even though contradicted, to support each fact necessary to make out the State’s case, we must uphold the jury’s verdict.” Accordingly, this enumeration fails.

2. Smith also contends that his trial counsel rendered ineffective assistance. Under Strickland v. Washington, to succeed on an ineffective assistance claim, a criminal defendant must demonstrate both that his trial counsel’s performance was deficient and that there is a reasonable probability that the trial result would have been different if not for the deficient performance. “There is a strong presumption that the performance of trial counsel falls within the wide range of reasonable professional assistance. The reasonableness of the conduct is viewed at the time of trial and under the circumstances of the case.” If an appellant fails to meet his burden of proving either prong of the Strickland test, the reviewing court need not examine the other prong. In reviewing the trial court’s decision, “[w]e accept the trial court’s factual findings and credibility determinations unless clearly erroneous, but we independently apply the legal principles to the facts.”

(a) Smith first argues that his trial counsel performed deficiently by failing to move to strike a juror for cause. The juror at issue had indicated during voir dire that her husband was related to a trial judge in the same circuit where Smith was tried. Smith’s counsel had exhausted peremptory strikes and did not argue that the juror should be struck for cause. Nevertheless, during voir dire, the trial court asked the juror whether she felt like she could sit impartially as a juror in the case, and the juror responded affirmatively.

In light of [this] response [ ] and the lack of any other evidence in the record that [the] juror [ ] held a fixed and definite opinion of [Smith’s] guilt, the trial court would have acted well within its discretion in denying a motion to strike [the] prospective juror[ ] for cause. Accordingly, trial counsel did not perform deficiently by failing to make such a motion.

(b) Smith next argues that his trial counsel should have objected to the admission of video recorded interviews of Smith. The video played at trial had a lag time of a few seconds between the audio and video, and Smith now asserts that this undermined the video’s probative value (Smith’s incriminating statements to police) such that it was substantially outweighed by the danger of unfair prejudice (seeing Smith interviewed in handcuffs by an officer). Nevertheless, at trial, the jury had a transcript to follow along with the video, and the court asked the jury if anyone had a problem following the video. The jury did not express a problem following the video even with a short delay in the audio. Under these circumstances, the delay itself did not render the video useless or superfluous, as the jury could still view Smith and gauge his demeanor and responses to the interviewer’s questions. Further, with respect to viewing Smith in handcuffs, a police witness had already explained that Smith had been handcuffed during his arrest, and the trial court properly instructed the jury on the presumption of innocence. Accordingly, it was not an abuse of discretion for the trial court to admit the video, and its admission does not support Smith’s ineffective assistance claim.

(c) Smith last argues that his trial counsel should have called Kennarles Lyles to testify in Smith’s defense.

It is well established that the decision as to which defense witnesses to call is a matter of trial strategy and tactics, and that tactical errors in that regard will not constitute ineffective assistance of counsel unless those errors are unreasonable ones no competent attorney would have made under similar circumstances.

Here, Smith’s trial counsel testified at the motion for new trial hearing that he interviewed the witness prior to trial, and based on that interview, in which the witness said counsel would not want him to testify, he decided that “it would not have been a good idea at all to put him on the stand.” Smith’s trial counsel spoke to Smith about calling Lyles to testify, and Smith agreed with his counsel’s assessment that “it could be dangerous to put Mr. Lyles up.” Under these circumstances, the decision not to call Lyles was a matter of reasonable trial strategy, and we discern no deficient performance.

3. Finally, Smith argues that the trial court erred by denying his motion for new trial because the State improperly intimidated Lyles about testifying in the case. At the motion for new trial hearing, Lyles testified that, on the day of trial, the prosecutor told him that Smith had accused Lyles of being involved in the robbery, and this upset him. But counsel for the State also testified at the hearing and denied making any threats to Lyles or making any statement to Lyles that Smith had accused him of being involved. This conflicting testimony was for the trial court to resolve, which it explicitly did in favor of the State. Accordingly, we discern no error.

Judgment affirmed.

McFadden and Boggs, JJ., concur.

Decided February 18, 2014.

Manning, Levine & Marlow, Cindy S. Manning, for appellant.

Layla H. Zon, District Attorney, Melanie M. Bell, Assistant District Attorney, for appellee.

       OCGA § 16-8-41 (a).

       OCGA § 16-5-21 (a) (1).

       OCGA § 16-11-106 (b) (1).

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

       (Citation omitted.) Rankin v. State, 278 Ga. 704, 705 (606 SE2d 269) (2004).

       466 U. S. 668 (104 SCt 2052, 80 LE2d 674) (1984).

       See id. at 688-689, 694-695 (III) (A)-(B).

       (Citation and punctuation, omitted.) Williams v. State, 277 Ga. 853, 857 (6) (596 SE2d 597) (2004).

        See Strickland, supra, 466 U. S. at 697 (IV); Fuller v. State, 277 Ga. 505, 507 (3) (591 SE2d 782) (2004).

       (Citation and punctuation omitted.) Robinson v. State, 277 Ga. 75, 76 (586 SE2d 313) (2003).

       (Citation omitted.) Bester v. State, 294 Ga. 195, 197 (2) (b) (751 SE2d 360) (2013).

       See Solis-Morales v. State, 315 Ga. App. 724, 726 (728 SE2d 253) (2012).

       (Citation and punctuation omitted.) Hubbard v. State, 285 Ga. 791, 794 (3) (683 SE2d 602) (2009).

         See Coggins v. State, 293 Ga. 864, 866 (5) (750 SE2d 331) (2013) (“matters of credibility... were for the trial court to resolve based on the evidence presented at the motion for new trial hearing”).


text:
    A13A1937.
    MOORE v. THE STATE.
    (754 SE2d 792)
   Boggs, Judge.

Errol Alexis Moore, Jr., was indicted for malice murder, two counts of felony murder, two counts of aggravated assault, three counts of concealing a death, tampering with evidence, and making a false statement. A jury found Moore guilty of the lesser included offense of voluntary manslaughter on malice murder, guilty of voluntary manslaughter on one felony murder count, not guilty on the second felony murder count, and not guilty on one count of aggravated assault. He was found guilty on all remaining charges. The trial court merged the aggravated assault and voluntary manslaughter convictions but sentenced Moore to separate and consecutive terms on each remaining conviction. After denial of his motion for new trial, Moore appeals, asserting that the trial court erred in: (1) the admission of his custodial statement; (2) the refusal to charge on misdemeanor involuntary manslaughter as a lesser included offense; and (3) the failure to merge the three convictions for concealing a death at sentencing. On the basis of our Supreme Court’s decision in Nazario v. State, 293 Ga. 480 (746 SE2d 109) (2013), which was decided after entry of the trial court’s order, we vacate two of Moore’s convictions for concealing a death. With respect to Moore’s remaining claims, we find no error and affirm.

1. Moore first complains that the trial court erred in admitting his oral and written custodial statements, claiming that the State failed to prove that they were not induced by hope of benefit or fear of injury. “To make a confession admissible, it must have been made voluntarily, without being induced by another by the slightest hope of benefit or remotest fear of injury.” Former OCGA § 24-3-50.

When a trial judge has made a determination as to the voluntariness of a confession after a suppression hearing, such determination must be accepted by the appellate courts unless his decision is clearly erroneous. Likewise, factual determinations and credibility relating to the admissibility of a confession will be upheld on appeal unless clearly erroneous.

(Citation and punctuation omitted.) Kania v. State, 280 Ga. App. 356, 358 (1) (634 SE2d 146) (2006).

At the Jackson-Denno hearing, the detective denied that he told Moore “that he was not going to leave until he told [the detective] what he needed to hear[.]” He also explained that when he asked Moore if he wanted “everyone” to “go down” for the crime, he meant that Moore’s friend and his mother could be arrested if evidence was found indicating that they had participated in the crime. See Smith v. State, 291 Ga. App. 535, 537 (662 SE2d 305) (2008) (statement that wife was target of police investigation merely made appellant “aware of potential legal consequences” and was “in the nature of a mere truism”).

Here, the trial court explicitly found the police officer more credible than Moore, and it found that the officer “did not tell [Moore] that he could not leave until he heard what he wanted,” but that Moore was free to leave and was not under arrest. The court further found that the detective’s statements that Moore’s friend and mother could be arrested if evidence showed they were involved in the crime were “mere truisms or recounting of facts rather than a threat of injury or promise of benefit.”

[T]he trial court’s factual and credibility determinations must be accepted by this Court unless clearly erroneous. And since the trial court’s findings were supported by [the officer’s] testimony — though contradicted by other evidence —■ they are not clearly erroneous and must be affirmed.

(Citations and footnotes omitted.) State v. Johnson, 273 Ga. App. 324, 327 (615 SE2d 163) (2005).

2. Moore next contends that the trial court erred in refusing to give his requested charge on misdemeanor involuntary manslaughter. After the trial court instructed the jury and asked if there were any objections to the charge, Moore did not renew his objection. We must therefore review the charge for plain error, even though Moore has not argued plain error on appeal. See State v. Kelly, 290 Ga. 29, 32 (1), n. 2 (718 SE2d 232) (2011). But “the hurdle to establishing plain error is high” and “the failure to specifically articulate how the alleged error satisfies this high standard increases the likelihood that. . . claims in this regard will be rejected.” Id. at 32 (1), n. 2. In reviewing the refusal to give this charge, we find no plain error and indeed no error.

Moore contends that the requested charge is justified by his statement to police that the victim attacked him, and that he accidentally strangled her in an attempt to restrain her. Although that scenario is not supported by the testimony cited by Moore, he contends that the jury could have found that he committed a lawful act in a criminally negligent manner. But this argument has been rejected by the Supreme Court of Georgia. See Demery v. State, 287 Ga. 805, 809 (3) (700 SE2d 373) (2010) (“One who seeks to justify homicide as having been committed in self-defense is not entitled to an additional instruction on involuntary manslaughter resulting from the commission of a lawful act in an unlawful manner.”); Saylors v. State, 251 Ga. 735, 737 (3) (309 SE2d 796) (1983) (“[I]f [a defendant] is justified in killing under OCGA § 16-3-21.. .he is guilty of no crime at all. If he is not so justified, the homicide does not fall within the ‘lawful act’predicate of OCGA § 16-5-3 (b)..., for the jury, in rejecting his claim of justification, has of necessity determined thereby that the act is not lawful.” (Emphasis in original.))

3. Finally, Moore contends that the trial court erred in refusing to merge his three convictions for concealing a death. The trial court entered a well-reasoned, detailed order analyzing this question, but it did not have the benefit of the Supreme Court of Georgia’s recent decision in Nazario, supra. There, a defendant pleaded guilty to 17 counts of a 26-count indictment, including five counts of concealing the death of his girlfriend by various acts, including concealing the body, hiding incriminating evidence, binding and gagging two of the victim’s three children, and kidnapping the third child. 293 Ga. at 491-492 (3) (d). He contended that those counts should have been merged into a single conviction, and our Supreme Court agreed. Id. The Court reasoned that, since OCGA § 16-10-31 refers to “the death” and “a discovery,” “the gravamen of the offense is conduct that hinders ‘a discovery’ that a person has been unlawfully killed by concealing that death.” Id. at 491 (3) (d). It concluded that multiple acts employed in concealing a single death merge as a matter of fact into one conviction. Id.

The State’s contention that Nazario can be distinguished because it involved a guilty plea and a limited record is without merit. While the Supreme Court acknowledged that the limited factual record prevented a full analysis of Nazario’s other merger claims, id. at 490 (3) (a) and (b), its analysis of the charges of concealing a death addressed the language of the statute and the factual basis for the plea, and found that all of Nazario’s acts “were part of a course of conduct that hindered a single discovery of a single unlawful killing by concealing that death.” Id. at 491 (3) (d). Similarly, here all of Moore’s acts were intended to hinder a single discovery of the single unlawful killing of his girlfriend by concealing her death. Therefore, as in Nazario, we must vacate two of the three convictions and sentences for concealing the death of another. Id. at 492. The remaining convictions and sentences are affirmed.

Decided February 18, 2014.

Jennifer A. Trieshmann, for appellant.

Tracy Graham-Lawson, District Attorney, Frances C. Kuo, Assistant District Attorney, for appellee.

Judgment affirmed in part and vacated in part, and case remanded for resentencing.

Doyle, P. J., and McFadden, J., concur.

        Jackson v. Denno, 378 U. S. 368 (84 SCt 1774, 12 LE2d 908) (1964).

       Moore cites Johnson in support of Ms argument because in that case the trial court excluded the custodial statement. But as in Johnson, we must affirm when evidence, even if contradicted, supports the trial court’s decision. Id.


text:
    A13A1969.
    ALLEN v. THE STATE.
    (754 SE2d 795)
   Boggs, Judge.

A jury found Xavier Allen guilty on one count of theft by shoplifting for taking items of clothing from a department store. Following the denial of his amended motion for new trial, Allen appeals, asserting that the evidence was insufficient, that the trial court erred in failing to give his requested instruction on mere presence, and erred in failing to exercise its discretion in sentencing him. Having reviewed these claims, we discern no error and affirm.

Construed to support the verdict, the evidence reveals that a loss prevention officer with the department store, through her camera monitoring station, observed a man walking around the men’s clothing department “gathering clothes and kind of rolling them together and stacking them together” and then putting them inside a large store bag. She explained that the man “went to the floor with several items which is indicative usually of what shoplifters do. They go back to the row and they go to the floor and they put several items in a bag or in a purse or in their own clothing.” The loss prevention officer called a deputy with mall security when she observed the man walking toward the store exit without paying for the items.

When the deputy arrived, he saw Allen “go out the door and . . . towards a vehicle.” He explained that the loss prevention officer gave him a description of the clothing of the “unknown black male,” but that he “knew exactly what individual she was talking about” because there were only a few people in the store that morning. By the time the deputy reached the door, Allen “was already standing between two vehicles as though he was trying to get into the car. At that point [the deputy] told him, ‘Stop, I need to talk to you.’ ’’Allen “then walked away from the vehicle and started toward . .. the wood line which is the outskirts of the main road that goes around the . . . [m]all.” The deputy explained that Allen had a “pretty good lead” on him.

An off-duty sergeant with the sheriff’s office was in the mall parking lot with his son when he observed the deputy “chasing a gentleman out of the mall at [the department store]. The guy runs right up to my truck. So I got out and said, ‘Sheriff’s Office, get on the ground.’ ” Allen complied and was placed in handcuffs. He was carrying a hag from the department store that contained clothing valued at $523.98 but no store receipt. The store surveillance video was played for the jury.

1. Allen argues that the evidence is insufficient because “[t]here was no direct testimony from any employee of [the department store] which identified [him] as the individual depicted in the video.” He argues further that there was no business record to show that the items had not been purchased, and the fact that the items were found in a bag near him does not establish that he shoplifted.

When reviewing the sufficiency of the evidence,

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

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

The evidence showed: a person was observed on the store video monitoring system putting several items in a bag; the person then walked out of the store without paying for the items; when told to “stop” the person, identified as Allen, fled toward a wood line; and when apprehended he had in his possession a store bag containing several items from the store with price tags attached and no receipt. This evidence is sufficient to sustain Allen’s conviction for shoplifting. See Agony v. State, 226 Ga. App. 330, 331-332 (2) (486 SE2d 625) (1997) (flight is circumstantial evidence of consciousness of guilt; unexplained recent possession of stolen goods supports inference that accused committed theft); see also Ekanger v. State, 279 Ga. App. 421, 422-423 (631 SE2d 459) (2006) (evidence overwhelming where shoplifting witnessed in person and on video camera and video played for jury).

2. Allen contends that the court erred in failing to give his requested instruction on mere presence, because it was his sole defense. But “ ‘mere presence’ is not recognized as a separate and discrete defense to a criminal charge. [Cit.]” Reyes v. State, 322 Ga. App. 496, 498 (2) (745 SE2d 738) (2013). Rather,

[t]he rule that mere presence at the scene of a crime is insufficient to convict is actually a corollary to the requirement that the State prove each element of the offense charged. In the present case, the trial court correctly instructed the jury on the duty of the State to prove each element of the crime beyond a reasonable doubt and instructed the jury fully on the law of circumstantial evidence.

(Citations and punctuation omitted.) Jackson v. State, 281 Ga. 705, 707 (5) (642 SE2d 656) (2007). Moreover, “[a] trial court need not give a charge that is unsupported by the evidence.” Flowers v. State, 291 Ga. 122, 123 (2) (728 SE2d 196) (2012). The evidence shows that Allen was not merely present but was the sole participant in the crime. “[0]ne who is actively engaged in the crime charged is not entitled to a jury instruction on mere presence.” (Citation and punctuation omitted.) Huckabee v. State, 287 Ga. 728, 733 (4) (b) (699 SE2d 531) (2010); see Torres v. State, 298 Ga. App. 158, 159 (1) (679 SE2d 757) (2009) (defendant not entitled to charge on mere presence as sole defense where evidence showed connection to contraband other than mere presence in hotel room).

3. Allen complains that the trial court failed to exercise its discretion in sentencing him pursuant to OCGA § 17-10-7 (a) and (c). The State introduced four prior felony drug convictions in aggravation of sentencing and for the imposition of recidivist sentencing pursuant to OCGA § 17-10-7 (a) and (c).

Following the verdict, when discussing Allen’s status as a recidivist, the trial court commented, “if he’s beyond or at the fourth one, I believe it’s a max sentence if I recall.” During the sentencing hearing, the following colloquy took place between the trial court, counsel for Allen, and counsel for the State:

The Court: Well, this is his fifth one?
[Allen’s counsel]: Fifth felony, Your Honor.
The Court: Uh-huh (affirmative).
[State’s counsel]: Yes, Your Honor. We’d be asking the Court to impose the maximum sentence in this case.
The Court: I think that’s what the statute provides for now, isn’t it?
[Allen’s counsel]: It does.
The Court: Under [17-10-7] (c)?
[Allen’s counsel]: Yes.
The Court: So I’ll sentence him to ten years.

Allen argues that this colloquy reveals the trial court believed it had no discretion to sentence him to anything other than the maximum sentence. The State argues that there is no affirmative evidence that the court was mistaken or misinformed regarding its ability to exercise discretion in sentencing Allen. It points to the court’s statements during the hearing on the motion for new trial as evidence that the court considered all the facts and circumstances in sentencing Allen to the maximum sentence. In denying Allen’s motion for new trial, the trial court stated: “As to exercise of discretion, the Court exercised its discretion in a case where you have that many convictions. The Court asked a question about how many conviction[s] so we would know what to do.”

Both Allen and the State have misinterpreted OCGA § 17-10-7. Subsection (a) provides:

... [A]ny person who, after having been convicted of a felony offense in this state or having been convicted under the laws of any other state or of the United States of a crime which if committed within this state would be a felony and sentenced to confinement in a penal institution, commits a felony punishable by confinement in a penal institution shall be sentenced to undergo the longest period of time prescribed for the punishment of the subsequent offense of which he or she stands convicted, provided that, unless otherwise provided by law, the trial judge may, in his or her discretion, probate or suspend the maximum sentence prescribed for the offense.

(Emphasis supplied.) OCGA § 17-10-7 (c) provides:

. . . [A]ny person who, after having been convicted ... for three felonies . . ., commits a felony within this state shall, upon conviction for such fourth offense or for subsequent offenses, serve the maximum time provided in the sentence of the judge based upon such conviction and shall not be eligible for parole until the maximum sentence has been served.

(Emphasis supplied.) Therefore, subsection (a) prescribes the sentence that the trial court must impose for a felony conviction that follows a prior felony conviction: the longest period of time provided for the punishment, i.e., the maximum sentence for the crime. Subsection (c) does not prescribe the sentence that must be imposed, but rather dictates that a person convicted of a fourth felony or more must serve the maximum time provided in the court’s sentence and is not eligible for parole. These subsections “must be read together. If both apply, as here, the trial court must apply them both.” (Citations and punctuation omitted.) Lester v. State, 309 Ga. App. 1, 5 (2), n. 3 (710 SE2d 161) (2011).

In applying OCGA § 17-10-7 (a) and (c), the trial court had no discretion with regard to the term of the sentence and was required to sentence Allen to ten years — the maximum sentence for shoplifting. See former OCGA § 16-8-14 (b) (2) (sentence for shoplifting one to ten years where theft exceeds $300); see also Lester, supra (trial court lacked discretion to sentence defendant to anything other than maximum sentence of life imprisonment for armed robbery under OCGA § 17-10-7 (a)); compare Page v. State, 287 Ga. App. 182, 184 (3) (651 SE2d 131) (2007) (while court was authorized to sentence defendant to maximum term of 20 years, sentence vacated because court stated it had no discretion to probate or suspend any portion of sentence).

Judgment affirmed.

Doyle, P. J., and McFadden, J., concur.

Decided February 18, 2014.

James K. Luttrell, for appellant.

David McDade, District Attorney, James A. Dooley, Steven C. Knittel, Assistant District Attorneys, for appellee.

       The jury failed to reach a verdict on a second count of theft by shoplifting from three other stores.

       Allen does not argue, and the record does not reflect, any error by the trial court with regard to its decision not to probate or suspend a portion of Allen’s sentence.


text:
    A13A2298.
    McMULLEN v. THE STATE.
    (754 SE2d 798)
   DOYLE, Presiding Judge.

A Clayton County jury found Sandra Lee McMullen guilty of felony obstruction of a law enforcement officer (Count 1) and simple battery on a law enforcement officer (Count 2). The trial court merged Count 2 into Count 1 and sentenced her to three years. McMullen appeals the trial court’s subsequent denial of her motion for new trial, challenging the sufficiency of the evidence and arguing that the trial court erred by failing to sentence her on the misdemeanor offense (Count 2) instead of the felony offense (Count 1) based on the rule of lenity. We affirm for the reasons that follow.

Viewed in favor of the verdict, the evidence shows that on December 24, 2011, McMullen called 911 when her son, Dexter Slaton, began exhibiting what she believed to be signs of a nervous breakdown. Officer Dennard arrived approximately ten minutes after the initial officer on the scene, Officer Caloma, arrived. Slaton, who was seated at the table, stated, “oh, there goes a black officer. I don’t even know why you brought him.” Slaton was agitated and belligerent, and he was yelling at Officer Caloma. Officer Caloma asked Slaton for his name, and Slaton responded, “Aubrey.” McMullen corrected him, and she and Slaton began to argue. Officer Dennard then instructed Slaton to let McMullen speak, and Slaton pointed his right hand at the officer, balling up his left hand and stating, “I’m a grown ass man, you can’t say s—t to me. ... If [you touch me, my] mom [is] going to f—k [you] up.” Officer Dennard approached Slaton, who stood up, cocked his left fist, and began rolling his shoulders back. In an effort to avoid being hit, Officer Dennard grabbed Slaton, used a “straight-arm bar[ hold,] and took him to the ground.” Slaton attempted to spit on Officer Dennard, who then placed his hand on the back of Slaton’s neck. At this point, McMullen jumped on the officer’s back, put her hands around his neck, and began choking him. Officer Dennard released Slaton, and as he secured McMullen, she struck him twice in the face and once in the neck, knocking off his radio. Officer Dennard then struck McMullen and secured her hands.

McMullen was arrested and charged with obstruction of a law enforcement officer and simple battery on a law enforcement officer. At trial, the State introduced a video of the incident, which was recorded by the homeowner with her phone. At the conclusion of the trial, the jury found McMullen guilty on both counts. The trial court merged the simple battery count into the felony obstruction of a law enforcement officer count and sentenced McMullen to three years, to be served in fifteen consecutive weekends in the county jail and the remainder on probation. McMullen subsequently filed a motion for new trial, which the trial court denied following a hearing. This appeal followed.

1. McMullen argues that the evidence was insufficient to support her conviction for felony obstruction of a law enforcement officer.

On appeal from a criminal conviction, we view the evidence in the light most favorable to the verdict, with the defendant no longer enjoying a presumption of innocence. We neither weigh the evidence nor judge the credibility of witnesses, but determine only whether, after viewing the evidence in the light most favorable to the prosecution, a rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt.

“We conclude that the evidence presented at trial was sufficient for a rational jury to find [McMullen] guilty beyond a reasonable doubt of [felony obstruction of a law enforcement officer]. [Although t]he testimony of [Officer Dennard], standing alone, was sufficient to sustain the conviction[ ],” the jury also viewed the recording of the incident.

2. McMullen also contends that the trial court erred by denying her motion for new trial because the rule of lenity required her to be sentenced on the misdemeanor offense of simple battery on a law enforcement officer instead of on felony obstruction. We disagree.

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

Here, there is no ambiguity in the two Code sections at issue. OCGA § 16-10-24 (b) provides in relevant part: “Whoever knowingly and willfully resists, obstructs, or opposes any law enforcement officer ... in the lawful discharge of his official duties by offering or doing violence to the person of such officer... is guilty of a felony....” OCGA § 16-5-23 (e) provides that “[a]ny person who commits the offense of simple battery against a police officer . . . engaged in carrying out official duties shall, upon conviction thereof, be punished for a misdemeanor of a high and aggravated nature.” “[T]he two statutes do not define the same offense.” To prove misdemeanor battery on a law enforcement officer, OCGA § 16-5-23 (e) requires a showing that the defendant either made physical contact of an insulting or provoking manner or intentionally caused physical harm to an officer while the officer was engaged in carrying out official duties; it does not require proof that the defendant’s actions obstructed the officer in the discharge of his official duties. Conversely, OCGA § 16-10-24 (b) does not require proof of physical contact or harm, but does require evidence of a threat to do physical violence to the officer with “the specific intent to hinder law enforcement.”

Decided February 18, 2014.

James E. Bischoff, for appellant.

Tracy Graham-Lawson, District Attorney, Frances C. Kuo, Assistant District Attorney, for appellee.

Thus, the two defined crimes do not address the same criminal conduct, there is no ambiguity created by different punishments being set forth for the same crime, and the rule of lenity does not apply. Further, that a single act may, as a factual matter, violate more than one penal statute does not implicate the rule of lenity. ... In such a circumstance, a defendant may be prosecuted for more than one crime. However, the injustice that must be avoided is sentencing the defendant for more than one crime following [her] conviction of multiple crimes based upon the same act. When a defendant is so prosecuted, the principle of factual merger operates to avoid the injustice.

Here, although McMullen was convicted of both charged crimes, the trial court properly merged the misdemeanor battery conviction into the felony obstruction conviction. Therefore, she was “sentenced for only one crime, and the injustice of double sentencing [was] avoided.”

Judgment affirmed.

McFadden and Boggs, JJ., concur.

       OCGA § 16-10-24 (b).

       OCGA§ 16-5-23 (e).

       See Short v. State, 234 Ga. App. 633, 634 (1) (507 SE2d 514) (1998).

       According to McMullen, Slaton “was so irate [she] couldn’t calm him,” and he made statements indicating that he was “the man that God brought here to train Jesus to fight the devil.”

       McMullen’s amended motion for new trial included an allegation of ineffective assistance of counsel. After McMullen failed to appear for the hearing on her motion, however, post-trial counsel withdrew her ineffective assistance of counsel claim, and it is not at issue on appeal.

       (Citations and punctuation omitted.) Brown v. State, 318 Ga. App. 334, 334-335 (733 SE2d 863) (2012), citing Jackson v. Virginia, 443 U. S. 307, 319 (III) (B) (99 SCt 2781, 61 LE2d 560) (1979).

       (Citation omitted.) McClary v. State, 322 Ga. App. 35, 36 (743 SE2d 624) (2013). See also OCGA § 16-10-24 (b); Williams v. State, 301 Ga. App. 731, 733 (1) (688 SE2d 650) (2009).

       (Citation omitted.) Banta v. State, 281 Ga. 615, 617 (2) (642 SE2d 51) (2007), quoting United States v. Lanier, 520 U. S. 259, 266 (117 SCt 1219, 137 LE2d 432) (1997).

       See also OCGA § 16-5-23 (a) (“Aperson commits the offense of simple battery when he or she either: (1) [intentionally makes physical contact of an insulting or provoking nature with the person of another; or (2) [intentionally causes physical harm to another.”).

        Banta, 281 Ga. at 618 (2).

       See, e.g., Pearson v. State, 224 Ga. App. 467, 468 (1) (480 SE2d 911) (1997) (explaining distinction between felony obstruction and simple battery).

       (Citations and punctuation omitted; emphasis in original.) Banta, 281 Ga. at 618 (2).

       Id.