text:
    A11A1261.
    IVY ROAD PROPERTIES, LLC et al. v. FIRST CITIZENS BANK AND TRUST COMPANY.
    (715 SE2d 809)
   MlKELL, Judge.

Ivy Road Properties, LLC, John DeYonker III, W Mark Shaw, and Kent S. Levenson appeal from the trial court’s order confirming the nonjudicial foreclosure sale of land which First Citizens Bank and Trust Company (“First Citizens”) held as security for a loan.

A foreclosure sale was conducted by First Citizens on February 2, 2010, for a 34.89 acre tract on Ivey Road in unincorporated Cobb County. First Citizens submitted the only bid for the property in the amount of $1,533,000. At the confirmation hearing, First Citizens presented Dennis Carr, an MAI-designated independent real estate appraiser, as its expert witness on the issue of the true market value of the property. No objection was voiced by appellants to his qualifications or his opinion of the true market value of the property. Carr opined that the value of the property on the date of the foreclosure was $1,460,000. Carr’s written appraisal reports (one from August 2009 and one from October 2010, effective as of February 2, 2010) were also admitted into evidence without objection. Carr looked for comparable land sales but could not find any that reflected the economic downturn. He found very few land sales at all, and those reflected a drastic cut of 40 percent and as much as 60 to 70 percent to account for a new layer of profit in an investor buying and holding the property for future sale. Therefore, Carr used a hybrid of the sales comparison and income approach in appraising the property to reflect the economic downturn. He used a sales comparison approach of pre-recessionary sales to come up with a “stabilized value” of the property in a normal, stabilized market, which was $2,360,000. In Carr’s opinion, the most likely buyer would be an investor or builder who would expect to hold the property for three years. Carr used a discount rate of 17 percent per year to account for the risk involved in purchasing now for future income. That discount resulted in a total of $1,473,000, from which Carr subtracted the expected tax costs for the three years, yielding his final opinion of value of $1,460,000.

Appellants do not challenge the validity of the statutory notices given, advertisements published, and/or reports filed by First Citizens regarding the foreclosure sale or that the sale was “regular,” but argue only that First Citizens’ expert’s opinion was not the product of a reliable method for determining the true market value of real property and did not establish the true market value of the property.

In confirming a nonjudicial foreclosure sale under OCGA § 44-14-161, the trial court “shall require evidence to show the true market value of the property sold under the powers and shall not confirm the sale unless it is satisfied that the property so sold brought its true market value on such foreclosure sale.” In these proceedings, “the trial court sits as the trier of fact, and its findings and conclusions have the effect of a jury verdict.” We will not disturb the trial court’s decision if there is any evidence to support it, and “we do not determine witness credibility or weigh the evidence and we view the evidence in the light most favorable to the trial court’s judgment.”

1. Appellants’ first enumeration is that the testimony of Carr “was not the product of a reliable method for determining the true market value of real property because it was not based upon evidence of actual sales and should not have been considered by the trial court.”

As previously noted, however, no objection was made below to either the testimony of Carr or to the two written appraisals produced by him and introduced into evidence.

“This [sítate has long followed the contemporaneous objection rule, which provides that counsel must make a proper objection on the record at the earliest possible time to preserve for review the point of error.” “All evidence is admitted as of course, unless a valid ground of objection is interposed, the burden being on the objecting party to state at the time some specific reason why it should not be admitted.” The failure to make an objection which is both timely and specific is treated as a waiver.

“Where there is no ruling to review, this Court cannot consider the enumerated error. ’ ’ Accordingly, this argument presents nothing for our review.

2. In their second enumeration, appellants argue that Carr’s testimony “did not establish the true market value of the Property as defined by law and was an insufficient basis to confirm the foreclosure sale.”

Decided August 16, 2011.

Schreeder, Wheeler & Flint, Debbie A. Wilson, Troutman Sanders, Cory S. Menees, for appellants.

Busch, Slipakoff & Schuh, Mathew A. Schuh, for appellee.

Although First Citizens argues that this enumeration was also waived by failure to object to Carr’s testimony below, we will address it to the extent that it addresses the sufficiency of the valuation evidence.

As set out above, Carr explained his methodology used to compute and the factual information upon which he based his appraisal. “There being no evidence that his valuation was based on sheer speculation, we will not second-guess his methodology.” “As a general rule the price brought at a public sale, after proper and lawful advertisement, is prima facie the market value of the property sold, absent anything to indicate that there was chilling of the bidding, fraud, or the like adversely affecting the sale.”

Also, whether the valuation methodology of Carr contained errors went to the weight and credibility of his testimony, matters properly left to the trial court as the trier of fact.

OCGA § 44-14-161 (b) does not preclude any specific method of property appraisal and Carr provided opinion evidence of the true market value of the property. Therefore, the trial court was authorized to find that First Citizens’ winning bid at the foreclosure sale represented the true market value of the property.

Judgment affirmed.

Smith, P. J., and Dillard, J., concur.

       True market value “is the price which the property will bring when it is offered for sale by one who desires, but is not obliged, to sell it, and is bought by one who wishes to buy, but is not under a necessity to do so.” (Citation and punctuation omitted.) Gutherie v. Ford Equip. Leasing Co., 206 Ga. App. 258, 259 (1) (424 SE2d 889) (1992).

       OCGA § 44-14-161 (b).

       (Citations omitted.) Boring v. State Bank & Trust Co., 307 Ga. App. 93, 94 (704 SE2d 207) (2010).

        Oates v. Sea Island Bank, 172 Ga. App. 178 (1) (322 SE2d 291) (1984).

       (Citation omitted.) McCain v. Galloway, 267 Ga. App. 505 (600 SE2d 449) (2004).

        State v. Larocque, 268 Ga. 352, 353 (489 SE2d 806) (1997), citing Sharpe v. Dept. of Transp., 267 Ga. 267 (1) (476 SE2d 722) (1996).

       (Citations and punctuation omitted.) Davis v. Rathel, 273 Ga. App. 183, 186 (2) (614 SE2d 823) (2005).

        Seabrooks v. State, 251 Ga. 564, 567 (1) (308 SE2d 160) (1983).

       (Citation omitted.) Fredericks v. Hall, 275 Ga. App. 412, 414 (3) (620 SE2d 638) (2005). Accord Davis, supra.

       “[Appellants] did not move to exclude the testimony of [First Citizens’] expert; did not object at the confirmation hearing to the admissibility of the expert’s testimony; and did not move to strike the expert’s testimony regarding the valuation. . . . [T]he only issue before this Court is the sufficiency of the valuation evidence.” Jimmy Britt Builders, Inc. v. Suntrust Bank, 307 Ga. App. 663, 665 (1), n. 3 (706 SE2d 665) (2011).

       (Citation omitted.) Boring, supra at 96 (2).

       (Citations and punctuation omitted.) Id. at 96-97.

        Jimmy Britt Builders, Inc., supra at 667 (1).

        Atreus Communities of America v. Keybank Nat. Assn., 307 Ga. App. 716, 720 (706 SE2d 107) (2011); Jimmy Britt Builders, Inc., supra at 668 (1); Boring, supra at 97 (2).


source: Caselaw Access Project

author: BARNES, Presiding Judge.

license: Public Domain

text:
    A11A1270.
    IN THE INTEREST OF R. W., a child.
    (715 SE2d 824)
   BARNES, Presiding Judge.

The juvenile court adjudicated R. W delinquent for acts which, if committed by an adult, would have constituted the crimes of terroristic threats and pointing a gun at another person. R. W. argues on appeal that the evidence presented at the hearing was insufficient to support the adjudication of delinquency, but for the reasons that follow, we affirm.

When a juvenile is charged with acts that would constitute crimes if committed by an adult, the State must prove beyond a reasonable doubt that the juvenile committed the acts. In the Interest of E. D. F., 243 Ga. App. 68 (1) (532 SE2d 424) (2000). The juvenile court judge weighs the evidence and resolves any conflicts in the evidence, and the appellate courts view the evidence in the light most favorable to the juvenile court’s findings and judgment, determining only whether a rational trier of fact could have found that R. W committed the acts charged in the delinquency petition. In the Interest of D. D., 287 Ga. App. 512 (651 SE2d 817) (2007).

The State alleged in its delinquency petition that R. W committed two counts of aggravated assault with a deadly weapon by pointing a handgun at two people and threatening to shoot them. The State also alleged that R. W committed two counts of terroristic threats by threatening to shoot the same two people “with the purpose of terrorizing [them] with reckless disregard of [the] risk of causing such terror.” One of the victims testified at the hearing that she approached R. W. on the street and asked him why he had robbed her brother. In response, R. W. pulled out a silver gun and pointed it at the sister and her child while denying he robbed her brother. The sister testified she was afraid because she had her little girl with her.

R. W left the scene, and the victim called the police, then called her brother, who came and picked up her and her child. The victim and her brother were waiting for the police on someone’s porch when R. W walked by. The brother approached R. W. and “had words” with him about him pulling a gun on the victim and her baby, and the victim testified that she then “slapped [R. W] around a little bit because he pulled the gun out on my child while I had my baby right there.” R. W again pulled out a gun and began “swinging it” and pointing it at the brother while saying that he had a gun. The woman on whose porch the victim was waiting testified that she heard “a lot of name calling and screaming and stuff like that,” and when she looked out the window she saw a gun. She “was afraid for somebody getting hurt” because she had seen a weapon and the voices she heard were loud and angry, so she went outside and made everyone leave. She could not identify who had been holding the gun, because her eyesight was failing and “all the kids dress the same.”

After the State presented its evidence, the juvenile court dismissed the aggravated assault charges. After R. W. presented his evidence, the court adjudicated R. W delinquent for committing acts which, if committed by an adult, would have constituted the crimes of terroristic threats and pointing a gun at another person.

1. R. W. argues that the evidence was insufficient for the juvenile court to adjudicate him delinquent for acts that would constitute the crime of terroristic threats if he were an adult. Under OCGA § 16-11-37 (a), “[a] person commits the offense of a terroristic threat when he or she threatens to commit any crime of violence . . . with the purpose of terrorizing another.” The offense focuses solely on the accused’s conduct “and is completed when the threat is communicated to the victim with the intent to terrorize.” Armour v. State, 265 Ga. App. 569, 571 (1) (594 SE2d 765) (2004). The State need not present direct evidence of the accused’s intent, but may show intent by the circumstances surrounding the threat. Jordan v. State, 214 Ga. App. 346, 347 (447 SE2d 341) (1994). “Displaying a handgun to another under threatening circumstances may constitute a terroristic threat if committed by an adult.” In the Interest of C. A., 249 Ga. App. 280, 281 (1) (548 SE2d 37) (2001).

R. W. argues that the juvenile court’s comments indicated it based its ruling on its belief that R. W said to the brother “I’ve got a gun,” or something similar, but that the brother’s testimony was too equivocal for the court to have found beyond a reasonable doubt that this statement was a terroristic threat. R. W further argues that if he told the brother he had a gun, he could have been explaining that he had not stolen any guns from him because he already possessed one, or he could have made the statement because he was afraid the brother would harm him physically.

While some contradictory evidence was presented regarding what R. W. said, determining the credibility of the witnesses was the province of the juvenile court judge. In the Interest of W. C., 204 Ga. App. 204 (419 SE2d 540) (1992). Here, the testimony of the victims and witnesses was sufficient for the court to have found that R. W. intended to threaten the brother when he said he had a gun. See In the Interest of J. L. W., 213 Ga. App. 630, 631 (2) (445 SE2d 575) (1994).

2. R. W also asserts that the evidence was insufficient to find beyond a reasonable doubt that he had pointed a pistol at the sister, because she had described him as “waving,” “swinging,” or “slinging” the gun around in addition to testifying that R. W. pointed the gun at her and her young child. In fact, he argues, the sister used the terms interchangeably, and thus her testimony would also support a finding that he had simply been waving the weapon around instead of pointing it at anyone.

Decided August 16, 2011.

Melissa E. Lawrence, Craig T. Pearson, for appellant.

Tom Durden, District Attorney, Johnathan C. Gaskin, Assistant District Attorney, for appellee.

A person commits the offense of pointing a gun at another when he intentionally and without legal justification points a gun at another person. OCGA § 16-11-102. The issue is not whether the juvenile court could have made different findings, but whether sufficient evidence supported the court’s findings. “The juvenile judge, as factfinder, is authorized to believe or disbelieve all or any part of the testimony of witnesses, and it serves as the arbiter of conflicts in the evidence before it.” (Punctuation and footnote omitted.) In the Interest of C. N. S., 282 Ga. App. 3, 4-5 (637 SE2d 500) (2006). We conclude that the State presented sufficient evidence to authorize a rational factfinder to determine that R. W committed an act which, if he were an adult, would constitute the crime of pointing a gun at another.

Judgment affirmed.

Adams and Blackwell, JJ., concur.


author: Ellington, Chief Judge.

text:
    A11A1314.
    HOST INTERNATIONAL, INC. v. CLAYTON COUNTY et al.
    (715 SE2d 805)
   Ellington, Chief Judge.

Host International, Inc. (“Host”) brought this action in the Superior Court of Clayton County against the county, its Board of Commissioners, and the commissioners in their official capacities (collectively, “the county”), seeking a refund of ad valorem taxes Host paid the county for the years 1999-2005. Host alleged that it has a usufruct (that is, a mere possessory interest that is not an estate in land) in the subject property, which it leases at the Hartsfield-Jackson Atlanta International Airport for the purpose of operating food and beverage concessions; that usufruct interests in property generally are not subject to ad valorem taxation; and that the Code section upon which the county relies for assessing and collecting such taxes, OCGA § 6-3-21, is unconstitutional.

The county moved to dismiss, contending, inter alia, that Host’s claims are barred under the doctrine of collateral estoppel. The trial court found that it had resolved in previous litigation concerning a different tax year the issue of the county’s right to tax Host’s usufruct interest. Based on this, the court determined that Host’s claims are barred under the doctrine of collateral estoppel and granted the county’s motion. On appeal, Host contends that, in the previous litigation, the trial court did not decide on the merits whether OCGA § 6-3-21 is constitutional and, therefore, that litigation of that issue is not precluded in the case at bar. For the reasons explained below, we vacate the trial court’s ruling and remand.

1. As an initial matter, we consider the procedural posture of this case and the applicable standard of review. OCGA § 9-11-12 (b) provides in pertinent part that

[i]f, on a motion to dismiss for failure of the pleading to state a claim upon which relief can be granted, matters outside the pleadings are presented to and not excluded by the court, the motion shall be treated as one for summary judgment and disposed of as provided in [OCGA §] 9-ll-56[.]

Because the trial court considered matters outside the pleadings in this case, including the pleadings and judgment in Host Intl. v. Clayton County Board of Tax Assessors (Civil Action No. 1998-CV-3404-8) (“Host I”), we will treat the appealed order as one granting summary judgment to the county. Fernandez v. WebSingularity, 299 Ga. App. 11, 13 (1) (681 SE2d 717) (2009). “We review de novo a trial court’s grant of summary judgment, construing the evidence in a light most favorable to the nonmoving party.” (Footnote omitted.) Id.

2. Host contends that, in Host I, which concerned its application for a refund of ad valorem taxes it paid for 1997, the trial court did not decide on the merits Host’s claim that OCGA § 6-3-21 is unconstitutional. As a result, Host contends that the trial court erred in ruling that Host is precluded from claiming that the statute is unconstitutional in the case at bar.

The doctrine of collateral estoppel or issue preclusion bars

the re-adjudication of an issue that has previously been litigated and adjudicated on the merits in another action between the same parties or their privies. Like res judicata, collateral estoppel requires the identity of the parties or their privies in both actions. However, unlike res judicata, collateral estoppel does not require identity of the claim — so long as the issue was determined in the previous action and there is identity of the parties, that issue may not be re-litigated, even as part of a different claim. Furthermore, collateral estoppel only precludes those issues that actually were litigated and decided in the previous action, or that necessarily had to be decided in order for the previous judgment to have been rendered. Therefore, collateral es-toppel does not necessarily bar an action merely because the judgment in the prior action was on the merits. Before collateral estoppel will bar consideration of an issue, that issue must actually have been decided.

(Footnotes omitted.) Waldroup v. Greene County Hosp. Auth., 265 Ga. 864, 866-867 (2) (463 SE2d 5) (1995).

(a) In response to Host’s contention that the issue of whether OCGA § 6-3-21 is constitutional was not decided in Host I, the county argues that the trial court decided that issue on the merits when it found that Host had not supported its constitutionality arguments with any binding legal authority.

In Host I, the trial court ruled that, even if Host’s interest in the subject property is merely a usufruct or possessory interest, which is otherwise not a taxable estate, OCGA § 6-3-21 by its plain terms authorizes the county to assess and collect ad valorem taxes for the subject property, which is owned by the City of Atlanta, located outside of the territorial limits of Atlanta, part of the airport, and leased and occupied by a private party (Host). The court then held as follows:

In [Host’s] Response to [the county’s] Cross-Motion for Summary Judgment, [Host] argues that OCGA § 6-3-21 is unconstitutional. However, to assert a constitutional issue before the superior court in a de novo appeal, [the] appellant must have timely raised the issue before the board of equalization. Vann v. DeKalb County Board of Tax Assessors[,] 186 Ga. App. 208, 214 [(2) (367 SE2d 43)] (1988). Here, although there is no record in the file of what transpired at the Clayton County Board of Equalization hearing, [Host] did not include any constitutionality arguments in its Notice of Appeal [to the superior court] of May 26, 1998. It appears that [Host] argued unconstitutionality of the law for the first time in its response brief on appeal. Thus, the argument is not timely.
Moreover, even if the argument had been timely, [Host] attempts to rely on an order by the Fulton County Superior Court which was appealed to the Georgia Supreme Court in Roberts v. Eastern Airlines, 257 Ga. 273 [(357 SE2d 585)] (1987). The Fulton County order is not binding precedent, and it should be noted that the Georgia Supreme Court does not address any of the constitutionality issues on which the lower court focused.

Pretermitting whether the trial court even had jurisdiction to rule on Host’s belated constitutionality challenge to OCGA § 6-3-21 in Host I, absent a waiver of any procedural bar by the county, we conclude that untimeliness was the basis of the court’s ruling on Host’s constitutionality argument. Consequently, contrary to the county’s position, the concluding paragraph, wherein the court commented hypothetically on whether Host’s argument would have had merit “if” it had been timely raised can only be construed as obiter dictum and not a ruling on the merits. Royal Arcanum v. Riley, 143 Ga. 75, 79-80 (2) (84 SE 428) (1915); Piggly Wiggly Southern v. Eastgate Assoc., 195 Ga. App. 10, 12 (392 SE2d 337) (1990).

Decided August 16, 2011

Sutherland, W. Scott Wright, Jennifer N. Ide, Madison J. Barnett, for appellant.

Freeman, Mathis & Gary, Jack R. Hancock, Brian R. Dempsey, for appellees.

(b) In addition, the county argues that, in Host I, the trial court decided the issue of “taxability” and that the issue is identical in the case at bar. This argument also lacks merit. The issue of whether a Code section by its terms applies in a given situation is not identical to the issue of whether the statute is constitutional. Because, in Host I, the trial court only decided that OCGA § 6-3-21 applies to Host’s interest and did not decide on the merits whether the statute is constitutional, Host is not precluded from litigating the constitutionality issue in the case at bar, and the trial court erred in ruling otherwise. Accordingly, we vacate the judgment and remand for further proceedings.

Judgment vacated and case remanded.

Miller, P. J., and Doyle, J., concur.

       See OCGA § 48-5-380 (c) (“Any taxpayer whose claim for [a] refund [of any taxes paid to a county or municipality] is denied by the governing authority of the county or municipality .. . shall have the right to bring an action for a refund in the superior court of the county in which the claim arises.”).

       OCGA § 6-3-21 provides, in pertinent part, that any land that is owned, controlled, or occupied by a municipality for the operation of an airport; located outside of the territorial limits of the municipality; and leased to, controlled, or occupied by a private party is, “regardless of the extent of [the private party’s] interest, whether possessory or an estate in land, . . . subject to ad valorem taxation!.]”

        Fitzpatrick v. Harrison, 300 Ga. App. 672 (686 SE2d 322) (2009) (Where a defendant moved to dismiss, arguing that the plaintiffs claims were barred by the doctrine of collateral estoppel, and where the trial court considered matters outside the pleadings in ruling upon the motion, including the pleadings from earlier litigation, the motion to dismiss was converted into a motion for summary judgment.).

       See also Thomas County Bd. of Tax Assessors v. Thomasville Garden Center, 277 Ga. App. 591, 593-594 (2) (627 SE2d 192) (2006) (“[Georgia’s] appellate courts have followed the lead of the United States Supreme Court in deciding the circumstances under which collateral estoppel will or will not apply. . . . [I]n the context of tax disputes, the U. S. Supreme Court has held that the purpose of collateral estoppel is to prevent redundant litigation of the same question of a statute’s application to the taxpayer’s status.”) (citations and punctuation omitted).

       OCGA § 44-7-1 (b) (“All renting or leasing of real estate for a period of time less than five years shall be held to convey only the right to possess and enjoy such real estate, to pass no estate out of the landlord, and to give only the usufruct unless the contrary is agreed upon by the parties to the contract and is so stated in the contract.”). In this case, the contract expressly provides that Host’s rights constitute a usufruct, with no estate passing out of the city.

       See OCGA § 48-5-3 (defining “taxable property” as “[a]ll real property including, but not limited to, leaseholds, interests less than fee, and all personal property”); Macon-Bibb County Bd. of Tax Assessors v. Atlantic Southeast Airlines, 262 Ga. 119 (414 SE2d 635) (1992) (A usufruct is not a taxable interest in land.).

       See OCGA § 6-3-21, quoted in note 2, supra.

       See 10950 Retail v. City of Johns Creek, 299 Ga. App. 458, 460 (1) (682 SE2d 637) (2009) (Collateral estoppel would not bar a taxpayer’s challenge to the constitutionality of a statute where the parties did not litigate the issue of constitutionality in an earlier proceeding before a hearing officer on the taxpayer’s application for a business license.); see also Neeman v. Commissioner of Internal Revenue, 255 F2d 841 (2d Cir. 1958) (A court’s determination that, under the Code, alimony payments were taxable as income to the recipient did not constitute a ruling that the statute was constitutional, and, consequently, did not bar consideration of the taxpayer’s challenge to the constitutionality of the statute in later litigation.).


author: Andrews, Judge.

text:
    A11A1345.
    JACKSON v. THE STATE.
    (715 SE2d 812)
   Andrews, Judge.

Sylvester Jackson appeals after a jury found him guilty of possession of tools for the commission of a crime. OCGA § 16-7-20. Jackson contends that the evidence was insufficient because currency is not a “device” that is commonly used in the commission of theft by deception. We disagree and affirm.

On appeal from a criminal conviction, the evidence must be viewed in the light most favorable to the verdict and the defendant no longer enjoys the presumption of innocence; moreover, an appellate court does not weigh the evidence or determine witness credibility but only determines whether the evidence is sufficient under the standard of Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560) (1979).

So viewed, the evidence at trial was that Jakeitha Nipper was going into a bank on the day in question when a woman came up to her and told her that she had been “blessed” with a large sum of money and wanted to share it. Nipper said that a man was standing nearby and appeared to be listening. The woman, later identified as Jackson’s co-defendant Juanita Lewis, included the man, later identified as co-defendant Jimmy Moses, in the invitation to share the money and told Nipper that she wanted to sit in Nipper’s car and divide the money. The woman showed Nipper what was in the black bag she was carrying. The bag contained a bundle of two hundred $1 bills with a $100 bill on either end. It also contained a card with “$10,000” written on it. Nipper refused to get in her car and said she did not want any of the money. The man and woman walked off in different directions, but Nipper continued to watch them and saw them meet later at a car in the parking lot.

Nipper called 911 and described the car. She said that police stopped the car at a Chevron station and called her to identify the car and the occupants. Nipper identified the woman but could not identify the men in the car.

Officer Clay Ivey testified that he was familiar with this type of scam, known as the “pigeon drop” scam. He explained that this scam targeted women or the elderly in parking lots and usually involved two or three people. One person would approach the intended victim and tell them that she found a bag or bandanna containing a lot of money. There would usually be a note indicating that the money had been obtained in some illegal fashion, thereby making it easier to convince the potential victim to agree to split the money.

The other person involved in the scam would pretend to overhear and would tell them that he knows a lawyer who will take the money and “launder the money out,” but they each need to put in an additional 10 percent to 25 percent of their own money. They then go with the victim to the bank, each one draws out money, and they put all the money in the bag.

One of the scammers then says that he is going to see the lawyer, leaving the bag with the money in the victim’s car. The other scammer also leaves at some point, ostensibly to go look for the other person. However, before they leave, one of the two scammers secretly takes the bag with the money and substitutes another bag full of cut up newspaper.

Juanita Lewis and Jimmy Moses both testified at trial. They stated that Jackson drove them to the spot where they planned to use the bundle of bills and the card to find somebody they “could swindle.” They said that the plan did not work that time because Nipper refused to participate.

Jackson testified and acknowledged that he picked up Lewis and Moses on the day in question and drove them from place to place for purposes of doing a “flim flam.” Jackson testified in detail about the manner in which the scheme was supposed to work. Jackson denied, however, actually participating in the scam.

The jury found Jackson guilty of possession of tools for the commission of a crime and not guilty of forgery. Because the jury was unable to reach a unanimous verdict on the charge of criminal attempt to commit theft by deception, the court declared a mistrial as to that count. This appeal followed.

On appeal, Jackson acknowledges that the evidence, including his own testimony, was sufficient to show that he knowingly participated in the scheme to get money from the prospective victim. He argues, however, that United States currency cannot be considered a “device” for purposes of OCGA § 16-7-20, and also contends that the currency and the note are not tools “commonly used” in the commission of a theft.

OCGA § 16-7-20 (a) provides: “A person commits the offense of possession of tools for the commission of crime when he has in his possession any tool, explosive, or other device commonly used in the commission of burglary, theft, or other crime with the intent to make use thereof in the commission of a crime.” The indictment alleged that Jackson had in his

possession certain devices, to wit: a bundle of one dollar bills with one hundred dollar Federal Reserve Notes on the outside of the bundle and a document in the bag indicating that $10,000.00 was in the bag with the bundle, devices commonly used in the commission of the crime of theft by deception, particularly a scheme known as a “pigeon drop,” and did intend to make use of these devices in the commission of a crime. . . .

The trial court held that the indictment did not merely charge Jackson with possession of currency, but rather possession of currency bundled in a specific manner to make it appear that the bundle contained more money than was actually there, along with a document stating that there was $10,000 in the bundle. Thus, in the manner fashioned, it became more than mere currency — it was basically “pigeon bait.”

Decided August 16, 2011.

Crawford & Boyle, Eric C. Crawford, for appellant.

Richard R. Read, District Attorney, Paul J. Stalcup, Roberta A. Earnhardt, Assistant District Attorneys, for appellee.

There was no error. The investigating officer testified that he himself had investigated 15 to 20 of these “pigeon drop” scams and it always involved a bundle of what appears to be a large sum of money and a note. Both of Jackson’s co-defendants also testified that this was how the scam worked using the bundle of money. In addition, Jackson himself testified as to how this particular “flimflam” was carried out, stating that it had not been known as a “pigeon drop” since the 50s and was now called a “drag.” He stated that it always involved a “bundle of money.”

Accordingly, we conclude that there was sufficient evidence from which the jury could conclude that the currency and note were “devices commonly used” in the commission of the crime of theft by deception. Therefore, there was sufficient evidence for the jury to find that Jackson was guilty of the crime charged beyond a reasonable doubt. See Jackson u. Virginia, supra.

Judgment affirmed.

Phipps, P J., and McFadden, J., concur.

       Lewis and Moses pled guilty to criminal attempt to commit theft by deception, possession of tools for the commission of a crime, and second degree forgery.


author: MlKELL, Judge.

text:
    A11A1373.
    ROGUE v. THE STATE.
    (715 SE2d 814)
   MlKELL, Judge.

Miguel Angel Rogue was charged by accusation with possession of cocaine after the contraband was found in his wallet during a traffic stop of the vehicle in which Rogue was a passenger. Rogue filed a motion to suppress, contending that his consent to the search of his wallet was invalid because it was preceded by an illegal pat-down of Rogue’s person. Following a hearing at which both the arresting officer and Rogue testified, the trial court denied the motion. The court found that Rogue voluntarily consented to the officer’s search of his wallet and that his consent was not the product of the officer’s earlier illegal pat-down search of Rogue’s person. Rogue was then convicted at a bench trial. On appeal, he challenges the denial of his motion to suppress. Because there is evidentiary support for the trial court’s findings, we affirm the trial court’s judgment.

At a hearing on a motion to suppress, the trial judge sits as the trier of fact. And Georgia law has long held that the trier of fact may believe or disbelieve all or any part of the testimony of any witness. Thus, on appellate review of a trial court’s order on a motion to suppress evidence, we never second-guess the trial court’s factual findings where they are based on testimonial evidence. We construe the evidence most favorably to the upholding of the trial court’s findings and judgment and affirm unless the court has committed an error of law.

Even when only one witness testifies at the suppression hearing and his testimony is not contradicted, the evidence is nonetheless not “uncontroverted,” for the reasons stated above. Only when the evidence is stipulated is our review de novo.

So construed, the evidence adduced at the suppression hearing shows that Rogue was a passenger in a vehicle that Officer Adam G. Bell of the Gwinnett County Police Department stopped for a window tint violation. Bell asked for and obtained the driver’s consent to a search of the vehicle, and he then asked Rogue to step out of the car so that Bell could conduct the search. Rogue got out of the car, and Bell asked him if he had any weapons or contraband on his person. Rogue answered no. Although Rogue seemed nervous and would not make eye contact with Bell, the trial court found that no evidence suggested that Rogue possessed any weapons. Nonetheless, Bell acted in accordance with his standard practice and proceeded to pat Rogue down for weapons to make sure that he was not armed and presented no threat to the officer’s safety. Bell then identified himself and asked Rogue for identification. Bell testified that Rogue “pulled out his wallet and started thumbing through his credit cards and . . . items that he had in his wallet. He appeared to be extremely nervous. His carotid [artery] in his neck started pulsating a little bit. He apparently had a hard time locating his ID.” Bell then asked Rogue if he could help him look for his ID. In response, Rogue said, “Here,” and handed Bell the wallet. Bell testified that he did not order Rogue by word or gesture to hand over his wallet. As Bell looked through the wallet for identification, he found a clear plastic bag containing a white powdery substance, which, based on Bell’s training and experience, appeared to him to be cocaine.

Rogue argues that Bell’s search of the wallet was not based on valid consent, because the search followed almost immediately after an illegal frisk of Rogue’s person; and that therefore the cocaine evidence found in the wallet should have been suppressed. The trial court found otherwise, and the evidence adduced at the hearing supports the trial court’s ruling.

“There are at least three levels of police-citizen encounters: verbal communications that involve no coercion or detention; brief ‘stops’ or ‘seizures’ that must be accompanied by a reasonable suspicion; and ‘arrests,’ which can be supported only by probable cause.” In this case, the officer’s observation of the vehicle’s improperly tinted windows provided the reasonable suspicion necessary to support the traffic stop. Further, during such a valid traffic stop, Bell could properly request consent to search the vehicle and could properly ask the occupants to exit the vehicle and provide identification.

As to the officer’s subsequent pat-down of Rogue, the evidence supports the trial court’s conclusion that Bell did not have a proper basis to frisk Rogue after asking him to exit the automobile. In order “to proceed from a stop to a frisk, the police officer must reasonably suspect that the person stopped is armed and dangerous, and . . . this requirement applies to passengers in cars legally stopped.” Bell testified that for his safety, he routinely patted down the passenger when the driver consented to a search of his automobile. This testimony, because it was based on general policy and not “on information specific to the person frisked” was “insufficient to establish that [Bell] harbored a reasonable suspicion that [Rogue] was armed and dangerous or otherwise posed a threat to officer safety.”

Rogue contends that his subsequent consent to Bell’s examination of his wallet was not voluntary because of this unlawful pat-down. However, the contraband was not uncovered during the unlawful pat-down. Under our decision in State v. Baker, the prior unlawful pat-down does not operate to invalidate Rogue’s later consent to the search of his wallet. In Baker, as in the case at bar, the arresting officer’s pat-down of the defendant, a student, was unlawful because no evidence supported a finding that the student was armed or dangerous; thus, “if the police had found evidence as a result of the [illegal] pat-down, the trial court would have been authorized to suppress that evidence.” After the pat-down, however, the officer asked the student if he had any drugs on him; he responded “no” and “invited [the officer] to check him to make sure that he had no drugs on him,” whereupon the officer searched him and found marijuana in his pocket. As in the case at bar, the contraband in Baker was not discovered during the unlawful pat-down, but during a subsequent search pursuant to consent; and “if the subsequent search was pursuant to a voluntary consent which was not a product of the illegal detention, the taint of that illegal detention would not require suppression of the evidence.”

“When the state relies on a consent search, it bears the burden of showing that the consent was voluntarily given, and not the result of duress or coercion, either express or implied.” In Baker, we remanded the case to the trial court to address the issue of whether the defendant’s consent in that case was voluntarily obtained. Such a remand is not necessary in the case at bar, however, because in its ruling the trial court addressed the voluntariness of Rogue’s consent. Whether consent is voluntarily given is a question of fact for the trial court to determine from all the circumstances.

The evidence in the record supports the trial court’s conclusion that Rogue voluntarily consented to the officer’s search of his wallet.

Decided August 16, 2011.

Campano & Sperling, Jean C. Sperling-Cavallero, Whitmer & Law, George H. Law III, for appellant.

Daniel J. Porter, District Attorney, Christa L. Kirk, Assistant District Attorney, for appellee.

Bell testified that after the pat-down, Rogue was free to leave at any time. According to Bell’s testimony, which was credited by the trial court, Rogue did not suffer from a language barrier and he understood Bell’s questions; in particular, he understood that Bell asked for his ID. The trial court found that when Rogue had trouble finding his ID, he handed his wallet to the officer after Bell offered to help. Thus, the trial court did not err in denying Rogue’s motion to suppress evidence.

Judgment affirmed.

Smith, P J., and Dillard, J., concur.

       (Punctuation and footnotes omitted.) State v. Rowell, 299 Ga. App. 238-239 (682 SE2d 343) (2009).

        Robinson v. State, 295 Ga. App. 136, 139 (670 SE2d 837) (2008) (Mikell, J., concurring specially); State v. Ellison, 271 Ga. App. 898, 901 (3) (a) (611 SE2d 129) (2005). See also Tate v. State, 264 Ga. 53, 56 (3), n. 5 (440 SE2d 646) (1994).

       (Punctuation and footnote omitted.) Lucas v. State, 284 Ga. App. 450, 452 (644 SE2d 302) (2007).

       See State v. Simmons, 283 Ga. App. 141, 143 (640 SE2d 709) (2006).

       See Salmeron v. State, 280 Ga. 735, 736-737 (1) (632 SE2d 645) (2006) (during valid traffic stop, officer may seek consent to search vehicle, ask occupants to get out of car, and request to examine driver’s license). Accord Matthews v. State, 294 Ga. App. 836, 838 (2) (670 SE2d 520) (2008) (whole court) (“police may lawfully ask questions unrelated to the purpose of a valid traffic stop, so long as the questioning does not unreasonably prolong the detention”) (citations omitted); Hayes v. State, 292 Ga. App. 724, 730 (2) (e) (665 SE2d 422) (2008) (“Asking the driver to step out of the vehicle does not unduly prolong the detention”) (footnote omitted).

       (Citation and punctuation omitted.) Molina v. State, 304 Ga. App. 93, 96 (695 SE2d 656) (2010).

       Id. at 98.

       (Citations omitted.) Id.

       261 Ga. App. 258 (582 SE2d 133) (2003).

       Id. at 259-260.

       Id. at 260.

       Id. at 259.

       (Punctuation and footnote omitted.) Id. at 260. Compare State v. Lanes, 287 Ga. App. 311, 313 (651 SE2d 456) (2007) (trial court’s grant of motion to suppress upheld where initial detention of defendant was invalid and trial court found that consent to search was result of that invalid detention).

       (Punctuation and footnote omitted.) Silverio v. State, 306 Ga. App. 438, 446 (3) (702 SE2d 717) (2010).

        Baker, supra.

        Gray v. State, 296 Ga. App. 878, 882 (5) (b) (676 SE2d 36) (2009).


text:
    A11A1426.
    WARD v. THE STATE.
    (715 SE2d 818)
   BARNES, Presiding Judge.

Marques Ward appeals the denial of his motion to dismiss the criminal charges against him, contending the 34-month delay between his arrest and motion violated his right to a speedy trial under the Sixth Amendment of the United States Constitution. Because the trial court did not abuse its discretion in denying the motion, we affirm.

In this case, Ward was arrested in February 2008 on two counts each of armed robbery, aggravated assault, and kidnapping. In May 2008, the court appointed a public defender to represent Ward, and the attorney appeared at Ward’s arraignment in June 2008. The lawyer filed discovery motions, and in July 2008 the trial court granted Ward a $500,000 bond, which Ward was unable to post. On August 4, 2008, Ward’s public defender moved to withdraw as the attorney of record because his contract with the Northern Circuit Public Defender’s Office expired on June 30, 2008, and he had been unsuccessful in his attempts “to make arrangements with both the Northern Circuit Public Defender’s Office and the Georgia Public Defender’s Standards Council to provide remuneration or, at a minimum, provide reimbursement of actual expenses.” Forcing him to represent Ward with no promise of payment was unconstitutional and would cause him a “true and severe economic hardship,” he argued. The trial court granted the motion on August 4, 2008 and relieved the lawyer from representing Ward.

On September 25, 2008, Ward moved the court to appoint counsel for him, noting that he had been found indigent, that the public defender’s office had been found to have a conflict as it represented a co-defendant, and that his previously-appointed counsel had been allowed to withdraw “due to lack of funding for conflict cases.” In October 2008, Ward’s case was transferred to a different superior court judge, and on January 7, 2009 a new attorney entered an appearance as counsel for Ward. Ward later explained at a hearing on his motion to dismiss that his family had scraped together enough money to hire this lawyer because Ward had been in jail for almost a year without a lawyer.

In late January 2009, Ward’s retained counsel filed a demand for jury trial, pre-trial motions, and a motion to reduce Ward’s bond, and on March 31, 2009, the trial court reduced Ward’s bond to $200,000. In July 2009, the trial court issued an order finding that Ward was entitled to appointed counsel and that the Public Defender of the Northern Judicial Circuit had a “serious potential conflict of interest,” and appointed a new attorney to represent Ward. No entry of appearance from that attorney appears in the record, and in August 2009, Ward’s retained counsel filed another motion to reduce Ward’s bond, seeking to be allowed to post “a reasonable property bond.” Apparently the motion was scheduled for a hearing on August 20, 2009, but counsel submitted a conflict letter, and the next document in the record is an identical motion to reduce the bond, filed on January 22, 2010. After a hearing, the trial court on February 12, 2010 denied Ward’s motion to reduce his bond.

Conflict letters in the record indicate that Ward’s case was set for a motions hearing on March 5, 2010, for a calendar call on June 1, 2010, and for trial on June 21, 2010. On June 24, 2010, the trial court issued an order specially setting Ward’s case for trial beginning August 2, 2010. Also in July 2010, Ward’s appointed counsel moved for permission to withdraw as Ward’s lawyer and filed conflict letters noting that he intended to appear for Ward’s specially set trial on August 2, 2010. The case apparently was not tried on that day, as Ward’s counsel subsequently submitted a conflict letter indicating that Ward’s case was set for a calendar call on October 4, 2010. Counsel also filed another motion seeking permission to withdraw as Ward’s lawyer on October 27, 2010, which the trial court denied that same day. Additional conflict letters indicate that Ward’s case was set for a hearing on November 3, 2010, and for trial on November 8, 2010.

On November 8, 2010, Ward filed in open court a motion to dismiss the case “on the 6th Amendment ground that 34 months have passed without trial.” He argued that his defense was prejudiced by the delay, which was caused by the State, and that the delay caused unnecessary pre-trial detention and emotional distress. The trial court noted during the motion hearing that the case had been called for trial at least twice after retained counsel was hired in January 2009. On one of these two occasions, Ward was “paraded . . . across the courtroom in shackles in front of the [potential jurors],” and the court concluded that the best course of action would be to obtain a different jury panel. The court specially set the case “as quickly as possible” for August 2010, but then granted the request of Ward’s co-defendant for a continuance until the November 2010 trial calendar. The trial court found that these delays were not attributable to Ward.

The court set November 3, 2010, as a day to hear pre-trial motions but Ward’s counsel submitted a conflict letter and did not attend. At that time, no motion to dismiss had been filed, but when the court asked trial counsel to attend procedural discussions before trial on the morning of November 8, 2010, Ward’s counsel “indicated he wanted to file a motion and was going to go write one out.” The court permitted him to do so, then held the motion hearing at which Ward testified. After the trial court orally denied the motion to dismiss, Ward filed a notice of appeal in open court and argued he had a right to an immediate direct appeal because his motion was neither frivolous nor dilatory. The court did not call the case for trial, noting that any delay in trying the case from that point forward was attributable to Ward. On December 13, 2010, the trial court issued a written order denying the motion, finding as a matter of law that the delay had not been caused by the prosecution and had not substantially prejudiced Ward’s defense.

On appeal, Ward contends that the trial court erred in denying his motion to dismiss due to a violation of his right to a speedy trial. Both the United States and Georgia Constitutions grant defendants in criminal cases a right to a speedy trial. U. S. Const. Amend. VI; Ga. Const. Art. I, Sec. I, Par. XI (a). When considering a motion to dismiss on this ground, the court conducts a two-tier analysis. Under the first tier, the court considers whether the delay is long enough to be presumptively prejudicial, and if so, then it considers under the second tier whether the delay constitutes a speedy trial violation. Brewington v. State, 288 Ga. 520, 521 (1) (705 SE2d 660) (2011). In determining whether the delay violated the defendant’s speedy trial right, the court considers (1) whether the delay is uncommonly long; (2) the reason for the delay, and whether the government or the defendant is more responsible; (3) the defendant’s assertion of the right to a speedy trial; and (4) the prejudice to the defendant. See Barker v. Wingo, 407 U. S. 514 (92 SC 2182, 33 LE2d 101) (1972); Doggett v. United States, 505 U. S. 647 (112 SC 2686, 120 LE2d 520) (1992).

In considering the four factors in the second tier of analysis, no one factor is necessary or sufficient to find a deprivation of the right to a speedy trial. State v. Redding, 274 Ga. 831, 832 (561 SE2d 79) (2002). Instead, the factors must be considered together, balancing the conduct of the prosecution and the defendant on a case-by-case basis. Boseman v. State, 263 Ga. 730, 731 (1) (438 SE2d 626) (1994). We review a trial court’s decision to deny a motion seeking dismissal for a speedy trial violation under an abuse of discretion standard. Burns v. State, 265 Ga. 763, 764 (462 SE2d 622) (1995).

1. Presumptive prejudice. “For serious crimes . . . that do not involve unusual complexities^] . . . one year generally marks the point at which expected deliberateness in the prosecution of a criminal matter turns into presumptively prejudicial delay.” Ruffin v. State, 284 Ga. 52, 55 (2) (a) (663 SE2d 189) (2008). The constitutional right to a speedy trial attaches on the date of arrest or when more formal charges are initiated, whichever comes first. State v. White, 282 Ga. 859, 861 (2) (a) (655 SE2d 575) (2008). Ward was served with the arrest warrant in this case in February 2008 while he was incarcerated in another county on other charges, and was transferred to the Oglethorpe County jail in May 2008 for the charges at issue here. The State concedes that the delay between Ward’s incarceration on these charges and his motion to dismiss in November 2010 is presumptively prejudicial. Accordingly, the other Barker factors must be considered to determine whether the State violated Ward’s right to a speedy trial.

2. Whether the delay was uncommonly long. A delay is considered uncommonly long to “the extent to which the delay stretches beyond the bare minimum needed to trigger judicial examination of the claim.” Doggett, 505 U. S. at 652 (II). Prejudice is presumed with a 12-month delay, and our Supreme Court has held that a delay of almost 27 months in a noncapital murder case is unusually long. Ruffin, 284 Ga. at 58 (2) (b) (i). We conclude, therefore, that the 34-month delay in this aggravated assault, robbery, and kidnapping case is uncommonly long, and thus weighed against the State. Higgins v. State, 308 Ga. App. 257, 260 (2) (a) (707 SE2d 523) (2011) (24-month delay in aggravated assault case uncommonly long and weighed against State).

3. The reason for the delay. The trial court found that the delay in this case was not attributable to Ward and “was not the fault of the prosecutor even though 29 months has passed since the Defendant’s indictment, 34 months have passed since the Defendant was [formally] arrested on the arrest warrant in this case[,] and 35 months have elapsed since the alleged crime occurred in this case.” The relevant question, however, is not whether the prosecutor was at fault for the delay, but whether the government was.

The responsibility for bringing a defendant promptly to trial rests with the government, . . . [which] includes all state actors, even trial and appellate court judges. The relevant inquiry for purposes of [this] factor is not whether the prosecutor or the accused bears more responsibility for the delay, but whether the government or the criminal defendant is more to blame for that delay.

(Citations and punctuation omitted.) Over v. State, 302 Ga. App. 215, 217 (2) (690 SE2d 507) (2010) (delay due to crowded docket is attributable to the government).

While we find no abuse of discretion in the trial court’s finding that the delay in this case was not attributable to the prosecutor, at least a portion of the delay was attributable to the government. The State notes that the Northern Judicial Circuit, which includes Oglethorpe County, has only two terms a year, and thus assembles grand and petit jurors only twice a year, making it “extremely difficult to indict an individual, complete discovery[,] and reach trial within twelve months.”

Further, Ward’s appointed counsel was allowed to withdraw in August 2008 because he was not being paid, leaving Ward unrepresented until Ward’s relatives hired the current counsel in January 2009. This five-month delay was attributable to the State. Weis v. State, 287 Ga. 46, 50 (1) (b) (694 SE2d 350) (2010) (“[T]o the extent that the delay caused by the lack of funding is attributable to the State, it can only be weighed against the State[.]”). “[T]he federal Constitution requires the states to provide conflict-free appointed counsel to indigent criminal defendants,” and thus the failure to provide indigent defense counsel weighs against the State. Ruffin, 284 Ga. at 61; see also Vermont v. Brillon, 556 U. S. 81 (III) (C) (129 SC 1283, 173 LE2d 231) (2009).

4. The defendant’s assertion of the right to a speedy trial. Ward testified that he asked his first lawyer, who was appointed, to assert a speedy trial demand in June 2008, but the lawyer declined to do so because he said he was going to withdraw from the case. That lawyer was, in fact, permitted to withdraw on August 4, 2008, and Ward was unrepresented for the next five months. His current counsel was hired in January 2009, and for the next 22 months counsel never asserted Ward’s right to a speedy trial. Instead, on November 8, 2010, when the case was to be called for trial, retained counsel filed a motion to dismiss the charges on speedy trial grounds.

Because Ward did not assert his right to a speedy trial in the 22 months after his current counsel was hired, “this factor, which must be given ‘strong evidentiary weight,’ Barker, [407 U. S.] at 531, weighs against” him. Marshall v. State, 286 Ga. 446, 447 (1) (c) (689 SE2d 283) (2010). “That is because it is the responsibility of the defendant to assert the right to a speedy trial since ‘delay often does work to a defendant’s advantage.’ ” (Citation omitted.) Id.

5. The prejudice to the defendant. The trial court found that the delay in trying this case did not substantially prejudice Ward. In considering this factor, “we consider three interests: preventing oppressive pretrial incarceration, minimizing anxiety and concern of the defendant, and limiting the possibility that the defense will be impaired.” Layman v. State, 284 Ga. 83, 86 (663 SE2d 169) (2008).

Our Supreme Court has held that a 27-month delay, standing alone, was oppressive. Boseman, 263 Ga. at 734 (1) (d). We likewise conclude that the lengthy delay in this case was oppressive. As to the interest in minimizing the defendant’s anxiety and concern, those issues are “always present to some extent, and thus absent some unusual showing [are] not likely to be determinative in defendant’s favor.” (Citations and punctuation omitted.) Id. at 733 (1) (d). When asked how the lack of a speedy trial had affected him, Ward testified that at times he was “angry a little bit,” did not sleep some nights, and experienced strain from being locked up and “not really knowing what is what.” In this case, Ward has made no unusual showing of anxiety and concern.

Impairment of the defense is the most important of the interests considered under the prejudice factor “because the inability of a defendant adequately to prepare his case skews the fairness of the entire system.” Barker, 407 U. S. at 532. Ward argues that the delay prejudiced his defense because two of his witnesses became unavailable. During the motion hearing, Ward testified that one of his witnesses would have testified at trial that a victim told the witness that Ward was not involved in “the stunt” Ward’s co-defendants “tried to pull,” but the witness was unavailable because he died in January or February 2009. Ward also testified that he was unable to contact a second witness because her telephone number had changed and Ward’s cousin, who “usually was the one that talked to her,” had gone to prison and lost contact with her. Ward’s counsel also argued that Ward was prejudiced because the State “once again failed to let us know they weren’t going to really produce” a co-defendant who was on the State’s witness list and was “critical witness for the defense.”

Decided August 16, 2011.

James W. Smith, for appellant.

Robert W. Lavender, District Attorney, for appellee.

We find no abuse of discretion in the trial court’s finding that the delay did not substantially prejudice Ward. According to Ward, the witness who died would only testify regarding something one of the victims told him. As to the second missing witness, Ward testified that he had no current telephone number but did not describe any attempts by him or his counsel to locate her. Finally, as to the co-defendant the State did not produce for the anticipated tried, as the trial court noted, Ward had the power to subpoena the co-defendant himself, and had remained incarcerated locally with the opportunity to communicate with his counsel. Thus the State’s failure to produce the co-defendant did not prejudice Ward because he could have subpoenaed the co-defendant himself instead of relying on the State to produce him simply because he was included in the State’s witness list.

When the applicable factors are considered and balanced on the present record, we conclude that the trial court did not abuse its discretion by denying Ward’s motion to dismiss the charges for lack of a speedy trial. While the lengthy delay was attributable to the State, Ward did not assert his right to a speedy trial and was not significantly prejudiced by the delay.

Judgment affirmed.

Adams and Blackwell, JJ., concur.

       The motion was drafted and signed by Ward’s former counsel and another attorney as “amicus curiae.”

       The trial court issued an order in July 2009 finding that the public defender’s office had a potential conflict in representing Ward and appointed an attorney to represent Ward, but the attorney never appeared, never made contact with Ward, and withdrew shortly after the appointment due to a conflict.


author: PHIPPS, Presiding Judge.

text:
    A11A1429.
    BELL v. THE STATE.
    (715 SE2d 830)
   PHIPPS, Presiding Judge.

A jury found Michael Bell guilty of armed robbery and violating OCGA § 16-13-30 (j) (1) by possessing, delivering and distributing more than one ounce of marijuana. Bell appeals from the drug conviction only, contending that the evidence was insufficient because the felony conviction was based upon the uncorroborated testimony of an accomplice. We disagree and affirm.

When an appellant challenges the sufficiency of the evidence to support his convictions, “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.” An appellant no longer enjoys a presumption of innocence and, in evaluating the sufficiency of the evidence, we do not weigh the evidence or determine witness credibility.

Viewed in the light most favorable to the prosecution, the evidence at trial showed the following. Kenneth Joines testified that on May 31, 2009, he rode with Bell to an apartment complex so that Bell could deliver marijuana. While en route, Joines overheard Bell talking on his cell phone with a woman and heard Bell say he would place something in a white vehicle in the parking lot of the complex. When they arrived at the apartment complex, Joines saw Bell place two ounces of marijuana in his pockets, get out of the car, and walk to a white pickup truck. After Bell placed the marijuana in the truck, he went into an apartment and then returned to the car.

Ashley Spooner testified that Bell, who was an acquaintance, phoned her on the evening of May 31, 2009 to find out if she “needed” any marijuana. Spooner indicated that she did, and the two arranged to meet. At about 1:00 a.m. on June 1, 2009, Bell again phoned Spooner, who instructed him to leave the marijuana in her truck. At 4:00 a.m., Spooner arrived home and went to the truck, but she could not find the marijuana. Spooner phoned Bell, who told her that the marijuana was inside a DVD player in the truck. Spooner located the DVD player on the front seat of the truck and took it inside the apartment. Bell told her how to open the DVD player; inside it, she found three bags of marijuana. The DVD player had a strong odor of marijuana. Spooner removed the bags of marijuana from the DVD player. When police officers arrived later that morning, Spooner gave them the three bags of marijuana.

A police officer testified that, on June 1, 2009, he interviewed Joines in connection with the investigation of an armed robbery. Based upon information supplied by Joines, officers went to Spooner’s apartment. Spooner gave the officers a DVD player, which the officer testified smelled of marijuana. A second officer testified that police seized from the apartment a DVD player and approximately three ounces of suspected marijuana. A police detective, who was certified to perform marijuana testing, testified that the substance contained in the three bags tested positive for marijuana and weighed a total of 81.1 grams. Bell and Joines were charged with, among other things, possession, delivery and distribution of more than one ounce of marijuana.

Bell contends that his drug conviction cannot stand because Joines’s testimony that Bell possessed the marijuana was uncorroborated. It is true that “[u]nder Georgia law the testimony of a single accomplice, standing alone, is insufficient to convict an accused.” Indeed, “to sustain a felony conviction based upon the testimony of an accomplice, there must be independent corroborating evidence, either testimony from another witness or corroborating circumstances, which connects the accused to the crime.”

Bell’s conviction was not based upon the uncorroborated testimony of a single accomplice. As discussed above, Joines’s testimony that Bell possessed the marijuana was corroborated by testimony from other witnesses.

[Cjorroborating evidence need not be sufficient to warrant a guilty verdict or prove every material element of the crime; it need only tend to connect and identify the defendant with the crime charged. The sufficiency of the corroborating evidence is a matter for the jury, and if the verdict is based upon the slightest evidence of corroboration connecting an accused to a crime, even if it is circumstantial, it is legally sufficient.

Joines’s testimony did not need to be corroborated in every material detail. The evidence was sufficient to enable a rational trier of fact to find Bell guilty beyond a reasonable doubt of the charged offense.

Decided August 16, 2011.

Sharon L. Hopkins, for appellant.

Garry T. Moss, District Attorney, Patricia G. Hull, Cliff Head, Assistant District Attorneys, for appellee.

Judgment affirmed.

Andrews and McFadden, JJ., concur.

       See OCGA § 16-13-30 (j) (1) (providing pertinently that it is unlawful for any person to possess, deliver or distribute marijuana); OCGA § 16-13-30 (j) (2) (providing pertinently that, except as otherwise provided in OCGA § 16-13-2, any person who violates this subsection shall be guilty of a felony); OCGA § 16-13-2 (b) (providing for misdemeanor punishment for possession of one ounce or less of marijuana).

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

        McSears v. State, 292 Ga. App. 804-805 (665 SE2d 890) (2008).

       See Truelove v. State, 302 Ga. App. 418, 419 (691 SE2d 549) (2010) (one ounce is equivalent to approximately 28.349 grams).

        Martinez v. State, 306 Ga. App. 512, 519 (1) (702 SE2d 747) (2010) (citations, punctuation and footnotes omitted).

       Id.

       Id. (citations, punctuation and footnotes omitted); see Preval v. State, 302 Ga. App. 785, 787-788 (1) (692 SE2d 51) (2010); Howard v. State, 291 Ga. App. 386 (662 SE2d 203) (2008); Hill v. State, 290 Ga. App. 140, 142 (1) (658 SE2d 863) (2008); Terrell v. State, 268 Ga. App. 173, 175 (2) (601 SE2d 500) (2004).

        Mitchell v. State, 279 Ga. 158, 159 (1) (611 SE2d 15) (2005).

       See id.; Curtis v. State, 282 Ga. App. 322 (638 SE2d 773) (2006).


text:
    A11A1444.
    SN INTERNATIONAL, INC. et al. v. SMART PROPERTIES, INC. et al.
    (715 SE2d 826)
   Ellington, Chief Judge.

Following a bench trial, the Superior Court of Gwinnett County issued a judgment in favor of Smart Properties, Inc., Mohammad Yaqoob and Nizar Omar (collectively, “Smart Properties”) and against Sadruddin Karim and SN International, Inc. (collectively, “Karim”) on Smart Properties’ claims for breach of a promissory note and breach of a sublease.

On appeal, Karim contends that the trial court erred in finding that a valid contract existed between the parties, in allowing Smart Properties to collect on a promissory note that was executed as a result of its fraud, and in finding that Karim was liable to Smart Properties for past due rent. Karim also contends that the trial court abused its discretion in denying Karim’s timely, post-trial motion for publication of findings of fact and conclusions of law, pursuant to OCGA § 9-11-52 (c). Because we conclude that, under the circumstances presented, the trial court’s denial of Karim’s OCGA § 9-11-52 (c) motion prevents this Court from conducting a thorough review of Karim’s remaining allegations of error, we vacate the judgment and remand this case to the trial court for the entry of findings of fact and conclusions of law.

1. Under OCGA § 9-11-52 (c), in any nonjury trial in a court of record, a party may file a motion within 20 days after entry of the court’s judgment asking the trial court to amend or supplement its judgment with specific findings of fact and conclusions of law. Although a similar motion filed before the court enters its judgment generally requires the court’s compliance, the court’s entry of findings of fact and conclusions of law is permissive, not mandatory, when the motion is filed after the judgment is entered. “We will interfere with the trial court’s decision on whether to make such findings only if such decision demonstrates an abuse of its discretion.” (Citations omitted.) Sevostiyanova v. Tempest Recovery Svcs., 307 Ga. App. 868, 875 (5) (705 SE2d 878) (2011). As explained below, this is one of the rare cases in which we find that the trial court abused its discretion in refusing to issue findings of fact and conclusions of law.

The record shows that the first legal conflict between the appellants, the appellees, and third parties was initiated in 2004. Between 2004 and 2009, the litigation expanded to involve a series of purchase and sale contracts for real property and a business, supply contracts, contract amendments, contract assignments, guarantees, leases, subleases, and collateral agreements (including a business management agreement and at least two “memorand[a] of understanding”). Collectively, the parties filed numerous complaints, amended complaints, crossclaims, and counterclaims, each asserting that one or more of the other parties breached one or more of the above-referenced agreements. Along the way, some of the parties and complaints were dismissed and the cases were consolidated. Ultimately, in November 2005, the trial court incorporated the various pleadings into a single case and changed the style of the case to designate the appellees herein, Smart Properties, Inc., Yaqoob and Omar (collectively, “Smart Properties”) as the plaintiffs and the appellants, Karim and SN International, Inc. (collectively, “Karim”) as the defendants.

In an amended complaint, Smart Properties asserted claims against Karim for an alleged breach of a $60,000 promissory note for the purchase of a business and for breach of a sublease, and it sought an award of the remaining amount due on the note, past due rent, interest, late fees and penalties, and attorney fees. Karim answered and asserted counterclaims for fraudulent inducement, unjust enrichment, punitive damages, pre-judgment interest, and attorney fees. Thus, given the parties’ competing claims, the trial court was faced with the task of construing numerous contracts, resolving heavily disputed factual issues and conflicting contract provisions, and determining, inter alia, whether Smart Properties should be allowed to collect on a promissory note executed by Karim for the purchase of a business when Smart Properties had no legal interest in the business to convey to Karim; whether a lease between Smart Properties and a third party was valid; whether a sublease for the same property between Smart Properties and Karim was valid; whether a provision in the sublease that made Karim liable for Smart Properties’ rental payments to the third party under its lease was valid and enforceable; and whether, absent either a valid lease and/or sublease, Karim was obligated to pay rent to Smart Properties as a tenant at will, when Smart Properties had no ownership interest in the property.

The trial transcript shows that, at the beginning of the bench trial, after apparently recognizing the sheer number of disputed issues, the volume of documents at issue, and the complex and confusing factual and procedural history of the litigation, the judge noted that the case had been transferred to him from another judge and referred to the case as a “mess” that he had to clean up. Later, after all of the evidence had been presented, Smart Properties’ counsel asked the judge if, given the number of documents at issue, the parties could submit post-trial briefs in addition to presenting closing arguments. The judge agreed, stating “there’s a lot of stuff I’ve got to dig through ... to see what the situation was at any one time; did a subsequent agreement change the parties’ position on all that[?] . . . And, frankly, I could use [your] help by way of a brief outline of that kind of thing.” The judge also asked the parties to include in their post-trial briefs “exactly what you’re looking for financially.” Over the next few weeks, the parties not only filed such briefs, but they both also filed responsive briefs. In its post-trial brief, Smart Properties outlined multiple, alternative legal theories in support of its claims, thus providing the judge with many different options for reaching a judgment in its favor.

On September 22, 2010, the trial court issued a judgment in favor of Smart Properties in the amount of $85,496.71 on its claim for breach of the promissory note and for $113,695.59 on its claim for breach of the sublease. The judgment order did not include any findings of fact or conclusions of law or any other explanation of how the court arrived at the amounts it awarded. Seven days later, Karim filed a motion for publication of findings of fact and conclusions of law, pursuant to OCGA § 9-11-52 (c). In its order denying the motion, the trial court stated as follows: “Defendants [having filed] the above Motion [for the publication of findings of fact and conclusions of law] after the entry of the Final Judgment in this matter, IT IS ORDERED that said Motion is DENIED.”

Under the circumstances presented in this case, we conclude that the trial court’s denial of Karim’s OCGA § 9-11-52 (c) motion was improper. As shown above, the material facts are complex and disputed; the voluminous record includes at least 44 exhibits, as well as numerous invoices, letters and written notices between the parties and others; and the amount of the award (totaling over $200,000) is significant. Moreover, the parties presented numerous, and sometimes alternative, bases for a ruling in their favor, yet the judge did not give any indication as to how he would rule — or on what basis — during the bench trial. In fact, as shown above, the judge indicated that he was not even close to reaching a decision at that time. Consequently, without specific findings of fact and conclusions of law to explain the trial court’s judgment, this Court is unable to determine how or why the trial court reached its decision, making appellate review virtually impossible. Accordingly, we find that the trial court abused its discretion in denying Karim’s OCGA § 9-11-52 (c) motion. See Gold Kist v. Wilson, 220 Ga. App. 426, 428 (1) (469 SE2d 504) (1996) (“In a case of this magnitude and complexity involving so many plaintiffs and claims, we find that it was an abuse of discretion for the trial court to fail to issue findings of fact and conclusions of law. By omitting these crucial ingredients in the judgment, appellate review has been rendered impossible.”) (citation omitted).

In so ruling, however, we must reiterate this Court’s admonition in Gold Kist: our decision to remand the instant case for the issuance of findings of fact and conclusions of law by the trial court “is not [to] be read as a general rule allowing a party to dispense with the requirement that it formally request findings and conclusions pursuant to OCGA § 9-11-52 (a) or [as] holding that a party will always be rescued from its failure to make such a request on the record” prior to the entry of the trial court’s ruling. Gold Kist v. Wilson, 220 Ga. App. at 428 (1).

Decided August 16, 2011.

Sabrina Hassanali, for appellants.

Meriwether & Tharp, Robert L. Tharp, for appellees.

2. Because our decision with respect to Karim’s remaining enumerations of error will depend, at least in part, on the findings of fact and conclusions of law issued upon remand, we will not address them herein.

Judgment vacated and case remanded with direction.

Miller, P. J., and Doyle, J., concur.

       See Gen. Teamsters Local Union No. 528 v. Allied Foods, 228 Ga. 479, 480 (1) (186 SE2d 527) (1971) (noting that the purposes of having the trial court affirmatively state its findings of fact and conclusions of law under OCGA § 9-11-52 include the following: to serve as an aid in the trial judge’s process of adjudication; for purposes of res judicata and estoppel by judgment; and to serve as an aid to the appellate court on review).

       See OCGA § 9-11-52 (a); see also OCGA § 9-11-52 (b) (exceptions to the mandatory provisions of subsection (a)).

       For example, Smart Properties argued that, if the court found that its lease with the third party was valid, then it should also find that its sublease to Karim was valid; in the alternative, if the court found that both the lease and the sublease were invalid, then the court could find that Karim was still liable for rent as a tenant at will.

       Given the wording of the order, it is unclear whether the trial court denied the motion after exercising its discretion pursuant to OCGA § 9-11-52 (c), or whether the court denied the motion based upon an erroneous conclusion that it was untimely. Regardless, the outcome of this appeal remains the same.

       Notably, in its appellate brief, Smart Properties acknowledges that appellate consideration of Karim’s enumerated errors will require this Court to review specific factual determinations made by the trial court.

       See also Zumpano Enterprises v. Ga. Tile Distrib., 200 Ga. App. 563, 564 (408 SE2d 813) (1991) (vacating the judgment and remanding the case after finding that the judgment entered by the trial court was deficient in that it failed to address the plaintiff s unjust enrichment claim and contained insufficient findings of fact with respect to the open account claim to permit its ruling on that count of the complaint to be reviewed on appeal); cf. Sevostiyanova v. Tempest Recovery Svcs., 307 Ga. App. at 875 (5) (“Because the issues presented in the court below [were] clearly reflected in the record, the only witness to testify at trial was Sevostiy-anova, and .. . the resolution of the issues depend[ed] on the law as applied to the undisputed facts,” the trial court did not abuse its discretion in denying Sevostiyanova’s OCGA § 9-11-52 (c) motion.).


author: Dillard, Judge.

text:
    A11A1018.
    NASSAU v. THE STATE.
    (715 SE2d 837)
   Dillard, Judge.

Following a bench trial, Dorian Nassau was convicted of two counts of making a terroristic threat. He appeals his conviction, arguing that the evidence was insufficient to prove his guilt beyond a reasonable doubt. For the reasons set forth infra, we affirm.

Viewed in the light most favorable to the trial court’s guilty verdict, the evidence shows that in the early evening of March 21, 2007, Nassau scheduled an appointment to show some rental property that he owned to prospective tenants. Upon his arrival, however, Nassau discovered that the electrical power to the property had been cut off and that the electricity meter near the back door had been completely removed. After closer inspection, Nassau noticed a red tag where the meter previously had been affixed, which led him to surmise that his power company, Snapping Shoals EMC, had removed it. Consequently, Nassau called Snapping Shoals EMC to inquire about the missing meter and spoke with a night dispatcher for the company. When the night dispatcher explained that the meter was removed based on suspicion that someone had tampered with it and further explained that Nassau would have to pay approximately $235 if he wanted to have his power reestablished that night, Nassau ended the call.

A few minutes later, Nassau called back and told the night dispatcher that he “didn’t get to cuss [him] out the way [he] wanted to. . . .” After the dispatcher reiterated why Snapping Shoals EMC had turned off the power and removed the meter, Nassau became angry, and the following exchange occurred:

Nassau: I’m fixin do some real gansta shit alright? Tell, put on my account, if I catch any of your fucking technicians on any of my property, it’s going down with the scope baby boy, cause you just told me ....
Dispatcher: Sir, do you realize that’s considered a terroristic act and I can have you arrested for that right now?
Nassau: You better understand who you dealing with man, my money is too ....
Dispatcher: Sir, just for your information this phone call is being recorded, and they will pull this up and they have, we have every legal right to prosecute for what you said.
Nassau: Bitch, tell him where he needs to go and get my shit right boy. You better put in your account, get my shit right.
I ain’t no average motherfucker, I want my shit back on. I want it in the morning. If it’s not on in the morning, I’m at Snapping Shoals, it’s going down boy.

At that point, the second call ended.

The next morning, Nassau called Snapping Shoals EMC again and spoke with a customer service representative (“CSR”). When the CSR was also unable to resolve Nassau’s issues to his satisfaction, Nassau again became angry and responded as follows:

Nassau: . . . and like I told [the night dispatcher], right now as it stands if any of you all technicians walk on any of my properties, since he wants to talk about it’s my property this and that, they better come to my door. They better let me know they out there, cause I got a see em read it. Cause if I catch em on the side of my house, without them coming to my door, I’m not asking questions. Alright? I got a scope, I got a 30x30, I got a 40 cal. I ain’t gonna hesitate to look through it. . . .
CSR: Ok, now sir, the first thing you’re gonna do, what, you’re making a mistake by telling me that you’re gonna use a gun on anybody that comes out there.
Nassau: I’m telling you that if your technicians does not come to my door and tell me they are out there, I’m not trying to identify anybody on the side of my house. I’m shooting and asking questions later. That’s what I’m telling you. That’s trespassing; the sign will be posted, so you better notate the account; if you arrive at [any of my properties], this customer requests you come to his door. You knock on his door You let him know you are out there, and you read the meter after he knows that you’re there, because if he catches you on his property, without notification, you may be blasted. In other words, rest in peace.

After again informing Nassau that she perceived his comments as threats to Snapping Shoals EMC personnel, the CSR ignored Nassau’s request to speak to her supervisor and ended the call. That same day, Nassau called Snapping Shoals EMC several more times and each time spoke to the CSR’s supervisor, who informed Nassau that she would be reporting his threats to the local sheriffs department.

Thereafter, Nassau was indicted on two counts of making terroristic threats with the first count based on his telephone conversation with the night dispatcher and the second count based on his telephone conversation with the CSR. Nassau waived his right to a jury trial and proceeded with a bench trial, during which both the dispatcher and the CSR testified that Nassau’s threats made them fear for the safety of any technicians dispatched to Nassau’s property. The State also introduced as evidence a digital recording of all of the subject telephone calls. At the trial’s conclusion, the court found Nassau guilty on both counts. Subsequently, Nassau moved for a new trial, which the trial court denied. This appeal follows.

In his sole enumeration of error, Nassau contends that the evidence was insufficient to support his convictions of making terroristic threats, arguing that the State failed to prove beyond a reasonable doubt that his threats were specifically directed toward any particular victim. We disagree.

At the outset, we note that when a criminal conviction is appealed, the evidence must be viewed in the light most favorable to the verdict, and the appellant no longer enjoys a presumption of innocence. And in evaluating the sufficiency of the evidence, “we do not weigh the evidence or determine witness credibility, but only determine whether a rational trier of fact could have found the defendant guilty of the charged offenses beyond a reasonable doubt.” Accordingly, the trier of fact’s verdict will be upheld “[a]s long as there is some competent evidence, even though contradicted, to support each fact necessary to make out the State’s case[.]”

A defendant “commits the offense of a terroristic threat when he or she threatens to commit any crime of violence . . . with the purpose of terrorizing another[,]” A determination of whether a defendant has committed “[t]he crime of making terroristic threats focuses solely on the conduct of the accused and is completed when the threat is communicated to the victim with the intent to terrorize.” Furthermore, “OCGA § 16-11-37 encompasses threats of physical violence directed toward an absent third party.” Moreover, “[t]hat the message was not directly communicated to the victim would not alone preclude a conviction where the threat is submitted in such a way as to support the inference that the speaker intended or expected it to be conveyed to the victim.” Finally, “a defendant need not have the immediate ability to carry out the threat to violate OCGA § 16-11-37 (a).”

Nassau argues that his alleged threats were not directed toward any particular person and that, therefore, those threats cannot be characterized as having been committed with the purpose of terrorizing another as the statute requires. However, contrary to his claim, Nassau specifically and repeatedly threatened to shoot any Snapping Shoals EMC technicians who ventured onto his property and further threatened to engage in violence at the company’s offices if his power was not turned on by the next morning. Furthermore, Nassau repeatedly demanded that the night dispatcher and the CSR note the threats in his account records. There was, then, sufficient evidence for the trier of fact to find that Nassau’s threats were specifically directed toward Snapping Shoals EMC employees and that he expected or intended that the threats would be communicated to those employees. Accordingly, the trial court did not err in finding that Nassau was guilty beyond a reasonable doubt of committing terroristic threats.

Decided August 17, 2011.

Jackie G. Patterson, for appellant.

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

Judgment affirmed.

Smith, P. J., and Mikell, J., concur.

        See, e.g., Joiner v. State, 299 Ga. App. 300, 300 (682 SE2d 381) (2009); see also Jackson v. Virginia, 443 U. S. 307, 319 (III) (B) (99 SC 2781, 61 LE2d 560) (1979).

        See OCGA § 16-11-37 (a).

        See, e.g., English v. State, 301 Ga. App. 842, 842 (689 SE2d 130) (2010).

        Joiner, 299 Ga. App. at 300 (citation and footnote omitted).

        Miller v. State, 273 Ga. 831, 832 (546 SE2d 524) (2001) (citation and punctuation omitted).

       OCGA § 16-11-37 (a).

        Armour v. State, 265 Ga. App. 569, 571 (1) (594 SE2d 765) (2004) (footnote omitted).

        Brown v. State, 298 Ga. App. 545, 547 (680 SE2d 579) (2009) (citation omitted).

        Armour, 265 Ga. App. at 571 (1) (footnote omitted).

        Reeves v. State, 288 Ga. App. 544, 545 (654 SE2d 449) (2007).

        See Sidner v. State, 304 Ga. App. 373, 375-76 (1) (696 SE2d 398) (2010) (reversing defendant’s conviction of committing terroristic threats because there was no evidence that defendant’s threats were directed toward any particular person or that defendant intended that his threats would be conveyed to any particular person).

        See, e.g., Brown, 298 Ga. App. at 548-49 (upholding defendant’s conviction of making terroristic threats when defendant intended for his threats to be communicated to victims); Armour, 265 Ga. App. at 571 (1) (same).


text:
    A11A1040.
    GILLESPIE v. THE STATE.
    (715 SE2d 832)
   PHIPPS, Presiding Judge.

David Gillespie appeals the denial of his motion to vacate void sentence. “A sentence is void if the court imposes punishment that the law does not allow. When the sentence imposed falls within the statutory range of punishment, the sentence is not voidf.]” “So long as the sentence imposed is within the statutory limits, we will not disturb it.” Because the trial court correctly determined that Gillespie failed to establish that any sentence imposed upon him was void, we affirm.

In connection with a Cobb County incident in July 1993 Gillespie was indicted and found guilty by a jury on charges of armed robbery and multiple counts of aggravated assault. At the sentencing hearing, the state introduced in evidence certified copies of Gillespie’s 1988, 1989, and 1991 felony convictions, pointing out additionally that he had been sentenced to prison before. The court expressly noted Gillespie’s criminal record, and thereafter, in January 1995, entered a judgment of conviction imposing a life sentence for the armed robbery and 20-year sentences for the aggravated assaults. Gillespie’s motion for new trial was denied, and his convictions were affirmed on direct appeal.

In July 2010, proceeding pro se and representing that he was incarcerated in Wilcox State Prison, Abbeville, Gillespie filed in the sentencing court the underlying “Motion To Vacate And Correct A Void And Illegal Sentence, Judgment and Conviction.” That court denied Gillespie’s motion, pertinently stating in its order: “The convictions and sentences in this case are valid and within the limits allowed by law. THEREFORE, Defendant’s Motion to Vacate and Correct a Void and Illegal Sentence, Judgment and Convictions is Denied.” Gillespie filed the instant direct appeal.

1. Gillespie asserts that, because the trial court did not include in its order further reasoning for denying his motion, the order must be vacated and the case remanded. Gillespie has provided no supporting authority, and we find none. Although Gillespie gleans from the order’s summary explanation that the trial court “failed to engage an analysis and rule on” each of his specific challenges, we do not so conclude. Gillespie has established a ground for neither vacatur of the order nor remand of the case.

2. Gillespie contests his life sentence for armed robbery. Contrary to Gillespie’s argument, however, there is no conflict between the armed robbery statute’s sentencing provision, OCGA § 16-8-41 (b), and cited former versions of the state’s general sentencing statute, OCGA § 17-10-1, that would render Gillespie’s life sentence void. Moreover, Gillespie has failed to demonstrate either that the trial court erred in considering his prior criminal record introduced in evidence at the sentencing hearing or that the trial court erred in imposing life imprisonment. Because the life sentence for armed robbery was within the statutory limits, we have no basis to disturb it.

3. Gillespie contends that the aggravated assault counts of the indictment were fatally defective because they did not expressly allege the elements of assault. He relies on isolated language in Hogan v. State that “[t]here can be no conviction for the commission of a crime an essential element of which is not charged in the indictment.”

Notably, Gillespie does not claim that the 20-year sentences fell outside the statutory range of punishment. Indeed, because the substance of Gillespie’s contention is properly construed as a challenge to his convictions — rather than to his sentences, it is not properly before us. And given that the 20-year sentences imposed for the aggravated assaults were within the statutory range of punishment, we have no basis for disturbing them.

Decided August 17, 2011.

David Gillespie, pro se.

Patrick H. Head, District Attorney, Samuel K. Barger, John R. Edwards, Assistant District Attorneys, for appellee.

Judgment affirmed.

Andrews and McFadden, JJ., concur.

        Jones v. State, 278 Ga. 669, 670 (604 SE2d 483) (2004) (citations and punctuation omitted).

        Jackson v. State, 238 Ga. App. 559, 560 (2) (520 SE2d 11) (1999).

        Gillespie v. State, 218 Ga. App. XXXI (1995) (unpublished opinion, Case No. A95A1129).

       See generally Westmoreland v. State, 287 Ga. 688, 696-697 (10) (699 SE2d 13) (2010) (applying presumption of regularity to hold that the trial court discharged its duties properly); Bridges v. State, 227 Ga. 24 (2) (178 SE2d 861) (1970) (noting that the presumption is in favor of the regularity and legality of all proceedings in the court below).

       Gillespie cites language from that version of OCGA § 17-10-1 (a) (1) enacted by Ga. L. 1993, p. 1654, § 1 (providing in pertinent part, “Except in cases in which life imprisonment, life without parole, or the death penalty may be imposed, . . . the judge fixing the sentence shall prescribe a determinate sentence for a specific number of months or years which shall be within the minimum and maximum prescribed by law as the punishment for the crime”); Gillespie also cites language from that version of OCGA § 17-10-1 (a) (1) enacted by Ga. L. 1992, p. 3221, § 1 (providing in pertinent part, “Except in cases in which life imprisonment or the death penalty must be imposed, . . . the judge fixing the sentence shall prescribe a determinate sentence for a specific number of months or years which shall be within the minimum and maximum prescribed by law as the punishment for the crime”).

       See Echols v. Thomas, 265 Ga. 474 (458 SE2d 100) (1995) (holding that a former version of OCGA § 17-10-1 (a), the state’s sentencing statute, did not prevent the imposition of life sentence imposed under OCGA § 16-8-41, the armed robbery statute); Worley v. State, 265 Ga. 251, 252-253 (1) (454 SE2d 461) (1995) (holding that the plain meaning of a former version of the sentencing statute, OCGA § 17-10-1 (a), did not prevent a trial court from imposing a sentence of life imprisonment for armed robbery, whether or not the offender was sentenced as a recidivist); Stovall v. State, 216 Ga. App. 138, 141-142 (7) (453 SE2d 110) (1995) (affirming the imposition of a life sentence for armed robbery because, even if an ambiguity existed between former OCGA §§ 17-10-1 (a) (1) and 16-8-41 (b), the latter statute, a specific sentencing statute, prevails over the general sentencing statute). See also Burke v. State, 274 Ga. App. 402, 404 (2) (618 SE2d 36) (2005) (rejecting challenge to life sentence for rape, authorized by specific sentencing provision of OCGA § 16-6-1 (b), because that specific statutory provision controlled over OCGA § 17-10-1 (a) (1), a sentencing statute of general applicability).

       On the date the crimes were committed, OCGA § 16-8-41 (b) pertinently provided that a person convicted of armed robbery “shall be punished by . . . imprisonment for life or by imprisonment for not less than five nor more than 20 years.” Ga. L. 1985, p. 1037, § 1. See Fleming v. State, 271 Ga. 587, 590 (523 SE2d 315) (1999) (in general, a crime is to be construed and punished according to the provisions of the law existing at the time of its commission).

        Jackson, supra.

       Gillespie points out that the three aggravated assault counts alleged that he “did unlawfully make an assault upon the person of [victim-1, victim-2, and victim-3] with a pistol, a deadly weapon.”

       261 Ga. App. 261 (582 SE2d 210) (2003).

       Id. at 262 (2) (punctuation and footnote omitted).

       See Williams v. State, 287 Ga. 192, 194 (695 SE2d 244) (2010) (noting distinction between challenges to convictions and challenges to sentences); Jones, supra at 670-671 (sentence is void if it imposes punishment that the law does not allow; post-appeal pleadings filed in sentencing court seeking sentence modification must set forth why sentence is void, i.e., how it imposes punishment the law does not allow; rulings on pleadings asserting erroneous procedure or unfair treatment are not rulings on whether the sentence is void; inasmuch as the assertions contained in appellant’s post-appeal motion that sought sentence modification did not allege that the sentences imposed were void as outside the statutory range of punishment, appellant was not entitled to a direct appeal from the trial court’s adverse ruling).

       See Harper v. State, 286 Ga. 216, 217-218 (1), (2) (686 SE2d 786) (2009) (holding that “a petition to vacate or modify a judgment of conviction is not an appropriate remedy in a criminal case” and therefore dismissing appeal because appellant was not entitled to file a motion to vacate his criminal conviction; holding further that to challenge a conviction after it has been affirmed on direct appeal, defendants are required to file an extraordinary motion for new trial, a motion in arrest of judgment, or a petition for habeas corpus); see further Williams, supra at 194 (determining that the fundamental nature of appellant’s challenge was to the conviction itself - notwithstanding that a determination that the conviction was void would require that the sentence also be set aside; holding that, because the motion to correct illegal sentence or conviction was not an appropriate remedy to attack a conviction in a criminal case, the appeal was subject to dismissal). Roberts v. State, 286 Ga. 532 (690 SE2d 150) (2010) (regardless of nomenclature, appellant’s motions sought to set aside or vacate his criminal convictions, but because he was not authorized to seek relief from his criminal convictions pursuant to motions to vacate or correct a void conviction, the appeal was subject to dismissal). Cf. Wiggins v. State, 288 Ga. 169, 171 (1) (702 SE2d 865) (2010) (where appellant was contending that his sentence was illegal because it was based on an unconstitutional statute, which was a colorable claim that the sentence imposed was void, a direct appeal from the trial court’s ruling was authorized) (distinguishing Collins v. State, 277 Ga. 586 (591 SE2d 820) (2004), as “where a convict contended a judgment of conviction was void because of the content of a jury instruction”).

       OCGA § 16-5-21 (b) (authorizing punishment for aggravated assault as “imprisonment for not less than one nor more than 20 years”); see Ga. L. 1991, p. 971, § 3 (same).

        Jackson, supra.