author: Phipps, Presiding Judge.

text:
    A12A0053.
    BURKE v. THE STATE.
    (729 SE2d 531)
   Phipps, Presiding Judge.

After a jury trial, Richie Burke was convicted of child molestation (Count 1), enticing a child for indecent purposes (Count 2), and criminal attempt to commit child molestation (Count 3). He appeals his convictions for child molestation and for enticing a child for indecent purposes, contending that he received ineffective assistance of counsel. And concerning his conviction for child molestation only, he challenges the sufficiency of the evidence. For the reasons that follow, we affirm.

At trial, C. H. testified that in late September to early October 2009, she was walking outside of her grandmother’s house when Burke drove by and asked her for her name, phone number, and age. C. H. told Burke her name and that she was 15 years old. Burke took C. H.’s phone and dialed his number, thereby obtaining C. H.’s phone number.

A “couple [of] weeks” later, Burke called C. H. He told C. H. to “keep this between us” and that he wanted to see her. C. H. agreed, and they arranged to see each other at a park. The next morning, Burke picked up C. H. from school after she had gotten off the school bus, and he drove her to the park. C. H. testified that “we parked and we talked,” and again, Burke told C. H. to “keep this between us.” Burke gave C. H. $50 and told her that if she needed anything, to ask him. He then took C. H. back to school, in time for her second class.

Between late October and early November 2009, Burke called C. H. a “couple” of times. Burke told C. H. that he wanted to see her, and they arranged to see each other again at the same park. Once again, Burke picked up C. H. from school after she had gotten off the school bus, and he drove her to the park. They talked at the park for about an hour, and afterward Burke drove C. H. back to school.

Before C. H.’s school break for the Thanksgiving holidays, Burke called her again and told her that he wanted to see her. C. H. agreed, and Burke picked her up from school and took her to the park. They talked “for a little while.” Burke then unbuttoned C. H.’s pants, unbuttoned his pants, pulled down C. H.’s pants, got on top of C. H., and penetrated her sex organ with his. C. H. told Burke that “it didn’t feel right,” and Burke “looked funny for a minute, mad for a second, and he just got up and pulled his clothes back up and took [C. H.] back to school.” They continued to communicate with each other by phone.

On Christmas Day, C. H. was at home with her family. After her mother and sister left the living room area, and other family members were out of sight, she invited Burke into the home. C. H. took Burke to her bedroom and locked the door. Burke hugged her, and they spoke briefly until C. H. unlocked the door for her mother, who entered the room, looked in the closet, and found Burke squatting down inside. Burke ran away as C. H.’s mother called the police.

1. Burke contends that he received ineffective assistance of counsel because his trial attorney failed to file a demurrer to Counts 1 and 2 of the indictment, which he contends were defective because the state “impermissibly mixe[d] elements of rape with the charges of child molestation and enticing a child for indecent purposes.”

To establish ineffective assistance of counsel under Strickland v. Washington,[] a criminal defendant must prove (1) that his trial counsel’s performance was deficient, and (2) that counsel’s deficiency so prejudiced his defense that a reasonable probability exists that the result of the trial would have been different but for that deficiency.... We will not reverse a trial court’s findings regarding either the deficiency or prejudice prong of the Strickland test unless clearly erroneous.

(a) Count 1 of the indictment alleged that Burke did “an immoral and indecent act, to wit: penetrated with his penis the vagina of [C. H.], a child under 16 years of age, with intent to arouse the sexual desires of said accused. . . .”

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

Burke argues that the indictment’s language alleging that he “penetrated with his penis the vagina” of C. H. are elements of rape and statutory rape that were impermissibly mixed into the charge of child molestation.

The phrase “any immoral or indecent act” in conjunction with the requisite element of the offense that the act be committed “with the intent to arouse or satisfy the sexual desires of either the child or the person” is sufficiently definite.... Men of common intelligence would not differ as to the application of its provisions.

Although pursuant to OCGA § 16-6-1, rape requires penetration of the female sex organ by the male sex organ, and pursuant to OCGA § 16-6-3, statutory rape requires sexual intercourse, Burke’s argument implies that the act of sexual intercourse cannot sustain a conviction for child molestation. While sexual intercourse is not an element of child molestation, undoubtedly, an adult’s act of “sexual intercourse with a child falls within the parameters of the child molestation statute.” Indeed, nothing in the child molestation statute specifically prohibits the state from prosecuting Burke for child molestation because he engaged in sexual intercourse with C. H.

Under these circumstances, any attempt by Burke’s trial counsel to file a demurrer to Count 1 of the indictment would have been futile. “Failure to make a meritless or futile objection or motion cannot be evidence of ineffective assistance.” Accordingly, Burke’s contention that he received ineffective assistance of trial counsel on this basis is without merit.

(b) Count 2 of the indictment alleged that Burke did “entice [C. H.], a child under 16 years of age, to a place, to wit: Central City Park formerly Bonner Park, for the purpose of child molestation in that said accused did an immoral and indecent act, to wit: penetrated said [C. H.]’s vagina with his penis. . . .”

OCGA § 16-6-5 (a) provides: “A person commits the offense of enticing a child for indecent purposes when he or she solicits, entices, or takes any child under the age of 16 years to any place whatsoever for the purpose of child molestation or indecent acts.”

Burke argues that the indictment’s language alleging that he “penetrated said [C. H.]’s vagina with his penis” includes elements of rape and statutory rape that were impermissibly mixed into the charge of enticing a child for indecent purposes. Given the facts of this case, the allegations of Count 2 of the indictment, and the statutory definition of enticing a child for indecent purposes, for the same reasons stated in Division 1 (a), Burke has failed to carry his burden of showing that his trial counsel’s performance was deficient for not filing a demurrer to Count 2 of the indictment.

2. Burke contends the evidence was insufficient to support his conviction for child molestation because there was no evidence that his actions were committed with the intent to arouse his sexual desires or the sexual desires of C. H.

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. [] Conflicts in the testimony of the witnesses, including the [s]tate’s witnesses, are a matter of credibility for the jury to resolve. As long as there is some competent evidence, even though contradicted, to support each fact necessary to make out the [sjtate’s case, the jury’s verdict will be upheld. The testimony of a single witness is generally sufficient to establish a fact.

Decided June 26, 2012.

Cansino & Petty, Carl S. Cansino, for appellant.

Fredric D. Bright, District Attorney, Charles L. Guerin IV, Assistant District Attorney, for appellee.

“[Wjhether the requisite intent for child molestation ... existed was a question of fact, to be determined by the jury after considering all the circumstances surrounding the acts of which the accused is charged, including words, conduct, demeanor, and motive.” “Further, intent, which is a mental attitude, is commonly detectable only inferentially, and the law accommodates this.”

There was significant inferential evidence of Burke’s intent to arouse his sexual desires or the sexual desires of C. H. Burke twice picked up 15-year-old C. H. from school and drove her to a park when C. H. was supposed to be at school; he gave her money, told her that if she needed anything to ask him, and repeatedly told C. H. to keep secret their communications and contact. After driving C. H. to the park a third time, Burke in fact had sexual intercourse with her there, and appeared upset after C. H. expressed discomfort. After his sexual encounter with C. H., Burke continued to contact her in secret, meeting her secretly at her home in her bedroom with the door locked, and then attempting to hide from C. H.’s mother. This evidence was sufficient to enable a jury to find that Burke acted with the intent to arouse or satisfy his own or C. H.’s sexual desires and that he was guilty beyond a reasonable doubt of child molestation.

Judgment affirmed.

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

       466 U. S. 668, 687 (104 SC 2052, 80 LE2d 674) (1984).

        Kurtz v. State, 287 Ga. App. 823, 825 (652 SE2d 858) (2007) (footnotes omitted).

        McCord v. State, 248 Ga. 765, 766 (285 SE2d 724) (1982) (citation and punctuation omitted).

       See OCGA §§ 16-6-1, 16-6-3.

        See Ryan v. State, 276 Ga. App. 87, 90 (3) (a) (622 SE2d 446) (2005) (noting that state was not required to show penetration or completion of sexual action to prove child molestation); Wand v. State, 230 Ga. App. 460, 461 (1) (496 SE2d 771) (1998).

        Maynard v. State, 290 Ga. App. 403,404 (1) (659 SE2d 831) (2008); see OCGA § 16-6-4 (a) (!)•

        Maynard, supra.

        Hall v. State, 292 Ga. App. 544, 553 (6) (a) (664 SE2d 882) (2008) (citation, punctuation and footnote omitted).

       Supra.

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

        Payne v. State, 269 Ga. App. 662, 662-663 (605 SE2d 75) (2004) (citation and punctuation omitted).

       Id. at 664 (citations and punctuation omitted).

        Reyes-Vera v. State, 313 Ga. App. 467, 469 (722 SE2d 95) (2011) (punctuation and footnotes omitted).

       See Branam v. State, 204 Ga. App. 205, 206 (1) (419 SE2d 86) (1992).


source: Caselaw Access Project

author: McFadden, Judge.

license: Public Domain

text:
    A12A0191.
    REF DEVELOPMENT, INC. et al. v. FIRST CITIZENS BANK AND TRUST COMPANY, INC.
    (729 SE2d 535)
   McFadden, Judge.

This is an appeal from a judicial confirmation of a foreclosure sale. Because there is evidence supporting the trial court’s decision, we affirm.

On March 2, 2010, First Citizens Bank and Trust Company, Inc., foreclosed on property securing a loan that had been made to REF Development, Inc., and that had been guaranteed by Larry Thompson and Philip Adelsheimer. First Citizens was the only bidder at the foreclosure sale, purchasing the property for $1,402,750. On March 31, 2010, First Citizens filed its report of sale and petition for confirmation of the foreclosure sale in the superior court. On April 1, 2011, the trial court held a confirmation hearing, at which the parties stipulated to the regularity of the sale and agreed that the only remaining issue was the true market value of the property at the time of the foreclosure sale. The parties then presented competing expert testimony as to value, with the bank’s appraiser opining that the property’s true market value was $1,335,000, and the expert for REF, Thompson and Adelsheimer concluding that the property’s value was $1,695,000. At the conclusion of the hearing, the trial court announced that after considering all the evidence, including the experts’ testimony, it would confirm the foreclosure sale. The court subsequently entered its confirmation order, finding that the true market value of the property was $1,335,000 and that the bank’s bid of $1,402,750 was thus at least equal to the fair market value of the property. REF, Thompson and Adelsheimer appeal.

1. The appellants claim that the trial court’s finding that the property sold for its fair market value is not supported by any evidence. The argument is without merit.

Value on the date of sale is a factual question to be resolved by the trier of fact, which is the judge in a confirmation proceeding. The trial judge’s findings and conclusions have the effect of a jury verdict and when that finding is based upon conflicting evidence, it should not be disturbed by a reviewing court if there is any evidence to support it. Further, 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.

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

In this case, First Citizens introduced appraisal reports of the property’s value as well as expert testimony from the real estate appraiser who prepared those reports. The appraiser explained his methodologies, described the facts used in his appraisals, and gave his opinion that the fair market value of the property was $ 1,335,000. Thus, contrary to the appellants’ argument, there is some evidence to support the trial court’s finding that the property sold for at least its true market value. And this “court will not disturb [such] findings if there is any evidence to support them.” (Citation omitted.) Nash v. Compass Bank, 296 Ga. App. 874, 875 (676 SE2d 28) (2009). Compare Belans v. Bank of America, 303 Ga. App. 35, 38-39 (2) (692 SE2d 694) (2010) (no evidence to support finding of fair market value where appraiser who prepared appraisal reports did not testify).

The appellants’ further arguments concerning the bank appraiser’s methods and analysis are nothing more than challenges to the credibility of the expert witness and the weight to be given his testimony. However, as recited above, those were matters to be resolved by the trial judge, as the trier of fact in the confirmation proceeding; on appeal, this court does not determine witness credibility or re-weigh the evidence. McCain, supra. Furthermore, because the appraiser’s “opinion was not based on sheer speculation, an appellate court cannot second guess any methodology utilized to reach the opinion.” (Citations omitted.) Chamblee Hotels v. Chesterfield Mtg. Investors, 287 Ga. App. 342, 344 (651 SE2d 447) (2007).

2. The appellants contend that the trial court erroneously ignored the testimony of their expert because he did not bring his file to the courtroom. But there is nothing in the record to indicate that the trial court ignored the testimony of the appellants’ expert. Rather, in its confirmation order, the trial court expressly indicated that it had reviewed “the evidence presented at the hearing.” Moreover, before announcing his ruling at the end of the hearing, the trial judge stated, “I’ve heard all the evidence, and I’ve heard from the experts and the other witnesses that have testified.... I’ve got competing experts as far as what the value is.” Thus, it is apparent from the record that the trial court properly considered all the evidence, including the testimony of the appellants’ expert, prior to making its final ruling. See Blue Marlin Dev. v. Branch Banking & Trust Co., 302 Ga. App. 120, 123-124 (3) (690 SE2d 252) (2010) (no evidence that trial court ignored appraisal of appellant’s expert).

While the trial court did not ignore the testimony of the appellants’ expert, it is clear that the trial court found his testimony to be less credible than that of the bank’s expert. The trial judge explained:

Decided June 26, 2012.

And one of the experts lists all his bases for his expert opinion in his report. The other expert reaches a conclusion, and says the basis of his opinion is in his file at home. That makes it kind of hard for me when I’m judging the credibility of the two witnesses to really find them on equal footing.

Contrary to the appellants’ contention, the trial court committed no error in finding one expert to be more credible than the other because he provided the court with more thorough bases for his opinion. “The trial court is the judge of the credibility of the witnesses and of the weight to be given the evidence. Moreover, we will not disturb the trial court’s decision to accept one appraiser’s opinion over another’s.” (Citations omitted.) Chamblee Hotels, supra at 345.

3. The appellants’ complaint that the trial court improperly ignored Thompson’s testimony as to the value of the property is belied by the record. As recounted above in Division 2, the final order and the trial judge’s statements at the conclusion of the confirmation hearing clearly show that the trial court considered all the witnesses’ testimony. Indeed, prior to announcing its ruling at the end of the hearing, the trial judge specifically referred to Thompson’s testimony. Thus, “no evidence shows that the trial court disregarded [Thompson’s] appraisal.” Blue Marlin Dev., supra.

4. The appellants claim that the trial court erred in finding that the bank’s bid of $1,402,750 was at least the true market value of the property because that bid included an unidentified amount for personal property. However, the amount for personal property included in the final bid was not unidentified, and instead that amount was clearly identified as being $ 1,000. Evidence presented at the hearing, including witness testimony and the stipulated admission of a certified copy of the deed under power of sale, unequivocally established that the final bid amount of $1,402,750 was allocated as paying $1,401,750 for real property and $1,000 for personal property. Accordingly, we find no error. Compare Hinson v. First Nat. Bank &c., 221 Ga. 408, 411-412 (4) (144 SE2d 765) (1965) (absent evidence of how lump sum was allocated to pay for real and personal property, court could only speculate as to whether amount attributable to real property was equal to its true market value).

Judgment affirmed.

Barnes, P. J., and Adams, J., concur.

Schulten, Ward & Turner, Kevin L. Ward, Andrea L. Pawlak, for appellants.

Taylor, English & Duma, Sean R. Smith, Jason R. Curies, for appellee.


author: MlKELL, Presiding Judge.

text:
    A12A0194.
    THE STATE v. ARMENDARIZ.
    (729 SE2d 538)
   MlKELL, Presiding Judge.

The state appeals from the trial court’s order granting Kennedy Armendariz’s motion for a plea in bar-statute of limitation and finding that a second indictment against Armendariz was untimely, as it did not comply with the special procedural requirements of OCGA § 17-7-50.1. That statute provides that charges against a juvenile whose crimes are within the jurisdiction of the superior court must be presented to a grand jury within 180 days of his detention. For the reasons that follow, we affirm. “As this issue turns on proper interpretation of OCGA § 17-7-50.1, it is a question of law, which is reviewed de novo on appeal.” In a challenge to a plea in bar, the state bears the burden of proving that the case is not time barred.

The record shows that Armendariz, who was fifteen years old at the time of the alleged crimes, was arrested after he sold two pistols and a small amount of methamphetamine to an undercover agent. A delinquency petition was filed with the Juvenile Court of Jackson County and, after a hearing, the juvenile court granted the state’s request to transfer the petition to the Superior Court of Jackson County so that Armendariz could be tried as an adult. On August 16, 2010, a grand jury returned a 15-count indictment. On August 26, 2010, the court revoked Armendariz’s bond, and he was placed in restrictive custody. Armendariz filed a demurrer/motion to quash, arguing that 12 of the indictment’s 15 counts were void ab initio because they were not included in the juvenile court petition. The superior court granted the demurrer as to Counts 1 and 5 through 15 of the indictment, finding that because the juvenile court never considered those counts, it had not divested itself of its exclusive jurisdiction, thus rendering the superior court without jurisdiction. The superior court denied the state’s motion for reconsideration. The state filed a new complaint and petition for delinquency in the juvenile court, re-alleging nine of the twelve quashed counts. After a hearing on the second juvenile court petition, the case was transferred back to the superior court, and a grand jury returned a second indictment on all nine counts on May 9,2011. Armendariz filed a plea in bar-statute of limitation, arguing that the state failed to timely indict him pursuant to OCGA § 17-7-50.1. After a hearing, the trial court found that Armendariz was detained beginning on August 26, 2010, and that OCGA § 17-7-50.1 mandated he be charged within 180 days of that detention. Because the second indictment was returned May 9, 2011, more than 250 days after Armendariz’s detention, the trial court found that the second indictment was not timely returned and granted the plea in bar-statute of limitation from which this appeal arises.

1. In its first enumeration, the state argues that the trial court erred because it should have found that OCGA § 17-7-50.1’s 180-day time requirement tolled only as to the three surviving charges in the first indictment. The state reasons that Armendariz could not have been detained on the nullified charges, and therefore the 180-day requirement never applied to those charges, meaning the second indictment was timely.

OCGA§ 17-7-50.1 provides:

(a) Any child who is charged with a crime that is within the jurisdiction of the superior court, as provided in Code Section 15-11-28 or 15-11-30.2, who is detained shall within 180 days of the date of detention be entitled to have the charge against him or her presented to the grand jury. . . .
(b) If the grand jury does not return a true bill against the detained child within the time limitations set forth in subsection (a) of this Code section, the detained child’s case shall be transferred to the juvenile court. . . ,

Although the legislature did not address the issue of a subsequent indictment, and no case law resolves the issue, in interpreting OCGA § 17-7-50.1, we must give effect to the intent of the General Assembly.

To determine the legislative intent of a statute, we begin with the literal text; where the literal text of a statute is plain and does not lead to absurd or impracticable consequences, we apply the statute as written without further inquiry. The language of a statute is given its most natural and obvious import, without resorting to forced or subtle interpretations to either expand or limit the statute’s operation. We interpret a statute to give effect to the real legislative intent and meaning, however, and not so strictly as to defeat the legislative purpose.

The legislative history of OCGA § 17-7-50.1 indicates that this chapter was amended “to provide for juvenile justice reforms [and] to provide for procedures related to jurisdiction and indictment for children charged with crimes within the jurisdiction of superior courts.”

It is clear that OCGA § 17-7-50.1 (a)’s 180-day time clock began running when Armendariz was detained, as “the statute plainly adopts the date of detention ... as the point from which the time is calculated.” Armendariz was detained prior to any challenge to the validity of the charges, indicating that he was detained for violating bond related to all charges. Nothing in the statute indicates that the clock stopped running when some charges against him were deemed invalid, an event that preceded the expiration of the 180-day period. The state did not request an extension of time, as allowed by the statute. When the invalid portions of the first indictment were re-indicted out of time, they represented the state’s failure to obtain the timely return of a true bill, as addressed in OCGA § 17-7-50.1 (b), which requires that the case then be transferred back to juvenile court.

While the state attempts to distinguish both Hill and Nunnally v. State, we find these arguments unpersuasive. In Hill, we found that because a juvenile was not indicted within 180 days, the superior court lost jurisdiction to enter judgment on the juvenile’s guilty plea. In Nunnally, we found that the trial court could not grant OCGA § 17-7-50. l’s extension provision retroactively, and also found that “in application^] OCGA § 17-7-50.1 is the same as our other laws that require that action be taken within a specific time or jurisdiction is lost.” Both cases support the statute’s mandate that, absent an extension, charges against a juvenile must be presented to a grand jury within 180 days of the juvenile’s detention or the superior court loses jurisdiction. We affirm.

Decided June 26, 2012.

J. Bradley Smith, District Attorney, Benjamin Green, Assistant District Attorney, for appellant.

Barry E. King, Donna A. Seagraves, for appellee.

2. The state argues that the trial court erred in granting Arm-endariz’s plea in bar-statute of limitation because OCGA § 17-3-3 authorizes a time extension. OCGA § 17-3-3 provides that “[i]f an indictment is found within the time provided for in Code Section 17-3-1 or 17-3-2, or other applicable statute, and is quashed . . ., the limitation shall be extended six months from the time the first indictment is quashed.”

The state clings to the phrase “or other applicable statute,” but presents no case law showing that OCGA § 17-7-50.1 qualifies as an “applicable statute,” nor do we find any case law construing these statutes together. Further, OCGA § 17-3-3’s six-month extension is in direct conflict with OCGA § 17-7-50.1 (a), which allows an extension “not to exceed 90 additional days.” Additionally, OCGA § 17-7-50.1 deals specifically with juvenile dispositions; OCGA § 17-3-3 does not. We have held that “a specific statute will prevail over a general statute, absent any indication of a contrary legislative intent, to resolve any inconsistency between them.” The state’s argument fails.

Judgment affirmed.

Miller and Blackwell, JJ., concur.

       (Citation and punctuation omitted.) Nunnally v. State, 311 Ga. App. 558, 559 (1) (716 SE2d 608) (2011).

        State v. Bair, 303 Ga. App. 183 (692 SE2d 806) (2010).

       (Emphasis supplied.)

       (Emphasis supplied.) Hill v. State, 309 Ga. App. 531, 533 (710 SE2d 667) (2011), citing Spivey v. State, 274 Ga. App. 834 (1) (619 SE2d 346) (2005).

       Ga. L. 2006, p. 172 § 2/SB 135.

        Hill, supra at 534.

       OCGA § 17-7-50.1 (a) provides that “[t]he superior court shall, upon motion for an extension of time . . . and [for] good cause shown, grant one extension of the original 180 day period, not to exceed 90 additional days.”

       Supra.

       Supra.

        Hill, supra at 534.

        Nunnally, supra at 559-561 (1).

       (Emphasis supplied.)

       (Citation and punctuation omitted.) Singletary v. State, 310 Ga. App. 570, 571, n. 9 (713 SE2d 698) (2011), citing Berry v. City of East Point, 277 Ga. App. 649, 654 (6) (c) (627 SE2d 391) (2006).


author: PHIPPS, Presiding Judge.

text:
    A12A0256.
    METRO BROKERS, INC. v. SAMS & COLE, LLC et al.
    (729 SE2d 540)
   PHIPPS, Presiding Judge.

In the State Court of Fulton County, Metro Brokers, Inc. filed suit against Sams & Cole, LLC and Steven W. Cole (collectively S&C), to recover rent payments after S&C allegedly defaulted on a lease agreement. S&C filed a motion to dismiss the suit because of a prior suit Sams & Cole had filed against Metro Brokers and other parties, which was still pending in the Superior Court of Fulton County. The trial court granted S&C’s motion and dismissed the case. Metro Brokers appeals.

Metro Brokers contends that the trial court erred in dismissing the suit: (1) on a ground S&C did not allege in its motion and, in any event, because the record did not support the stated basis of dismissal; (2) because dismissal would not have been authorized on the ground alleged by S&C in its motion; and (3) against Cole because he was not a party in the superior court case. For the reasons that follow, we reverse the trial court’s dismissal of the suit against Cole, and we affirm the dismissal of the suit against Sams & Cole.

“We review the trial court’s ruling on a motion to dismiss under the de novo standard of review.” The record shows that on November 17, 2010, Metro Brokers filed a verified complaint, alleging that S&C was in default on a lease agreement and asserting joint and several liability for breach of the contract for unpaid rent. Metro Brokers attached as an exhibit to its complaint a copy of an agreement which showed that on February 8,2008, Sams & Cole contracted with Metro Brokers to sublease office space on the third floor of a building located on Glenridge Drive. Cole signed the agreement and guaranty on behalf of Sams & Cole. The lease set forth an expiration date of April 30, 2012. Metro Brokers alleged that the last month for which Sams & Cole had paid rent was April 2010.

On December 16,2010, S&C filed a verified answer (and defenses), claiming, among other things, that Metro Brokers’ suit was barred “and abated .. . because there is a prior pending action between the parties for the same cause of action pending in the Superior Court of Fulton County ... by [Metro Brokers’] prior breach of any lease between [Metro Brokers] and [Sams & Cole] ... as a result of the set-off of [Metro Brokers’] and [Sams & Cole]’s mutual accounts.” S&C simultaneously filed a motion to dismiss and attached a copy of the complaint for damages and equitable relief Sams & Cole had filed against Metro Brokers and other parties in superior court.

In the superior court complaint which had been filed on June 22, 2010, and in an amendment thereto filed on August 26, 2010, Sams & Cole sought damages for the actions of Metro Brokers and other defendants in allegedly taking over a corporate entity jointly owned by the parties. Sams & Cole asserted that the nature of its relationship with Metro Brokers and the other defendants was that Sams & Cole (a law firm) “served as the provider of real estate closing services for Metro Brokers and its affiliated entities,” including the corporate entity jointly owned by the parties.

Concerning the lease agreement, Sams & Cole stated the following in the superior court complaint and amended complaint:

Defendants... have conspired to deprive [Sams & Cole] access to its Glenridge offices and its open and pending closing files, as well as all of [Sams & Cole’s] personal property located there.
As a result of the Defendants’ joint and several actions, the Defendants have deprived [Sams & Cole] of its revenue . . . thereby impairing [Sams & Cole]’s ability to maintain its lease obligation to Metro Brokers relating to its offices located on the third floor of the Glenridge location. Meanwhile, Metro Brokers has initiated threats to disrupt [Sams & Cole]’s leasehold of its third floor offices, including its email and internet access.
[Sams & Cole] [is] entitled to temporary and permanent injunctive relief... (4) enjoining and restraining Defendant Metro Broker [s] from instituting any action adverse to its interests until such time as there is a determination of the respective rights and responsibilities of the parties to the lease of [Sams & Cole]’s offices at the Glenridge location.

Metro Brokers responded to S&C’s motion to dismiss and attached as exhibits copies of documents to support its opposition to dismissal. Both sides filed additional responses. A hearing was held, and the trial court took the matter under advisement.

The trial court, in its order granting the motion to dismiss, found that

the claims brought by [Sams & Cole] in the Superior Court suit relate both to the Purchase and Sale Agreement[] and, as specifically alleged in Paragraphs 14 and 18 of the Superior Court Complaint, the obligations of the parties with respect to the premises at the Glenridge offices. . . . Therefore, Metro [Brokers’] claims in the State Court suit are compulsory counterclaims as against [Sams & Cole], which Metro Brokers is required to raise in the Superior Court suit.

1. Metro Brokers contends that the trial court erred in granting S&C’s motion to dismiss the case because the dismissal was based on a ground S&C did not raise in its motion, and that, in any event, the basis upon which the case was dismissed was not supported by the record. We disagree with these contentions.

(a) Specifically, Metro Brokers contends that the trial court erred in dismissing the case on the ground that its claim should have been asserted as a compulsory counterclaim in the prior pending superior court suit, because S&C did not allege that ground in its motion.

The record shows that in S&C’s replies to responses from Metro Brokers, S&C asserted in the trial court that Metro Brokers’ claim for unpaid rent in this suit should have been pleaded as a compulsory counterclaim in the prior pending superior court suit. Thus, Metro Brokers’ contention in this regard fails.

(b) We now turn to Metro Brokers’ contention that its claim for unpaid rent did not meet the requirements of a compulsory counterclaim that should have been asserted in the prior pending superior court suit.

This Court has given clear guidelines for determining whether a claim qualifies as a compulsory counterclaim: If a claim arises out of the transaction or occurrence that is the subject matter of the opposing party’s claim, such claim must be asserted as a compulsory counterclaim. The broad test to be applied in determining whether a counterclaim is compulsory is whether a logical relationship exists between the respective claims asserted by the opposing parties. In making this determination, we look to see whether judicial economy and fairness dictate that all the issues be resolved in one lawsuit. A logical relationship arises when (1) the same aggregate or operative facts serve as the basis for both claims, or (2) the case facts supporting the original claim activate legal rights of the defendant that would otherwise remain dormant.

“A party may not raise issues arising out of the same transaction which should have been pled as a compulsory counterclaim in another separate suit. If the first suit is completed, then res judicata serves to bar proceeding with the second action.” If the prior action is still pending, the trial court could, absent a showing of a balance of convenience in favor of the second action, dismiss the claim without prejudice, and the plaintiff may seek to raise the omitted counterclaim in the prior action. “The key phrase is that the claim ‘arises out of the transaction or occurrence that is the subject-matter of the opposing party’s claim.’ Cause of action has no express bearing on the issue.” In Coker v. Jay Hambridge Art Foundation, we held that a suit for breach of contract was barred because it should have been asserted as a compulsory counterclaim in a prior suit for injunctive relief between the parties where the claims arose out of the same transaction.

Metro Brokers asserts that “the operative facts underlying the Superior Court action all relate to” another matter concerning the parties’ business relationship and “have nothing to do with the Lease or Guaranty.... [And] there are no claims seeking an adjudication of the parties’ rights under the Lease or Guaranty in the Superior Court action.” But the pertinent portions of the superior court complaint and amendment to the complaint, which were filed before S&C’s motion to dismiss was filed in the state court case, show that the same aggregate or operative facts served as the basis for both claims.

Sams & Cole, in the superior court complaint, prayed for damages and specifically alleged that Metro Brokers (and other defendants) conspired to deprive it of access to its offices, impaired its ability to maintain its lease obligation, and threatened to disrupt e-mail and internet access of the leasehold; in the amendment to the complaint, Sams & Cole prayed for injunctive relief to enjoin and restrain Metro Brokers from instituting any action adverse to its interests until such time as there was a determination of the parties’ rights and responsibilities under the lease.

In its verified answer to the state court complaint filed by Metro Brokers, S&C alleged as defenses that the claim was barred because, among other things, Metro Brokers had breached the lease agreement and S&C was entitled to setoffs from the mutual accounts of the parties. According to the allegations of Metro Brokers’ complaint, at the time Sams & Cole filed suit in superior court, Sams & Cole was in default on the lease. Thus, despite Metro Brokers’ assertion to the contrary, the counterclaim had accrued and could have been asserted in the superior court case.

Given these facts, the trial court did not err in finding that Metro Brokers’ claim for unpaid rent arose from the same transaction or occurrence as that giving rise to the prior pending superior court action and that thus, Metro Brokers was required to assert its claim in the superior court action.

2. Metro Brokers contends that, had the trial court granted S&C’s motion to dismiss on the ground of the prior pending action rule, the dismissal would not have been authorized. But since the trial court did not rule on the prior pending action rule issue, we cannot here decide that issue.

3. Metro Brokers contends that the trial court erred in dismissing the suit against Cole because Cole was not a party in the superior court suit. We agree.

At the time of the judgment in this case, Cole was not a party to the prior pending superior court action and thus, there could have been no adjudication on the merits in the prior proceeding regarding him. Therefore, this subsequently-filed action against Cole was not barred. Accordingly, the trial court erred in dismissing the suit against Cole.

Decided June 26, 2012.

Callner, Portnoy & Strawser, Keith D. Siver, for appellant.

Sams & Cole, Henry B. Sams, Steven W. Cole, Laurel E. Creek, for appellees.

Judgment affirmed in part and reversed in part.

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

        Sadi Holdings v. Lib Properties, 293 Ga. App. 23 (666 SE2d 446) (2008) (citation, punctuation and footnote omitted).

       Complaint, Paragraph 14.

       Complaint, Paragraph 18.

       Amendment to Complaint, Paragraph 1 (52).

       According to the superior court complaint filed by Sams & Cole, the Purchase and Sale Agreement concerned the business once owned by both Metro Brokers and Sams & Cole.

        Steve A. Martin Agency v. PlantersFIRST Corp., 297 Ga. App. 780, 782 (2) (678 SE2d 186) (2009) (punctuation and footnotes omitted); OCGA§ 9-11-13.

        Trust Co. Bank of Northwest Ga. v. Shaw, 182 Ga. App. 165, 166-167 (2) (355 SE2d 99) (1987) (citation, punctuation and emphasis omitted).

       See Stowers v. Guthrie, 196 Ga. App. 86, 86-87 (395 SE2d 371) (1990); Harbin Lumber Co. v. Fowler, 137 Ga. App. 90, 93-94 (2) (222 SE2d 878) (1975).

        Harbin Lumber Co., supra at 92 (2) (punctuation omitted).

       144 Ga. App. 660 (242 SE2d 323) (1978).

       Id. at 660-661; see Cook & Co. v. Cross, 226 Ga. 449 (1) (175 SE2d 506) (1970) (where landowner brought an action against individuals for damages and for injunction against trespass on certain real property of the landowner, individuals filed compulsory counterclaim for trespass and injunction, asserting title to other real property).

       See generally Steve A. Martin Agency, supra.

       Coker, supra; Cook & Co., supra.

       See OCGA §§ 9-2-5 (regarding the prosecution of two simultaneous actions for the same cause against the same party); 9-2-44 (regarding the effect of a former recovery or the pendency of a former action for the same cause of action between the same parties in the same or any other court having jurisdiction as being a good cause of abatement).

        Unified Govt. &c. v. Stiles Apartments, 290 Ga. 740, 742 (2) (723 SE2d 681) (2012); Covington v. Johnson, 284 Ga. 426 (667 SE2d 618) (2008); City of Gainesville v. Dodd, 275 Ga. 834, 838 (573 SE2d 369) (2002); Partain v. Maddox, 227 Ga. 623, 636 (3) (b) (182 SE2d 450) (1971).

       See Aycock v. Calk, 228 Ga. App. 172, 175-176 (491 SE2d 383) (1997).

       Id.

       Id.


author: BARNES, Presiding Judge.

text:
    A12A0276.
    MAY v. THE STATE.
    (729 SE2d 545)
   BARNES, Presiding Judge.

Following a jury trial, Quintin Bernard May was found guilty of robbery and sentenced to 20 years. He timely filed a motion for new trial, which he later amended contending that the evidence was insufficient to sustain his conviction, and that trial counsel’s performance was deficient. Following a hearing, the trial court denied May’s motion, and it is from that order that he appeals, and maintains that the evidence was insufficient to sustain his conviction, and that trial counsel was ineffective on the basis of several claimed deficiencies. Upon our review, we' affirm.

1. We first consider May’s claim as to the general grounds supporting his robbery conviction. Following a criminal conviction, the defendant is no longer presumed innocent, and we construe the evidence in the light most favorable to the jury’s verdict. Gordon v. State, 294 Ga. App. 908 (1) (670 SE2d 533) (2008).

This Court determines whether the evidence is sufficient under the standard of Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560) (1979), and does not weigh the evidence or determine witness credibility. Any conflicts or inconsistencies in the evidence are for the jury to resolve. As long as there is some competent evidence, even though contradicted, to support each fact necessary to make out the State’s case, we must uphold the jury’s verdict.

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

So viewed, the evidence shows that the victim was sitting in his car parked in the carport outside his home. He testified that he was counting money as he prepared to “pay some bills.” He noticed May and a second man approach his yard from a path adjacent to his carport. When the victim next looked up, “May came to the passenger side of [his] car, attacked [him], [and] took [his] money.” The victim tried to get out of his car to defend himself, but slipped and fell, and was then “kicked all in the face and the sides and the rears” by May. When May and the second man left the scene, the victim went to his neighbor’s house and called the police. He testified that he knew May and the other man because they lived in the neighborhood, and that he had known May for “five or ten years.” He later identified May from a photographic lineup and in court as the man who robbed him.

“A person commits the offense of robbery when, with intent to commit theft, he takes property of another from the person or the immediate presence of another ... [b]y use of force.” OCGA § 16-8-40 (a) (1). Here, the victim established the elements of the robbery with his testimony that May attacked him, kicked and beat him, and took his money. This evidence was sufficient under the standard of Jackson v. Virginia, 443 U. S. 307.

2. May also contends that his trial counsel was ineffective in his representation. He maintains several errors, including that she failed to request a continuance, failed to object to the admission of the photographic lineup, failed to move to sever May’s trial from that of his co-defendant, improperly elicited testimony that he possessed drugs when he was arrested, and failed to obj ect to the State’s opening statement.

Under Strickland v. Washington, 466 U. S. 668 (104 SC 2052, 80 LE2d 674) (1984), to succeed on an ineffective assistance claim, a criminal defendant must demonstrate both that his trial counsel’s performance was deficient and that there is a reasonable probability that the trial result would have been different if not for the deficient performance. See id. at 687-688, 694 (III) (A)-(B). “There is a strong presumption that the performance of trial counsel falls within the wide range of reasonable professional assistance. The reasonableness of the conduct is viewed at the time of trial and under the circumstances of the case.” (Citation and punctuation omitted.) Williams v. State, 277 Ga. 853, 857 (6) (596 SE2d 597) (2004). If an appellant fails to meet his burden of proving either prong of the Strickland test, the reviewing court need not examine the other prong. Fuller v. State, 277 Ga. 505, 507 (3) (591 SE2d 782) (2004). When reviewing the trial court’s decision, this Court will accept the trial court’s factual findings and credibility determinations unless clearly erroneous; however, we review legal principles de novo. Robinson v. State, 277 Ga. 75, 76 (586 SE2d 313) (2003).

Here, even if trial counsel’s alleged errors or omissions constituted deficient performance, May fails to “demonstrate prejudice in light of the overwhelming evidence substantiating his guilt.” (Citations and punctuation omitted.) Glass v. State, 289 Ga. 542, 548 (6) (c) (712 SE2d 851) (2011). Although he argues that the photographic lineup was admitted in error, and that trial counsel should have objected to its admission and requested a continuance when the photographic lineup was presented for the first time the day of the trial, May’s identity was not in question. The victim and May lived in the same neighborhood, and the victim had known May for many years. May does not demonstrate how the admission of this evidence prejudiced his defense whatsoever.

Likewise, May does not demonstrate how trial counsel’s failure to move to sever his trial from that of his co-defendant prejudiced his defense. The victim testified that May acted alone in attacking him, and that the co-defendant appeared to be in the “wrong place at the wrong time.” At the close of evidence, the co-defendant moved for a directed verdict, which the trial court granted. Whether the number of defendants will create confusion of the evidence and the law applicable to each individual defendant, whether there is a danger that evidence admissible against one defendant will be considered against another despite the cautionary instructions of the court, and whether the defenses of the defendants are antagonistic to each other or each other’s rights are considerations for the trial court when ruling on a motion to sever. Loren v. State, 268 Ga. 792, 795 (2) (493 SE2d 175) (1997). “The defendant requesting a severance has the burden of making a clear showing of prejudice and a denial of due process in the absence of severance.” (Citation omitted.) Id.

In this case where the victim testified that May attacked him while the co-defendant stood by and observed, May cannot show that there is any reasonable probability that the verdict would have been different had he been tried separately. Kelly v. State, 267 Ga. 252, 253 (2) (477 SE2d 110) (1996). Moreover, “[t]he failure to file a motion to sever does not require a finding of ineffective assistance since the decision whether to seek severance is a matter of trial tactics or strategy, and a decision amounting to reasonable trial strategy does not constitute deficient performance.” (Citation omitted.) Harris v. State, 279 Ga. 522, 529 (6) (615 SE2d 532) (2005). Trial counsel did not testify at the hearing on the motion for new trial, and “[w]ithout such testimony, in the absence of other evidence that trial counsel’s performance was deficient, the trial court is to presume that trial counsel’s actions are part of trial strategy.” Ingram v. State, 286 Ga. App. 662, 665 (4) (650 SE2d 743) (2007).

Decided June 26, 2012.

Katherine M. Mason, for appellant.

S. Hayward Altman, District Attorney, John A. Fitzner III, Assistant District Attorney, for appellee.

May also claims that trial counsel was deficient for eliciting testimony into evidence that May had drugs in his possession when he was arrested. The testimony which May claims was objectionable occurred after the arresting officer testified that May had fled from police when they served May with an arrest warrant. During cross-examination of the witness, trial counsel asked if May had drugs in his possession, seemingly as a possible explanation for why he had fled from police. We do not find counsel’s performance deficient in this regard. See Turner v. State, 245 Ga. App. 294, 296 (4) (c) (536 SE2d 814) (2000).

We have also reviewed May’s remaining allegations of ineffectiveness and find them to be without merit or abandoned for failure to cite to any supporting authority or evidence in the record. Court of Appeals Rule 25 (c) (2).

Judgment affirmed.

Adams and McFadden, JJ., concur.


text:
    A12A0301.
    JAMES v. THE STATE.
    (730 SE2d 20)
   PHIPPS, Presiding Judge.

Steven James appeals his convictions for multiple counts of armed robbery, aggravated assault, possession of a knife during the commission of a crime, and one count of attempt to commit armed robbery. He contends the trial court erred by denying his motion for a directed verdict of acquittal, allowing the state to elicit improper hearsay testimony, and allowing the state to improperly impeach a witness. For the reasons that follow, we affirm.

Viewed in the light most favorable to the prosecution, the evidence showed that on the evening of January 13, 2004, David Turner and J. G., ajuvenile, attempted at knifepoint to rob employees of a Taco Bell restaurant, and actually robbed at knifepoint employees in a nearby Arby’s restaurant, minutes later. James drove Turner and J. G. to the restaurants and stayed in the car while Turner and J. G. entered the restaurants armed with knives and wearing masks, and demanded money. After the incident at Arby’s, the three fled in James’s vehicle, with James driving. J. G. sat in the back seat of the car, and Turner sat in the front passenger seat. They were ultimately apprehended by the police.

J. G. testified that on January 13, 2004, he went to James’s house. J. G.’s mother and James were there. Turner arrived shortly thereafter. James, Turner, and J. G. left the house together; James drove. Turner explained to J. G., with James in the car, that they were going to rob some restaurants. Turner said that he had already told James about the plan. Turner handed J. G. a knife while they were in the car. When they arrived at the Taco Bell restaurant, James waited in the car while Turner and J. G. entered the restaurant, armed with knives and wearing face masks, and demanded money. But when their demands were ignored, they exited the restaurant and drove away. Turner and J. G. took off their masks when they got back in the car.

They stopped next at an Arby’s restaurant. Turner and J. G. entered the restaurant, armed with knives and wearing face masks, and demanded money. This time, their demands were met; they were given money. Turner and J. G. exited the restaurant and got back in the car; James drove them away. About ten to fifteen minutes later, the three individuals were arrested at a gas station.

1. James contends the trial court erred by denying his motion for a directed verdict of acquittal because in the state’s case-in-chief, the only testimony connecting him with the crimes came from one of the alleged accomplices, J. G. He argues that none of the victims identified him as a perpetrator and no independent witnesses connected him with the planning or commission of the crimes.

James further argues that he had no knowledge about the attempted armed robbery of the Taco Bell restaurant because he had not discussed committing the robberies, and he stayed in the car while Turner and J. G. went inside and later came back outside without mentioning any attempt to commit a robbery inside. James asserts that he found out about the armed robbery at the Arby’s restaurant only after its commission, when he was forced at knife-point by J. G. to drive away quickly. James denied that the knives identified at trial as having been used in the commission of the crimes belonged to him.

Amotion for a directed verdict of acquittal should be granted only when there is no conflict in the evidence and the evidence with all reasonable deductions and inferences therefrom demands a verdict of acquittal as a matter of law. On appeal, a reviewing court may consider all the evidence in the case, [] and must view the evidence in the light most favorable to the verdict. The test established in Jackson v. Virginia, [] is the appropriate one to use when the sufficiency of the evidence is challenged, whether the challenge is from the denial of a directed verdict or the denial of a motion for new trial based upon alleged insufficiency of the evidence.

“The testimony of a single witness is generally sufficient to establish a fact. However, in certain cases, including prosecutions for treason, prosecutions for perjury, and felony cases where the only witness is an accomplice, the testimony of a single witness is not sufficient.”

A defendant may not be convicted on the uncorroborated testimony of an accomplice; however, only slight evidence of a defendant’s identity and participation from an extraneous source is required to corroborate the accomplice’s testimony and support the verdict. Sufficient corroboration may consist of either direct or circumstantial evidence which connects the defendant with the crime, tends to show his participation therein, and would justify an inference of the guilt of the accused independently of the testimony of the accomplice.

“If there is slight evidence of corroboration, the sufficiency of corroboration is peculiarly a matter for the jury.” “[T]he accused’s own statement can serve to corroborate his accomplice’s inculpatory testimony.” And “[w]hile mere presence at the scene of the commission of a crime is not sufficient evidence to convict one of being a party thereto, presence, companionship, and conduct before and after the offense are circumstances from which one’s participation in the criminal intent may be inferred.”

Here, James’s own testimony corroborated J. G.’s testimony and showed his participation in the commission of the crimes. James testified that he was with Turner and J. G. the evening that the crimes were committed and that he drove Turner and J. G. to the restaurants. In addition, J. G.’s mother (who was also James’s mother-in-law) testified that on the day of the crimes, before they were committed, she heard Turner ask James’s girlfriend for the keys to James’s and his girlfriend’s knife collection; she heard Turner tell James “something like this will work, it’s been done before, it’ll work, don’t worry about it”; and she heard Turner say “something like, when we get back everyone’s pocket will be filled.”

J. G.’s mother testified also that before the three left she saw knives in the car and tried to get her son out of James’s car. After the three left, J. G.’s mother noticed that the knife cabinet, which was always kept locked, was unlocked and it appeared that some knives were missing.

The evidence was sufficient to authorize a rational trier of fact to find beyond a reasonable doubt that J. G.’s testimony was corroborated and that James was the “getaway” driver for Turner and J. G. and a participant in the commission of the crimes.

2. James contends that the trial court committed harmful error by allowing J. G.’s mother to testify as to Turner’s out-of-court’s statements before the state had proved the fact of a conspiracy. We note that James’s argument is not that the state failed to prove the existence of a conspiracy.

OCGA § 24-3-5 provides that after the fact of conspiracy is proved, the declarations by any one of the conspirators during the pendency of the criminal project shall be admissible against all. Notwithstanding the first clause of the Code section, . . . such hearsay statements are admissible when the State at some point before the close of evidence establishes a prima facie case of conspiracy independent of the co-conspirator statement.

Stated another way:

while it may generally be the better practice to require a prima facie case of conspiracy first to be made, before admitting evidence of the acts and declarations of [an] alleged conspirator [ ] there is no inflexible rule to that effect. The trial court has some discretion as to the order in which testimony may be introduced; and if a prima facie case of conspiracy is shown on the whole evidence, the admitting of such testimony is not error.

Inasmuch as a conspiracy may be shown by proof of an agreement between two or more persons to commit a crime, J. G.’s testimony was sufficient to make a prima facie case of conspiracy. And the trial court’s admission of Turner’s statements that were made in the presence of J. G.’s mother before the state proved the fact of the conspiracy did not constitute reversible error.

3. (a) James contends that the trial court committed harmful error by allowing the state to impeach J. G. because J. G. gave no testimony that was inconsistent with any prior out-of-court statement he had given. James argues that J. G.’s out-of-court “statement and his testimony were not contradictory, nor were they inconsistent, they were just not complete.” But this contention is belied by the record.

At trial, the prosecutor asked J. G. whether James had “said anything about what you were supposed to do while you were inside the Taco Bell,” and J. G. replied “No, ma’am.” But when asked, later at trial, about prior statements he had given to the police regarding that matter, J. G.’s response was contradictory:

Q. (Prosecutor) Do you remember talking to the police about what had been said in the car by [James] before you went into the Taco Bell?
A. Yes, ma’am.
Q. Okay. And what did you tell the police that he had said?
A. I told them that while I was at the house, that —
Q. No, not while you were at the house. We’re talking about in the car before you went to Taco Bell.
A. I’m not exactly sure what he said before I got out of the car.
I mean, it —
Q. Do you remember — I’m sorry. Go ahead.
A. He just told us to come out quickly.
Q. He told you to come out quickly.
What were the words that you used that you told the police?
A. I don’t remember. I can’t remember that far back from that day.
Q. Do you remember that you told the police that he said hurry up?

J. G. confirmed that he had previously told the police that James told him and Turner to “be quick in there,” and he told J. G. to listen to what Turner told him to do, to do what Turner told him to do, and to “be by [Turner’s] side at all times”; if J. G. did not do what “they” told him to do, they would likely “use the weapons” against J. G.

In another instance, J. G. testified at trial that after the attempted robbery at Taco Bell and before the three went to Arby’s, James stated “well, since that didn’t work out,... we just shouldn’t do it.” But when later asked about prior statements he had given to the police regarding that matter, J. G. confirmed he had given a response which was inconsistent:

Q. Okay. But... when you gave the tape-recorded statement to the police... you told the police that, them two in the front, they tried to find another place to go get money from; the first place they thought of was Arby’s, because there was not a whole lot of business there____[James] and [Turner] gave me order [s] ... to do what they said. [Turner] and I went in, but I was going by their orders.
A. Right.

Accordingly, James’s contention is belied by the record and is therefore without merit.

(b) James argues also that the procedure employed by the state to impeach J. G. was improper. James claims that the prosecutor’s use of notes she had taken when previously listening to J. G.’s prior tape-recorded statement was improper because she should have instead used a transcript or actual recording of the prior statement.

A witness may be impeached by contradictory statements previously made by him as to matters relevant to his testimony and to the case. Before contradictory statements may be proved against him, unless they are written statements made under oath in connection with some judicial proceedings, the time, place, person, and circumstances attending the former statements shall be called to his mind with as much certainty as possible. If the contradictory statements are in writing and in existence, they shall be shown to him or read in his hearing.

“If a party has knowledge of a prior statement by the witness which contradicts the testimony the witness presently gives, the party has shown appropriate entrapment to entitle the impeachment of his witness by the use of the prior inconsistent statement, including the use of leading questions.”

Here, J. G. testified that he was arrested at a gas station and taken to a sheriff’s department where he made a tape-recorded statement to the police, shortly after the crimes were committed. J. G. confirmed that before the police interviewed him, they tested him for the presence of alcohol in his body and that the police did not interview him while he was still intoxicated. J. G. testified that his mother was present when the police interviewed him and that the police read him some rights, which he understood. J. G. testified that the day before he testified at trial he had listened to the tape-recorded statement he had made to the police. Therefore, the time, place, person, and circumstances attending the former statement were called to J. G.’s mind. Accordingly, James has failed to show that the procedure employed by the state to impeach J. G. was improper; the prosecutor laid the foundation to use J. G.’s prior inconsistent statements.

Decided June 26, 2012.

Barbara B. Claridge, for appellant.

Daniel J. Craig, District Attorney, Charles R. Sheppard, Assistant District Attorney, for appellee.

Judgment affirmed.

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

        Flores v. State, 308 Ga. App. 368, 369 (1) (707 SE2d 578) (2011).

       James and Turner were jointly indicted for the crimes. Turner pled guilty prior to trial. J. G.’s case was disposed of in juvenile court.

        Bethay v. State, 235 Ga. 371, 375 (1) (219 SE2d 743) (1975).

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

        Hammond v. State, 303 Ga. App. 176, 181 (3) (692 SE2d 760) (2010) (citations omitted; emphasis supplied).

       OCGA§ 24-4-8.

        Mosier v. State, 223 Ga. App. 75 (476 SE2d 842) (1996) (citations and punctuation omitted); Grimes v. State, 291 Ga. App. 585, 588 (1) (662 SE2d 346) (2008); OCGA§ 24-4-8.

        Grimes, supra; Floyd v. State, 272 Ga. 65, 66 (1) (525 SE2d 683) (2000) (jury generally determines the weight of the corroborating evidence, and even slight evidence of corroboration connecting the accused to a crime is legally sufficient).

       Floyd,, supra at 66 (1) (citation omitted); Moore v. State, 245 Ga. App. 641, 643 (1) (a) (537 SE2d 764) (2000) (citation and punctuation omitted).

        Mosier, supra at 76 (citations and punctuation omitted).

        Floyd, supra; Romero v. State, 307 Ga. App. 348, 349-351 (705 SE2d 195) (2010); Jones v. State, 302 Ga. App. 147, 149 (1) (a) (690 SE2d 460) (2010) (accomplice testimony that the defendant was a participant in the crime was corroborated by, among other things, witness who overheard defendant speaking to accomplice about committing the robbery and defendant’s own statement that he was with the accomplice for a period of time on the evening of the crime); Mosier, supra at 75-76.

        Thorpe v. State, 285 Ga. 604, 610 (5) (678 SE2d 913) (2009) (citations and punctuation omitted).

        Fallings v. State, 232 Ga. 798, 799 (1) (209 SE2d 151) (1974) (citations and punctuation omitted).

       See Copeland v. State, 266 Ga. 664 (2) (a) (469 SE2d 672) (1996) (testimony of one co-conspirator sufficient prima facie evidence of conspiracy to enable admission of another co-conspirator’s statement to third parties).

        Thorpe, supra; Fallings, supra.

       See Hayward-El v. State, 284 Ga. App. 125, 127 (2) (643 SE2d 242) (2007) (defendant’s claim that he was not provided with a copy of the indictment, police reports, or medical reports was belied by the record and therefore without merit).

       OCGA§ 24-9-83.

        McConnell v. State, 166 Ga. App. 530, 532 (4) (304 SE2d 733) (1983) (emphasis supplied) (citing OCGA § 24-9-81; Davis v. State, 249 Ga. 309, 314 (3) (290 SE2d 273) (1982)); see Duckworth v. State, 268 Ga. 566, 568 (1) (492 SE2d 201) (1997) (Georgia’s impeachment statute does not require that the prior inconsistent statement be admitted into evidence before it is used for impeachment purposes. Nor does the case law mandate the introduction of the prior written statement into evidence before questioning the witness).

       OCGA § 24-9-83.

       See Byrum v. State, 282 Ga. 608, 610 (4) (652 SE2d 557) (2007); Meschino v. State, 259 Ga. 611, 613 (2) (385 SE2d 281) (1989) (foundation laid for use of prior inconsistent statements where witness acknowledged making statement to agent after the crime).


text:
    A12A0304.
    IN THE INTEREST OF M. L., a child.
    (729 SE2d 548)
   BARNES, Presiding Judge.

M. L. was alleged to be delinquent for violating OCGA § 16-7-61, arson in the second degree, OCGA § 16-5-60 (b), reckless conduct, and OCGA § 15-11-2 (12) (B), unruly child. He was adjudicated delinquent for reckless conduct and unruliness. Following a disposi-tional hearing, after which M. L. was sentenced to probation, he appeals, contending that the evidence was insufficient to sustain the delinquency adjudication of reckless conduct.

In considering a challenge to the sufficiency of the evidence supporting an adjudication of delinquency, we construe the evidence and every inference from the evidence in favor of the juvenile court’s adjudication to determine if a reasonable finder of fact could have found, beyond a reasonable doubt, that the juvenile committed the acts charged. Thus, the standard of review on appeal in a case of adjudication of delinquency of a juvenile is the same as that for any criminal case. In reviewing such cases, we do not weigh the evidence or determine witness credibility.

(Punctuation omitted.) In the Interest of C. H., 306 Ga. App. 834, 836-837 (3) (703 SE2d 407) (2010).

So construed, the evidence shows that the owner of the Plantation Townhomes discovered M. L. in the rear of the townhome where M. L. lived with his father, stepmother and four other children. M. L. had “built a fire on top of what had been a pile of leaves,” and “mulch a couple of inches thick.” The owner shouted at M. L. to put the fire out and to “get away from here.” He testified that M. L. went to get water, and that in the meantime he salted the fire and brought it under control. There was a piece of meat lying on the ground, and M. L. told the owner that he had been experimenting. M. L. told him that he did not live in the townhome complex, and the owner told him to leave and that he would call the police if M. L. returned. The owner further testified that the fire was approximately six feet from the back of the apartment where M. L. lived. The owner later called police, and upon further investigation discovered that M. L. lived in the complex. M. L.’s stepmother’s three children, ages four to four months, and her 13-year-old sister were at home during the time the fire was lit.

A person commits reckless conduct when he

causes bodily harm to or endangers the bodily safety of another person by consciously disregarding a substantial and unjustifiable risk that his act or omission will cause harm or endanger the safety of the other person and the disregard constitutes a gross deviation from the standard of care which a reasonable person would exercise in the situation.

OCGA§ 16-5-60 (b).

M. L. contends that the evidence supporting the reckless conduct adjudication of guilt is insufficient because there is no evidence that anyone was endangered, no evidence that he disregarded a substantial and unjustifiable risk, and no evidence that his actions constituted a gross deviation from the standard of care. We do not agree.

“[T]he crime of reckless conduct is, in essence, an instance of criminal negligence, rather than an intentional act, which causes bodily harm to or endangers the bodily safety of another.” (Citation and punctuation omitted.) Riley v. State, 250 Ga. App. 427, 429 (2) (551 SE2d 833) (2001). OCGA § 16-2-1 (b) defines “criminal negligence” as “an act or failure to act which demonstrates a willful, wanton, or reckless disregard for the safety of others who might reasonably be expected to be injured thereby.”

Here, the evidence shows thatM. L., without supervision, started a fire using twigs, leaves, grass and mulch in close proximity to the townhome where his younger siblings were located. The fire was approximately eight inches high before M. L. was discovered and instructed to put out the fire. In starting an open fire under such circumstances, 14-year-old M. L. disregarded a very real risk that the fire could ignite the townhome six feet away, and his conduct endangered the lives of the children who were in the townhome.

Decided June 26, 2012.

Jill E. Roth, for appellant.

Larry Chisolm, District Attorney, Kimberly Rowden, Assistant District Attorney, for appellee.

Under these circumstances, the evidence was sufficient to sustain his delinquency adjudication of reckless conduct. See Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560) (1979).

Judgment affirmed.

Adams and McFadden, JJ., concur.


text:
    A12A0459. A12A0460.
    HAWKINS v. THE STATE. WOODS v. THE STATE.
    (729 SE2d 549)
   McFadden, Judge.

Skylar Hawkins and Octavious Woods were convicted of three counts of armed robbery and possession of a firearm during the commission of a crime for robbing a waitress, a cook and a customer at a Waffle House. Both Hawkins and Woods argue that they were entitled to a mistrial because of certain testimony of an investigator, but we find that by instructing the jury to disregard the testimony, the trial court provided a sufficient remedy. Hawkins also argues that the trial court erred by limiting his cross-examination of the investigator for bias. We find, however, that any error in this regard was harmless. Hawkins argues that the testimony about his drug use impermissibly placed his character in issue, but the evidence was admissible as part of the res gestae of the crime. Woods argues that the trial court erred by admitting his statement to an investigator. We find that the trial court correctly determined that Woods had waived his Miranda rights. Finally, Woods argues that he was entitled to a mistrial because of the state’s violation of the rule of sequestration, but assuming such a violation occurred, the proper remedy was not a mistrial but instead was an instruction to the jury to consider the violation when assessing witness credibility. For these reasons, we affirm Hawkins’s and Woods’s convictions.

1. Viewed in the light most favorable to the jury’s verdict, Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560) (1979), the record shows the following relevant facts. On the evening of February 25, 2008, Hawkins, Woods, Logan White and Cordell Ward met at Hawkins’s residence. The men discussed committing a robbery, and White left for ten or fifteen minutes to get a gun. Eventually, they drove to a Waffle House in White’s Nissan pickup truck. Around 1:30 a.m., a customer went to the same Waffle House. When he arrived, he saw three men sitting in a booth, eating. Two Waffle House employees, a cook and a waitress, were also present. The three men paid for their food and exited the restaurant. The customer noticed that they went to the parking lot and stood around a Nissan truck with its hood raised.

About ten minutes later, the three men re-entered the restaurant. Logan White, one of the three men, pulled out a handgun and cocked it. He jumped on the counter, pointed the gun at the waitress, and demanded money from the cash register. The waitress complied. After taking money from the register, White pointed the gun at the cook, demanded his money and took his wallet. Octavious Woods, another of the three men, demanded money from the customer and began poking him with a crowbar. White pointed the gun at the customer, and Woods took $98 from his pocket. White and Woods forced the three victims to lie on the floor. While White and Woods were robbing the victims, the third man, Cordell Ward, stood at the front door of the restaurant, blocking the door. After robbing the three victims, the men ran to the pickup truck, jumped into its bed, and Hawkins drove off.

The cook called the police and described the robbers’ truck and their direction of travel. Within moments of the call, a Douglas County sheriff’s deputy spotted the truck and pursued it. The driver, Hawkins, refused to pull over, and the deputy forcibly stopped the truck. Hawkins surrendered, but the three men who had been in the bed of the truck fled on foot. A deputy chased and caught Woods. When Woods was booked, the officers found $98 in cash in his shoe, the same amount that was stolen from the customer. White was also captured a short distance away. The deputies recovered the cook’s wallet from White’s pocket and a large amount of cash from some bushes where White had hidden it. Officers searched the truck and found a handgun and a crowbar, items that the customer identified at trial as the weapons used during the robberies. Although he managed to escape that night, Ward was arrested at home the next day.

Prior to the trial of Ward, Woods and Hawkins, White pled guilty to armed robbery and agreed to testify against his co-indictees. White identified the loaded gun recovered from his truck as the weapon used in the armed robberies. He testified that he told his co-indictees earlier in the evening that he wanted to commit a robbery and that they all knew that he had a gun. He testified that he and the other men discussed robbing the Waffle House after they finished eating and were in the parking lot. The evidence is sufficient to support the convictions of Hawkins and Woods under Jackson v. Virginia, See Skipper v. State, 314 Ga. App. 870, 873 (1) (726 SE2d 127) (2012) (evidence that defendant discussed attempted armed robbery beforehand with the other perpetrators, provided part of a disguise, drove the co-defendants to the crime scene, was present near the scene of the attempted robbery, fled the scene after the attempted robbery, and changed her story about the details of the night of the attempted robbery supported conviction for being a party to the attempted armed robbery).

2. Both Hawkins and Woods argue that the testimony of Cindy Ash, an investigator with the Douglas County District Attorney’s Office, put their characters in issue. Hawkins also argues that the trial court erred by limiting his cross-examination of Ash.

At one point in the trial, defense counsel informed the court outside the jury’s presence that during defendant Cordell Ward’s testimony, Ash, who was seated among the spectators, had pointed at and threatened a family member of Ward’s and Hawkins’s who was also watching the trial. The judge acknowledged that he had seen Ash point her finger. He instructed the assistant district attorney to require Ash to remain outside the courtroom because she was “getting] into it” with a witness’s family. The judge said that Ash needed “to stay a little more dispassionate. [He] understood her desire to help, but sometimes it was getting a little bit overwrought.”

Later, the assistant district attorney called Ash as a witness to rebut Ward’s testimony that he did not know who picked him up after he jumped from the bed of the truck and fled from the police. Ash testified that she had been present in the courtroom during Ward’s testimony. She testified that when the assistant district attorney asked Ward who picked him up, a man sitting in front of her, Terell Caldwell, commented that he had picked up Ward that night.

On cross-examination, Hawkins’s attorney asked Ash whether it was true that she had become very upset during the trial and had approached him to say “your friend’s making motions or signs or doing some kind of communication with one of the defendants up here.” Although Ash denied being upset, she admitted that she had approached counsel who said he would take care of it. Counsel then asked her whether it were true that the judge had ordered her out of the courtroom during the trial. The state objected on the ground that the issue was irrelevant, and the court sustained the objection. Defense counsel argued that the evidence was “relevant because it [went] to her interactions with the family members and particularly Terell Caldwell.” He argued that Ash had had “certain interactions with this family” that were relevant to her credibility. The court reiterated that the evidence was irrelevant, and counsel continued his cross-examination of Ash. He asked Ash whether she had been sitting next to family members and Caldwell all week, and Ash responded:

No, sir. I was on the back row and they were — and I wasn’t sitting next to the family members except for the lady — I’m not sure who she is that’s with Terell. She was sitting most of the time next to him, and I have always sat in the back row. And in regards to your question before, they were shooting gang signs back and forth to each other. They were disrupting—

All three defendants immediately objected and moved for mistrial. Although the judge denied the defendants’ motions for mistrial, he instructed the jury to disregard Ash’s statement. Ash was excused and gave no more testimony.

(a) Hawkins argues that the trial court erred by restricting his cross-examination of Ash, who, he claims, had crossed the line from being a witness to being an advocate. “The state of a witness’s feelings toward the parties and his relationship to them may always be proved for the consideration of the jury, and a defendant has the right to make a thorough and sifting cross-examination of the witnesses against him.” (Citations and punctuation omitted.) Miceli v. State, 308 Ga. App. 225, 227 (2) (707 SE2d 141) (2011). See also OCGA § 24-9-68. However,

the constitutionally improper denial of a defendant’s opportunity to impeach a witness for bias, like other Confrontation Clause errors, is subject to ... harmless-error analysis. The correct inquiry is whether, assuming that the damaging potential of the cross-examination were fully realized, a reviewing court might nonetheless say that the error was harmless beyond a reasonable doubt. Whether such an error is harmless in a particular case depends upon a host of factors, all readily accessible to reviewing courts. These factors include the importance of the witnesses] testimony in the prosecution’s case, whether the testimony was cumulative, the presence or absence of evidence corroborating or contradicting the testimony of the witness on material points, the extent of cross-examination otherwise permitted, and, of course, the overall strength of the prosecution’s case.

Delaware v. Van Arsdall, 475 U. S. 673, 684 (106 SC 1431, 89 LE2d 674) (1986). See also Smith v. State, 284 Ga. 599, 609 (4), n. 21 (669 SE2d 98) (2008) (violation of right to confrontation can be deemed harmless if the record on the whole shows it harmless beyond a reasonable doubt).

Pretermitting whether the trial court erred by limiting the cross-examination of Ash, any error was harmless beyond a reasonable doubt. Ash was a minor witness, who testified to only one fact related to the armed robbery: that Terell Caldwell said that he had picked up Ward when Ward testified he did not know who picked him up. Ash gave no testimony that implicated Hawkins or contradicted his testimony. Ash’s testimony was of negligible importance to the state’s case, which overall was very strong, and we have no trouble concluding that any error was harmless beyond a reasonable doubt. Compare Brown v. Baskin, 286 Ga. 681, 685-686 (690 SE2d 822) (2010).

(b) Hawkins and Woods argue that the trial court should have granted a mistrial because of Ash’s reference to gang signs. Although the trial court denied the defendants’ motions for mistrial, the court instructed the jurors to disregard Ash’s reference to gang signs. “A trial court’s discretion in granting or refusing to grant a mistrial should not be disturbed unless a mistrial is essential to the preservation of the right to a fair trial.” Gardner v. State, 273 Ga. 809, 812-813 (5) (546 SE2d 490) (2001). “Considering the nature of [Ash’s] statement, [the fact that it did not implicate Hawkins or Woods in gang activity], the other evidence in the case, and the action taken by the court and counsel concerning the impropriety,” we find that Hawkins and Woods were not denied the right to a fair trial. Ramirez v. State, 279 Ga. 569, 576 (9) (619 SE2d 668) (2005). Consequently, the trial court did not err in denying their motions for mistrial. Gardner, supra.

3. Hawkins argues that the trial court erred by allowing the state to introduce evidence that he had used cocaine and marijuana before the robbery. White testified that the evening of the crime he had used marijuana and cocaine, and he remembered the defendants smoking marijuana in the truck. Hawkins argues that this testimony was not relevant, given the trial court’s earlier ruling that Hawkins’s statement was admissible, a ruling which necessarily included a finding that Hawkins was not intoxicated at the time he gave his statement. Given this ruling, Hawkins argues, the only reason for introducing evidence of his marijuana use was to place his character in evidence.

Evidence is not inadmissible simply because it might incidentally reflect on the defendant’s character.... What is forbidden is the introduction by the state in the first instance of evidence whose sole relevance to the crime charged is that it tends to show that the defendant has bad character. [White’s] testimony he and [Hawkins] used drugs ... on the day of the [crime] was relevant evidence of [Hawkins’s] state of mind and admissible as part of the res gestae. Whether the effects due to their use may have worn off by the time of the [crime] was a question for the jury to decide.

(Citations, punctuation and emphasis omitted.) Pless v. State, 260 Ga. 96, 97-98 (2) (390 SE2d 40) (1990).

4. Woods argues that the trial court erred in admitting his custodial statement. Before trial, the court conducted a Jackson v. Denno, 378 U. S. 368 (84 SC 1774, 12 LE2d 908) (1964), hearing at which an investigator testified. The investigator testified that when he first read Woods his Miranda rights, see Miranda v. Arizona, 384 U. S. 436 (86 SC 1602, 16 LE2d 694) (1966), Woods asked for an attorney, so the investigator ended the interview. The next day, the investigator received a letter from Woods stating that, “I want to speak with Investigator Hayes in reference to my case.” In response, the investigator met with Woods at the jail. The investigator again read him his Miranda rights, and when the investigator asked whether Woods wanted to talk to him without a lawyer, Woods explained that he wanted his mother to be present. The investigator asked whether the mother was an attorney. Woods answered that she was a private investigator. The investigator asked whether she was his attorney, and Woods responded that he did not know. The investigator explained that if the mother were Woods’s attorney “we’ll have her come up here.” If she were not his attorney, they could try to arrange a conference call. But they would first have to “clear up the Miranda rights.” The investigator asked Woods if he understood his Miranda rights, “clarifying] each of the individual rights that he waived.” Woods answered yes, signed a rights waiver form, and gave a statement. The trial court concluded that Woods freely and voluntarily gave his statement after knowingly waiving his rights. We accept the trial court’s factual and credibility findings following a Jackson v. Denno hearing unless they are clearly erroneous. Bright v. State, 265 Ga. 265, 280 (5) (b) (455 SE2d 37) (1995).

Woods argues that the investigator’s testimony demonstrates that Woods did not waive his right to have an attorney present during his interview.

In order for a suspect to properly invoke his right to counsel during a custodial interrogation, he must articulate his desire to have counsel present sufficiently clearly that a reasonable police officer in the circumstances would understand the statement to be a request for an attorney. Invocation of the Miranda right to counsel requires, at a minimum, some statement that can reasonably be construed to be an expression of a desire for the assistance of an attorney. But if a suspect makes a reference to an attorney that is ambiguous or equivocal in that a reasonable officer in light of the circumstances would have understood only that the suspect might be invoking the right to counsel, our precedents do not require the cessation of questioning.

(Citations and punctuation omitted.) Robinson v. State, 286 Ga. 42, 43-44 (684 SE2d 863) (2009). Because a reasonable officer would not necessarily have understood Woods’s answer that he did not know whether his mother was his lawyer to be a clear request for counsel, the investigator was not required to end the interview on that basis. Fitz v. State, 275 Ga. 349, 353 (3) (b) (566 SE2d 668) (2002). The investigator’s further questioning and explanation of Woods’s Miranda rights confirmed Woods’s desire to talk without an attorney being present. Id. By administering Miranda warnings after Woods answered that he did not know whether his mother was his attorney, reviewing the waiver of rights form and obtaining Woods’s signature, the investigator resolved any possible ambiguity that may have been created by Woods’s statement. Jordan v. State, 267 Ga. 442, 445 (1) (480 SE2d 18) (1997). The trial court did not err in admitting Woods’s statement.

5. Woods argues that the trial court erred by denying his motion for mistrial when the assistant district attorney violated the rule of sequestration by informing White about the testimony of other witnesses. On cross-examination, Woods’s counsel asked White whether he remembered the assistant district attorney telling him “what the story was to the jury already,” and “what the evidence of all three attorneys was to the jury already.” White answered affirmatively.

Decided June 26, 2012.

J. Scott Key, for appellant (case no. A12A0459).

Drummond & Swindle, Jason W. Swindle, for appellant (case no. A12A0460).

David McDade, District Attorney, James A. Dooley, Emily K. Richardson, Assistant District Attorneys, for appellee.

After a lunch recess, Woods moved for a mistrial on the grounds of prosecutorial misconduct, specifically because the assistant district attorney had told White the substance of other witnesses’ testimony. The trial court denied the motion, concluding that, based on White’s responses, the assistant district attorney was simply “trying to figure out what his testimony [was] going to be.”

Pretermitting whether the assistant district attorney violated the rule of sequestration, the trial court did not err by denying the motion for mistrial.

When the rule of sequestration is violated, the violation goes to the credibility rather than the admissibility of the witness’[s] testimony. A party’s remedy for a violation of the rule is to request the trial court to charge the jury that the violation should be considered in determining the weight and credit to be given the testimony of the witness.

(Citation omitted.) Aalon v. State, 247 Ga. App. 37, 40 (2) (543 SE2d 78) (2000). “[A] violation of the rule goes only to credibility, not admissibility, and the proper remedy is not a mistrial.” Glass v. State, 289 Ga. 542, 548 (6) (c) (712 SE2d 851) (2011).

Judgments affirmed.

Barnes, P. J., and Adams, J., concur.

       We affirmed Ward’s convictions for three counts of armed robbery and possession of a firearm during the commission of a felony in an unpublished opinion. Ward v. State, 311 Ga. App. XXV (2011).


author: Barnes, Presiding Judge.

text:
    A12A0538.
    MIDTOWN GLASS COMPANY, LLC v. LEVENT INDUSTRIES, INC. et al.
    (729 SE2d 556)
   Barnes, Presiding Judge.

Midtown Glass Company, LLC (“Glass”) rented warehouse space in a building owned by Tuncel Properties LLC. Afire in the warehouse damaged Glass’s inventory, and Glass sued Tuncel Properties and another building tenant, Levent Industries, Inc., for negligence. The trial court awarded summary judgment to the defendants, and Glass appeals. For the reasons that follow, we reverse.

In October 2000, Glass and Tuncel Properties entered into a five-year lease agreement which contained the following exculpatory language, commonly referred to as a “waiver of subrogation clause”:

Landlord and Tenant mutually waive all rights of recovery against the other or any party claiming through or under the other for any loss or damage to property of the other caused by fire or other insured casualty notwithstanding that such damage was caused by the negligence of the other, its agents, or employees. Landlord and Tenant agree with respect to their insurance policies to include standard waiver of sub-rogation clauses therein.

Tuncel Properties was owned by Levent Tuncel, who also owned Levent Industries, Inc., doing business as Architectural Brass. Architectural Brass leased a portion of the warehouse from Tuncel Properties.

The lease between Glass and Tuncel Properties expired in September 2005. Glass continued to occupy the space, although the parties did not enter into a new lease. In February 2007, a fire in the warehouse caused substantial damage to Glass’s inventory of 23,000 separate items, including replacement windshields. Tuncel testified that, after the fire, he “wanted [Glass] out of there” because the fire marshal said the fire had been caused by arson that started in Glass’s space, so Tuncel Properties filed several dispossessory actions against Glass, which vacated the premises in June or July 2007. Glass’s insurer had paid it $435,000, and Glass executed subrogation agreements with its insurer.

Glass sued Tuncel Properties and Levent Industries to recover the $435,000 paid to it by the insurer, $875,000 for uninsured property damage, and $1.2 million in lost business income, contending among other things that the defendants negligently maintained the warehouse fire protection system.

Tuncel Properties moved for summary judgment, arguing that Glass was still subject to the waiver of subrogation clause in the lease agreement, even though the lease term had ended, that the clause precluded Glass from recovering for any losses that were compensated by insurance and not caused by the landlord’s negligence, and that no evidence showed that Glass’s damages were caused by the landlord’s negligence. Levent Industries moved for summary judgment, contending that it had no ownership interest in the building, that it owed no duty to Glass as a co-tenant, that if it were considered to be Glass’s landlord, the lease terms would bar Glass’s claims, and that Glass had failed to prove that any negligence caused its damages.

The trial court granted summary judgment to both defendants. As to Tuncel Properties, the court found that the lease barred Glass’s subrogation claims and all of its other damages claims by showing “a clear intent by the parties to shift the risk of loss for an insured casualty to the parties’ respective insurers.” As to Levent Industries, the court found that it acted as Tuncel Properties’ agent and therefore the waiver of subrogation clause protected it also.

Glass contends on appeal that the trial court erred in granting summary judgment to both defendants because the waiver of subro-gation provision did not survive the expiration of the lease, and because a jury question exists as to whether Levent Industries acted as Tuncel Properties’ agent.

“One who is a tenant at will by virtue of holding over after the expiration of the term of his lease holds the premises subject to the general terms and conditions specified in the lease, except so far as modified by mutual agreement.” (Citation and punctuation omitted.) Colonial Self Storage &c. v. Concord Properties, 147 Ga. App. 493, 494 (1) (249 SE2d 310) (1978) (landlord entitled to exercise default provision in expired lease allowing it to seize and sell property in an unpaid storage unit). “[T]he general terms and conditions of a lease are those indispensable to a continuing landlord/tenant relationship ... [or those] necessary in order for the landlord/tenant relationship to continue.” (Footnote omitted.) Mariner Healthcare v. Foster, 280 Ga. App. 406, 409 (2) (634 SE2d 162) (2006). Indispensable terms and conditions include, “at a minimum, provisions for rent and repairs by the landlord and tenant.” Gully v. Glover, 190 Ga. App. 238, 240 (2) (378 SE2d 411) (1989).

Accordingly, a lease provision obligating a tenant to pay for damages to the premises occurring while the tenant was in possession remained applicable after the lease expired and the tenancy continued at will. Gully, 190 Ga. App. at 240 (2). A lease provision requiring the tenant to pay a proportional share of the landlord’s “operating costs,” including taxes, maintenance, security, and insurance, was a “general term and condition” which continued to apply after the lease expired, particularly as the provision described the operating costs as “additional rent.” Radha Krishna v. Desai, 301 Ga. App. 638, 640-641 (1) (689 SE2d 78) (2009). On the other hand, a contractual right of first refusal to lease the property again “was not a general term or condition of the leases because it is not a term or condition that is necessary in order for the landlord/tenant relationship to continue.” Mariner Healthcare, 280 Ga. App. at 409 (2).

Decided June 26, 2012.

Beal & Blitch, Andrew M. Beal, Sarah T. Jackson, for appellant.

Hicks, Casey & Foster, William T. Casey, Jr., LisaK. Whitfield, W. Winston Briggs, for appellees.

While a contractual provision “pursuant to which the parties clearly express their mutual intent to shift the risk of such loss to insurance” is enforceable, May Dept. Store v. Center Developers, 266 Ga. 806 (1) (471 SE2d 194) (1996), such a provision is not necessary for the landlord/tenant relationship to continue. It is not a provision addressing rent, operating costs, damages to the property by the tenant, or default, but merely a reallocation of risks. Therefore, the waiver of subrogation provision did not continue to apply after the lease expired, and the trial court erred in applying it to grant summary judgment to the defendants in this case.

Because this provision is not necessary to the relationship and therefore did not continue to apply after the lease expired, we need not consider whether the waiver of subrogation clause applied to foreclose Glass’s claim for uninsured losses or its claims against its co-tenant Levent Industries either individually or as Tuncel Properties’ agent.

Judgment reversed.

Adams and McFadden, JJ., concur.