author: JOHNSON, Judge.

text:
    A10A2041.
    JACOBSON v. THE STATE.
    (703 SE2d 376)
   JOHNSON, Judge.

A jury found Jeffrey Lee Jacobson guilty of DUI per se, DUI less safe, and failing to properly dim the headlights of his vehicle. Jacobson appeals from the convictions entered on the verdict, claiming that the evidence was insufficient to support his DUI convictions and that the trial court erred in (i) allegedly commenting on the evidence in violation of OCGA § 17-8-57, (ii) allowing the state to admit the results of Jacobson’s breathalyzer test, (iii) allowing the state to admit certificates of inspection for the breath-testing equipment, and (iv) refusing his request to admit maintenance logs showing when the breath-testing equipment was taken out of service. We find no error and affirm.

1. In considering whether evidence produced at trial was sufficient to support a conviction, we do not weigh the evidence or determine witness credibility but only determine whether the evidence is sufficient under the standard of Jackson v. Virginia. The jury’s verdict must be upheld if any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt, and we view the evidence in a light most favorable to the verdict.

So viewed, the evidence shows that at approximately 3:00 a.m. on December 21, 2008, an officer with the Forsyth County Sheriffs Department observed a vehicle approach his patrol car with its bright headlights turned on. After the driver, who was later identified as Jacobson, failed to dim the bright lights before passing the officer’s car, the officer conducted a traffic stop based upon Jacobson’s violation of OCGA § 40-8-31 (1).

Upon contact with Jacobson, the officer noticed a “strong odor of an alcoholic beverage coming from inside the car.” In addition, the officer observed that Jacobson’s eyes were watery and that his knuckles were “real bloody.” Jacobson told the officer that he had “layed [sic] his motorcycle down,” and the officer estimated from the scrapes on Jacobson’s hands that he had wrecked his motorcycle within the last few hours before the traffic stop. The officer asked Jacobson if he had been drinking, and Jacobson admitted that he had consumed two alcoholic beverages.

The officer performed a field sobriety test in which Jacobson exhibited six out of six clues indicating impairment. Based on the test results, the officer arrested Jacobson for DUI-less safe. After the officer properly secured Jacobson’s consent, Jacobson submitted to a breath test on the Intoxilyzer 5000. Jacobson’s first breath sample indicated an alcohol concentration of 0.152 grams, and his second breath sample (taken several minutes later) indicated an alcohol concentration of 0.143 grams. This evidence was sufficient to support Jacobson’s convictions.

2. Jacobson claims that the trial court erred in commenting on the evidence in violation of OCGA § 17-8-57. This alleged error occurred after the jury requested to rehear the police officer’s testimony regarding his observation of Jacobson prior to administering the breathalyzer test. After a discussion with counsel outside the presence of the jury, the trial court informed counsel that it intended to deny the request because he believed (i) it would be burdensome for the court reporter to read the three different portions of the transcript in which the officer discussed his observation of Jacobson, (ii) the trial was not so long that the jury could not recall the testimony, and (iii) reading those portions of the transcript “in isolation of the rest of the testimony . . . puts more emphasis on that evidence because [it means the jury would have] heard it more than once.”

After the jury returned to the courtroom, the trial court noted the jury’s request regarding the officer’s testimony and stated:

The Court has determined that because there are several references to what could be the subject of your inquiry and .the Court doesn’t think it’s going to help you any more than what you have heard because of how many times it’s referred to and the different contexts. And we may not give you everything that you’ve asked for. And I don’t think you want to hear the whole testimony over again. So, at this time I’m not going to grant that request. I don’t think that’s going to be — you will have to recall that evidence between the six of you as to what the evidence was.

Jacobson claims that the tried court’s comments to the jury constituted “what has or has not been proved or as to the guilt of the accused” in violation of OCGA § 17-8-57. We disagree. The trial court merely informed the jury of the reasons that it was denying its request to rehear certain evidence, and its comments cannot reasonably be interpreted as an expression or intimation regarding the trial court’s opinion as to matters proved or Jacobson’s guilt.

3. Jacobson also claims the trial court erred in allowing the state to admit the results of Jacobson’s breathalyzer test because it failed to provide a copy of the results to Jacobson during discovery, in violation of OCGA § 17-16-23. The uncontroverted evidence indicated, however, that Jacobson received a copy of the test results from the jail staff immediately after the results were recorded. The trial court did not err, therefore, in determining that Jacobson was not harmed by the state’s discovery violation.

4. Jacobson also claims the trial court erred in allowing the state to admit certificates of inspection for the Intoxilyzer 5000. Citing to Melendez-Diaz v. Massachusetts, Jacobson asserts that the state was required by the Confrontation Clause to put forward testimony from a live witness stating that the machine was in good working order. However, we have already held that certificates of inspection for the Intoxilyzer 5000 “do not fall within the class of documents prohibited by Melendez-Diaz because they are not generated for the prosecution of a particular defendant.” As a result, the trial court did not err in permitting the state to introduce the certificates of inspection.

Decided November 16, 2010

McFarland & McFarland, Robert P. McFarland, Jr., for appellant.

Leslie C. Abernathy, Solicitor-General, Amy Millard Radley, Donna S. Gopaul, Assistant Solicitors-General, for appellee.

5. Finally, Jacobson claims that the trial court erred in refusing his request to admit maintenance logs showing when the Intoxilyzer 5000 used to conduct his breath test was taken out of service. It is well established, however, that “questions of relevance are within the domain of the trial court, and, absent a manifest abuse of discretion, a court’s refusal to admit evidence on grounds of lack of relevance will not be disturbed on appeal.” In addition, Intoxilyzer 5000 maintenance logs are not even relevant enough to be discoverable pursuant to OCGA § 40-6-392 (a) (4). As a result, the trial court did not abuse its discretion in refusing Jacobson’s request to admit the maintenance logs into evidence.

Judgment affirmed.

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

       See OCGA §§ 40-6-391 (a) (5); 40-6-391 (a) (1); 40-8-31 (1).

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

        Stone v. State, 248 Ga. App. 190 (546 SE2d 787) (2000).

       See Totino v. State, 266 Ga. App. 265, 266 (1) (a) (596 SE2d 749) (2004).

        See Nobles v. State, 201 Ga. App. 483, 485 (3) (411 SE2d 294) (1991) (judge did not abuse discretion in refusing jury’s request to rehear certain testimony because judge determined that to do so would “spotlight the testimony out of context with the entire trial”) (punctuation omitted).

       See Johnson v. State, 246 Ga. 126, 128 (V) (269 SE2d 18) (1980) (“remarks of a judge assigning a reason for his ruling are neither an expression of opinion nor a comment on the evidence”).

       See Vincent v. State, 228 Ga. App. 691 (1) (492 SE2d 604) (1997) (“As defendant had already been provided with a copy of the test results, he was not harmed by any failure by the State to provide the same pursuant to discovery.”).

       _U. S. _ (129 SC 2527, 174 LE2d 314) (2009).

        Ritter v. State, 306 Ga. App. 689 (703 SE2d 8) (2010).

        Chapman v. State, 215 Ga. App. 340, 340-341 (449 SE2d 903) (1994).

        Stetz v. State, 301 Ga. App. 458, 461 (687 SE2d 839) (2009).


source: Caselaw Access Project

author: Johnson, Judge.

license: Public Domain

text:
    A10A2062.
    In the Interest of M. A. R., a child.
    (702 SE2d 919)
   Johnson, Judge.

A juvenile court judge found that 16-year-old M. A. R. committed the delinquent act of possession of alcohol by a minor. M. A. R. appeals, contending there was insufficient evidence to support the finding of delinquency. We find no error and affirm M. A. R.’s adjudication.

Viewed in the light most favorable to support the juvenile court’s findings, the record shows that a police officer observed M. A. R. crossing the parking lot of a commercial property late at night. At the time, M. A. R. was drinking from a large can that the officer suspected contained alcohol. The officer approached M. A. R. While he no longer held a canned beverage, the officer testified that M. A. R. smelled of alcohol and his eyes were red and glossy The officer went to the location where he had first seen M. A. R. and recovered a “23 /z ounce juice malt beverage can, which contained 9.9% alcohol.” The can “was very cold to the touch and it was right where [the officer] had last seen [M. A. R.].” When the officer returned to M. A. R. with the can, M. A. R. admitted he had been drinking alcohol, but the officer could not recall whether M. A. R. admitted he had been drinking from the recovered can.

M. A. R. argues that the evidence was insufficient to support his adjudication because the state’s circumstantial evidence merely showed that he was present near an open beverage can allegedly containing alcohol. It did not show that he was in possession of the can. At trial, M. A. R. denied the can was in his possession and denied drinking alcohol. When considering a challenge to the sufficiency of evidence, it is not this Court’s job to weigh the evidence or determine the credibility of the witnesses; rather, we must examine the record in the light most favorable to support the judgment and determine whether the factfinder could have found, beyond a reasonable doubt, that the juvenile committed the act charged.

Here, the state’s reliance on circumstantial evidence does not render the juvenile court’s finding of delinquency unsupportable as a matter of law. While circumstantial evidence alone will not justify a conviction unless the evidence is such that it excludes every reasonable hypothesis except that of the guilt of the defendant, “[i]t is not necessary for the state to prove that it was impossible for the offense to have been committed by anyone else.” It was for the factfinder, here the juvenile court, to exercise its discretion and decide whether all reasonable hypotheses were excluded. In so doing, the juvenile court was not required to believe M. A. R., since matters of witness credibility are entirely within the exclusive province of the factfinder. And this Court will only disturb a finding of delinquency in a case based on circumstantial evidence if the factfinder abuses its discretion, leaving the finding of delinquency unsupportable as a matter of law.

Decided November 16, 2010.

Joseph W. Jones, Jr., for appellant.

Peter J. Skandalakis, District Attorney, Rod R. Skiff, for appellee.

Here, the juvenile court weighed the evidence and judged the credibility of the witnesses, and, as the factfinder, the juvenile court determined that based on the circumstantial evidence, M. A. R. was delinquent beyond a reasonable doubt of possession of alcohol by a minor. We find no abuse of discretion. The evidence was sufficient to exclude every reasonable hypotheses except that of M. A. R.’s delinquency, and we will not disturb the juvenile court’s finding.

Judgment affirmed.

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

       OCGA § 3-3-23 (a) (2).

       See In the Interest of Q. P., 286 Ga. App. 225 (648 SE2d 731) (2007).

       (Citation and punctuation omitted.) Zant v. Nelson, 250 Ga. 152, 154 (296 SE2d 590) (1982).

       See In the Interest of R. J. S., 277 Ga. App. 74, 75 (625 SE2d 485) (2005).

       Id.

        In the Interest of Q. P., supra at 226.


text:
    A10A2086.
    SHULER v. THE STATE.
    (703 SE2d 382)
   Johnson, Judge.

Jamario Shuler appeals the trial court’s order denying a motion to withdraw his guilty plea to two counts of armed robbery and two counts of kidnapping. Because the trial court did not manifestly abuse its discretion in concluding that Shuler voluntarily and intelligently entered his guilty plea, we affirm.

1. In separate enumerations of error, Shuler contends the trial court erred in denying his motion to withdraw his guilty plea because (a) he was not properly advised of his rights prior to entering the plea, (b) his plea was based on his ineffective trial counsel’s advice that he would only receive ten years in prison, and (c) his plea was based on his ineffective trial counsel’s decision not to appeal the denial of his motion to suppress. We disagree.

A ruling on a motion to withdraw a guilty plea lies in the sound discretion of the trial court, and this Court will not disturb such a ruling absent a manifest abuse of that discretion. If the motion to withdraw is based on an ineffective assistance of trial counsel claim, the defendant bears the burden of showing that, had it not been for his attorney’s deficient representation, a reasonable probability exists that he would have insisted on a trial. We find no abuse of discretion in the present case.

(a) Shuler argues that the trial court erred in denying his motion to withdraw his guilty plea because he was not adequately advised of his rights prior to entering his guilty plea. He cites to specific rights that were not mentioned by the trial court pursuant to Uniform Superior Court Rule (“USCR”) 33.8. However, while the better practice is for the trial court to discuss on the record every essential right a defendant is waiving, this Court has previously determined that the trial court is authorized to accept a pre-printed form, signed by the defendant prior to entering his plea, acknowledging that the defendant understands the rights he is waiving. The question is not whether the trial court followed the letter of USCR 33.8, but whether the record, as a whole, affirmatively shows that the appellant’s plea was knowing and voluntary. Here, the record is replete with facts supporting the trial court’s determination that Shuler understood his rights and the consequences of his waiver.

First, Shuler’s attorney testified that he and Shuler reviewed each and every right contained in the 31-question pre-printed plea form prior to entering the plea. Shuler affirmatively stated that he understood these rights and voluntarily waived them. After the plea was entered, the trial court asked Shuler a litany of questions regarding his understanding of his rights and waiver of these rights. Although the trial court did not specifically advise Shuler that he waived his presumption of innocence by pleading guilty, the trial court did advise him that he had a right to require the state to prove his guilt of the offenses beyond a reasonable doubt in a trial. And although the trial court did not specifically advise Shuler that he had a right to subpoena witnesses, he did sign a plea agreement asking him if he had time to subpoena witnesses if he desired them. Likewise, Shuler’s claim that the trial court did not notify him that he had a right to testify and present evidence during a trial was amply covered by both the trial court and the pre-printed plea form. We conclude that the record as a whole affirmatively shows that Shuler was adequately informed of his rights and that his plea was knowing and voluntary.

(b) Shuler next argues his plea was not made intelligently and voluntarily because his trial counsel was ineffective for advising him that he faced a twenty-year sentence, and only ten years would be served in prison. According to Shuler, he would not have pled guilty if he had known he would be receiving two concurrent life sentences. This claim is contrary to the evidence adduced at the plea hearing.

According to the record, Shuler pled guilty to two counts of armed robbery and two counts of kidnapping, and the state agreed to dismiss a number of other charges. Shuler was informed that the state was not recommending a sentence and that sentencing was solely within the trial court’s discretion. In addition, when asked by his attorney, Shuler signified that he understood that the minimum sentence he faced on the armed robbery charges was ten years and that the maximum sentence he could receive on the charges was life. The trial court also inquired whether Shuler understood he could be facing potential life sentences and that it was solely up to the court to decide the sentence, and Shuler indicated at the time of his plea that he understood. The trial court subsequently sentenced Shuler to concurrent life sentences on the armed robbery convictions, and 20 years to serve on the kidnapping convictions, concurrent with each other and the life sentences.

Shuler’s trial counsel testified at the motion to withdraw the guilty plea that he made it clear to Shuler that sentencing would be solely left to the trial court. The attorney also informed Shuler that he would receive at least ten years to serve and could face up to a life sentence on each armed robbery count. According to trial counsel, he made absolutely no assurances that Shuler would receive any particular sentence. And he informed Shuler that the state refused to agree to a twenty-year, ten-to-serve sentence and that the trial judge “might very well impose a harsher sentence simply because of the facts and circumstances surrounding these two offenses.”

Here, the trial court and trial counsel both correctly informed Shuler as to the maximum and minimum penalties for the crimes charged. There was sufficient evidence that Shuler understood the possible sentencing ramifications of his guilty plea, and his subsequent “misunderstanding” is not a valid basis for withdrawing the plea. A trial court is authorized to reject the self-serving testimony of an appellant presented at the hearing on his motion to withdraw his plea and find that he knowingly, freely, and voluntarily entered the plea. The trial court did not err in denying Shuler’s motion to withdraw his guilty plea on this ground.

(c) Shuler next argues his plea was not made intelligently and voluntarily because his trial counsel was ineffective in failing to seek interlocutory relief or taking the case to trial in order to appeal the adverse ruling in a motion to suppress filed on his behalf. According to Shuler his trial counsel did not inform him about his right to appeal the prior adverse ruling. We find no error.

First of all, a valid guilty plea is to be treated as an honest confession of guilt and a waiver of all defenses, known and unknown. And Shuler specifically acknowledged in his waiver of rights form that he understood that the entry of his guilty plea waived all defenses known and unknown and that he may not thereafter rely on these defenses. In addition, trial counsel testified that he did not believe it was in his client’s best interest to conduct a trial solely to pursue an appeal because had he taken the case to trial, Shuler might have been sentenced to an even harsher sentence given the fact that the state agreed to dismiss several counts in order to effectuate the plea. Counsel also testified that after discussing the issue of filing an interlocutory appeal with the co-defendants’ attorneys and Shuler, he decided not to file such an appeal because he did not feel like the case warranted immediate review and because his client was in jail without bond and he did not want to prolong the case.

Here, Shuler entered a valid guilty plea and cannot now seek to re-address a defense he previously waived. Moreover, Shuler has not met his burden of showing that, but for counsel’s purported error in failing to advise him of a possible appeal right on the motion to suppress, he would not have pled guilty and would have insisted on going to trial. The trial court did not err in denying Shuler’s motion to withdraw his guilty plea on this ground.

2. Shuler contends his conviction must be overturned because it is predicated upon evidence that was seized unlawfully and in violation of his Fourth Amendment rights. However, as stated above in Division 1 (c), Shuler has waived his right to argue the denial of his motion to suppress in this case by pleading guilty.

3. Shuler maintains that, at a minimum, he should be re-sentenced because his trial counsel failed to introduce mitigating evidence at his sentencing. According to Shuler, his aunt would have testified that Shuler did not have reasonable intelligence, was always behind in school, and could not appreciate the gravity of his case. Shuler also maintains his stepfather would have presented mitigating evidence, but he does not offer what the mitigating evidence would have been.

Despite Shuler’s argument, he has not shown how any mitigating evidence would have affected his sentence. He has thus failed to carry his burden of showing that he was prejudiced by counsel’s performance. Moreover, trial counsel testified that in his experience of 30 years, there was nothing that could have been offered in mitigation that would have been beneficial given the circumstances of the crime and what had already been testified to at the plea hearing. Trial counsel did ask the court to be merciful given Shuler’s age. This enumeration of error lacks merit.

Decided November 16, 2010.

John G. Edwards, for appellant.

Joseph K. Mulholland, District Attorney, for appellee.

Judgment affirmed.

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

       See David v. State, 279 Ga. App. 582, 584 (631 SE2d 714) (2006).

       See Maples v. State, 293 Ga. App. 232, 234 (666 SE2d 609) (2008).

       Id.

        Moore v. State, 225 Ga. App. 860 (1) (485 SE2d 552) (1997).

       Id.; Stephens v. State, 235 Ga. App. 756, 758 (510 SE2d 575) (1998).

        Stephens, supra.

       See Patel v. State, 283 Ga. App. 181, 186 (4) (641 SE2d 184) (2007); Foster v. State, 281 Ga. App. 584, 586 (2) (636 SE2d 759) (2006).

       See David, supra at 586.

        Maples, supra; Lee v. State, 277 Ga. App. 887, 890 (2) (627 SE2d 901) (2006).

       See Taylor v. State, 169 Ga. App. 779, 780 (315 SE2d 288) (1984).

       See Barber a State, 236 Ga. App. 294, 299 (5) (512 SE2d 48) (1999).


text:
    A10A2110.
    MARKS v. THE STATE.
    (703 SE2d 379)
   JOHNSON, Judge.

On November 30, 2009, Otis Marks pled guilty to two counts of aggravated stalking. The trial court sentenced Marks to a term of five years, with a one-year term of confinement reduced to time served, and the remainder to be served on probation. Several conditions were placed on Marks’ probationary sentence, including that he have “no contact” with the victim. On April 16, 2010, the trial court found that Marks had violated several of the conditions, and it revoked two years of the probationary sentence. We granted Marks’ application for discretionary review; and because insufficient evidence supported the revocation of Marks’ probation, we reverse.

A court may not revoke any part of any probated or suspended sentence unless the defendant admits the violation as alleged or unless the evidence produced at the revocation hearing establishes by a preponderance of the evidence the violation or violations alleged. This court will not interfere with a probation revocation unless a trial court has manifestly abused its discretion.

Viewed in the light most favorable to upholding the trial court’s findings, the record shows that Marks’ probationary sentence included conditions that, among other things, he (i) have “no contact” with his ex-wife, who was his stalking victim, (ii) “enter into and successfully complete” a domestic violence intervention program, and (iii) “perform a minimum of 96 hours, and up to a maximum of 132 hours, of community service as directed by the probation staff.” The requirements related to the domestic violence intervention program and community service work were to be performed during a one-year period during which Marks was assigned to “Intensive Probation Supervision.”

Marks began his probationary sentence on November 30, 2009, and a warrant was issued for his arrest on February 17, 2010 after his- ex-wife reported that he had been harassing her. As of March 3, 2010, when Marks was arrested for violating the terms of his probationary sentence, he had not completed the domestic violence intervention program or any community service work.

We have held that service of probation is a privilege, and that while a person is on probation, “his private life and behavior may be regulated by the State to an extent that would be completely untenable under ordinary circumstances.” Nevertheless, the trial court has the authority to revoke a probationary sentence only when the defendant has violated rules and regulations prescribed by the court. Moreover, the trial court has the obligation to make criminal sentences, including the terms of probation, “certain, definite and free from ambiguity, and the benefit of any doubt shall be given the accused.”

1. Marks first claims that insufficient evidence supported the trial court’s finding that he had violated the terms of his probation by contacting his ex-wife. At the revocation hearing, Marks’ ex-wife testified that Marks had not called or visited her, but rather that he had posted untrue statements about her on several websites. Marks’ ex-wife read the postings after conducting an internet search of her name. While the postings were made under the names of third parties, Marks’ ex-wife contended that Marks had authored them because the language in the postings was similar or identical to language contained in the civil lawsuit that Marks had filed against her and because “[n]o one else . . . would have a reason to do that.”

In determining whether Marks’ posting of statements about his ex-wife on the internet constitutes “contact” with her, we note that we have previously found that the term “ ‘contact’ is readily understood by people of ordinary intelligence as meaning ‘to get in touch with; communicate with[.]’ ” While a probationary condition that forbids a defendant from “contacting” the victim may also be interpreted as proscribing “indirect contacts,” such contacts must still be for the purpose of getting in touch with or communicating with the victim. Here, no evidence was presented suggesting that Marks authored the web postings in order to get in touch with or communicate with his ex-wife. Instead, this case is more like Collins v. Bazan, in which we found that a defendant’s publication and discussions with third parties regarding his ex-girlfriend’s private medical condition “obviously does not constitute . . . contacting that person.” As a result, the evidence was insufficient to find that Marks violated the “no contact” condition of his probationary sentence.

2. Marks also claims that insufficient evidence supported the trial court’s findings that he had violated the terms of his probation by failing to attend a domestic violence intervention program or completing any of his community service requirement. We agree.

The undisputed evidence showed that Marks was directed to report to his probation officer on February 18, 2010 to be assigned to an approved domestic violence intervention program. Marks reported on that date and was assigned to a program that began on March 25, 2010. However, when Marks reported to his probation officer on March 2, 2010, the officer told him that a warrant had been issued for his arrest, and Marks was arrested the following day.

In Huff v. McLarty, the Supreme Court of Georgia considered whether a defendant’s probation could be revoked for his failure to pay a fine that was one of the conditions of his probation. The Court held that “because the fine was not lawfully required to be paid by any certain date, the officials had no right [several months into the term of the probationary sentence] to revoke the probation for his alleged failure to comply with its terms.” Here, Marks’ sentence required him to “enter into and successfully complete” a domestic violence intervention program. The sentence did not require Marks to complete the program by any specific date during the term of his “Intensive Probation Supervision.” In fact, no evidence was presented that it was even possible for Marks to have completed such a program during the approximately three months that he served on probation prior to being arrested for violating the terms of his probationary sentence.

Decided November 16, 2010.

Gerard B. Kleinrock, for appellant.

Gwendolyn. Keyes Fleming, District Attorney, Leonora Grant, Jill G. Polster, Assistant. District Attorneys, for appellee.

Similarly, Marks’ sentence required him to “perform a minimum of 96 hours, and up to a maximum of 132 hours, of community service as directed by the probation staff.” No evidence was presented that Marks was ever directed to begin his community service on any specific date or at all. In fact, Marks presented uncontro-verted evidence that he asked his probation officer about the community service requirement because he “d[id]n’t want to get behind.” Marks’ probation officer told him that he would provide direction as to the community service requirement at their March 2, 2010 meeting. However, as set forth previously, Marks was informed at that meeting that a warrant had been issued for his arrest. Because this evidence was insufficient to render it more probable than not that Marks violated the terms of his probationary sentence, we must reverse.

Judgment reversed.

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

       OCGA § 42-8-34.1 (b).

       See, e.g., Scott v. State, 305 Ga. App. 596 (699 SE2d 894) (2010).

        Clark v. State, 287 Ga. App. 176 (651 SE2d 106) (2007).

       (Citation and punctuation omitted.) Mullens v. State, 289 Ga. App. 872, 873-874 (1) (658 SE2d 421) (2008).

        Farmer v. State, 216 Ga. App. 515, 520 (5) (a) (455 SE2d 297) (1995).

       Id.

       Marks’ ex-wife also testified that Marks had e-mailed links to the website postings to several people associated with her employer, but these allegations were supported only by hearsay, which has no probative value in a probation revocation proceeding. See Smith v. State, 283 Ga. App. 317, 318 (641 SE2d 296) (2007).

       (Citation and punctuation omitted.) Wright v. State, 232 Ga. App. 646, 647 (1) (502 SE2d 756) (1998).

        Murden v. State, 258 Ga. App. 585, 586 (1) (574 SE2d 657) (2002) (indirect contacts included going to the victim’s workplace and asking for her and calling the victim’s workplace and asking for her).

       256 Ga. App. 164, 165 (2) (568 SE2d 72) (2002).

       241 Ga. 442 (246 SE2d 302) (1978).

       (Punctuation omitted.) Id. at 447.

       See Wright v. State, 297 Ga. App. 813, 817 (678 SE2d 506) (2009).


author: SMITH, Presiding Judge.

text:
    A10A0863.
    A10A0864.
    WILSON v. THE STATE. ROCKAMORE v. THE STATE.
    (703 SE2d 400)
   SMITH, Presiding Judge.

Cedric Rockamore and Anthony Wilson were convicted of armed robbery, burglary, four counts of aggravated assault, and possession of a firearm in the commission of a felony. Their motions for new trial were denied, and they appeal, asserting various allegations of ineffective assistance of counsel. Rockamore also asserts the general grounds. Finding no error, we affirm.

Case No. A10A0864

1. Rockamore raises the general grounds, contending the State failed to present sufficient evidence to corroborate the testimony of the accomplice, Howell. We disagree.

A defendant may not be convicted of a felony on the uncorroborated testimony of an accomplice. However, it is not required that this corroboration shall of itself be sufficient to warrant a verdict, or that the testimony of the accomplice be corroborated in every material particular. Slight evidence from an extraneous source identifying the accused as a participator in the criminal act will be sufficient corroboration of the accomplice to support a verdict. The sufficiency of the corroboration of the testimony of the accomplice to produce conviction of the defendant’s guilt is peculiarly a matter for the jury to determine. If the verdict is founded on slight evidence of corroboration connecting the defendant with the crime, it can not be said, as a matter of law, that the verdict is contrary to the evidence.

(Citations, punctuation and footnotes omitted.) Barnett v. State, 244 Ga. App. 585, 587 (2) (536 SE2d 263) (2000). Here, the victims testified that the robbery was committed by a total of three men. They entered the apartment, forced the occupants to strip, and asked them “where the dope and the money at.” While the robbery was in progress, another resident of the apartment arrived at the front door with a companion. The resident unlocked the door but was unable to open it because it was chained. One of the occupants of the apartment unchained and began to open the door, and one of the robbers reached around the door and fired through the gap with a pistol, killing the resident in the hallway. The resident’s companion was also wounded as he fled. A .40 caliber bullet was recovered from the resident’s body, while a 9 mm bullet was recovered from the arm of his companion.

Howell testified that he, Wilson, Rockamore, and co-defendant Henry Taylor planned the robbery because the residents of the apartment “behind Lenox train station” were believed to keep drugs and cash on hand. Wilson gave Howell a .40 caliber pistol which he passed on to Taylor to give to Rockamore, while Taylor gave Howell a 9mm pistol. According to Howell, Taylor’s girlfriend picked up Howell and Rockamore in a green Toyota Camry. She then picked up three other men and took them all to the robbery location and waited in the parking lot until after the robbery.

Howell also testified that he, Rockamore, and the others entered the apartment. They ordered the occupants to strip and ransacked the rooms searching for “the money and the drugs.” During the robbery, two individuals arrived at the front door and knocked, and Rockamore went to the door with one of the occupants at gunpoint. Howell testified that Rockamore reached over the victim’s shoulder and shot one of the men at the door; the other man fled, and Howell shot at him “to try and stop him.” Howell and his cohorts then fled to the car and left the scene.

Taylor’s girlfriend testified that she owned a green Toyota Camry and had driven Howell and Rockamore to an apartment complex near the Lenox MARTA station. She did not recall the name of the complex, but testified that she had driven Howell and Rockamore to only two complexes in Buckhead and that one of them was near the MARTA station.

Forensic testing found Howell’s fingerprint on the 9mm pistol recovered after co-defendant Taylor was arrested on another charge. No fingerprints were found on the .40 caliber pistol recovered at the same time. Bullets recovered from the victim’s body were identified as having been fired from the .40 caliber pistol, while the bullet which wounded his companion was identified as having been fired from the 9mm pistol.

“The sufficiency of the corroborating evidence is a matter for the jury, and if the verdict is based upon the slightest evidence of corroboration connecting an accused to a crime, even if it is circumstantial, it is legally sufficient.” (Citation, punctuation and footnote omitted.) Meridy v. State, 265 Ga. App. 440, 442 (2) (594 SE2d 378) (2004). “If there is any evidence of corroboration, this court will not go behind the jury verdict and pass on its probative value.” (Citations and punctuation omitted; emphasis supplied.) Drew v. State, 256 Ga. App. 391, 393 (1) (568 SE2d 506) (2002).

The victims’ testimony describing the perpetrators, their weapons, their conduct, and their locations during the robbery is consistent with the testimony of the accomplice and provides some corroboration. Metoyer v. State, 282 Ga. App. 810, 812 (1) (a) (640 SE2d 345) (2006) (“victims’ description of the perpetrators and their vehicle, as well as their testimony regarding the timing and method of the robbery” corroborative as consistent with accomplice’s testimony). The testimony from a witness that she drove Rockamore and the accomplice to an apartment complex near the Lenox MARTA station provides some additional corroboration. Baines v. State, 276 Ga. 117, 119 (1) (575 SE2d 495) (2003) (corroboration in part by evidence that appellant was driven to the vicinity of the victim’s home on the day of the crime).

2. We next consider Rockamore’s allegations of ineffective assistance of counsel. He complains that his trial counsel failed to object to a prosecutor’s statements bolstering the credibility of his accomplice and also failed to object to a prosecutor’s statement that the judge would decide the credibility of the accomplice’s testimony.

(a) Rockamore points to a number of statements made by the prosecutor during closing argument, contending that the prosecutor “repeatedly vouched for the credibility of the accomplice.” He asserts that his trial counsel was ineffective in failing to object. But

[a]s a general rule, prosecutors are granted wide latitude in conducting closing argument, and defining the bounds of such argument is within the trial court’s discretion. This wide latitude encompasses the prosecutor’s ability to argue reasonable inferences raised by the evidence. Accordingly, it is proper for a prosecutor to urge the jury to draw inferences from the evidence regarding the credibility of witnesses.

(Citations and punctuation omitted.) Brown v. State, 293 Ga. App. 633, 637-638 (1) (d) (ii) (667 SE2d 899) (2008). The prosecutor was allowed to argue the veracity of witnesses from the evidence, so long as she did not “state to the jury his or her personal belief about the veracity of a witness.” (Citation, punctuation and footnote omitted.) Navarro v. State, 279 Ga. App. 311, 314 (2) (b) (630 SE2d 893) (2006).

Only one of the statements cited by Rockamore appears to have indicated a personal belief on the part of the prosecutor. While responding to Rockamore’s earlier argument that the State had failed to present a witness, she stated:

They want to know why Andrew Fike, the white male, wasn’t in the courtroom. Well, I’ll tell you why. My job as a prosecutor is to prosecute the case. And I do not waste your time unless it can be corroborated. Fike could not be corroborated. While I believe Howell and I believe he’s testifying truthfully because he —

Rockamore’s counsel interrupted the prosecutor, “Your honor, objection to what she believes is irrelevant and —” and the prosecutor immediately stated, “Strike it. Strike it, I’ll back up.” Rockamore’s counsel therefore did object, and his objection was successful.

. While Rockamore asserts that his trial counsel should have further moved for a mistrial, such decisions generally fall within the ambit of strategy and tactics. Matiatos v. State, 301 Ga. App. 573, 576 (2) (b) (688 SE2d 385) (2009) (decision not to renew motion for mistrial strategic). Here, Rockamore failed to call his trial counsel as a witness at the motion for new trial hearing.

Without 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. In the absence of trial counsel’s testimony, it is extremely difficult to overcome this presumption.

(Citations and punctuation omitted.) Temple v. State, 253 Ga. App. 606, 609 (2) (a) (561 SE2d 132) (2002). Without further evidence, “any decision not to. object is presumed to be a strategic one which will not support a claim of ineffective assistance of counsel.” (Citation and footnote omitted.) Futch v. State, 286 Ga. 378, 383 (2) (687 SE2d 805) (2010).

(b) Similarly, Rockamore’s contention that his trial counsel was ineffective in failing to object to a question directed to Howell must fail. Howell acknowledged on direct examination that he had entered into a negotiated plea of guilty that required him to testify truthfully in this case. On cross-examination, Rockamore’s counsel suggested, and Howell agreed, that “the person that’s going to decide whether you testified truthfully is counsel sitting at the prosecutor table, right?” He attacked Howell’s credibility by pointing out numerous inconsistencies between his statement to police and his testimony at trial. He further suggested that Howell had a strong motive to testify in accordance with the desires of the prosecution. Finally, he again suggested, and Howell again agreed, that “if you don’t convince this lady that you’re telling the truth, you’re still on the hook for life plus 70 years, aren’t you?”

On redirect examination, the prosecutor asked Howell about the terms of his plea, including the rights of which he was informed and which he waived, and the requirement that he testify truthfully. She asked, and he agreed, that his sentence was for the judge to determine and that the judge instructed him that he must testify truthfully. She concluded: “So ultimately, it’s the judge who’s going to decide whether or not you testify truthfully, right?”

Rockamore contends that this suggested to the jury that the judge, not the jury, would judge witness credibility in general, rather than solely on the issue of Howell’s probation, and that his trial counsel was ineffective in failing to object. But Rockamore’s counsel himself opened this line of questioning on cross-examination by twice asserting that the prosecutor would determine whether Howell had testified truthfully, and in the absence of his testimony we must presume that to be a strategic decision. Having made that decision, trial counsel could not object because “[a] party cannot claim error where he himself committed or invited the error.” Westmoreland v. State, 192 Ga. App. 173, 176-177 (2) (b) (384 SE2d 249) (1989). And “(f)ailure to raise a meritless objection cannot constitute ineffective assistance of counsel. [Cits.]” Jones v. State, 294 Ga. App. 854, 856 (3) (670 SE2d 506) (2008). Moreover, given trial counsel’s line of questioning on this topic, it is unlikely that this exchange misinformed the jury as to their duty to judge witnesses’ credibility in the trial of the case, particularly since the trial court instructed the jury that it must determine the credibility or believability of the witnesses and the factors it might consider in making that determination.

Finally, Rockamore’s trial counsel succeeded in obtaining a jury verdict of not guilty on two counts of murder. This “strongly supports the conclusion that the assistance actually rendered by defendant’s trial counsel fell within that broad range of reasonably effective assistance which members of the bar in good standing are presumed to render.” (Citation and punctuation omitted.) Jackson v. State, 281 Ga. App. 506, 511 (3) (636 SE2d 694) (2006). Rockamore has not rebutted the presumption that counsel’s actions were strategic, and he has not shown that counsel’s failure to object, move for a mistrial or request curative instructions had any negative effect on the outcome of the trial in light of his acquittal on two counts of murder. Parks v. State, 281 Ga. App. 679, 683 (6) (637 SE2d 46) (2006) (appellant failed to call counsel, so actions presumed strategic; appellant charged with murder but convicted of voluntary manslaughter, so he could not show negative effect on outcome). “He has thus failed to meet his burden as to either prong of the Strickland test, and the trial court’s denial of his motion for new trial must be affirmed.” Id.

Case No. A10A0863

3. Wilson raises three allegations of ineffective assistance of counsel: that trial counsel was ineffective in failing to seek a Jackson-Denno hearing; that trial counsel was ineffective in failing to object to testimony regarding his purchase of marijuana from one of the victims; and that trial counsel was ineffective in failing to object to testimony from a police detective regarding the same purchase of marijuana.

The same general considerations with respect to Rockamore’s claims apply to Wilson’s allegations of ineffectiveness. Wilson, like Rockamore, was acquitted of two counts of murder, and Wilson, like Rockamore, did not call his trial counsel at the hearing on his motion for new trial.

(a) With respect to the absence of a Jackson-Denno hearing, the evidence adduced at the hearing on Wilson’s motion for new trial shows that Wilson was not a suspect in these crimes at the time of his arrest, that he was informed of his Miranda rights, that he did not ask for an attorney, and that the statement was made without threat of force or promise of reward. See Mitchell v. State, 250 Ga. App. 292, 296 (2) (a) (551 SE2d 404) (2001). The trial court explicitly found that Wilson was properly informed of his rights and waived those rights and, had a Jackson-Denno hearing been held, the statement would have been admitted. Wilson “has not demonstrated that trial counsel was deficient for failing to seek suppression of his custodial statement because he has failed to provide a meritorious basis to contest its admission.” (Citation, punctuation and footnote omitted.) Bunkley v. State, 278 Ga. App. 450, 454 (1) (b) (629 SE2d 112) (2006).

(b) Wilson complains that his trial counsel was ineffective in failing to object to testimony from one of the victims and a police officer regarding his prior purchase of marijuana from one of the victims. But

drug use showed [appellant’s] motive to rob a home where he believed illegal drugs and money would be found. Although motive is not an essential element in proving the crimes charged, the State is entitled to present evidence to establish that there was a motive, and evidence that [appellant] used drugs is relevant to prove that he had a motive for committing the crimes and is not rendered inadmissible by the fact that it incidentally puts his character in issue.

(Citation omitted.) Brady v. State, 270 Ga. 574, 578-579 (5) (a) (513 SE2d 199) (1999). The accomplice, Howell, testified that the motive for the robbery was that the victims kept drugs and cash in the apartment. Howell also testified without objection that Wilson planned the robbery and knew that drugs and money were kept in the house “because he had been there before. He had dealt with [the victim] before on previous occasions.” “Evidence is harmless where admissible evidence of the same fact is before the jury.” (Citations and punctuation omitted.) Kennedy v. State, 207 Ga. App. 798, 799 (2) (c) (429 SE2d 167) (1993). And “(f)ailure to raise a meritless objection cannot constitute ineffective assistance of counsel. [Cits.]” Jones, supra, 294 Ga. App. at 856 (3).

Decided November 17, 2010

Maurice G. Kenner, for appellant (case no. A10A0863).

J. M. Raffauf, for appellant (case no. A10A0864).

Paul L. Howard, Jr., District Attorney, John O. Williams, Assistant District Attorney, for appellee.

Judgments affirmed.

Mikell and Adams, JJ., concur.

       The jury acquitted Rockamore and Wilson of murder and felony murder. One count of aggravated assault was nol prossed as to both appellants, two additional counts against Wilson were nol prossed, and a third was dead-docketed. On motion for new trial, the trial court granted a judgment of acquittal to Rockamore on a second count of felony murder.

       The jury was instructed on the corroboration of accomplice testimony.

       In support of his argument, Rockamore purports to quote our 1998 decision in Cheney v. State, 233 Ga. App. 66 (1) (a) (503 SE2d 327) (1998), that “it is unquestionable that trial counsel’s failure to object to the argument and seek curative instructions was deficient performance.” That phrase, however, appears nowhere in Cheney and seems to be a direct quotation from then-Presiding Justice Hunstein’s dissent in Patterson v. State, 285 Ga. 597, 603 (679 SE2d 716) (2009). In any event, neither Cheney nor Patterson involved alleged bolstering in closing argument. Both dealt with the well-established principle that a prosecutor may not comment on a defendant’s election to invoke his right to remain silent, and Cheney did not involve an ineffective assistance of counsel claim.

       In Wilson’s case, it appears that his trial counsel is deceased. But this does not change the rule that counsel’s decisions regarding objections and motions are presumed strategic in the absence of other evidence. See Jackson v. State, 230 Ga. App. 292, 293-294 (1) (496 SE2d 315) (1998) (trial counsel deceased). No explanation was given for Rockamore’s counsel’s absence from the hearing on Rockamore’s motion for new trial.


text:
    A10A1545, A10A1546.
    In the Interest of C. H., a child (two cases).
    (703 SE2d 407)
   SMITH, Presiding Judge.

In these cases consolidated for purposes of appeal, 15-year-old C. H. appeals from an order of the juvenile court finding him delinquent and unruly. For the following reasons, we affirm in Case No. A10A1545, and reverse in Case No. A10A1546.

Case No. A10A1545

Construed in the light most favorable to the juvenile court’s findings, the evidence reveals that on July 29, 2009, the owner of a rental home was doing a “walk-through” of the home after dispossessing his tenant, Larry Wilson. He noted that the home was in “very good shape” with only “one door that was off the hinges.” He received a phone call the next day from Wilson who informed him that there had been some damage to the property. When the property owner arrived, he discovered extensive damage to the home. He stated that “[t]hey had busted out 35 pieces of sheetrock, 17 doors was kicked in, busted and one window broke.” The owner paid approximately $4,000 to repair the damage.

Wilson testified that on July 30, 2009, he took four or five juveniles, including C. H., to the home to help him move out his furniture. He gave the juveniles the keys to the home and then went to his mother’s home nearby to eat dinner. When Wilson returned 20 minutes later, he discovered that the home had been damaged and the front door had been kicked in. The juveniles told Wilson that “somebody broke in and done some damage to the house.”

- C. H. gave a statement to police. He first claimed that he had not been in the home, but then admitted that he was in the home moving furniture. He stated that he and the other juveniles “kicked and pushed on the door,” and that some of the furniture hit the walls causing damage. Based on the evidence presented, the trial court adjudicated C. H. delinquent for committing the act of criminal damage to property in the second degree.

1. C. H. first argues that the court erred in denying his motion to dismiss the petition. He contends that because the adjudicatory hearing was not held within ten days of the filing of the petition pursuant to OCGA § 15-11-39, the court should have dismissed the petition without prejudice. OCGA § 15-11-39 (a) provides that “[a]f-ter the petition has been filed the court shall set a hearing thereon, which, if the child is in detention, shall not be later than ten days after the filing of the petition.” In the Interest of C. R., 292 Ga. App. 346, 353-354 (6) (665 SE2d 39) (2008).

The record reveals that the petition was filed on August 13, 2009, and that a detention hearing commenced on August 20, but at the beginning of that hearing, the State requested a continuance so that service could be made on C. H.’s co-defendant. The trial court granted the motion for a continuance and the hearing was subsequently held on August 28, 2009. “Therefore, the hearing was set and held within ten days of the filing of the petition although it was then continued, an action that was within the trial court’s discretion.” (Citation omitted.) In the Interest of C. R., supra, 292 Ga. App. at 354 (6); see In the Interest of E. S., 262 Ga. App. 768, 769 (1) (a) (586 SE2d 691) (2003) (although adjudicatory hearing must be set within ten days, there is no requirement that hearing actually be held on that date). This enumeration is therefore without merit.

2. C. H. contends that the court erred in admitting his statement to police because the statement was not made knowingly and voluntarily. “This court has held that the issue to be considered is whether there was a knowing and intelligent waiver by the juvenile of his constitutional rights in making the incriminating statements. In determining this issue nine factors are to be considered.” (Citations and punctuation omitted.) State v. McBride, 261 Ga. 60, 63 (2) (b) (401 SE2d 484) (1991). These factors are:

(1) age of the accused; (2) education of the accused; (3) knowledge of the accused as to both the substance of the charge . . . and the nature of his rights to consult with an attorney and remain silent; (4) whether the accused is held incommunicado or allowed to consult with relatives, friends or an attorney; (5) whether the accused was interrogated before or after formal charges had been filed; (6) methods used in interrogation; (7) length of interrogations; (8) whether vel non the accused refused to voluntarily give statements on prior occasions; and (9) whether the accused has repudiated an extra judicial statement at a later date.

(Citation omitted.) Williams v. State, 238 Ga. 298, 302 (1) (232 SE2d 535) (1977).

The record here reveals that C. H. was 14 years old when he gave his statement to police. Our courts have approved statements obtained from juveniles of this age. See Marshall v. State, 248 Ga. 227, 229 (3) (282 SE2d 301) (1981). The record also reveals that C. H. had an eighth grade education and could read and write; he was informed of his constitutional rights under Miranda and signed a waiver form; he told the officer that he understood his rights; the officer told C. H. that he wanted “to talk to him about some damage that had been done” at the home; C. H.’s mother was present during the questioning; C. H. was questioned prior to the filing of charges against him; the officer did not “yell or scream” at C. H. during questioning; the questioning lasted less than one hour; and there is no indication that C. H. refused to give a statement on a prior occasion or that he repudiated any statement he made during questioning.

Under these circumstances, we cannot say that the trial court erred in allowing the admission of C. H.’s statement. See McBride, supra, 261 Ga. at 63-64 (2) (b); In the Interest of B. Y., 257 Ga. App. 253, 256-257 (3) (570 SE2d 689) (2002); see also McKoon v. State, 266 Ga. 149, 150-151 (2) (465 SE2d 272) (1996) (where juvenile not formally charged when he gave statement).

3. Finally, C. H. contends that the evidence was insufficient to find him delinquent.

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.

(Citation, punctuation and footnote omitted.) In the Interest of J. L. H., 289 Ga. App. 30 (656 SE2d 160) (2007).

Under OCGA § 16-7-23 (a) (1), “[a] person commits the offense of criminal damage to property in the second degree when he . . . [¿Intentionally damages any property of another person without his consent and the damage thereto exceeds $500.00.” “While mere presence at the scene of a crime is not sufficient evidence to convict one of being a party to a crime, criminal intent may be inferred from presence, companionship, and conduct before, during and after the offense.” (Citation and footnote omitted.) In the Interest of J. S., 296 Ga. App. 144, 148 (2) (a) (673 SE2d 645) (2009). Moreover, “to warrant a conviction on circumstantial evidence, the proved facts need only exclude reasonable hypotheses — not bare possibilities that the crime could have been committed by someone else.” (Citation, punctuation and footnote omitted.) Id. at 147 (2) (a).

The evidence presented here, including the extent of the damage and C. H.’s admission that they “all kicked and pushed on the door to open the door up,” was sufficient to sustain C. H.’s adjudication based on the act of criminal damage to property. In the Interest of J. S., supra, 296 Ga. App. at 147-148 (2) (a), (b).

Case No. A10A1546

4. C. H. challenges the juvenile court’s order adjudicating him unruly. See OCGA §§ 15-11-67; 15-11-2 (12). He contends that the court erred in denying his special demurrer to the petition.

“Due process requires that the juvenile petition must (1) contain sufficient factual details to inform the juvenile of the nature of the offense; and (2) provide data adequate to enable the accused to prepare his defense.” (Citation and punctuation omitted.) In the Interest of C. C. C., 188 Ga. App. 849, 851 (4) (374 SE2d 754) (1988). The petition “must set forth the alleged misconduct with particularity.” (Citations omitted.) T. L. T. v. State, 133 Ga. App. 895, 897 (1) (212 SE2d 650) (1975).

Here, the petition stated “8/06/09: said accused is habitually disobedient of the lawful and reasonable commands of his mother.” Although the petition alleged the date C. H. was disobedient, it provided no factual details. The petition merely mirrored the language of OCGA § 15-11-2 (12) (B): “ ‘Unruly child’ means a child who: ... [i]s habitually disobedient of the reasonable and lawful commands of his or her parent, guardian, or other custodian and is ungovernable.”

Decided November 17, 2010.

Jared L. Roberts, for appellant.

Richard E. Currie, District Attorney, Katherine L. Peters, Assistant District Attorney, for appellee.

[Although recitation of the statute may, in certain cases, be a sufficient, though not desirable, method of apprising a defendant of the charges against him, recitation of portions of the statute is not sufficient if, reading the accusation together with the statute, a defendant is unable to determine which of his acts are alleged to be criminal in nature.

(Citation and punctuation omitted.) Newsome v. State, 296 Ga. App. 490, 492 (1) (675 SE2d 229) (2009). Reading the petition together with the statute, we hold here that C. H. was unable to determine what acts of disobedience supported the allegation that he was unruly. Because the petition did not allege C. H.’s misconduct with particularity, we must agree that the juvenile court erred in denying C. H.’s special demurrer on this ground. We therefore reverse his adjudication of being an unruly child.

5. In light of our holding in Division 4, we need not address C. H.’s remaining enumerations in Case No. A10A1546.

Judgment affirmed in Case No. A10A1545. Judgment reversed in Case No. A10A1546.

Mikell and Adams, JJ., concur.


text:
    A10A1588, A10A1861.
    COCHRAN et al. v. KENNELLY; and vice versa.
    (703 SE2d 411)
   SMITH, Presiding Judge.

This dispute arose out of a listing agreement between the seller of real property and a broker. In Case No. A10A1588, the seller William Cochran and Cochran’s Service Center and Sales, Inc. (collectively “the Cochran defendants”) appeal from the trial court’s final judgment in favor of Kathryn E Kennelly d/b/a KPK Commercial (“Kennelly”) on her claim for a commission following the sale of the property. In Case No. A10A1861, Kennelly appeals from the trial court’s denial of her motions to dismiss the Cochran defendants’ appeal and for supersedeas bond. We affirm in Case No. A10A1588, but hold that the court erred in denying Kennelly’s motion for supersedeas bond and therefore affirm in part and reverse in part in Case No. A10A1861.

The record reveals that in December 1999, William Cochran entered into a listing agreement with Kennelly for the sale of certain real property. Under the agreement, Kennelly was to receive a commission of 10 percent of the “gross sales price” of the property. The agreement provided that even if the property was not sold “by or through the efforts” of Kennelly, she would still receive the commission.

Kennelly marketed the property for a year. But in October 2000, unbeknownst to Kennelly, the Cochran defendants entered into an agreement to sell the property to a church for $1,150,000. The sale to the church closed in May 2001, and the Cochran defendants do not dispute that the property was sold for $1,150,000. In May 2002, Kennelly filed a complaint against the Cochran defendants and the closing attorney to recover her expected 10 percent commission of $115,000, and she later amended her complaint to seek 18 percent interest from the date of the closing.

Kennelly served the Cochran defendants with interrogatories and a request for the production of documents on December 11, 2002. When they failed to respond to the discovery requests after more than four months, Kennelly filed a motion for sanctions. The trial court granted the motion and required the Cochran defendants to respond to the discovery requests by December 1, 2003.

The Cochran defendants filed a response to Kennelly’s requests for discovery on December 1, but the response was incomplete and several attachments were omitted. After Kennelly informed them of the deficiencies and they still failed to supplement the responses, Kennelly moved to strike their answers. The trial court granted Kennelly’s motion to strike and entered a default judgment against the Cochran defendants. The court subsequently entered a final judgment against the Cochran defendants in the “liquidated principal sum” of $115,000, and ordered Kennelly’s counsel to submit an affidavit setting forth the amount of attorney fees sought.

Case No. A10A1588

1. In three enumerations, the Cochran defendants assert that the trial court erred in entering a default judgment against them without a hearing. “Where a party fails to comply with a discovery order, the trial court has available to it several sanctions under OCGA § 9-11-37 (b) (2) of which the harshest is that imposed here, dismissal and default. OCGA § 9-11-37 (b) (2) (C).” Schrembs v. Atlanta Classic Cars, 261 Ga. 182 (402 SE2d 723) (1991).

Before imposing the ultimate sanction of dismissal or default judgment for failure to comply with discovery, the trial court must first determine, following notice and an opportunity to be heard, that the party’s failure to comply with the order granting the motion to compel was wilful.... However, the trial court need not conduct an evidentiary hearing on the issue of wilfulness in those cases where the trial court can otherwise determine wilfulness on the part of the party against whom the sanctions are sought.

(Citations, punctuation and footnote omitted.) Tenet Healthcare Corp. v. Louisiana Forum Corp., 273 Ga. 206, 211 (3) (538 SE2d 441) (2000). And

[w]here a motion for sanctions is brought under OCGA § 9-11-37 (b) (2) for a party’s failure to comply with an order compelling answers, the existence or non-existence of wilfulness should be considered not only in the context of the time period prescribed in the order compelling answers, but in the context of the entire period beginning with service of interrogatories and ending with service of answers. Events transpiring during this entire time period are probative of whether appellant acted with conscious indifference to the consequences of failure to comply with the order compelling answers.

(Citation and punctuation omitted.) Schrembs, supra, 261 Ga. at 183. “Trial judges have broad discretion in controlling discovery, including imposition of sanctions, and appellate courts will not reverse a trial court’s decision on such matters unless there has been a clear abuse of discretion.” (Citations and footnote omitted.) Amaechi v. Somsino, 259 Ga. App. 346, 347 (577 SE2d 48) (2003).

Here, the record reveals that Kennelly served the Cochran defendants with interrogatories and a request for the production of documents on December 11, 2002. Kennelly’s counsel averred that on January 16, 2003, during Kennelly’s deposition, he gave counsel for the Cochran defendants another copy of the December 11, 2002 discovery request. Kennelly sent counsel three letters between January 31 and March 27, 2003 requesting that they respond. The Cochran defendants did not move for a protective order or for an extension of time to respond. In April 2003, Kennelly moved for sanctions or, alternatively, to compel discovery responses. The Cochran defendants claim that they first filed a response on June 9, 2003, but that Kennelly’s counsel informed them the responses were inadequate. The trial court granted Kennelly’s motion to compel in November 2003.

.In granting Kennelly’s motion to compel, the trial court ordered the Cochran defendants to “respond to [Kennelly]’s discovery requests, served on or about December 11, 2002, and, more specifically, Defendant William Jackson Cochran is hereby ordered to provide his signature in order for [Kennelly] to obtain copies of tax returns . . . no later than December 1, 2003.” The court warned that it would strike William Cochran’s answer if he failed to comply. The record reflects that William Cochran submitted the requested tax returns, but his counsel did not sign the discovery responses, William Cochran’s driver’s license number was not provided as requested, and Exhibits “E” and “K” referred to in the Cochran defendants’ response to the request for the production of documents were omitted. Although the response contained an Exhibit “B,” it was unclear as to whether the responses should have also contained Exhibits “A,” “C,” or “D.” In some responses, the Cochran defendants indicated that the requested documents were public records and suggested they could be obtained by Kennelly herself.

Kennelly sent counsel for the Cochran defendants a letter informing him of the deficiencies in his response to the discovery request. When the Cochran defendants failed to respond or supplement the discovery responses, Kennelly moved to strike their answers to the complaint. The Cochran defendants responded to the motion to strike arguing that they “fully complied with said order,” that they made a good faith effort to respond to discovery, and that there was no ruling by the trial court that the responses were legally insufficient. The trial court granted the motion to strike finding that the Cochran defendants “failed to comply with the Court’s . . . Order inasmuch as they have failed to comply with the spirit of said Order desiring that said discovery responses be sufficient in light of Plaintiffs Motion for Sanctions.”

The record here supports the trial court’s finding of wilfulness. The Cochran defendants did not file responses to Kennelly’s request for interrogatories and production of documents within the time period prescribed by OCGA §§ 9-11-33 (a) (2) and 9-11-34 (b) (2), and they only filed a response to the request after the trial court’s grant of Kennelly’s initial motion to compel and for sanctions. Even when the Cochran defendants received notice that the responses were inadequate or incomplete, they did not file a response to the notice, did not supplement the responses, and only after Kennelly moved to strike their answers did they file a response claiming that they substantially complied with the discovery request. Under these circumstances, we cannot say that the trial court erred in failing to conduct a hearing on wilfulness. See Schrembs, supra, 261 Ga. at 183-184; Johnson v. Lomas Mtg. USA, 201 Ga. App. 562, 564-565 (3) (411 SE2d 731) (1991) (finding of wilfulness could be made from the record without conducting a separate hearing).

2. In three enumerations, the Cochran defendants assert that the trial court erred in entering judgment against them because Kennelly’s damages were unliquidated. They argue that Kennelly’s commission was “not to be determined until the amount of cash received by the Defendant Cochran was known and paid and there is no record evidence of what amount this was.” The Cochran defendants argue further that this amount could have been affected by tax liens, escrow agreement, and creditor’s claims. In support of their arguments, they point to a handwritten special stipulation in the listing agreement that provided: “In the event less monies are collected at closing, Broker shall receive 10% of cash collected at closing and 10% of additional monies received.”

The trial court entered a default judgment against the Cochran defendants. And

[a]s a rule, a judgment by default properly entered against parties sui juris operates as an admission by the defendant of the truth of the definite and certain allegations and the fair inferences and conclusions of fact to be drawn from the allegations of the declaration. . . . Further, a defendant in default is in the position of having admitted each and every material allegation of the plaintiffs petition except as to the amount of ex delicto or unliquidated ex contractu damages alleged. The default concludes the defendant’s liability, and estops him from offering any defenses which would defeat the right of recovery.

(Citations and punctuation omitted.) NorthPoint Group Holdings v. Morris, 300 Ga. App. 491, 495 (2) (685 SE2d 436) (2009). Therefore, the Cochran defendants admitted by default every material allegation of Kennelly’s complaint, including the allegation that she was entitled to the liquidated amount of $115,000 — 10 percent of the sales price of the property, which they do not contest was $1,150,000. “A debt is liquidated when it is rendered certain what is due and how much is due. That certainty need not be contemporaneous with the agreement out of which it results.” (Citation and punctuation omitted.) Henry v. Adair Realty Co., 141 Ga. App. 182, 183 (1) (233 SE2d 39) (1977). The amount sought by Kennelly and awarded by the trial court was liquidated. This enumeration is therefore without merit.

3.The trial court ordered that

[Kennelly’s] attorney shall submit an affidavit setting forth the amount of attorney’s fees sought by [Kennelly] within fifteen (15) days of the entry of this Order. If the Cochran Defendants object to the amount of attorney’s fees sought by [Kennelly], the Cochran Defendants shall file an objection to the attorney’s fees and the Court will schedule a hearing.

The Cochran defendants contend that the court should hold a hearing on attorney fees before Kennelly is given the opportunity to submit an affidavit concerning the fees. But they have cited no authority requiring that a hearing be held before a party submits an affidavit concerning fees. And in any case, we find no harm in the court holding a hearing after the Cochran defendants file any objection.

Case No. A10A1861

4. Kennelly contends that the trial court erred in denying her motion to dismiss the Cochran defendants’ appeal. She argues that because they failed to file the transcript within 30 days and failed to request an extension of time, their appeal should have been dismissed. But because Kennelly has failed to include a transcript of the hearing on the motion, specifying in her notice of appeal that “[a] transcript of evidence and proceedings of the hearing on July 28, 2009 will not be filed for inclusion in the record on appeal,” we must assume the trial court’s ruling was correct. Scott Brothers, Inc. v. Warren, 261 Ga. App. 285, 286 (1) (582 SE2d 224) (2003).

5. Kennelly argues that the trial court erred in denying her motion for a supersedeas bond. We agree. Having received a judgment for the recovery of money, Kennelly exercised her statutory right to move the trial court for a supersedeas bond. See Barngrover v. Hins, 289 Ga. App. 410, 414 (3) (657 SE2d 14) (2008). And the trial court “was obligated to require [the Cochran defendants] to post a supersedeas bond in the full amount of the judgment, including costs, interest, and damages, unless, after notice and hearing, it found good cause for fixing a lesser amount.” (Citation omitted.) Id.; see OCGA § 5-6-46 (a) (upon motion made in the trial court before or after an appeal is docketed in the appellate court, the trial court shall require a supersedeas bond). We therefore reverse Case No. A10A1861 in part and remand for further proceedings consistent with this opinion.

Decided November 17, 2010.

Martenson, Hasbrouck & Simon, Robert D. Feagin, for appellants.

Perry A. Phillips, for appellee.

Perry A. Phillips, for appellant.

Marcus G. Howell, Sr., for appellees.

Judgment affirmed in Case No. A10A1588. Judgment affirmed in part and reversed in part, and case remanded in Case No. A10A1861.

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

Case No. A10A1588

Case No. A10A1861

       The agreement lists only William Cochran as the seller, but Kennelly alleged that William Cochran retained her on his own behalf and on behalf of Cochran Service Center and Sales, Inc.

       The record contains certificates of service stating that the discovery responses were served June 4, 2003.

       This response is not part of the record here on appeal except as part of the responses subsequently filed on December 1, 2003.


author: Mikell, Judge.

text:
    A10A1645.
    JOHNSON v. THE STATE.
    (702 SE2d 920)
   Mikell, Judge.

Following a jury trial, Richard O’Neal Johnson, Jr., was found guilty of family violence battery. He was also adjudicated in contempt of court after he left the courtroom without permission during the trial proceedings. Johnson moved for a new trial, but when he failed to appear for the hearing on the new trial motion, the trial court dismissed the motion. Johnson appeals his conviction for family violence battery, his conviction and sentence for contempt, and the dismissal of his motion for new trial.

Viewing the evidence in the light most favorable to the verdict, the record reflects that on September 29, 2008, Johnson had an altercation with Kai Dyer, his girlfriend and the mother of his 16-month-old daughter. In the altercation, Johnson punched and injured Dyer. Johnson was charged by accusation with family violence battery and tried before a jury. Toward the end of the first day of trial, and before the trial court had completed the charge to the jury, Johnson was found to have left the courtroom without permission. The next day, after the jury rendered its verdict, the trial court conducted a colloquy with Johnson concerning the contempt charge and then sentenced Johnson to 20 days in jail for contempt, based on Johnson’s absenting himself from the proceedings on the previous day. The trial court reserved sentencing on the family violence battery conviction until after Johnson had served the sentence for contempt. At a pre-sentencing hearing on February 13, 2009, Johnson was sentenced to 12 months in prison for family violence battery.

New counsel was appointed to represent Johnson on appeal, and appellate counsel filed a motion for new trial on Johnson’s behalf, asserting the general grounds and also asserting that Johnson was denied effective assistance of trial counsel. Before the hearing on the motion took place, however, Johnson was released from prison by mistake. He did not show up at the new trial hearing scheduled for March 17, 2009, nor at the rescheduled hearing held on March 20, 2009. The state moved that Johnson’s motion for new trial be dismissed as waived, and the trial court granted the state’s motion. On May 12, 2009, Johnson moved for reconsideration of the trial court’s order dismissing his motion for new trial, or in the alternative, for reinstatement of his motion for new trial. At oral argument on this motion, Johnson’s counsel acknowledged that she had received the trial transcript, that she would waive Johnson’s appearance, and that she wished to proceed on the motion for new trial on the ground of ineffective assistance. On May 29, 2009, the trial court entered an order denying Johnson’s motion for reconsideration of the dismissal of his motion for new trial, on the ground that it could not proceed with an evidentiary hearing in Johnson’s absence. This appeal followed.

1. The trial court erred in dismissing Johnson’s motion for new trial on the ground that he was not present at the hearing on the motion. “A criminal defendant who is not laboring under the penalty of death has no right to be present during the hearing held upon his motion for new trial.” Even for those convicted of a felony, the constitutional right of the accused to be present during the course of the trial “does not extend to post-verdict procedures such as a motion for new trial.” Thus, Johnson did not waive his motion for new trial by his absence; all he waived was his presence at the hearing. Accordingly, we remand this case in order for the trial court to conduct a hearing on Johnson’s motion for new trial and for further proceedings consistent with this opinion.

2. Johnson seeks review of his conviction for contempt of court. Our Supreme Court has held that “where a litigant is found to be in contempt of court and is ordered held in jail, his appeal of that order becomes moot upon his release from jail.” This Court has recognized that “the rule remains in force without limitation,” even in a criminal contempt case, such as that at issue here. Although an exception to this rule has been made in cases involving an attorney, the exception does not apply in this case because Johnson is not an attorney. Because Johnson has served the 20-day sentence imposed for contempt, his appeal of his conviction for contempt is moot.

3. In light of our ruling in Division 1 above, it would be premature to address Johnson’s remaining enumerations of error at this time.

Judgment reversed and case remanded.

Smith, P. J., and Adams, J., concur.

Decided November 17, 2010.

Danielle P. Roberts, for appellant.

Taska M. Mosley, Solicitor-General, Keith E. Gammage, Assistant Solicitor-General, for appellee.

        See Rankin v. State, 278 Ga. 704, 705 (606 SE2d 269) (2004), citing Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560) (1979).

       OCGA§ 16-5-23.1 (f) (1) (“If the offense of battery is committed between . . . persons who are parents of the same child . . . , then such offense shall constitute the offense of family violence battery and shall be punished as follows: (1) Upon a first conviction of family violence battery, the defendant shall be guilty of and punished for a misdemeanor”).

       Duplicate motions for new trial were filed by Johnson’s appellate counsel on March 13 and March 17, 2009.

       (Citations omitted.) Moore v. State, 254 Ga. 525, 531 (4) (c) (330 SE2d 717) (1985). Accord Rosser v. State, 284 Ga. 335, 336-337 (2) (667 SE2d 62) (2008) (trial court did not violate defendant’s due process rights by denying his request to be present at hearing on motion for new trial); Mantooth v. State, 303 Ga. App. 330, 336-337 (2) (693 SE2d 587) (2010) (same).

       (Citation, punctuation and footnote omitted.) Mantooth, supra at 336 (2). See generally Jack Goger, Daniel’s Georgia Criminal Trial Practice, § 17-7 (2009-2010 ed.) (“Generally, the defendant does not have a right to be present at post-verdict procedures such as a motion for a new trial, at which only questions of law, not questions of fact are determined”) (punctuation and footnote omitted).

        Herring v. Herring, 236 Ga. 43, 44 (1) (222 SE2d 331) (1976) (appeal from order imposing fine for civil contempt was moot once appellant paid fine), citing Cagle v. PMC Dev. Co. of Ga., 233 Ga. 583, 584 (212 SE2d 765) (1975) (“once a contempt judgment has been complied with, or has been vacated, or has been rendered moot in any other manner, there is no remaining case or controversy for adjudication in the appellate court”).

       (Footnote omitted.) In re Hatfield, 290 Ga. App. 134, 136 (1) (658 SE2d 871) (2008) (dictum).

       See In re Hughes, 299 Ga. App. 66-67 (1) (681 SE2d 745) (2009) (even where attorney paid fine imposed upon contempt conviction, her appeal was not moot due to present and possible continuing adverse collateral consequences she might suffer as result of conviction); In re Hatfield, supra at 137 (1) (same).

       See Herring, supra.


author: MlKELL, Judge.

text:
    A10A1853.
    WILKES v. THE STATE.
    (702 SE2d 922)
   MlKELL, Judge.

Following a jury trial, John Lafayette Wilkes was acquitted of aggravated assault and convicted of armed robbery, two counts of theft by taking, and obstructing an emergency telephone call. He was sentenced to 30 years, with 20 to serve. On appeal, Wilkes challenges the sufficiency of the evidence. We affirm.

“On appeal from a criminal conviction, the evidence must be viewed in the light most favorable to support the verdict, and the defendant no longer enjoys a presumption of innocence.” So viewed, the evidence shows that Waneka Jackson and Wilkes were social acquaintances in 2004 but then lost contact. Wilkes called Jackson in late October 2005, and they met for dinner. Jackson was pregnant, single, and recently unemployed. Wilkes told her that he had been hurt on his job and that his apartment had burned down while he was in the hospital. Wilkes claimed that he was staying with a friend, and Jackson offered to drive him home after dinner, as he had no car. The friend did not appear to be at home, however, and Jackson allowed Wilkes to stay at her apartment.

Several days later, Wilkes asked to borrow Jackson’s car, but she refused as she needed the car to drive to a revival service. After the service, Jackson returned home and went to bed. Wilkes was sleeping on the living room sofa. At around 5:00 a.m., the father of Jackson’s unborn child called her. After Jackson ended the call, Wilkes entered her room and demanded to be driven to Decatur. When Jackson refused, Wilkes began pacing between the living room and her bedroom and stated, “You’re going to take me to Decatur now.” Jackson became afraid of Wilkes and called 911 from her cell phone. When Wilkes overheard Jackson whispering her address to the operator, he entered her room with a gun and screamed, “I know you’re not calling the police on me,” and snatched the phone from her hand. Then Wilkes disconnected the call, pointed the gun at Jackson’s head, and demanded her car keys. When he pointed the gun at Jackson’s belly, she disclosed that the keys were in her Bible. Wilkes could not find the keys in the Bible’s carrying case, so he ordered Jackson to produce them, and she did. Wilkes then left, taking Jackson’s keys, cell phone, and car. Jackson ran to a neighbor’s apartment and called the police. The officer who responded to the call testified that Jackson provided a description of the stolen cell phone and vehicle. The officer called Jackson’s number, and a man answered. Jackson recognized the man’s voice as Wilkes’s. Six months later, on May 3, 2006, Wilkes was stopped driving the stolen vehicle.

In assessing the sufficiency of the evidence to support a conviction, “[w]e do not weigh the evidence or determine witness credibility, but only determine if the evidence was sufficient for a rational trier of fact to find the essential elements of the crime beyond a reasonable doubt.” Moreover, “[t]he testimony of a single witness is generally sufficient to establish a fact.” Applying these guidelines, the evidence recounted above supports Wilkes’s conviction on Counts 2 through 5. Count 2 of the indictment accused him of committing armed robbery by taking Jackson’s car keys; Count 3 and Count 4 accused him of theft by taking her automobile and her cell phone; and Count 5 accused him of obstructing an emergency telephone call. “A person commits the offense of armed robbery when, with intent to commit theft, he or she takes property of another from the person or the immediate presence of another by use of an offensive weapon.” Jackson testified that Wilkes forced her to give him her car keys at gunpoint, which authorized the jury to find Wilkes guilty of armed robbery. “A person commits the offense of theft by taking when he unlawfully takes . . . any property of another with the intention of depriving him of the property.” Jackson testified that after Wilkes left her apartment with her car keys, she saw that her car was gone. He was arrested six months later driving her car. The jury was authorized to find from this evidence that Wilkes unlawfully took Jackson’s automobile with the intention of depriving her of the property. As for Count 4, misdemeanor theft by taking, Jackson’s testimony that Wilkes snatched her cell phone and took it with him, coupled with the officer’s testimony showing Wilkes in possession of the phone, authorized the jury to find him guilty of theft by taking Jackson’s cell phone. Finally, regarding Count 5, OCGA § 16-10-24.3 provides that “[a]ny person who verbally or physically obstructs, prevents, or hinders another person with intent to cause or allow physical harm or injury to another person from making or completing a [911] telephone call... is guilty of a misdemeanor.” The evidence adduced on this count shows that when Wilkes overheard Jackson calling 911, he screamed at her, snatched the phone from her hand, disconnected the call, and brandished a gun. This evidence authorized the jury to find Wilkes guilty of obstruction of a 911 call.

Decided November 17, 2010.

Lawrence W. Daniel, for appellant.

David McDade, District Attorney, Jeffrey L. Ballew, James A. Dooley, Assistant District Attorneys, for appellee.

Judgment affirmed.

Smith, P. J., and Adams, J., concur.

       (Punctuation and footnote omitted.) Scott v. State, 297 Ga. App. 577 (677 SE2d 755) (2009).

       (Citation omitted.) Valentine v. State, 301 Ga. App. 630-631 (689 SE2d 76) (2009). See Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560) (1979).

       OCGA § 24-4-8.

       OCGA § 16-8-41 (a).

       See Jones v. State, 279 Ga. 854, 857 (3) (622 SE2d 1) (2005).

       OCGA § 16-8-2.

       See Jones, supra at 858 (3); Massalene v. State, 224 Ga. App. 321, 324 (3) (480 SE2d 616) (1997).

       See Jackson v. State, 301 Ga. App. 863, 865 (690 SE2d 195) (2010).

       See Hooker v. State, 278 Ga. App. 382, 383 (1) (629 SE2d 74) (2006).


author: ANDREWS, Presiding Judge.

text:
    A10A1971.
    THE STATE v. DRIGGERS.
    (702 SE2d 925)
   ANDREWS, Presiding Judge.

The State of Georgia takes this appeal from the trial court’s grant of James Driggers’s motion to suppress statements taken and drugs, paraphernalia, and cash found in a police search of the house to which Driggers had taken his girlfriend by force. The State argues that police had the authority both to enter the house for the purpose of apprehending Driggers and to reenter for the purpose of taking the victim’s written statement, at which time they also discovered a part of the physical evidence at issue. We find that although police had authority to enter the house for the purpose of apprehending Driggers, their subsequent reentry was illegal. We therefore affirm.

Where the evidence at a hearing on a motion to suppress is uncontroverted and no question of credibility is presented, we review the trial court’s application of the law to these undisputed facts de novo. Vansant v. State, 264 Ga. 319, 320 (1) (443 SE2d 474) (1994). As to questions of fact and credibility, however, we construe the evidence most favorably to the upholding of the trial court’s findings and judgment, which must be accepted unless clearly erroneous. Tate v. State, 264 Ga. 53, 54 (1) (440 SE2d 646) (1994).

So viewed, the record shows that Driggers and the victim and their children were living at 402 Mount Moriah Road in Auburn when, on April 18, 2008, police arrested Driggers there for driving under the influence. At that time, Sergeant Ulrich of the Auburn Police Department observed that Driggers was verbally abusive to the victim. Shortly afterward, the victim left the Mount Moriah house to stay at her mother’s.

Eight days later, on the evening of April 26, 2008, a friend of the couple called police with a report that Driggers had dragged the victim by force out of the friend’s house and was taking her back to the Mount Moriah house. The friend told police that he was concerned about the victim’s welfare and asked that they check on her. Police then went to the Mount Moriah house, heard voices inside, and knocked on the door. The victim answered the door visibly upset and disheveled, expressed relief at the officers’ arrival, and immediately came outside onto the screened-in porch.

Driggers testified that the victim left the friend’s house voluntarily. When police knocked on his door, he told the victim to answer it. When she did so and exited onto the porch, he went to the door and told the officers that he did not want officers in his house. Two officers then entered the house and forced him to stay inside with them.

The victim told Ulrich, who remained with her outside, that Driggers had entered the friend’s house uninvited, dragged her out of a bathroom where she had been hiding, grabbed her by the hair, and forced her into a car. The victim also told police that Driggers struck her en route to the Mount Moriah house and threatened to kill them both by driving the car into a tree. Once they arrived, the victim said, Driggers hit her again and forced her to take off her clothes and lie on the floor “so that she would know what it felt like” when he had been arrested.

On hearing the victim’s account, and noting her disheveled appearance, the first officer opened the door of the house and instructed the other officers to place Driggers under arrest. As police escorted him to the police car, Driggers again refused consent to search the house. Driggers testified that the lease and the utilities of the house were in his name.

After Driggers left for the police station, Ulrich and the victim entered the house for the purpose of taking the victim’s statement because there was “nowhere on the front porch area for her to do that.” As they sat in the living room around a coffee table, Ulrich saw a bottle of mixed pills, including what he thought was Xanax, on top of a lamp base. On questioning, the victim confirmed that Driggers abused Xanax and said that he also smoked and sold marijuana, which she thought would be located in the bathroom. On the basis of the bottle of mixed pills, which Ulrich immediately seized, as well as the victim’s statement (not included in the record before us), police obtained and executed a search warrant (also missing from the record), resulting in the seizure of two bags of marijuana, two sets of scales, and an unspecified amount of cash.

Driggers moved to suppress both the statements and the physical evidence gathered at the house. After a hearing, the trial court held that police were “not responding to exigent circumstances”; that Driggers was the sole occupant of the house; that he refused consent to search it; and that the victim was not a resident of the house and did not have authority to consent to a search. Concluding that Ulrich’s entry into the house was thus illegal, the trial court suppressed both the victim’s statements concerning drugs, paraphernalia, and money, as well as the physical evidence itself.

Given the trial court’s finding that the police reasonably believed that the victim was being held against her will, this appeal poses the question whether this reasonable belief justified not only their initial entry into the Mount Moriah house, but also Ulrich’s reentry after Driggers’s refusal of consent and departure in police custody, and thus the taking of the victim’s statements concerning Driggers’s drug use, the seizure of the pill bottle Ulrich saw in the living room, and the evidence taken in the course of executing the warrant.

1. “It has been repeatedly held that reasonable concern for a victim’s welfare justifies a warrantless entry.” Lindsey v. State, 247 Ga. App. 166, 168 (1) (543 SE2d 117) (2000). Specifically, an emergency call concerning domestic violence in progress provides the exigent circumstances sufficient to justify a warrantless entry at the identified location for the purpose of apprehending an attacker. Lord v. State, 297 Ga. App. 88, 92 (1) (a) (676 SE2d 404) (2009).

The undisputed evidence here showed that the officers had received a report that Driggers had abducted the victim; that they proceeded to the address to which Driggers had reportedly taken her; and that the visibly upset and disheveled victim opened the door and came out onto the porch. As the trial court found, these facts establish the officers’ reasonable belief that Driggers had kidnapped the victim and was still inside the house. Even if the victim may have been momentarily out of danger as soon as she came out onto the porch, her appearance at the door of the house in this condition was sufficient to justify a warrantless entry into the house for the purpose of Driggers’s arrest. Lord, 297 Ga. App. at 89-92 (1).

2. However, because Ulrich re-entered the house without a warrant, valid consent, or exigent circumstances, both the statements taken and the physical evidence he saw inside must be suppressed.

(a) “It is axiomatic that the physical entry of the home is the chief evil against which the wording of the Fourth Amendment is directed.” (Punctuation omitted.) Welsh v. Wisconsin, 466 U. S. 740, 748 (104 SC 2091, 80 LE2d 732) (1984). Driggers testified that the home and all its utilities were in his name, and the trial court expressly found that the victim was no longer a resident of the house. Ulrich testified that he could not recall asking the victim for consent to enter, and Driggers’s testimony established that both before and at the time of his arrest, he told police not to enter the house. Even if the victim had possessed the authority to and had actually granted consent, it would not have been valid because where two residents are present and one denies consent, police may not enter. Georgia v. Randolph, 547 U. S. 103, 122-123 (126 SC 1515, 164 LE2d 208) (2006). It follows that Ulrich did not have consent to enter Driggers’s house.

(b) We cannot assume that the victim’s need for assistance justified Ulrich’s re-entry for the purpose of taking her statement in the living room because the exigent circumstances authorizing entry for the limited purpose of effecting Driggers’s arrest had expired. An officer’s conduct immediately after a legal entry “must be carefully limited to achieving the objective which justified the entry[:] the officer may do no more than is reasonably necessary to ascertain whether someone is in need of assistance and to provide that assistance.” LaFave, Search and Seizure, § 6.6 (a), p. 468 (4th ed. 2004). The victim was out of danger by the time Driggers was placed in the police car, and there was no risk that evidence would be destroyed between Driggers’s apprehension and the police’s return to the house with a warrant. The mere convenience of having a hard surface on which to sign a statement bears an insufficient relation to the exigent circumstances under which police entered legally — that is, to arrest Driggers and, in doing so, to protect the victim from him. It follows that Ulrich’s entry into the house was illegal. See State v. Ealum, 283 Ga. App. 799, 802 (643 SE2d 262) (2007) (affirming grant of motion to suppress where State failed to show that an emergency justified a warrantless entry); compare Lord, 297 Ga. App. at 92 (entry into house after defendant’s arrest was authorized for the purpose of locating a victim “likely still in or near the house” and “probably in need of immediate medical attention”).

3. The fruits of an illegal search or arrest “should be suppressed when they bear a significantly close relationship to the underlying illegality.” (Punctuation omitted.) State v. Gravitt, 289 Ga. App. 868, 871 (2) (b) (658 SE2d 424) (2008). Both the statements concerning Driggers’s drug use and the drugs, paraphernalia, and money seized were obtained as a direct result of Ulrich’s illegal presence in the living room, where he saw the bottle of mixed pills in plain view and began to question the victim about Driggers’s drug use. It follows that the trial court did not err when it suppressed this evidence as “fruit of the poisonous tree.” (Punctuation omitted.) Id. (affirming grant of motion to suppress).

Decided November 17, 2010.

J. Bradley Smith, District Attorney, Mary E. Forwood, Assistant District Attorney, for appellant.

Cowsert & Avery, William S. Cowsert, Michael S. Broun II, for appellee.

Judgment affirmed.

Ellington and Doyle, JJ., concur.