author: PHIPPS, Presiding Judge.

text:
    A11A2270.
    COBB COUNTY v. ROBERTSON et al.
    (724 SE2d 478)
   PHIPPS, Presiding Judge.

Cobb County filed a petition for condemnation in rem together with a declaration of taking with respect to certain real property located in the County and owned by Morgan Robertson. The court entered an order and judgment condemning the property described in the petition and the declaration of taking, vesting in the County title and the right of possession. Robertson filed a motion to set aside, vacate, and annul the declaration of taking, alleging that, for various reasons, the condemnation was not authorized. The court scheduled a hearing date on Robertson’s motion that was more than 60 days after the filing of the declaration of taking. After that 60-day period passed, the County moved to dismiss Robertson’s motion, asserting inter alia that the hearing had not been held within the 60-day time limit mandated by OCGA § 32-3-11 (c). The court denied the County’s motion to dismiss as to the 60-day procedural issue, expressly reserving for later consideration any substantive issues regarding the dismissal motion. We granted the County’s application for interlocutory review. We affirm because the 60-day time period for holding a hearing set forth in OCGA § 32-3-11 (c) is directory, rather than mandatory.

At issue in this appeal is the proper construction of OCGA § 32-3-11. OCGA § 32-3-11 (a) allows the trial court to set aside, vacate and annul a declaration of taking in certain circumstances. Pursuant to OCGA § 32-3-11 (c), a condemnee desiring to raise issues outlined in OCGA § 32-3-11 (b) is required to file the motion to set aside within 30 days of service of the declaration of taking. After the condemnee properly raises the motion to set aside,

[t]he presiding judge shall thereupon cause a rule nisi to be issued and served upon the condemnor, requiring him to show cause at a time and place designated by the judge why the title acquired by the declaration of taking should not be vacated and set aside in the same way and manner as is now provided for setting aside deeds acquired by fraud. Such hearing shall be had not earlier than 15 days from the time of service of the rule nisi upon the condemnor, nor later than 60 days from the date of filing of the declaration of taking, and with the right of appeal by either party, as in other cases.

In this case, the County filed the petition for condemnation in rem together with the declaration of taking on February 19, 2010. Robertson acknowledged service on February 25, 2010, answered the petition and, on March 25, 2010, timely filed his motion to set aside, vacate and annul the declaration of taking. On March 31, 2010, Robertson obtained a rule nisi setting a hearing date for May 11, 2010. On April 26, 2010, the County moved to dismiss Robertson’s motion to set aside on the ground that, inter alia, the hearing was not held within 60 days of the filing of the declaration of taking as required by OCGA § 32-3-11 (c). The trial court denied the County’s motion to dismiss, finding that Robertson had acted “in accordance with the . . . statute to the best of [his] ability” and that “the failure to hold the hearing under OCGA § 32-3-11 (c) was not due to any fault or action by [Robertson].”

As noted above, OCGA § 32-3-11 (c) provides that a “hearing shall be had . . . [no] later than 60 days from the date of filing of the declaration of taking . . . .” Even though the word “shall” is generally construed as mandatory, it need not always be construed in that fashion.

The Supreme Court of Georgia has established a framework for construing procedural requirements such as the [60]-day time period at issue here: Language contained in a statute which, given its ordinary meaning, commands the doing of a thing within a certain time, when not accompanied by any negative words restraining the doing of the thing afterward, will generally be construed as merely directory and not as a limitation of authority, and this is especially so where no injury appeared to have resulted from the fact that the thing was done after the time limited by the plain wording of the statute.

“In such instances ‘shall’ denotes simple futurity rather than a command.” OCGA § 32-3-11 (c) contains no negative words restraining the superior court from holding the hearing after the 60-day period. “Nor does that statute in any other manner expressly declare that a designated result will follow noncompliance or that the [court] will cease to have authority to take specified action after [60] days.”

The Supreme Court has also stated that “[a] statutory provision is generally regarded as directory where a failure of performance will result in no injury or prejudice to the substantial rights of interested persons, and as mandatory where such injury or prejudice will result.” The County argues that the 60-day hearing requirement balances the need for the condemnee to be heard with the condem-nor’s need for certainty in improving condemned property. However, OCGA § 32-3-11 (c) does not require that a ruling be made within the 60-day period, and so the hearing contemplated by the statute cannot serve as the guarantor of such certainty.

Further, we find that the legislature did not intend to deprive the trial court of jurisdiction to consider the motion to set aside if the hearing is not held within 60 days because, once the condemnee has fulfilled his obligation to file a timely motion to set aside, OCGA § 32-3-11 (c) contemplates action by the court, not by the condemnee. The second sentence of that subsection plainly states that “[t]he presiding judge shall thereupon cause a rule nisi to be issued and served upon the condemnor, requiring him to show cause at a time and place designated by the judge why the title acquired by the declaration of taking should not be vacated . . . .” Assuming that Robertson could have, or even should have, done more to ensure that the hearing date was properly set, the trial court’s calendar ultimately remains in the hands of the court. The consequences of a failure by the court to hold a hearing within 60 days, however, should we find the timing of the hearing to be mandatory, would fall solely and irreparably on the condemnee, while under the statute “no burden is imposed upon either party to [e]nsure that the [motion] is timely [heard].”

Decided February 29, 2012

Jackel & Phillips, Dana L. Jackel, Christopher L. Phillips, for appellant.

Adkins & Whitfield, Russell L. Adkins, Jr., for appellees.

Accordingly, we find that OCGA § 32-3-11 (c)’s command to hold the hearing on the condemnee’s motion to set aside within 60 days of the date of filing of the declaration of taking is directory rather than mandatory. It follows that the trial court did not err in refusing to dismiss Robertson’s motion to set aside.

Judgment affirmed.

Ellington, C. J., Barnes, P. J., Mikell, P. J., Doyle, P J., and Andrews, Miller, Adams, Blackwell, Dillard, McFadden and Boggs, JJ., concur.

       The petition also named as defendants other persons or entities that possibly had interests in the property, such as certain lienholders and the county tax commissioner.

       Robertson also challenged the amount of compensation, but the compensation issue is not before us in this appeal.

       See infra.

       OCGA § 32-3-11 (b) pertinently provides that the court’s power as described in OCGA § 32-3-11 (a) is restricted to questions of: (1) fraud or bad faith; (2) the improper use of the powers of this article; (3) the abuse or misuse of the powers of this article; and (4) such other questions as may be properly raised (“this article” refers to Article 1 (General Provisions) of Chapter 3 (Acquisition of Property for Transportation Purposes) of Title 32 (Highways, Bridges, and Ferries)).

       OCGA § 32-3-11 (c).

       See Lewis v. State, 283 Ga. 191, 194-195 (3) (657 SE2d 854) (2008).

        Jasper County Bd. of Tax Assessors v. Thomas, 289 Ga. App. 38, 39 (1) (656 SE2d 188) (2007) (citation and punctuation omitted).

        Charles H. Wesley Education Foundation v. State Election Bd., 282 Ga. 707, 709 (2) (654 SE2d 127) (2007) (citations and punctuation omitted).

        Charles H. Wesley Education Foundation, supra, 282 Ga. at 710 (2) (citation omitted). Cf. OCGA § 34-9-105 (b) (providing, as to appeals to superior court in workers’ compensation cases, that if a hearing is not held or an order is not entered within specified times, “the decision of the board shall be considered affirmed by operation of law”). Nor does OCGA § 32-3-11 (c) expressly contemplate the possibility of a continuance. See State v. Henderson, 263 Ga. 508, 510 (436 SE2d 209) (1993) (in considering a 60-day hearing requirement in the forfeiture statute, OCGA § 16-13-49 (o) (5), the Court noted that the provision allowed the hearing to be continued for good cause, and “[i]f the 60-day requirement were directory, rather than mandatory, there would be no need for a ‘good cause’ continuance”).

        Sanchez v. Walker County Dept. of Family & Children Services, 237 Ga. 406, 410 (229 SE2d 66) (1976) (citation and punctuation omitted). In holding certain notice and hearing requirements of the Juvenile Code to be mandatory in Sanchez, the Supreme Court noted that “[ajnother petition can be filed without delay if there is reason to believe the child is being neglected or abused.” Sanchez, supra, 237 Ga. at 411. Dismissal of the motion to set aside in this case would not allow Robertson to file another timely motion.

       See Dept. of Transp. v. City of Atlanta, 259 Ga. 305, 306 (2) (380 SE2d 265) (1989). In that case, a hearing was conducted within the 60-day period contemplated by OCGA § 32-3-11 (c), and so the Supreme Court did not reach the issue of whether the provision concerning the timing of the hearing was mandatory or directory. Rather, the Court found that the trial court did not have to rule on the merits of the motion to set aside within the 60-day period.

       (Emphasis supplied.) OCGA § 32-3-11 (c). To the extent Lopez-Aponte v. City of Columbus, 267 Ga. App. 65, 67 (1) (599 SE2d 1) (2004), can be construed as reaching a contrary result, it is disapproved.
      We note that this issue is presently pending before our Supreme Court in Adkins v. Cobb County, Case No. S12A0848 (April 2012). In its order granting the application for interlocutory appeal, the Court requested that the parties address whether “the trial court err[ed] in finding that it was the condemnees’ responsibility to obtain a rule nisi and timely hearing on their motion to vacate. Compare [Lopez-Aponte, supra, 267 Ga. App. at 67 (1) n. 1], with OCGA § 32-3-11 (c) (stating the ‘presiding judge shall thereupon cause a rule nisi to be issued’).”

       See Etheridge v. Etheridge, 242 Ga. 101, 103 (249 SE2d 569) (1978) (“[cjounsel for neither party can control the calendars and trial of cases”); Uniform Superior Court Rule 8.1 (“The assigned judge has the sole responsibility for setting hearings in all actions assigned to that judge. . . .”).

        Nodvin v. DeKalb County, 158 Ga. App. 819 (282 SE2d 410) (1981) (reversing dismissal of condemnation case because applicable statute placed duty to bring case to trial squarely upon the judge and no burden was imposed on either party to ensure that the case was timely tried).


source: Caselaw Access Project

author: Adams, Judge.

license: Public Domain

text:
    A11A2364.
    KREMER v. TEA PARTY PATRIOTS, INC.
    (724 SE2d 466)
   Adams, Judge.

Amy Kremer appeals the trial court’s order finding her in contempt of a consent order entered in a declaratory judgment action filed by Tea Party Patriots, Inc. (“TPP”).

[T]he standard of review of a trial court’s ruling on a motion to cite a party for contempt is . . . the “any evidence” standard. Consequently, if there is any evidence from which the trial court could have concluded that its order [was or] was not violated, we are without power to disturb the judgment absent an abuse of discretion.

(Citations and footnote omitted.) Harrison v. CGU Ins. Co., 269 Ga. App. 549, 554-555 (604 SE2d 615) (2004).

The underlying dispute arose among the founders of TPI] a nonprofit “grassroots movement of Americans who favor free market economics, fiscal responsibility, and limited government.” TPP filed the declaratory judgment action against Kremer to determine ownership of the “Tea Party Patriots” trademark and various associated websites and internet accounts (collectively referred to herein as “the Intellectual Property”)- Kremer counterclaimed alleging claims for misappropriation and conversion of the Intellectual Property, libel, slander, unjust enrichment and punitive damages. After the trial court entered an interlocutory injunction against Kremer, the parties reached an agreement regarding the use of the Intellectual Property pending the resolution of the lawsuit. The trial court entered a consent order memorializing this agreement on December 9, 2009 (the “Consent Order”).

That order provides in pertinent part:

The term “Intellectual Property,” as used in this Consent Order, means collectively: (i) the TEA PARTY PATRIOTS trademark (“the Mark”), and (ii) the Websites identified in the Complaint (i.e., www.teapartypatriots.org, (both the website and the domain name); the Tea Party Patriots Ning social networking site; accounts with Google Groups, Blogtalkradio, YouTube, and Ustream; and other associated websites and Internet accounts that carry on TPP’s activities).
‡ ⅛ ‡ ‡ ‡ ‡
After due consideration of this Consent Order, the Court ORDERS as follows:
Until further order of this Court, [Kremer], her agents, employees, attorneys, and those persons acting in concert with defendant or at her direction, are enjoined and restrained as follows:
(1) [Kremer] shall not interfere in any way with TPP’s exercise of control over or use of the Intellectual Property. However, this does not prohibit [Kremer] from opposing or contesting TPP’s application for trademark protection regarding the Mark;
(2) TPP currently has administrative control of most of the Websites. [Kremer] shall work in good faith with TPP to take all necessary steps to deliver administrative control of the remaining Websites (including the Google Groups account) to TPP within two (2) business days of the entry of this Order. Thereafter, TPP will retain administrative control of the Websites, and [Kremer] promptly will cooperate as necessary for the duration of this Consent Order for TPP to maintain administrative control of the same;
(3) [Kremer] shall not hold herself out as having any current position with TPP or as speaking on behalf of TPP in any way;
(4) [Kremer] shall not use any of the Websites as part of her title or signature block. [Kremer] shall not use TPP’s name in any way that implies current affiliation with TPP For example, to the extent [Kremer] identifies herself as having been a co-founder of TPP she will also state equally prominently that she has no current affiliation with TPP; . . .

Subsequently, on March 17, 2011, TPP filed a “Motion for Contempt Hearing,” alleging that Kremer failed to deliver administrative control of the remaining websites to TPP as required under the Consent Order and further that she continued to identify herself as a co-founder of TPP without any statement that she had no current TPP affiliation.

At the evidentiary hearing on the motion, Debbie Dooley, a TPP official and member of the board of directors, testified that Kremer created the Tea Party Patriots Google Group in March or April 2009 to provide a means of communication for the members of the group. Dooley was named as an administrator of the group, but Kremer retained the designation as the group’s “owner.” Although Dooley is an administrator and has access to the site, she said that the owner has “super access.” Any questions regarding the site are filtered through the owner. In January 2011, when Dooley and other TPP members attempted to log onto the TPP Google Group site, they received a message stating that “[t]he owner of the group has banned you from this group.” Dooley had no direct knowledge as to who blocked her access to the group and could only “speculate” that Kremer had done so based upon the message she received. After TPP raised the issue with Kremer’s attorney, Dooley’s status as manager was reinstated, but her status was changed to require that any comments she posted be approved by the owner or another administrator. Later that month, the name of the site was changed from “Tea Party Patriots” Google Group to “Patriotville.” This change resulted in confusion and resulted in TPP receiving criticism on its own site.

Dooley, who also is a national coordinator for Georgia Tea Party Patriots (“GTPP”), testified that GTPP is a subsidiary of TPF] the national group, and helps to coordinate the TPP organizers in Georgia. GTPP has a separate Google Group owned by Kremer. TPP has no control over that Google Group, and Dooley and the other TPP officials are not administrators of that group.

Lee Martin, the husband of TPP official Jenny Beth Martin, testified that he searched Kremer on the internet and discovered her biography posted on several websites. He identified for the record Kremer’s biographies as they appeared on the TeaPartyExpress.TVJ InnovatetoMotivate.com, and SpeakersAccess.com websites. These biographies each list Kremer as a founder of TPI^ but none of them specifically states that she is no longer affiliated with the organization.

Kremer testified that at the time the Consent Order was entered, three TPP members already were administrators of the TPP Google Group: Jenny Beth Martin, Mark Meckler and Rob Neppell. Kremer stated that she accessed the TPP Google Group only one time after the entry of the order and that was on the advice of her attorney. After Kremer and her attorney learned that a third party, Rob Guida, had removed Jenny Beth Martin and Mark Meckler as administrators, the attorney advised Kremer to access the website to reinstate Martin and Meckler and to remove Guida in order to comply with the Consent Order. Kremer stated that Martin had added Guida as an administrator of the group in November 2009. She said that she never removed Dooley, Martin or any TPP official, other than Guida, as administrators of the TPP Google Group. Kremer stated that she wanted to retain ownership of the TPP Google Groups pending the outcome of the declaratory judgment action, but contended that she had already conceded administrative control of those groups to TPP

Kremer also denied that she had authorized the posting of her biography on the TeaPartyExpress.TV website, nor had she provided the information used on the website. She stated that TeaPartyEx-press.TV was a completely separate entity from Tea Party Express, of which she is chairman. Kremer also identified a biography in a brochure for the Council of National Policy, which indicated that she had been a founder of TPFJ but did not expressly state that she was no longer affiliated with TPP Kremer stated that it appeared that the organization had edited the biography she had provided them. She could not recall what information she had sent the council, but she explained that everyone who was involved in the “movement” knew that she was no longer affiliated with TPP and that she is the chairman of Tea Party Express. She said that the two apparently competing organizations are known to be separate in the media and there is no “confusion . . . where my allegiance is and what organization I’m affiliated with.” Kremer also explained that because she started the TPP Google Group, Google automatically calls her the “owner” of the group.

The trial court found Kremer in contempt at the hearing, noting that “(sjhe’s trying to straddle a very, very fine line but she’s fallen over it.” The judge indicated that she had violated the provision of the consent order requiring that she deliver administrative control of the websites to TPP when she blocked or removed individuals as administrators of the TPP Google Group. The trial court indicated, however, that it would not move the ownership of the Google Groups pending the resolution of the lawsuit. Nevertheless, he instructed that she remove herself as a member of any such groups. He also found that she had violated the provision requiring her to clearly state that she no longer had affiliation with the TPP and instructed her to correct and notify others to amend her internet biographies to reflect this fact.

Following this hearing, the trial court issued an order (the “Contempt Order”) finding Kremer in contempt and ordering her:

A. To immediately provide administrative control to TPP of the Google Groups accounts for Tea Party Patriots and Georgia Tea Party Patriots, and all other websites as identified in the Consent Order, in a manner that allows TPP unfettered discretion regarding whom to include in and whom to exclude from said groups;
B. To immediately remove herself from being listed in the aforesaid groups and websites; and
C. To correct the information that she has distributed to the public to reflect the fact that she has no current affiliation with TPFJ including notifying all organizations listing her background or credentials to so amend all information in their files or distributed to the public. Defendant Amy Kremer is directed to take all necessary steps related to such correction within 20 days following the date of this order, and in the future as it is brought to her attention.

The order also noted that it made no finding as to “who is the legal owner of the Google Groups, or any other matter that is at issue in this trial.” Kremer subsequently filed an emergency motion for reconsideration of the Contempt Order, but she filed her notice of appeal before the trial court ruled on the motion.

1. Kremer asserts that the trial court erred in holding her in contempt on the basis that she had not taken all the necessary steps to deliver administrative control of the enumerated websites to TPE “The essence of civil contempt... is willful disobedience of a prior court order.” (Punctuation omitted.) Saravia v. Mendoza, 303 Ga. App. 758, 763 (2) (695 SE2d 47) (2010). Kremer argues that she did not wilfully disobey the Consent Order and that the TPP actually had administrative control of the websites at the time of the hearing.

The Consent Order directed Kremer to “work in good faith with TPP to take all necessary steps to deliver administrative control of the remaining Websites (including Google Group accounts) to TPE” We agree with Kremer that the set-up of the Google Group accounts and the terminology employed by Google in managing the accounts creates some ambiguity in implementing the Consent Order. Although the trial court has consistently held that Kremer may remain as “owner” of the Google Groups, that position carries with it certain inherent administrative powers over the site. Nevertheless, the consent order explicitly stated that Kremer was not to “interfere in any way with TPP’s exercise of control over the Intellectual Property” including the Google Groups. Thus while Kremer’s position as owner of the site does not in and of itself violate the consent order, it is clear that any exercise of the position’s inherent administrative powers would be a violation.

And the evidence at the hearing supported a finding that Kremer had exercised those powers by blocking members from the TPP Google Group. The message Dooley received in January 2011 indicated that “the owner” had blocked her access to the site, and it is undisputed that Google considers Kremer to be. the owner. Moreover, Kremer admitted that she had blocked another individual from the site. This evidence supports the trial court’s finding that Kremer had intentionally violated the Consent Order. While another explanation may exist for the message and for Kremer’s actions, she failed to present any evidence of such an explanation for the trial court’s consideration at the contempt hearing. Thus, because there is some evidence to support the trial court’s order on this point, we find no abuse of discretion.

2. Kremer also argues that the trial court abused its discretion in ordering her to turn over administrative control of the “Georgia Tea Party Patriots” Google Group to TPE She contends that GTPP is not affiliated with TPP and thus was not a part of the original Consent Order.

The Consent Order, however, defines the Intellectual Property at issue to include multiple “accounts with Google Groups . . . ; and other associated websites and Internet accounts that carry on TPP activities.” Dooley testified that GTPP is a subsidiary of TPP that coordinates TPP efforts in Georgia. She stated that TPP had not been given access to the GTPP Google Groups account. Kremer presented no evidence to counter this testimony. We cannot say, therefore, that the trial court abused its discretion in concluding, based upon the evidence, that the GTPP Google Group account was one of the Google Groups and/or an associated internet account that carries on TPP activities covered by the Consent Order.

3. Kremer further argues that the trial court abused its discretion in finding her in contempt on the basis that she used TPP’s name in ways to imply current affiliation. To the contrary, she contends that the evidence of her biographies produced by TPP at the hearing made it clear that any TPP affiliation was part of her past activities. And she notes that she has no control over third-party websites. Thus, she contends that no evidence existed of her intentional disobedience of the Consent Order in this regard.

But the Consent Order clearly states that “to the extent [Kremer] identifies herself as having been a co-founder of TPP she will also state equally prominently that she has no current affiliation with TPP” And Kremer admitted at the hearing that she had provided a biography to the Council of National Policy, which the organization included, in edited form, in a brochure prepared for a Fall 2010 conference. That biography indicates that Kremer, inter alia, was “founder, Tea Party Patriots,” with no mention that she had no current affiliation with TPP When asked whether the biography she had sent the council had included a statement that she was no longer affiliated with TPI] Kremer stated that she could not “recall exactly what I sent them,” only that everything she sent out was as chairman of Tea Party Express and “everybody knows that that is my affiliation, that I am the chairman of Tea Party Express.” Thus, Kremer never testified that she included the required disclaimer of TPP affiliation, but instead she relied upon her view that it was common knowledge that TPP and Tea Party Express were two separate organizations to avoid any confusion regarding her current affiliations.

We find that this evidence supported a finding that Kremer had intentionally violated the Consent Order by failing to ensure that a disclaimer of any current affiliation with TPP appeared equally prominently with her claimed position as a TPP founder in the information she supplied to the council. That one violation was sufficient to support the trial court’s finding of contempt, without regard to the other third-party organizations listing her biography. Nevertheless, the trial court properly required that she notify those organizations that they needed to amend her biography to reflect her lack of affiliation with TPE Accordingly, we find no abuse of discretion.

Decided February 29, 2012.

Hall, Booth, Smith & Slover, Kevin A. Leipow, for appellant.

Taylor, English & Duma, Deborah A. Ausburn, Amanda G. Hyland, for appellee.

Judgment affirmed.

Barnes, E J., and Blackwell, J., concur.

       Martin testified that Tea Party Express “is effectively a competing group that competes against Tea Party Patriots.”

       Kremer filed two affidavits in support of her motion for reconsideration, and she cites to these affidavits on appeal. But the trial court did not have this evidence when it issued the Contempt Order, which is the subject of this appeal. In fact, Kremer filed the appeal before the trial court had the opportunity to consider her motion for reconsideration and the accompanying affidavits. Accordingly, we cannot consider the affidavits on appeal. See generally Demetrios v. State, 246 Ga. App. 506, 510 (3), n. 14 (541 SE2d 83) (2000) (“It is an ancient and honored tenet of law that we do not take evidence from the briefs of parties, we do not get evidence from outside the record, and we do not accept assertions of fact or evidence which were not before the trial court. [Cit.]”).


author: DOYLE, Presiding Judge.

text:
    A11A2417.
    ENUKA v. THE STATE.
    (724 SE2d 471)
   DOYLE, Presiding Judge.

Following a jury trial, Okechukwu Enuka appeals from his conviction for making a terroristic threat, arguing that the trial court erred by denying his motion for new trial on the general grounds and a claim of ineffective assistance of counsel. Finding the evidence sufficient and no error in the trial court’s ruling on trial counsel’s effectiveness, we affirm.

Construed in favor of the verdict, the evidence shows that Enuka received a notice that the rent on his apartment was past due. Enuka called the management office to notify them that he had already paid his rent by money order, and the property director, Michelle Brooks, explained that the rent drop box had recently been burglarized, so they were sorting out whose payments had been received and whose had not. She began to explain to Enuka the process for tracing his money order to stop the payment on it when Enuka became agitated and verbally abusive on the phone. She asked him not to come to the office, but Enuka hung up on her in anger and came to the office.

In the meantime, Brooks alerted the accounts administrator, Jacob Wheeler, that Enuka was coming to the office because she “felt like there might be a situation that we might need help.” Once at the office, Enuka began angrily yelling and cursing at Brooks and Wheeler, calling them “f — ing idiots” and “bitch” with spit flying as he refused their requests for him to leave. Wheeler finally suggested he might need to call the police, and Enuka said “Call the police. I don’t care. . . . Suck my big . . . d — .” Enuka eventually walked out of the office and began to drive away in his car, screeching his tires as the staff called the police. Shortly thereafter, Enuka returned in his car, saw Wheeler standing outside the office with several maintenance personnel, and yelled at Wheeler, “You’re dead. You’re f — ing dead. You hear me? You’re f — ing dead.” At that point, the police had arrived and blocked in Enuka’s car. After interviewing Enuka and the witnesses, the police arrested Enuka.

Enuka was charged with terroristic threats, criminal trespass, and disorderly conduct (two counts) based on the incident. A jury acquitted him of all but the terroristic threat count. Enuka filed a motion for new trial, which was denied, giving rise to this appeal.

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

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

Here, Enuka points to several minor variations in the accounts of each of the five witnesses who testified to the threat made by Enuka against Wheeler. For example, Enuka emphasizes his own testimony denying the threat and highlights minor inconsistencies in the wording or timing of statements recalled by the various witnesses, i.e., whether Enuka was inside his car, inside the office, or on the sidewalk when he made the threat. Nevertheless, it is not this Court’s role to resolve the inconsistencies in witnesses’ testimony. It is for the jury, not an appellate court, “to determine the credibility of the witnesses and to resolve any conflicts or inconsistencies in the evidence.” Our role is to evaluate the evidence “in the light most favorable to the verdict, giving deference to the jury’s determination on the proper weight and credibility to be given the evidence.”

Viewed accordingly, the evidence showed that Enuka, after an enraged and profane confrontation, angrily returned to the scene to tell Wheeler that he was a “dead man.” This authorized the jury to conclude that Enuka was threatening to kill Wheeler, which would meet the definition of a terroristic threat: “A person commits the offense of a terroristic threat when he or she threatens to commit any crime of violence, . . . with the purpose of terrorizing another . . . or in reckless disregard of the risk of causing such terror.” Therefore, this enumeration is without merit.

2. Enuka also argues that the trial court erroneously denied his claim that trial counsel was ineffective (a) by failing to properly investigate the drop box burglary, and (b) by failing to communicate a plea offer. We disagree.

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

(a) Enuka first argues that his trial counsel performed deficiently by failing to obtain either photographs of the damaged drop box or a police report of the burglary. Nevertheless, as explained by Enuka’s trial counsel, this evidence would have been cumulative of the testimony by the apartment staff that the drop box had been burglarized, it was irrelevant to whether Enuka had made the threats, and it would not aid a legal defense to making the threats. Therefore, Enuka cannot meet his burden under Strickland based on his trial counsel’s failure to obtain additional proof of the drop box burglary.

Decided February 29, 2012.

David P. Smith, Robert H. Alexander III, for appellant.

Patrick H. Head, District Attorney, Jason D. Marbutt, Anna G. Cross, Assistant District Attorneys, for appellee.

(b) Enuka also argues that his trial counsel failed to communicate a plea offer. Nevertheless, by his own testimony at the motion for new trial hearing, Enuka conceded that he refused the State’s only plea offer (to a felony) which was communicated to him by trial counsel. Further, Enuka’s trial counsel testified at the hearing that he had negotiated forcefully with the State to gain access to the district attorney’s pre-trial diversion program, but Enuka refused to enter that program, emphasizing his innocence and stating that the only acceptable resolution would be trial or dismissal. This record supports a finding that counsel worked diligently to obtain a plea offer, and all offers were communicated to Enuka. Accordingly, Enuka has not carried his burden of showing that his counsel performed deficiently or that he would have accepted a plea offer not communicated to him.

Judgment affirmed.

Ellington, C. J., and Miller, J., concur.

       OCGA § 16-11-37 (a).

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

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

        Mickens v. State, 277 Ga. 627, 629 (593 SE2d 350) (2004).

       (Punctuation omitted.) Hamrick v. State, 304 Ga. App. 378 (1) (696 SE2d 403) (2010).

       OCGA § 16-11-37 (a). See Moore v. State, 234 Ga. App. 332, 333 (3) (a) (506 SE2d 685) (1998) (threat to kill was sufficient evidence of terroristic threat); Stone v. State, 210 Ga. App. 198, 199 (435 SE2d 527) (1993) (same).

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

       See id. at 687-688, 694 (III) (A)-(B).

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

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

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

       See Badger v. State, 310 Ga. App. 157, 160 (712 SE2d 582) (2011).


author: Ellington, Chief Judge.

text:
    A12A0259.
    THOMPSON v. THE STATE.
    (724 SE2d 475)
   Ellington, Chief Judge.

A Gwinnett County jury found Everet Thompson guilty of kidnapping with bodily injury, OCGA § 16-5-40 (a), (d) (4); armed robbery, OCGA § 16-8-41 (a); and three counts of aggravated assault, OCGA § 16-5-21 (a) (2). Thompson appeals from the denial of his motion for new trial, contending that the evidence of asportation was insufficient to support his kidnapping conviction and that the trial court erred in failing to merge his armed robbery conviction with one of the aggravated assault convictions. Finding no error, we affirm.

Viewed in the light most favorable to the jury’s verdict, the record shows the following relevant facts. Around 11:00 p.m. on May 3, 2008, as Clifton White and his wife and two children arrived at their Gwinnett County home after an evening out, Thompson and an accomplice entered White’s garage behind White’s car. The men flanked the car, pointed their guns at White and his family, and demanded that they get out of the car. One of the men shouted: ‘ ‘This is a robbery!” Thompson demanded that White take him inside the house, and yelled at him to open the door. As White struggled to locate his house keys, Thompson struck him in the head with his handgun. As Thompson forced White into the house at gunpoint, his armed accomplice remained near the garage with White’s wife, son, and daughter. White testified that both men wore gloves and held handguns.

Once inside the house, Thompson forced White to walk through the house and upstairs to the master bedroom, where White had a safe. As White was being taken upstairs, Thompson struck him on the head with his handgun a second time. By the time White reached the bedroom, he was bleeding so profusely that he could not see to open the safe. When White became very agitated and asked about his family’s whereabouts and welfare, Thompson pushed him into a closet and called his accomplice on a cell phone. White heard Thompson say: “Dog, where are you?” As Thompson tried to locate his accomplice, he told White: “Shut up before I shoot you and kill you.” Thompson struck White again and ordered him to open the safe, but White could not see. As White tried to wipe the blood from his face, Thompson opened the bedroom window and shouted outside, trying to find his accomplice. Thompson then marched White to the bathroom and made him wash the blood off of his face. Although White was eventually able to open the safe, Thompson took nothing from it. Panicked, he forced White back downstairs and outside to regroup with his accomplice and White’s family, who were nowhere to be seen. Thompson took White back to the garage and threatened him again at gunpoint, so White gave Thompson the $1,500 in cash that he had in his pocket. At that point, White heard a car speeding down the street, and Thompson fled toward the car.

During the time that White was being forced through his house, White’s wife and son managed to wrestle Thompson’s accomplice to the ground. They knocked his handgun away long enough for the wife and daughter to run across the street to a neighbor’s house and for the son to escape. During his struggle with the accomplice, the son noticed that the man was wearing a vest. White’s wife called 911, and the police quickly responded. From across the street, the wife could see into her bedroom window and she witnessed Thompson moving her husband around. The wife saw the robbers flee from her home in a Nissan.

The police were able to block the exit to White’s subdivision before the robbers could escape. The driver of the Nissan, in an attempt to avoid the roadblock, backed the car over a brick mailbox, and got stuck on top of it. When the police pulled Thompson from the passenger side of the car, they noticed that he had a roll of duct tape around his arm. He also had a large amount of cash in his pocket. The driver was wearing a bulletproof vest and had a mask wedged inside his shoe. The police found two handguns and gloves in the car.

1. Thompson contends the trial court should have merged his conviction on Count 3 of the indictment (the aggravated assault of White by pointing a handgun at him) with Count 2 of the indictment (the armed robbery of White). We disagree.

The offenses of aggravated assault and armed robbery may merge as a matter of fact, depending on the evidence adduced at trial. “For example, if one crime is complete before the other takes place, the two crimes do not merge. However, if the same facts are used to prove the different offenses, the different crimes merge.” (Citation and punctuation omitted.) Johnson v. State, 279 Ga. App. 182, 184 (2) (b) (630 SE2d 778) (2006). See also Henderson v. State, 285 Ga. 240, 244 (4) (675 SE2d 28) (2009). In this case, as in both Johnson and Henderson, the crimes were proved by different facts. Thompson committed the aggravated assault against White as alleged in Count 3 when he first confronted him in the garage with his family and pointed a handgun at him. He committed the armed robbery later, after he had forced White through his house and then back outside to the garage. Once there, he committed the armed robbery as alleged in Count 2 by pointing a handgun at White, demanding his money, and taking the cash White had in his pocket. Because the aggravated assault was complete prior to the armed robbery, the trial court did not err by entering separate convictions and sentences on these two counts. See Henderson v. State, 285 Ga. at 244 (4).

2. Thompson argues that his kidnapping with bodily injury conviction should be reversed because the evidence supporting the element of asportation, moving White into and through the residence, was merely incidental to the offense of armed robbery and thus insufficient under Garza v. State, 284 Ga. 696, 702 (1) (670 SE2d 73) (2008). We disagree.

To determine the sufficiency of evidence of asportation, this Court assesses the evidence according to these four factors:

DECIDED February 29, 2012.

Sharon L. Hopkins, for appellant.

Daniel J. Porter, District Attorney, David K. Keeton, Assistant District Attorney, for appellee.

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

(Citations and footnote omitted.) Garza v. State, 284 Ga. at 702 (1). Here, the movement of the victim through the house was protracted, involved several beatings, and involved shoving the victim into a closet while Thompson tried to locate his accomplice. These movements through the house were not an inherent part of the armed robbery, which occurred later, outside and next to White’s garage. Further, Thompson’s acts of moving White through the house created an additional danger to White by enhancing his control over him and isolating him from protection or rescue. Accordingly, the element of asportation was established, and the evidence was sufficient to support Thompson’s conviction for kidnapping with bodily injury. See Henderson v. State, 285 Ga. at 244-245 (5). Therefore, we find no error.

Judgment affirmed.

Phipps, P. J., and Dillard, J., concur.

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

       “Aggravated assault is not a lesser included offense of armed robbery as a matter of law, and the two offenses rarely merge as a matter of fact.” (Citation and punctuation omitted.) Silvers v. State, 278 Ga. 45, 48 (4) (597 SE2d 373) (2004). See also Drinkard v. Walker, 281 Ga. 211 (636 SE2d 530) (2006) (adopting “required evidence” test for determining when offenses merge).

       The Garza case law concerning asportation was superseded by statute for offenses occurring after July 1, 2009. See OCGA § 16-5-40. Thomas v. State, 289 Ga. 877, 879 (2) (717 SE2d 187) (2011). Because this offense occurred prior to the statute’s effective date, Garza applies. Hammond v. State, 289 Ga. 142, 144, n. 3 (710 SE2d 124) (2011).


author: Boggs, Judge.

text:
    A11A1616.
    TILLER v. THE STATE.
    (724 SE2d 397)
   Boggs, Judge.

Eldrick Tiller appeals from his convictions of aggravated assault, battery, and possession of a firearm by a convicted felon. Tiller asserts that insufficient evidence supports his aggravated assault and battery convictions, that the trial court erred in its charge on battery, and that he received ineffective assistance of counsel. For the reasons explained below, we affirm.

On appeal from a criminal conviction, this court views the evidence in the light most favorable to the verdict, and the appellant no longer enjoys the presumption of innocence. Rankin v. State, 278 Ga. 704, 705 (606 SE2d 269) (2004); Bautista v. State, 305 Ga. App. 210 (1) (699 SE2d 392) (2010). Rather, “this [c]ourt determines whether the evidence is sufficient under the standard of Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560) (1979).” Rankin, supra.

So viewed, the record shows that Tiller confronted the victim in a convenience store because he believed the victim had “jumped” into a fight that had occurred one month earlier between Tiller’s female cousin and another woman. The victim testified that Tiller “was mad” and asked him to “[c]ome outside.” The victim refused to go outside because he was worried about “getting jumped.” The victim waited inside the store for five to ten minutes until Tiller left the store and went to the right toward a barber shop.

The victim then exited the store and turned left toward a fast food restaurant. As the victim was walking, he heard a gunshot and started running. When he turned around, he saw that Tiller was shooting at him. He testified that Tiller fired three or four shots at him. The victim ran down a path through a wooded area to escape Tiller, but Tiller caught up with him when he emerged onto a street. The victim testified that Tiller hit him “[i]n the eye” with “[h]is hand” before he ran away again onto the path. The victim testified that his eye was swollen “[a] little bit” after being hit by Tiller.

A friend of Tiller who accompanied him to the convenience store testified that the victim started the altercation. He also testified that he did not remember whether Tiller had a gun that day or that he told a police detective that Tiller fired a gun. He admitted that he heard a gun fire several times after Tiller left the convenience store. In a recorded statement given to a police detective, the friend identified Tiller as the person who fired shots at the victim. During cross-examination, defense counsel established that the friend violated his probation by being present in Walton County at the time of the shooting and that he was afraid of being arrested for that violation when he was questioned by the police detective about the incident.

An eyewitness who worked in the drive-through window at the fast food restaurant testified that she saw Tiller pull a gun from his pants, extend his hand, fire it four or five times, and then run away. She did not see the person at whom Tiller was shooting. She called 911 and told the police that Tiller had fired the gun. During cross-examination, she admitted that her written statement to police did not identify Tiller by name. Instead, it stated that she saw “a young black male with a white t-shirt khaki short. ...”

1. We find no merit in Tiller’s contention that insufficient evidence supports his aggravated assault conviction. Contrary to Tiller’s summation of the evidence, the victim testified that he saw Tiller shooting at him. Any gaps and inconsistencies in the evidence, as well as any witness bias, were for the jury to consider and weigh. Moe v. State, 297 Ga. App. 270, 272 (1) (676 SE2d 887) (2009). “Because [Tiller]’s arguments go to the weight, rather than to the sufficiency, of the evidence, he presents no basis for reversing his conviction[ ].” (Citation omitted.) Id.

2. Tiller contends that insufficient evidence supports his battery conviction because “the State failed to produce evidence of any visible bodily harm to [the victim].” OCGA § 16-5-23.1 (a) provides: “A person commits the offense of battery when he or she intentionally causes substantial physical harm or visible bodily harm to another.” “Visible bodily harm” is defined as “bodily harm capable of being perceived by a person other than the victim and may include, but is not limited to, substantially blackened eyes, substantially swollen lips or other facial or body parts, or substantial bruises to body parts.” OCGA § 16-5-23.1 (b).

In this case, the victim testified that his eye was swollen after Tiller hit him in the eye with his hand. We find this evidence sufficient to support his battery conviction. See Seritt v. State, 237 Ga. App. 665, 668 (3) (c) (516 SE2d 366) (1999) (victim’s account that defendant kicked him in face causing swollen lip sufficient to prove battery).

3. Tiller argues, and the State concedes, that he is entitled to a new trial because the trial court charged the jury on a method of committing battery that was not alleged in the indictment. Although the indictment charged Tiller with committing battery by causing “visible bodily harm to [the victim],” the trial court charged the jury as follows: “A person commits the offense of battery when that person intentionally causes substantial physical harm or visible bodily harm to another.” (Emphasis supplied.) Although defense counsel did not object to this charge, Tiller asserts he is entitled to a new trial under the plain error analysis provided by OCGA § 17-8-58.

Before undertaking a plain error analysis, however, we must first determine whether the battery charge, when considered with the trial court’s charge as a whole, resulted in reversible error.

Generally, it is not error to charge an entire Code section even though a portion of the charge may be inapplicable to the facts in evidence. Nevertheless, the giving of a jury instruction which deviates from the indictment violates due process where there is evidence to support a conviction on the unalleged manner of committing the crime and the jury is not instructed to limit its consideration to the manner specified in the indictment.

(Citations and punctuation omitted.) Wallin v. State, 305 Ga. App. 663, 664 (1) (700 SE2d 837) (2010). See also Mitchell v. State, 283 Ga. 341, 343 (1) (659 SE2d 356) (2008).

In this case, the trial court read the indictment to the jury, and the jury had it with them during their deliberations. The court instructed the jury that it should not convict Tiller “unless and until each element of the crime as charged is proven beyond a reasonable doubt” and that “[t]he burden of proof rests upon the State to prove every material allegation of the indictment and every essential element of the crime charged beyond a reasonable doubt.” (Emphasis supplied.) Finally, the court informed the jury that

[i]f, after considering the testimony and the evidence presented to you together with the charge of the Court you should find and believe beyond a reasonable doubt that the Defendant. . . did . . . commit the offense of battery as alleged in Count 2 of the indictment you would be authorized to find the Defendant guilty.

(Emphasis supplied.) These charges properly “limit[ed] the jury’s consideration to the specific manner of committing the crime alleged in the indictment.” (Citation, punctuation and footnote omitted.) Adams v. State, 312 Ga. App. 570, 576 (2) (718 SE2d 899) (2011). Because these charges cured the contended error in the battery charge, we need not reverse or engage in a plain error analysis. Smith v. State, 313 Ga. App. 170, 176 (3) (721 SE2d 165) (2011) (similar limiting instructions cured alleged due process violation in battery charge).

4. Tiller asserts that he received ineffective assistance because his trial counsel failed to request a charge on the lesser included offense of reckless conduct. To succeed on an ineffective assistance claim, a criminal defendant must demonstrate both that his trial counsel’s performance was deficient and that there is a reasonable probability that the trial result would have been different if not for the deficient performance. Miller v. State, 285 Ga. 285, 285-287 (676 SE2d 173) (2009). “When reviewing an ineffective assistance claim, we accept the trial court’s factual findings and credibility determinations unless clearly erroneous, but we independently apply the legal principles to the facts.” (Citation and punctuation omitted.) Gandy v. State, 290 Ga. App. 166, 170 (4) (718 SE2d 287) (2011). See also Suggs v. State, 272 Ga. 85, 88 (4) (526 SE2d 347) (2000) (clarifying that clearly erroneous standard applies solely to trial court’s factual findings and that no deference owed to trial court’s legal conclusions).

A failure to request a charge on a lesser included offense cannot support a claim of ineffective assistance where as here “the evidence does not reasonably raise the issue that the appellant may be guilty only of the lesser crime.” (Citation and punctuation omitted.) Mahoney v. State, 296 Ga. App. 570, 572 (2) (b) (675 SE2d 285) (2009). “[A] written request to charge a lesser included offense must always be given if there is any evidence that the defendant is guilty of the lesser included offense.” State v. Alvarado, 260 Ga. 563, 564 (397 SE2d 550) (1990). “However, when the evidence establishes all of the elements of the indicted offense and there is no evidence [showing] the lesser offense, there is no error in refusing to charge the lesser offense.” (Citation, punctuation and footnote omitted.) Anderson v. State, 264 Ga. App. 362, 365 (3) (590 SE2d 729) (2003).

A person commits reckless conduct when he

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

OCGA § 16-5-60 (b). In this case, Tiller’s defense theory was that the State did not prove “beyond a reasonable doubt that. . . Tiller was the one with the gun” and that it could have been somebody else. He did not assert that he fired the gun negligently, and the record contains no evidence that the gunman was negligent or pointed in a direction other than the victim. One witness’s testimony that she could not see at whom Tiller was shooting cannot be equated with affirmative evidence that Tiller was negligent or shooting into the air. Compare Shaw v. State, 238 Ga. App. 757, 759 (1) (519 SE2d 486) (1999) (witness testimony that defendant fired gun into air provided slight evidence warranting reckless conduct charge). The victim testified repeatedly that Tiller was shooting at him, and there is no affirmative evidence to the contrary. Consequently, a charge on reckless conduct was not warranted, and the trial court did not err by concluding that Tiller’s ineffective assistance claim had no merit. See Cain v. State, 288 Ga. App. 535, 537 (2) (654 SE2d 456) (2007) (reckless conduct charge not warranted where there was no evidence that defendant was negligent in firing the gun).

Decided February 1, 2012

Reconsideration denied March 1, 2012.

Jessica I. Benjamin, for appellant.

Layla H. Zon, District Attorney, Walter C. Howard, Assistant District Attorney, for appellee.

Judgment affirmed.

Mikell, P. J., and Dillard, J., concur.

       Although the jury also found Tiller guilty of possessing a firearm during the commission of a felony, the trial court granted his motion for a new trial on this charge based upon its failure to instruct the jury properly.

       This court is not bound by the State’s concession as it is for this court to determine whether Tiller is legally entitled to a new triad based upon the trial court’s erroneous charge. See, e.g., Busbee v. State, 205 Ga. App. 533, 534 (423 SE2d 3) (1992).

       OCGA § 17-8-58 (b) provides that a failure to make a contemporaneous and specific objection to a jury charge “shall preclude appellate review of such portion of the jury charge, unless such portion of the jury charge constitutes plain error which affects substantial rights of the parties. Such plain error may be considered on appeal even if it was not brought to the court’s attention as provided in subsection (a) of this Code section.”


author: McFadden, Judge.

text:
    A11A2361.
    WARREN v. THE STATE.
    (724 SE2d 404)
   McFadden, Judge.

Jimmie Lee Warren, Jr., was jointly tried with two co-defendants on a charge of trafficking in cocaine. After a jury trial, Warren was convicted of that offense. As detailed below, we find the evidence sufficient to support Warren’s conviction. We find no abuse of discretion in the trial court’s denial of Warren’s motions for mistrial, which he based on assertions that the state had made improper arguments and comments concerning his character. Finally, we find no error in the trial court’s denial of Warren’s motion to suppress cocaine found in his car. Accordingly, we affirm.

1. A person commits the offense of trafficking in cocaine when, inter alia, he or she is “knowingly in possession of 28 grams or more of cocaine or of any mixture with a purity of 10 percent or more of cocaine.” OCGA § 16-13-31 (a) (1). Warren contends that the court erred in denying his motion for directed verdict and that the evidence was insufficient to support his conviction for this offense because there was no evidence to show that he was knowingly in possession of cocaine found in his car.

Under Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560) (1979), when an appellant challenges the sufficiency of the evidence to support the conviction, “the relevant question is whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt.” (Emphasis in original.) Id. at 319 (III) (B). The denial of a motion for a directed verdict of acquittal is also reviewed under this standard. Slaughter v. State, 289 Ga. 790, 792-793 (2) (716 SE2d 180) (2011).

So viewed, the evidence showed that during a traffic stop on February 18, 2005, a sheriffs deputy found a package containing 497.1 grams of a mixture with a purity of 48.5% cocaine in a car owned and driven by Warren. Two other people were passengers in the car at the time. The deputy found the package under a back seat cushion in the car, where one of the passengers had been sitting.

Warren concedes that the fact that he owned and had been driving the car gave rise to a presumption that he possessed the cocaine found in it. See Johnson v. State, 268 Ga. App. 808, 809 (602 SE2d 840) (2004). Nevertheless, he argues that the evidence was insufficient to support his conviction and that he was entitled to a directed verdict of acquittal under the equal access rule, because the sole evidence of his possession of the cocaine was his ownership and possession of the car and because others had equal access to the part of the car where the cocaine was found. See Respress v. State, 267 Ga. App. 654, 655 (1) (600 SE2d 727) (2004).

The equal access rule, however, “is inapplicable when all persons allegedly having equal access to the contraband are alleged to have been in joint constructive possession of the contraband.” (Citations and punctuation omitted.) Davenport v. State, 308 Ga. App. 140, 146 (1) (b) (706 SE2d 757) (2011). Because the state charged all three occupants of Warren’s car with possession of the cocaine, the state was entitled to rely on the presumption to show that Warren (as the car’s owner and driver) exercised possession and control over the cocaine, and Warren was not entitled to rely on the equal access rule to rebut that presumption. See Ramirez v. State, 290 Ga. App. 3, 4-5 (1) (658 SE2d 790) (2008).

Warren also argues that there was evidence that he had only recently purchased the car. He cites Fears v. State, 169 Ga. App. 172 (312 SE2d 174) (1983), for the proposition that the presumption that a car’s owner or driver possessed contraband found therein “does not apply where there is evidence in the case that the defendant has not been in possession of the vehicle for a period of time prior to the discovery of the contraband.” (Citation and punctuation omitted.) Id. at 173 (1). There was evidence in Fears, however, that the defendant had been in possession of the car for only four hours before contraband was found therein, id. at 172-173 (1), while there was evidence here that Warren had purchased his car a month before the discovery of the cocaine. Moreover, there was evidence here that the package containing the cocaine created a perceptible bulge under the back seat cushion. Whether evidence that the car’s prior owner had equal access to the cocaine was sufficient to overcome the presumption of Warren’s possession was a question for the fact-finder. See Turner v. State, 277 Ga. App. 205, 207 (1) (626 SE2d 176) (2006). The jury, which had been instructed on the equal access doctrine, was entitled as factfinder to reject Warren’s suggestion that the car’s prior owner had equal access to the cocaine and to determine instead that the presumption of Warren’s possession of the cocaine had not been rebutted. See Cannon v. State, 211 Ga. App. 835, 836 (440 SE2d 723) (1994).

Accordingly, the evidence was sufficient to authorize Warren’s conviction for trafficking in cocaine, and the court did not err in denying Warren’s motion for a directed verdict of acquittal. See Ramirez, 290 Ga. App. at 4 (1); Davis v. State, 270 Ga. App. 777, 779 (1) (607 SE2d 924) (2004); Cannon, 211 Ga. App. at 837.

2. Warren argues that the court “erred in failing to grant a mistrial to [him] when improper arguments and comments were made by the State throughout the trial, which impermissibly and prejudicially brought [his] character into evidence.” “Whether to grant a mistrial is a matter within the discretion of the trial court, and that discretion will not be interfered with on appeal unless it is apparent that a mistrial is essential to the preservation of the right to a fair trial.” (Citation and punctuation omitted.) Belton v. State, 270 Ga. 671, 672 (2) (512 SE2d 614) (1999).

(a) At several points during the trial, Warren moved for a mistrial but did not renew his motions after the trial court denied the motions but issued curative instructions. Consequently, he cannot complain of the trial court’s failure to grant those motions for mistrial. See Reese v. State, 289 Ga. 446, 449 (4) (a) (711 SE2d 717) (2011).

In any event, Warren has not shown by the record that in any of these instances a mistrial was essential to the preservation of his right to a fair trial. The trial transcript does not include the remarks made by the state during its opening statement and closing argument that prompted some of the mistrial motions. See Powell v. State, 198 Ga. App. 509, 512 (2) (402 SE2d 108) (1991) (appellant failed to show by the record that trial court abused its discretion in denying motion for mistrial based upon state’s remarks in closing argument where transcript did not include text of objected-to remarks). Another of the motions was prompted by testimony elicited by Warren’s own counsel on cross-examination. To the extent counsel’s question solicited the testimony, Warren cannot complain of it, see Crozier v. State, 263 Ga. 866, 868 (3) (440 SE2d 635) (1994), and to the extent the testimony was not responsive to the question, it did not require a mistrial. See Reese, 289 Ga. at 450 (4) (a) (“[A] nonresponsive answer that impacts negatively on a defendant’s character does not improperly place [the defendant’s] character in issue.”) (citation and punctuation omitted). Finally, another of the motions concerned the prosecutor’s question to a police officer, after that witness had testified about a statement made by one of Warren’s co-defendants, whether the officer had ever been lied to by persons who were in custody and charged with “this type of offense.” But the witness did not answer the question and, upon objection, the prosecutor withdrew the question and the trial court instructed the jury to disregard it. Under these circumstances, the court did not abuse its discretion in denying the motion for mistrial. See Berry v. State, 210 Ga. App. 789, 791 (4) (437 SE2d 630) (1993) (an unanswered question does not furnish grounds for a mistrial).

(b) Warren contends that the state attempted to place his character in evidence “by innuendo” when the prosecutor asked a witness about a bag of marijuana taken from one of Warren’s co-defendants. That co-defendant was charged with possession of marijuana. The trial court ruled that the state could not admit the bag of marijuana into evidence because the parties already had stipulated to it, but it overruled Warren’s objection to any mention of the marijuana and denied his motion for mistrial. We find no abuse of discretion, given the relevance of testimony about marijuana to the charge against Warren’s co-defendant and the court’s earlier instruction to the jury that Warren was not charged with possession of marijuana and that “any mention of marijuana [was] not to be considered in any way prejudicial toward [Warren].” See Miller v. State, 236 Ga. App. 161, 163 (2) (511 SE2d 552) (1999).

(c) Partway through the state’s closing argument, after the state made a reference to marijuana, Warren’s counsel stated that he was making a continuing objection, and the court replied, “So noted, and the jury has been instructed.” At several earlier points during the trial, including during closing argument, the court had instructed the jury that Warren was not charged with a marijuana offense and that any references to marijuana should not reflect on Warren. When he made the continuing objection during closing argument, Warren’s counsel did not articulate the specific nature of the objection or expressly move for a mistrial. Assuming that the objection constituted a motion for mistrial based upon the injection of Warren’s character through the state’s reference to marijuana in its closing argument, we find no abuse of discretion in the trial court’s failure to grant a mistrial. Arguments referring to marijuana were appropriate in the case given that one of Warren’s co-defendants was charged with a marijuana offense and evidence had been introduced on that issue, and the court had clearly and repeatedly instructed the jury that the evidence and argument regarding marijuana related to the co-defendant, not to Warren. See Miller, 236 Ga. App. at 163 (2).

(d) Warren argues that other statements made by the state during its closing argument also improperly injected his character into evidence and merited a mistrial. He asserts that the state’s closing argument

ran the gamut of impropriety from making comparisons to other unrelated and prejudicial cases, such as a reference to the Scott Peterson case; blaming the drug problem of Meriwether [Clounty on [Warren and his co-defendants]; characterizing [Warren and his co-defendants] as sellers of drugs to the jurors’ kids, women, husbands, and relatives; and lastly, to a personal attack on Mr. Warren and his attorney, characterizing them as having the demeanor of nervousness, misdirection, and mass confusion.

While we do not condone “any argument that unnecessarily impugns the integrity of opposing counsel, even if obliquely,” Gissendaner v. State, 272 Ga. 704, 713 (10) (a) (532 SE2d 677) (2000), the record in this case does not reflect that Warren’s counsel moved for mistrial based upon the prosecutor’s disparaging remarks concerning counsel or based upon any other of the above-enumerated remarks during the closing argument. Nor does the record show that the trial court considered on its own whether to grant a mistrial on account of any of these remarks. “Inasmuch as we are a court for the correction of errors, we do not consider issues which were not raised below and ruled on by the trial court.” (Citation and punctuation omitted.) Kaiser v. State, 285 Ga. App. 63, 69 (2) (646 SE2d 84) (2007).

3. Warren contends that the trial court erred in denying his motion to suppress the cocaine found during the search of his car. On reviewing a trial court’s ruling on a motion to suppress, evidence is construed most favorably to uphold the findings and judgment, and the trial court’s findings on conflicting evidence should not be disturbed if there is any evidence to support them, and its decisions regarding questions of facts and credibility must be accepted unless clearly erroneous. Tate v. State, 264 Ga. 53, 54 (1) (440 SE2d 646) (1994). But “where the evidence is uncontroverted and no question regarding the credibility of witnesses is presented, the trial court’s application of the law to undisputed facts is subject to de novo appellate review.” (Citations omitted.) Vansant v. State, 264 Ga. 319, 320 (1) (443 SE2d 474) (1994).

So construed, the evidence showed that a law enforcement officer observed the car driven by Warren traveling 40 to 50 miles per hour in the fast lane of an interstate highway with traffic backed up behind it, thereby impeding the flow of traffic. He then observed the car abruptly change lanes and begin following another car too closely, before changing back to the fast lane and again impeding the flow of traffic. At that point, the officer initiated a traffic stop. When he approached the car, the officer immediately noticed an odor of burnt marijuana. He also noticed that one of the car’s occupants appeared nervous, that Warren and the front seat passenger were “breathing harder than normal” and “would not make eye contact” with him, and that Warren “kept popping the trunk” of the car. The officer told the car’s occupants that he “smelled weed inside the car.” He also asked the occupants for identification and sought consent to search the car, which Warren denied.

The officer returned to his patrol car and contacted his sergeant; he informed the sergeant that he smelled marijuana in the car but that the driver had refused consent to search, and he requested backup. He then brought a drug detection dog out of his patrol car. The dog indicated the presence of contraband inside the car. The officer then searched the car and found the package subsequently determined to contain cocaine.

Warren argues that the cocaine should have been suppressed because the officer had no articulable suspicion for stopping his car. The officer’s testimony, however, authorized a finding that he saw Warren committing the traffic violations for which Warren received either a warning or citation — impeding traffic, OCGA § 40-6-184 (a), and following too closely, OCGA § 40-6-49. “It is axiomatic that a police officer who observes a traffic violation is authorized to conduct a traffic stop of the vehicle in question.” (Citations omitted.) Young v. State, 310 Ga. App. 270, 272 (712 SE2d 652) (2011). Warren argues we should reverse the trial court’s denial of the motion to suppress because he asserts the officer’s testimony about witnessing these violations was internally inconsistent. He cites State v. Parke, 304 Ga. App. 124 (695 SE2d 413) (2010), in support of this argument. In Parke, however, we held that we would not disturb the trial court’s findings based upon conflicting witness testimony regarding whether the defendant had committed the offense of impeding the flow of traffic. Id. at 127. It was for the trial court, sitting as finder of fact, to gauge the credibility of the officer’s testimony that he observed Warren commit a traffic violation; the court found the officer to be credible on this point, and we find no abuse of discretion requiring us to disturb that finding in this case. See Tate, 264 Ga. at 54 (1).

Warren also contends that his detention was illegal because it exceeded the scope of permissible investigation for the traffic stop. See Sommese v. State, 299 Ga. App. 664, 668 (1) (683 SE2d 642) (2009) (investigative stop of vehicle cannot be unreasonably prolonged beyond time required to fulfill purpose of stop). We disagree. When the officer smelled marijuana and observed Warren’s appearance and demeanor, he had reasonable articulable suspicion to further detain Warren to investigate possible criminal activity. Bailey v. State, 283 Ga. App. 365, 368-369 (2) (641 SE2d 548) (2006); Cole v. State, 254 Ga. App. 424 (1) (562 SE2d 720) (2002). And both the smell of burnt marijuana in the car’s vicinity and the dog’s indication of the presence of contraband established probable cause for the officer to believe that Warren was in possession of illegal drugs within his car, authorizing the subsequent search of the car’s interior. Tanner v. State, 281 Ga. App. 101, 104 (1) (635 SE2d 388) (2006); Williams v. State, 273 Ga. App. 637, 638-639 (1) (615 SE2d 789) (2005).

Decided February 16, 2012

Reconsideration denied March 1, 2012

Virgil L. Brown, for appellant.

Peter J. Skandalakis, District Attorney, Robert N. Peter kin, Assistant District Attorney, for appellee.

Judgment affirmed.

Phipps, P. J., and Andrews, J., concur.


author: Andrews, Judge.

text:
    A11A1539.
    TERRELL v. PIPPART.
    (724 SE2d 802)
   Andrews, Judge.

Phyllis Terrell appeals after a jury awarded her former fiancé Christopher Pippart $94,000 on his quantum meruit claim and $12,000 in attorney fees. For reasons that follow, we affirm the quantum meruit award, vacate the award of attorney fees, and remand.

The evidence at trial, taken in the light most favorable to the verdict, was that Pippart and Terrell were engaged to be married when Pippart began building a house on land owned by Terrell’s father. The money to build the house came from Pippart and Pippart’s mother, with the understanding that Pippart’s mother would live in the house with Pippart and Terrell. After the house was built, Thomas Terrell deeded the land to his daughter. Shortly afterward, Terrell broke her engagement to Pippart.

Pippart sued for breach of contract, specific performance, quantum meruit, and attorney fees. The claims of quantum meruit and attorney fees were the only claims that went to the jury.

Terrell filed a motion for judgment notwithstanding the verdict, or for new trial, which the tried court denied. She now appeals.

1. We first address Terrell’s contention that the trial court erred in denying her motion for j.n.o.v. or for new trial on Pippart’s claim of quantum meruit. In order to recover on a claim for damages based upon quantum meruit, Pippart had to present evidence that (1) his services were valuable to Terrell; (2) his services were either at the request of Terrell or were knowingly accepted by Terrell; (3) Terrell’s receipt of the services without compensating Pippart would be unjust; and (4) Pippart expected compensation for his services at the time he provided them. Memar v. Jebraeilli, 303 Ga. App. 557, 560 (694 SE2d 172) (2010).

Terrell argues that Pippart did not satisfy the fourth requirement because there was no evidence that he expected compensation when he built the house. We disagree.

Pippart’s complaint states that he did expect compensation in that he would receive joint ownership of the house and property after the house was built. Pippart testified at trial that he expected to receive the property and the house after he and Terrell were married. Further, Pippart testified that Terrell’s father told him that he would deed the land to Pippart and Terrell after they married. Accordingly, there was evidence to support the jury’s award, and the trial court did not err in denying Terrell’s motion for j.n.o.v. on Pippart’s claim for quantum meruit.

2. Terrell argues that the jury’s award of attorney fees under OCGA § 13-6-11 cannot be supported because counsel failed to delineate the amount of time spent on the one successful cause of action. Pippart’s counsel testified only to his total fees, which were $23,000 to $24,000.

The trial court did not address the merits of this argument, holding instead that Terrell did not object to this evidence, did not object to the jury charge on the evidence, and did not object to the sufficiency of the verdict. But the transcript shows that it was raised and argued immediately after the attorney testified. Terrell’s counsel moved for a directed verdict, correctly pointing out that defense counsel did not testify as to how much of the lump sum would be attributable to the quantum meruit claim. After hearing the argument, the court stated: “I’m reserving the issue on the attorney fees.” At the start of the charge conference the court stated that it would call the law clerk “about the attorney’s fees issue.” The court later stated that it had decided “to submit the [attorney fees] issue to the jury, and the motion is denied.” As to objections to the jury charge, the court stated that those were noted for the record and were “preserved.”

Accordingly, the transcript shows that Terrell’s attorney moved for a directed verdict on this issue, pointing out that numerous claims were brought against his client and also against Terrell’s father that did not go to the jury. The trial court initially declined to rule on the motion but later denied it. Therefore, this issue was raised and ruled on below and thus was preserved for appeal.

As the Supreme Court made clear in United Cos. Lending Corp. v. Peacock, [267 Ga. 145 (475 SE2d 601) (1996),] attorney fees [under OCGA § 13-6-11] and other expenses of litigation may only be awarded as to claims on which the plaintiff is successful. In United, the Supreme Court stated that a prerequisite to any award of attorney fees under OCGA § 13-6-11 is the award of damages or other relief on the underlying claim. Thus, where plaintiffs prevailed and were awarded damages under only one of the six counts initially sought, the lump-sum award of attorney fees was reversed and remanded to the trial court for an evidentiary hearing in order that it be limited to the amount attributable solely to the claim in which plaintiffs prevailed.

Monterrey Mexican Restaurant of Wise v. Leon, 282 Ga. App. 439, 452 (638 SE2d 879) (2006).

Accordingly, because the evidence of attorney fees was in a lump sum and Pippart did not prove the amount of attorney fees attributable to his successful quantum meruit claim, we reverse the attorney fees’ award and remand the case to the trial court to allow Pippart to establish the amount of attorney fees attributable to the claim on which he prevailed. See David C. Joel, Attorney at Law, PC. v. Chastain, 254 Ga. App. 592, 597 (562 SE2d 746) (2002).

3. Terrell also claims that the trial court erred in excluding her sister Terri Parker’s opinion testimony concerning the cost of moving the house. The transcript shows that Parker testified that the family had been trying to get the house moved. Parker was asked if she had investigated moving the house and she replied that she had. Counsel then asked: “Do you have any idea about how much that would cost?” Pippart’s counsel objected to the question. The trial court sustained the objection on the grounds that Parker would be testifying as to “what somebody else told her it would cost to move that house” and that was “rank hearsay.”

“Evidence of value is not to be excluded merely because the valuation fixed by the witness as a matter of opinion depends on hearsay. . . . Market value may rest wholly or in part upon hearsay, provided the witness has had an opportunity of forming a correct opinion.” B & L Svc. Co. v. Gerson, 167 Ga. App. 679, 681 (307 SE2d 262) (1983). See also Four Oaks Properties v. Carusi, 156 Ga. App. 422, 424 (274 SE2d 783) (1980), holding that even though appellees’ opinions were based on hearsay, they “could offer their opinions inasmuch as they provided the reasons therefor and had an opportunity to form a correct opinion.”

Accordingly, the trial court incorrectly ruled the evidence inadmissible because it was based on hearsay. We cannot say from the record, however, that the evidence should have been admitted.

OCGA § 24-9-66 authorizes the admission of lay opinion testimony on the issue of market value, if the witness has had an opportunity for forming a correct opinion thereon. We have held that the opinion of a layperson as to value may be based on hearsay, and that this fact goes to the weight of the opinion rather than its admissibility. A witness seeking to give an opinion as to value, however, must demonstrate that the opinion is his or her own, and not merely a recitation of the opinion of another.

Martha K. Wayt Trust v. City of Cumming, 306 Ga. App. 790, 791 (702 SE2d 915) (2010).

“The question of whether a witness has established sufficient opportunity for forming a correct opinion or has stated a proper basis for expressing an opinion is for the trial court.” Smith v. Millen Properties, 179 Ga. App. 165 (345 SE2d 625) (1986). Here, although Parker testified that she had investigated the cost of moving the house, there was no evidence from which the court could determine that she had a proper basis for forming a correct opinion. Parker did not own the property, was not a party in the case, had no knowledge of the cost of moving a house, and did not state that she had obtained an estimate of the cost of moving the house. See Johnson v. State, 156 Ga. App. 411, 413 (274 SE2d 778) (1980) (owner of truck had not received estimate on the replacement value of the windows and therefore his evidence of the cost to replace the truck window was inadmissible). See also Wayt, supra at 791 (court found that the proffer did not demonstrate a sufficient foundation for Wayt to give a lay opinion on the cost to build the bridge, because it did not show that Wayt had a sufficient opportunity to form a correct opinion on the issue).

Decided March 1, 2012.

Clark & Williams, Jason R. Clark, Nathan T. Williams, Ashley E. Browning, for appellant.

Ferrier & Ferrier, Joseph H. Ferrier, Crystal R. Ferrier, for appellee.

Terrell claims on appeal that, had she been allowed to continue, Parker would have testified that she contacted various home movers and received estimates of cost. There is nothing in the record before us to support this statement, however, because the proffer, if any, was not made on the record.

Further, even if the testimony was excluded in error, the error was harmless. Terrell claims that evidence of the cost to move the house goes to her counterclaim for ejectment, but this claim was not before the jury and is not relevant in proving an award under a claim of quantum meruit. The award in a quantum meruit claim is based on the “reasonable value” of the work. Zampatti v. Tradebank Intl. &c. Corp., 235 Ga. App. 333, 340 (508 SE2d 750) (1998). “The finder of fact must determine in what amount the party receiving was benefitted or enriched by the materials and services.” Langford v. Robinson, 272 Ga. App. 376, 380 (612 SE2d 552) (2005). The cost to move the house is not relevant to the reasonable value of the work performed by Pippart.

Accordingly, we conclude that there was no reversible error in the trial court’s exclusion of the testimony.

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

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

       “On appeal from the denial of a motion for a directed verdict or for j.n.o.v., we construe the evidence in the light most favorable to the party opposing the motion, and the standard of review is whether there is any evidence to support the jury’s verdict.” Park v. Nichols, 307 Ga. App. 841, 845 (706 SE2d 698) (2011).

       Here, Pippart testified that the cost of labor and materials to build the house was $104,907.64. An appraiser testified that the house itself was worth $94,000, and that was the amount awarded by the jury.


author: MlKELL, Presiding Judge.

text:
    A11A1895.
    BOWERMAN v. BOWERMAN.
    (724 SE2d 481)
   MlKELL, Presiding Judge.

Melissa Bowerman appeals from the trial court’s order of April 29, 2011, holding her in contempt of her and Dr. Scott Bowerman’s divorce and custody decree and subsequent orders of the court regarding custody rights and visitation.

Melissa Bowerman and Dr. Scott Bowerman were divorced in September 2006 by a final judgment and decree that incorporated a previously executed 28-page settlement agreement between the parties. A subsequent order of May 29, 2007, was entered, making certain modifications to visitation by Dr. Bowerman with the two children of the marriage, a daughter, B. L. B. (born September 28, 1994), and a son, B. S. B. (born April 11, 1996), and to the counseling requirement for the parties and their children contained in the final judgment and decree. This order was also entered pursuant to the agreement of the parties.

Dr. Bowerman filed his petition for contempt in 2009, and Melissa Bowerman filed a counterclaim for contempt. On October 29, 2009, the trial court entered its interim order on petition for contempt and counterclaim for contempt, holding both parties in contempt for failing to comply with the divorce decree and ordering that Melissa Bowerman

shall not interfere with the father’s visitation rights as established in the Divorce Decree, as modified by previous Order of this Court, including without limitation weekend, weekday, and holiday visitation . . . ; shall provide school uniforms, books and assignments to the children during periods of the father’s visitation; [and] shall provide the children’s medical bills to the father.

The order further directed that both parties “shall promptly notify the other of special events in the children’s lives as well as physical injuries and medical care to the children.” By separate order of the same date, the court also appointed Susan Boyan, a licensed marriage and family therapist, “to serve as a parenting coordinator in this action.” The order also noted that the “action shall remain pending until the Court’s receipt of reports from the parent coordinator.”

On March 22, 2011, Dr. Bowerman filed a first amendment to the petition for contempt, attaching a copy of the “non-compliance memo” of Susan Boyan dated March 11, 2011, detailing the actions of Melissa Bowerman in refusing to cooperate with the counseling process and her continuing efforts to alienate the children from Dr. Bowerman. Following a hearing before the trial court on April 25, 2011, during which Susan Boyan, Nancy McGarrah, Ph.D., and the parties testified, the trial court entered the order at issue here.

A trial court’s ruling on a motion for contempt will be affirmed on appeal if there is any evidence to support it.

1. In her first enumeration, Melissa Bowerman contends that the trial court erred in finding her in contempt “by failing to articulate which specific provision of any prior order” she had violated.

As set out above, the trial court’s judgment and decree in September 2006 incorporated the agreement of the parties regarding their responsibilities toward the children and each other. That order was modified by the order of May 29, 2007, which also states that the parties thereto had “entered into an agreement to resolve all matters and issues” presented to the court at that time.

Where parties have agreed to resolve their dispute and entered into a written agreement specifying the terms by which they have done so, “a trial court should make that settlement the judgment of the court[.]”

In ruling on a motion for contempt, a trial court is not required to enter findings of fact and conclusions of law. Also, having entered into agreements including very specific, all-encompassing requirements including express language of command directed at both parties, it is difficult to conceive that Melissa Bowerman was unaware of her obligations under the orders. Because the orders incorporated the terms of the agreements, she was clearly informed of the duties she assumed.

Further, “[i]t is only necessary that the order specify sufficient facts to show that the respondent was in contempt of court.” The order finding Melissa Bowerman in contempt satisfies this requirement.

2. Melissa Bowerman’s second and sixth enumerations of error are dependent on our review of the hearing in order to evaluate them. She, however, did not include a transcript of this hearing in the record before us, and we are, therefore, unable to do so.

“It is axiomatic that one seeking reversal must show not only error but also harm. Failure to show harm vitiates any possible error.”

3. In her third and fourth enumerations of error, Melissa Bowerman urges that the trial court erred in modifying summer visitation by giving Dr. Bowerman primary physical custody during that time and by modifying legal custody by encroaching upon her right to have the final decision regarding the children’s healthcare. They are considered together.

(a) Although Melissa Bowerman is correct that a trial court may not modify a previous decree and judgment of divorce in a contempt proceeding, a trial court “is expressly authorized to modify visitation rights, even on its own motion, during a contempt proceeding.”

The original agreement between the parents provided that Dr. Bowerman “shall have the children alternating weeks during the summer months after school is in recess for the summer.” In the order at issue, the trial court ordered that Dr. Bowerman “shall have visitation with [B. S. B.] for six weeks during summer vacations in blocks of no more than two weeks, with no less than two days between visitation blocks.” The addition of two weeks of summer visitation with his son does not, as argued by Melissa Bowerman, effect a change in primary physical custody of the child to Dr. Bowerman.

Modification of child visitation rights is a matter of discretion with the trial court. If reasonable evidence exists in the record to support the trial court’s decision to change visitation rights, then the decision of that court will stand. The trial court’s decision will not be overturned absent abuse of discretion.

Again, we are unable to review the evidence presented at the hearing below and, therefore, Melissa Bowerman has failed to show harm from any alleged error. We find no merit in this enumeration.

(b) Regarding health care decisions, the agreement of the parties, made part of the judgment and decree of the court, provided that “[b]oth parents shall have equal rights and responsibilities for major decisions concerning the children, including the children’s . . . healthcare . . . ; provided, however, should the parties not be able to agree after conferring with one another, then the Mother shall have the right to make the final decision.” (Emphasis supplied.)

In the order at issue, the trial court did not make any modifications to this provision which, on its face, grants equal rights to the parties unless they are unable to agree regarding healthcare. The trial court did order that Dr. Bowerman and his daughter enter into counseling. Such a direction does not alter legal custody, as argued by Melissa Bowerman.

In her argument here, Melissa Bowerman quotes extensively from an affidavit from B. L. B. contained in the record. Since, however, B. L. B. did not testify at the contempt hearing, denying her father the right to cross-examine her, we will not consider the affidavit here.

The cases relied upon by Melissa Bowerman here are distinguishable.

4. The trial court granted $5,800 in attorney fees and expenses to Dr. Bowerman and ordered that Melissa Bowerman reimburse him for his payments to Susan Boyan in the amount of $3,400. Melissa Bowerman’s fifth enumeration is that the trial court erred in ordering that Dr. Bowerman “[m]ay deduct the total amount, $9,200.00, from the payment of periodic alimony [$10,000 per month] at the rate of $1,500.00 per month.”

“We will not disturb the trial court’s decision awarding attorney fees ‘unless it can be clearly shown by the appellant that the trial court committed grievous error or a gross abuse of discretion.’

Nonetheless,

after a decree for permanent alimony has become absolute, there is no authority given under the law by which a trial court is empowered to abrogate or modify the obligation imposed by the decree, unless such a right has been reserved by consent of the parties in the final decree itself, or an action is brought as provided under [OCGA §§ 19-6-18 through 19-6-25].

Therefore, we find this provision of the order of contempt to be such a grievous error and reverse this portion of the trial court’s order.

Decided March 1, 2012.

Patricia B. Ball, Allyson C. Russell-Blair, for appellant.

Brinson, Askew, Berry, Seigler, Richardson & Davis, Frank H. Jones, for appellee.

Judgment affirmed in part and reversed in part.

Dillard and Boggs, JJ., concur.

       Because an application for contempt is a motion and not a complaint, a party may not file a counterclaim or cross-claim. Brown v. King, 266 Ga. 890, 891 (1) (472 SE2d 65) (1996). No objection to this procedure, however, was voiced by Dr. Bowerman, and it was thereby waived. See Spratt v. Henderson Mill Condo. Assn., 224 Ga. App. 761, 765 (3) (b) (481 SE2d 879) (1997).

       No transcript of this hearing has been submitted for our consideration.

        Earle v. Earle, 312 Ga. App. 139, 140 (717 SE2d 720) (2011).

       (Citation and punctuation omitted.) McClain v. George, 267 Ga. App. 851, 854 (2) (600 SE2d 837) (2004).

        Brown, supra at 891 (1); Hines v. Hines, 237 Ga. 755, 756 (1) (229 SE2d 744) (1976).

        Ruskin v. AAF-McQuay, Inc., 294 Ga. App. 842, 844 (670 SE2d 517) (2008).

       (Citation and punctuation omitted.) Id.

       (Citations and punctuation omitted.) McClain, supra.

       (Citation and punctuation omitted.) Carlson v. Carlson, 284 Ga. 143, 144 (663 SE2d 673) (2008); see also OCGA § 19-9-3 (b).

       (Punctuation and footnotes omitted; emphasis supplied.) Gildar v. Gildar, 309 Ga. App. 730, 731-732 (710 SE2d 913) (2011).

        McClain, supra.

        Growth Properties of Fla. v. Wallace, 168 Ga. App. 893, 899 (4) (310 SE2d 715) (1983) (“[E]x parte affidavits should not be allowed in evidence in any trial where the evidence is finally adjudicated because it denies the privilege of cross-examination as allowed by OCGA § 24-9-64.”) (citations and punctuation omitted).

        Pineres v. George, 284 Ga. 483 (1) (668 SE2d 727) (2008) (Trial court erred “when it shifted final decision-making authority regarding their minor son’s health care to their co-parenting counselor!.]”); McCall v. McCall, 246 Ga. App. 770, 773 (2) (542 SE2d 168) (2000) (By granting new rights and entitlements to the noncustodial parent, “the trial court effectively granted a change in custody equivalent to ‘joint legal custody.’ ”) (footnote omitted).

       (Citation omitted.) Waits v. Waits, 280 Ga. App. 734, 735 (634 SE2d 799) (2006).

       (Citations and punctuation omitted.) Anderson v. Anderson, 230 Ga. 885, 886 (199 SE2d 800) (1973).