text:
    A13A0014.
    RAYMOND v. THE STATE.
    (745 SE2d 689)
   Miller, Judge.

James Raymond, convicted by a jury of 21 counts of theft by taking (OCGA § 16-8-2), appeals from the trial court’s denial of his motion for new trial, contending the following: the evidence was insufficient to sustain his convictions; the trial court improperly admitted voluminous records of Western Union and MoneyGram as business records; the trial court failed to impose penalties for discovery violations; and his trial counsel rendered ineffective assistance. We discern no error and affirm.

1. Raymond argues that the evidence is insufficient to sustain his conviction. We disagree.

On appeal from a criminal conviction, we view the evidence in the light most favorable to the verdict and the defendant no longer enjoys a presumption of innocence. We neither weigh the evidence nor judge the credibility of witnesses, but determine only whether the evidence was sufficient for a rational trier of fact to find the defendant guilty of the charged offense beyond a reasonable doubt. Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560) (1979).

(Citation omitted.) Stepho v. State, 312 Ga. App. 495, 496 (718 SE2d 852) (2011).

So viewed, the evidence was that Raymond was the incorporator and president of Vision for Kids, Inc., d/b/a Caribbean Food Store (CFS), a small convenience store in Austell licensed to service Western Union and MoneyGram customers and to provide wire transfer of monies. On May 16, 2006, Raymond signed an agency agreement on behalf of CFS with Western Union for the purpose of wiring and receiving money via a Western Union terminal at CFS. A Western Union agent testified that someone wanting to send money would go to a Western Union location and fill out a to-send-money form including the recipient’s name, the amount of money being sent, and other information. The clerk then typed that information into the Western Union terminal where it was stored in a database until the recipient went to the receiving location, completed a to-receive-money form including their name, address, phone number, the sender’s name, amount expected, and the origin of the money. The recipient was required to present a government issued photo identification to the Western Union agent.

“JAM” was the operator identification used by Raymond for Western Union transactions. The evidence showed that “JAM” was involved in 140 Western Union wire transfers for products or services that were not produced or rendered.

On December 4, 2007, Raymond’s brother, Livingston Raymond, signed an agency agreement on behalf of CFS with MoneyGram, another company providing wiring and receiving of funds services through a terminal at CFS. To use MoneyGram, the sender would go to the agent’s location, fill out a form, pay a fee, and the money would be transmitted to the designated individual. The recipient could go to any MoneyGram terminal in the United States and would need a reference number to obtain the money and would have to present identification if the amount were over $900.

The evidence showed that from January 28, 2008 through September 28, 2008, on 445 occasions, individuals wired funds through MoneyGram from all over the United States to different locations in Georgia and all of the funds were received at CFS by “JAMES,” the MoneyGram operator identification for James Raymond.

Seventeen people who had wired money via MoneyGram and not received their purchase or service testified. All of the funds which they wired were received at CFS by “JAMES.”

Erica Jackson of Eufaula, Alabama was looking on the internet for a loan in March 2008. Jackson was advised that she had been approved for a $25,000 loan, but would have to pay a fee. Jackson sent approximately $1,000 through MoneyGram on March 4, but did not receive her loan or the return of her money.

Angela Morris of Hephzibah, Georgia also found a loan on the internet which she believed was through Principal Financial Group. On March 28, 2008, Morris sent $662 via MoneyGram to Cynthia Miller in New York City. Morris did not receive her loan or the return of her money.

In May 2008, Theresa Baxter of Hiram, Georgia was looking online for a vehicle. Baxter inquired about a Jeep Wrangler she found and was advised that the owner had received the Jeep in a divorce and wanted to sell it. Upon receipt of an “ebay motors” invoice, Baxter wired $3,650 to Edgard Doris in San Diego on May 1. Baxter did not receive the car or her money back.

In order to pay for his daughter’s surgery, Jeremy McCown of Gadsden, Alabama went online seeking a loan and, on May 1, 2008, he sent $845.75 to New York City through MoneyGram. McCown never received his loan nor did he get his money back.

In May 2008, Andrew Fountain of Acworth, Georgia found two jet skis for sale on craigslist for $4,900. Fountain also received an e-mail that appeared to be from ebay, directing him to send the money to a man in North Carolina. Fountain sent the $4,900 via Money-Gram on May 14, 2008, but did not receive the jet skis or his money back.

Leindy Godfrey of Dallas, Georgia located a truck on craigslist that she wanted to get for her husband. After exchanging e-mails and receiving an e-mailed invoice from “ebay motors,” on May 15, 2008, Godfrey sent $4,000 via MoneyGram to Robert Milford in San Jose, California. Godfrey did not receive the truck or her money back.

Justin Loriss of North Charleston, South Carolina located a BMW on craigslist and, on May 17, 2008, he sent his payment of $10,000 through MoneyGram. Loriss did not receive the BMW or his money back.

Michael Eckhoff of Albertville, Alabama, was selling a truck and received a check in payment for it. The check, which he deposited into his account, included the cost of the truck plus shipping costs. In May 2008, Eckhoff, as instructed by the purchaser, sent $8,500 via three MoneyGrams to Georgia recipients. The check that Eckhoff had deposited in his account bounced for insufficient funds. Eckhoff did not receive any of his $8,500 back.

In June 2008, Carnell Spurlock from Cocoa Beach, Florida, who left Louisiana after Hurricane Katrina, was looking online to replace his flooded-out car. He found a car and contacted the seller, identified as Ashley McKeithen, who said she was recently divorced and was selling a Honda. Spurlock sent payments totaling $5,500 through MoneyGram to a Mat Stamper in New York. He did not receive the car or return of his money.

In June 2008, Diana Fraden of Atlanta contacted a woman she located on a website to help obtain a loan to pay medical bills. The woman sent Fraden forms which Fraden filled out and faxed back. Fraden sent $500 via MoneyGram as her first payment for the loan to another person whose name the woman provided. Fraden did not get her loan nor did she receive her money back.

Meredith Metz, a student living in Alpharetta, found a listing for a Mercedes e500 for $5,000 on craigslist in August 2008. According to the information provided, the seller, Alicia Taylor in Arizona, had just gone through a divorce and needed a family car, so she was selling the Mercedes at a discount. Metz wired $5,000 to Arizona on August 28, but did not receive the car or the return of her money.

William E. Hodge of South Carolina was looking online for a loan and, on August 29, 2008, he sent $745 via MoneyGram as a fee, but he did not receive his loan or the return of his money.

In September 2008, Robert McCardel of Woodstock located a Honda Accord at a reasonable price on craigslist. According to an e-mail received by McCardel, the seller was selling the car due to a recent divorce. McCardel wired $2,400 to Aaron McAllister, but did not receive the Honda or his money back.

Sherri Williams of Warner Robins, Georgia located two Yorkies on petfinders.com that she wanted to purchase. She sent two Money-Grams, one for $665 and then one for $380, but did not receive the dogs or her money back.

In September 2008, Jose Paz-Bascas sent $5,000 via Money-Gram to James Schram in Texas to purchase an automobile through ebay. He did not receive the automobile or his money back.

Having seen a Honda on craigslist in which he was interested, Brandon Jass of Norwalk, Iowa sent $3,500 through MoneyGram to purchase it on September 20, 2008. He did not receive the Honda or his money back.

In September 2008, Shentago Reed of Albany, Georgia found a 2002 Ford F-150 on AutoTrader which was being sold due to a divorce. As directed, he sent $4,300 via MoneyGram for the truck. He did not receive the truck or his money back.

Raymond set up a bank account at North Georgia Bank on April 6, 2006 in the name of CFS, and he was the only authorized signatory on the account. When the Western Union agency agreement was set up on May 16, 2006, this bank account was listed as the authorized account for this purpose. Deposit records for 2006 and 2007 showed that thousands of Western Union checks made out to different individuals were deposited into Raymond’s account. Additionally, upon executing the search warrant at CFS, officers found boxes of receipts for Western Union and MoneyGram transactions. All but a few of the documents found in these records had the customers’ receipts still attached. A Cobb County investigator located in these documents the receipts for the 63 complaints that had been received by her office of MoneyGram transfers where products or services were not received. Although the investigator attempted to locate the 63 people who were listed on the MoneyGrams as having received the money, she was unable to find any of them. Officers also seized numerous Western Union receipts. Numerous recipients were listed on the Western Union receipts as having picked up the funds, and all were signed by Raymond as the agent.

When Raymond was arrested on September 26, 2008, he had two deposits prepared, one for $8,102 for a Wachovia account for South Cobb Package Store, at the same address as CFS, and one for $40,217 for a Wachovia account for CFS. Both deposits consisted of Money-Gram money orders made out to 30 other individuals.

On appeal, Raymond challenges the sufficiency of the evidence of the 21 counts of theft by taking. Counts 1 through 15 alleged theft by taking using MoneyGram from January through September 2008. Counts 16 through 21 of the indictment alleged thefts from December 5, 2006 through September 14, 2007, using Western Union.

Although Raymond argues that the evidence was legally insufficient because there was no direct evidence that he used the computer terminals to process the transactions and other unnamed employees might have done it, we disagree.

First, as set out above, there was substantial direct evidence of Raymond’s involvement, not the least of which was the two large deposits of MoneyGrams found in his possession when he was arrested.

Further, “[t]he State is not required to remove every possibility of innocence of the crime charged, and it is not required to disprove bare possibilities that the crime could have been committed by someone else.” (Citation omitted.) Nangreave v. State, 318 Ga. App. 437, 439 (1) (734 SE2d 203) (2012). Even if the proof were only circumstantial, “[w]hether the circumstances exclude every reasonable hypothesis except for [Raymond’s] guilt was a question for the jury.” (Citations omitted.) Tauch v. State, 305 Ga. App. 643, 645 (1) (700 SE2d 645) (2010) (evidence sufficient to support theft by taking where bank alarm activated at 2:20 a.m., defendant’s truck was seen nearby earlier on surveillance video, responding officer found ATM was ripped out of wall and dragged across parking lot, defendant’s vehicle was capable of towing heavy equipment, and he fled from officers). Here, the evidence was legally sufficient to sustain Raymond’s conviction on all counts.

2. In his second enumeration, Raymond argues that the trial court erred in allowing into evidence as business records State’s Exhibit 1 — a spreadsheet of 140 fraud reports received by Western Union regarding CFS and State’s Exhibit 44 — a MoneyGram spreadsheet of 445 received transactions at CFS. We disagree.

The trial court’s decision to admit items into evidence will not be disturbed absent an abuse of discretion. See Smith v. State, 302 Ga. App. 128, 130 (1) (690 SE2d 449) (2010).

Pursuant to former OCGA § 24-3-14 (b) and (c),

[a]ny writing or record, whether in the form of an entry in a book or otherwise, made as a memorandum or record of any act, transaction, occurrence, or event shall be admissible in evidence in proof of the act, transaction, occurrence, or event, if the trial judge shall find that it was made in the regular course of any business and that it was the regular course of such business to make the memorandum or record at the time of the act, transaction, occurrence, or event or within a reasonable time thereafter. All other circumstances of the making of the writing or record, including lack of personal knowledge by the entrant or maker, may be shown to affect its weight; but they shall not affect its admissibility.

(Punctuation omitted.)

(a) A Western Union representative testified that Exhibit 1 was a document created in the regular course of Western Union’s business; that it was part of the ordinary course of Western Union’s business to create such a document; and that she was familiar with the document. Upon its tender into evidence, Raymond’s counsel stated: “I object. He hasn’t laid the proper foundation. I could be more specific, but I don’t believe I have to.” (Emphasis supplied.)

Contrary to counsel’s belief, it is necessary that an objection for lack of foundation specify the foundational element that is contended to be lacking. Tolver v. State, 269 Ga. 530, 532 (2) (500 SE2d 563) (1998); Potter v. State, 301 Ga. App. 411, 414-415 (2) (687 SE2d 653) (2009). That was not done here, and this issue is not preserved for appeal. Tolver, supra, 269 Ga. at 532 (2).

(b) MoneyGram’s representative testified that Exhibit 44 was a spreadsheet of transactional data generated by CFS’s receipt of Money Gram transmissions. The document was created in the ordinary course of MoneyGram’s business, and it was MoneyGram’s ordinary course of business to generate such documents. The entries were made as the transactions were generated. After defense counsel conducted voir dire of the MoneyGram witness regarding Exhibit 44, he stated “[d]o not object to No. 44.” We concur with defense counsel that a proper foundation for admission of this document pursuant to former OCGA § 24-3-14 (b) had been laid, and the document was properly admitted. Johnson v. State, 266 Ga. 775, 776 (3) (470 SE2d 637) (1996); Isbell v. Credit Nation Lending Svc., 319 Ga. App. 19, 23-24 (2) (a) (i) (735 SE2d 46) (2012). Also, we note that defense counsel’s belated attempt to voice objection to Exhibit 44 later in the trial was ineffectual. Horton v. State, 269 Ga. App. 407, 410 (2) (604 SE2d 273) (2004) (failure to object to evidence at time of introduction waives error in admission).

3. Raymond also contends that the trial court erred by not granting some remedy allowed under OCGA § 17-16-6 when the State presented evidence that was entered in violation of the discovery rules. We disagree.

As applicable here, OCGA § 17-16-4 (a) (3) (A) provides:

. . . [T]he prosecuting attorney shall[ ] . . . permit the defendant... to inspect and copy or photograph ... papers, documents, ... or copies or portions thereof . . . within the possession, custody, or control of the [S]tate or prosecution and are intended for use by the prosecuting attorney as evidence .in the prosecution’s case-in-chief or rebuttal at the trial or were obtained from or belong to the defendant. . . .

When the State fails to comply with reciprocal discovery requirements, the trial court may “order the [S]tate to permit the discovery or inspection,... grant a continuance, or, upon a showing of prejudice and bad faith, prohibit the [S]tate from introducing the evidence not disclosed.” OCGA § 17-16-6.

During the trial, trial counsel became aware that the prosecution was going to introduce four boxes (Exhibits 50, 51, 52, 53) of documents which had been seized from CFS and Raymond pursuant to search warrants and which were not made available to him during discovery.

During the discussion of the discovery issue, the chief investigator testified that previous trial counsel for Raymond had examined the four boxes of evidence. Trial counsel stated that he believed the failure to produce these four boxes of documents for his personal review was inadvertent, not wilful. Trial counsel also stated that he had been to the district attorney’s office on two occasions and had seen boxes of Western Union and MoneyGram documents which he spent hours reviewing.

The trial court concluded that, because Raymond’s previous counsel had seen the four boxes, the State had complied with its discovery obligation. We agree.

Also, although trial counsel did not see the four boxes of documents seized from CFS prior to trial, trial counsel and an associate did have an hour-and-a-half break during the trial when they were able to review the four boxes. Therefore, even assuming without deciding that a discovery violation occurred, trial counsel was given one of the remedies provided by OCGA § 17-16-6, a chance to review the documents. Therefore, there is no reversible error.

4. Raymond contends that his trial counsel rendered ineffective assistance by failing to timely object to State’s Exhibit 44 and in failing to request a continuance upon discovering an abuse of reciprocal discovery. We disagree.

Decided June 26, 2013.

Raina J. Nadler, for appellant.

Patrick H. Head, District Attorney, Amelia G. Pray, D. Victor Reynolds, Assistant District Attorneys, John C. Butters, for appellee.

To prevail on a claim of ineffective assistance of counsel, a defendant must show that counsel’s performance was deficient and that the deficient performance so prejudiced the defendant that there is a reasonable likelihood that, but for counsel’s errors, the outcome of the trial would have been different. [See] Strickland v. Washington, 466 U. S. 668, 687 (104 SC 2052, 80 LE2d 674) (1984). If an appellant fails to meet his or her burden of proving either prong of the Strickland test, the reviewing court does not have to examine the other prong. In reviewing the trial court’s decision, we accept the trial court’s factual findings and credibility determinations unless clearly erroneous, but we independently apply the legal principles to the facts. Furthermore, there is a strong presumption that the performance of counsel was within the wide range of reasonable professional lawyering, and we cannot reach a contrary conclusion unless defendant successfully rebuts the presumption by clear and convincing evidence. Judicial scrutiny of counsel’s performance must be highly deferential.

(Citation and punctuation omitted.) Davenport v. State, 316 Ga. App. 234, 239 (3) (729 SE2d 442) (2012).

(a) As discussed in Division 2 (b), Exhibit 44 was properly admitted as a business record. Therefore, trial counsel’s failure to object to it at the time of its introduction did not constitute deficient performance because failure to make a meritless hearsay objection cannot be evidence of ineffective assistance of counsel. Williams, v. State, 289 Ga. 672, 674 (2) (715 SE2d 76) (2011).

(b) With regard to the discovery issue, as set out in Division 3, there was no discovery violation. Even assuming one occurred, trial counsel was provided the opportunity to review the documents during the trial. Despite trial counsel’s testimony that he would have done additional investigation before trial had he seen the documents earlier, we conclude, as did the trial court, that trial counsel rendered reasonably effective assistance.

Judgment affirmed.

Barnes, P. J., and Ray, J., concur.

       The only authority cited in his argument is Jackson v. Virginia, 443 U. S. 307 (99 SCt 2781, 61 LE2d 560) (1979).

       Trial counsel was the third attorney to represent Raymond.


source: Caselaw Access Project

author: Miller, Judge.

license: Public Domain

text:
    A13A0084.
    GAYLE et al. v. FRANK CALLEN BOYS AND GIRLS CLUB, INC.
    (745 SE2d 695)
   Miller, Judge.

Jabari and Ulysia Gayle sued the Frank Callen Boys and Girls Club, Inc. (the “Club”) and the Housing Authority of Savannah to recover for personal injuries Jabari sustained during a basketball game at the Club. The trial court granted summary judgment in favor of the Club, finding that the Recreational Property Act, OCGA § 51-3-20 et seq. (“RPA”), precluded the Gayles’ claims. On appeal, the Gayles contend that the trial court erred in granting summary judgment to the Club. For the reasons that follow, we affirm.

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

(Citations omitted.) Carroll v. City of Carrollton, 280 Ga. App. 172, 172-173 (633 SE2d 591) (2006).

So viewed, the record evidence reflects that the Club is a nonprofit organization that was founded to provide a safe environment for young people in athletic, learning and recreational activities. The Housing Authority of Savannah owns the property where the Club is located; however, the Club is the sole occupant of the property and is in control of the premises.

Recreational activities at the Club include basketball, as well as organized league and nonleague sport activities. The Club has a voluntary $2 nominal annual membership fee for minor children who submit applications to join the facility. The purpose of the membership applications and annual fee is to provide a record of children at the facility, defray some of the operating costs for recreational activities and foster a stronger connection between children and the Club. Many members of the Club never pay the fee, and no child is ever turned away from the facility or membership for failing to pay the fee. Additionally, members of the public can enter the facility as spectators to recreational sport activities occurring at the Club.

In 2006, Jabari joined the Club for free and started going there every afternoon after school. In February 2007, then 17-year-old Jabari was playing a pick-up game of basketball in the Club’s gymnasium. Jabari was running down the court on a “fast break.” Jabari could not slow down. He came into contact with the wire mesh and glass window of an office door which was located behind one of the basketball goals. Consequently, his left hand went through the window, cutting his wrist and tendons. Jabari was treated at the emergency room that night and underwent surgery the next day.

The Gayles subsequently filed this action against the Club and the Housing Authority of Savannah, alleging that the defendants were negligent in maintaining the premises. The Gayles also alleged that the defendants’ maintenance of a wire glass door in close proximity to the basketball court, along with their failure to warn or guard against this alleged hazard, constituted a wilful and malicious failure to guard or warn against a dangerous condition or activity. The Club moved for summary judgment, contending that it was immune from liability under the RPA. The trial court subsequently granted the Club’s motion for summary judgment on that ground.

In their sole enumeration of error, the Gayles contend that the trial court erred in granting summary judgment to the Club based on their claims that the Club was negligent in failing to keep its premises safe. We disagree.

The RPA pertinently provides:

... [A] n owner of land who either directly or indirectly invites or permits without charge any person to use the property for recreational purposes does not thereby: (1) Extend any assurance that the premises are safe for any purpose; (2) Confer upon such person the legal status of an invitee or licensee to whom a duty of care is owed; or (3) Assume responsibility for or incur liability for any injury to person or property caused by an act of omission of such persons.

OCGA § 51-3-23. “The purpose of the RPA is to encourage property owners to make their property available to the public for recreational purposes by limiting the owners’ liability.” (Punctuation and footnote omitted.) Cooley v. City of Carrollton, 249 Ga. App. 387, 388 (547 SE2d 689) (2001); see also Edmondson v. Brooks County Bd. of Ed., 205 Ga. App. 662 (423 SE2d 413) (1992). The RPA applies where the property is open to the public for recreational purposes and the owner does not charge an admission fee. See Edmondson, supra, 205 Ga. App. at 662.

The RPA provides the following definitions for determining applicability:

(1) “Charge” means the admission price or fee asked in return for invitation or permission to enter or go upon the land.
(2) “Land” means land, roads, water, watercourses, private ways and buildings, structures, and machinery or equipment when attached to the realty.
(3) “Owner” means the possessor of a fee interest, a tenant, a lessee, an occupant, or a person in control of the premises.
(4) “Recreational purpose” includes, but is not limited to, any of the following or any combination thereof: hunting, fishing, swimming, boating, camping, picnicking, hiking, pleasure driving, nature study, water skiing, winter sports, and viewing or enjoying historical, archeological, scenic, or scientific sites.

(Emphasis supplied.) OCGA § 51-3-21. Moreover, the issue of whether the RPA applies is a question of law for the trial court. See Atlanta Committee for the Olympic Games v. Hawthorne, 278 Ga. 116, 117 (1) (598 SE2d 471) (2004).

Here, the record evidence supports the trial court’s findings that the Club was the sole occupant in control of the property, and the premises were open to the public free of charge. Although the Club has a suggested $2 annual membership fee, children are not required to pay a fee to use the facility, and any member of the public can enter the facility to watch recreational activities without paying a fee. Moreover, the purpose of the voluntary $2 membership fee was to provide a record of children at the facility, defray some of the operating costs for recreational activities and get kids invested in the program. Accordingly, the voluntary fee is not an admission fee required for permission to enter onto the premises, and does not constitute a “charge” to the public as contemplated in the RPA. See, e.g., South Gwinnett Athletic Assn. v. Nash, 220 Ga. App. 116, 117-118 (1) (469 SE2d 276) (1996) (little league registration fee needed to defray league operating costs was not an admission fee required for permission to enter onto land, so it was not a charge to public as contemplated by the RPA); Spivey v. City of Baxley, 210 Ga. App. 772 (437 SE2d 623) (1993) (fee required for participation in softball league was not a charge imposed to obtain permission to enter premises).

Although the RPA does not limit liability “[f]or willful or malicious failure to guard or warn against a dangerous condition, use, structure, or activity[,]” OCGA § 51-3-25 (1), the record evidence did not establish that the defendants wilfully failed to guard or warn against a dangerous condition. We have previously held that a wilful failure

involves a conscious, knowing, voluntary, intentional failure, rather than a mere inadvertent, accidental, involuntary, inattentive, inert, or passive omission and that malice requires either an actual intent to cause the particular harm produced or the wanton and wilful doing of the act with an awareness of the plain and strong likelihood that harm may result.

(Punctuation and footnote omitted.) Collins v. City of Summerville, 284 Ga. App. 54, 56 (643 SE2d 305) (2007); see also Cooley, supra, 249 Ga. App. at 388. In order to demonstrate a wilful or malicious failure to warn, the Gayles had to establish that

(1) the [defendants] had actual knowledge that [the] property was being used for recreational purposes; (2) the [defendants] had actual knowledge that a condition existed involving unreasonable risk of death or serious bodily harm; (3) the condition was not apparent to those using the property; and (4) the [defendants] chose not to warn users, in disregard of the possible consequences. Constructive knowledge is not sufficient, and no duty to inspect is imposed on the property owner.

(Footnotes omitted.) Collins, supra, 284 Ga. App. at 56.

Here, no evidence showed that the Club had actual notice that the glass window constituted a dangerous condition, or that the condition of the glass window was not apparent to those using the property. Notably, the evidence showed that wire mesh glass is commonly used in recreational facilities, and no evidence showed that anyone had ever been injured by such glass at the Club or any other facility. Additionally, the glass window was an open and obvious condition. Accordingly, the Gayles cannot satisfy their burden of demonstrating a wilful failure to warn against a dangerous condition on the premises. See Collins, supra, 284 Ga. App. at 57-58 (2)-(3) (no factual issue remained as to whether city wilfully failed to warn plaintiff of alleged dangerous condition where plaintiffs failed to show that city had actual knowledge of park swing’s defective S-hook or an unsafe ground condition under the swing); Edmondson, supra, 205 Ga. App. at 663-664 (plaintiffs could not show that condition of manually-operated merry-go-round on school playground was not apparent to those using the property).

Decided June 26, 2013.

Duffy & Feemster, Dwight T. Feemster, William L. Norse, Jr., for appellants.

Ellis, Painter, Ratterree & Adams, Ryburn C. Ratterree, Quentin L. Marlin, for appellee.

For the foregoing reasons, we conclude that the uncontroverted evidence shows that the RPA precludes the Gayles’ claims of negligence against the Club. Therefore, the trial court did not err in granting summary judgment to the Club.

Judgment affirmed.

Barnes, P. J., and Ray, J., concur.

       The Housing Authority moved separately to dismiss the Gayles’ complaint or in the alternative for summary judgment based on its contention that it is entitled to sovereign immunity. The instant appeal concerns only the trial court’s grant of summary judgment to the Club.

       The Gayles also alleged in their complaint that the Club was negligent in failing to supervise Jabari during the basketball game and in hiring, training and supervising its employees. The trial court ruled that the RPA precluded all of the Gayles’ claims. On appeal, however, the Gayles limited their arguments to their premises liability claim only. Accordingly, they have waived appellate review of the trial court’s grant of summary judgment with regard to these additional claims.

       Contrary to the Gayles’ contention, the RPAis not limited to outdoor activities, since the statute expressly includes buildings and structures when attached to realty. See OCGA § 51-3-21 (2).

       The Gayles’ reliance on Hart v. Appling County School Bd., 266 Ga. App. 300 (597 SE2d 462) (2004), in support of their argument that the Club was not open to the public is misplaced, because Hart involved a fenced-in elementary school playground that was not open to any segment of the public and was only available for use by children enrolled in the school.

       See also Zellers v. Theater of the Stars, 171 Ga. App. 406, 408 (2) (319 SE2d 553) (1984) (no breach of duty to warn where defendant had no actual knowledge of prior incidents involving broken glass doors); Imperial Investments Doraville v. Childers, 303 Ga. App. 490, 493-494 (2) (693 SE2d 834) (2010) (plate glass in hotel window did not constitute defect or dangerous condition where hotel had no prior notice of any problems with window).


author: DOYLE, Presiding Judge.

text:
    A13A0275, A13A0276.
    VOL REPAIRS II, INC. et al. v. KNIGHTEN; and vice versa.
    (745 SE2d 673)
   DOYLE, Presiding Judge.

This appeal arises from a suit filed by Tavis L. Knighten against Vol Repairs II, Inc., and Jose Rodriguez (collectively “the Defendants”), regarding the Defendants’ work on Knighten’s automobile transmission. In Case No. A13A0275, the Defendants appeal, arguing that the trial court erred (1) by denying their motion for directed verdict as to the issue of attorney fees; (2) by denying Vol Repairs’ motion for directed verdict as to breach of implied covenant of good faith; and (3) by barring evidence of Knighten’s background as an insurance adjuster under the collateral source rule. In Case No. A13A0276, Knighten cross-appeals, arguing that the trial court erred by granting a directed verdict to the Defendants and disallowing a certain portion of attorney fees pursuant to OCGA § 13-6-11. For the reasons that follow, we reverse in part and affirm in part.

[O]n appeal from a trial court’s rulings on motions for directed verdict and judgment notwithstanding the verdict, we review and resolve the evidence and any doubts or ambiguities in favor of the verdict; directed verdicts and judgments notwithstanding the verdict are not proper unless there is no conflict in the evidence as to any material issue and the evidence introduced, with all reasonable deductions therefrom, demands a certain verdict.

So viewed, the record shows that Knighten purchased a 1999 Mercedes E320 sedan in 2008. In February 2010, Knighten experienced shifting problems with the vehicle, and he took it to Vol Repairs, an automotive repair shop owned by Rodriguez. Employees examined the vehicle, and they determined that the transmission needed to be replaced; Knighten agreed to Rodriguez’s quote for replacement of the transmission for $3,712.22. Knighten provided an invoice he received upon picking up the vehicle, which listed the replacement part as a “Used Transmission” priced at $2,200, and various other parts and labor costs, totaling approximately $3,700. After the repairs, Knighten returned to the shop and explained that he was still experiencing shifting problems in lower gears. In March 2010, the shop replaced the transmission control unit, which is a separate part from the transmission itself, for approximately $650.

Knighten continued to experience issues, and he took the vehicle to Wishen Motors, an unrelated repair shop, in September 2010. Wishen Motors diagnosed a transmission leak and low fluid, which Vol Repairs repaired at no charge.

Knighten did not observe improvement, and after a trip out of the country in November, he returned to Wishen Motors in December 2010. Wishen recommended that Knighten replace the transmission with a rebuilt transmission instead. Wishen quoted Knighten $4,450 for installation of a rebuilt transmission, and Knighten called Rodriguez to explain his continued issues. Although the used transmission was outside of the warranty period provided by Vol Repairs, Rodriguez told Knighten that he would install a rebuilt transmission for an additional $1,001; Knighten testified that he understood Rodriguez would purchase and install a rebuilt unit, not that Rodriguez would be rebuilding the used transmission with new parts. After picking the vehicle up approximately a month later in January 2011, Knighten drove it for a short time before realizing that he left a personal file at the repair shop; on the way back to Vol Repairs, the vehicle jerked the way the previous transmission used to jerk. Upon returning, Knighten explained what happened, and Rodriguez stated there should not be the same issues because he had installed a new transmission, explained that it could be the adaption period normal for Mercedes transmissions, and advised Knighten to wait and see how the vehicle operated after further use.

In April 2011, Knighten then took the vehicle to a Mercedes dealership, which discovered leaking fluid and replaced the transmission with a rebuilt unit for $5,268.89; the dealership characterized the transmission Vol Repairs had installed as a “used transmission.”

Knighten filed the instant action, alleging claims of fraud, breach of contract, breach of implied covenant of good faith, and negligence. At the close of evidence, the Defendants moved for directed verdicts, which the trial court granted as to Rodriguez on the individual claims against him for fraud, breach of contract, and breach of the implied covenant of good faith, but denied the motion as to the negligence claim against Rodriguez, all the claims against Vol Repairs, and the attorney fees claims.

The jury found Rodriguez liable for negligence, awarding $2,750 in compensatory damages and $8,739.10 in attorney fees to Knighten. As for Vol Repairs, the jury found against it on the claim of breach of the implied covenant of good faith, awarding Knighten $1,001 and no attorney fees. The jury also found against Vol Repairs on the claims of breach of contract, negligence, and fraud, but awarded Knighten $0 as to those claims and did not award punitive damages.

Case No. A13A0275

1. First, the Defendants contend that the trial court erred by denying their motions for directed verdict/judgment notwithstanding the verdict (“j.n.o.v”) as to the issues of attorney fees pursuant to OCGA § 13-6-11.

(a) Rodriguez first argues that the trial court should have directed a verdict on this issue because he contends that Knighten failed to present any evidence of bad faith, which was the only basis on which to award such fees.

OCGA § 13-6-11 provides [that the] expenses of litigation generally shall not be allowed as a part of the damages; but where the defendant has acted in bad faith, has been stubbornly litigious, or has caused the plaintiff unnecessary trouble and expense, the jury may allow them. Where a bona fide controversy exists, attorney fees may be awarded under OCGA § 13-6-11 only where the party sought to be charged has acted in bad faith in the underlying transaction.

We will affirm an award under OCGA § 13-6-11 if there is any evidence to support it.

The trial court directed a verdict for Rodriguez as to the fraud claim. The court, however, denied Rodriguez’s motion for directed verdict as to attorney fees. The jury found Rodriguez liable for negligence, and as part of its award against Rodriguez, it granted Knighten $8,739.10 in attorney fees. As Rodriguez correctly argues, however, mere negligence “will not support an award of attorney fees based on bad faith.” Knighten, on the other hand, contends that he also argued that the Defendants were stubbornly litigious, and the jury award should be upheld on that basis. Knighten’s contention is supported by the transcript, showing he argued that there was no bona fide controversy as to liability or the amount of damages. Nevertheless, the parties disagreed as to the terms of the contract relating to whether Vol Repair’s second replacement of the transmission, which occurred in December 2010/January 2011, would be completed by the installation of a separate previously rebuilt transmission or by the reinstallation of the old transmission after a complete in-house rebuild.

Given the record in this case, it is clear that there was a bona fide controversy regarding [Rodriguez’s] liability[ ] because the evidence did not demand a finding that [Rodriguez] was negligent [or] that his negligence was the sole cause of [Knighten’s] damages. Thus,... [Knighten was] not entitled to attorney fees under OCGA § 13-6-11 as a matter of law. The trial court erred [by] denying [Rodriguez’s] motions for a directed verdict and j.n.o.v. on the issue of attorney fees.

(b) Based on our finding in Division 1 (a), we need not address the Defendants’ argument that the trial court erred by allowing testimony of Knighten’s counsel as to the amount of fees and reasonableness.

2. Vol Repairs argues that the trial court erred by allowing the jury to award Knighten damages for breach of implied covenant of good faith because the verdict was inconsistent with the finding that no breach of contract occurred. The record belies Vol Repairs’ argument, however, as the jury found for Knighten on the breach of contract claim, but awarded him $0 in damages for that claim.

3. Finally, the Defendants contend that the trial court erred by barring, pursuant to the collateral source rule, cross-examination of Knighten regarding his experience as an insurance adjuster, which the Defendants contend violated their right to a thorough and sifting cross-examination.

Although a party has the right to a thorough and sifting cross-examination, the trial court has discretion to limit the scope of cross-examination. Controlling the nature and scope of cross-examination is a matter within the sound discretion of the trial court and will not be disturbed absent an abuse of that discretion.

The Defendants contend that because the collateral source rule only precludes cross-examination regarding insurance in order to prevent admission of evidence of payments by a third party for tortious injury, the trial court erred by denying their motion to cross-examine Knighten about his previous work history as an automobile insurance adjuster based on that rule. While it may be the case that such questioning would not be in direct violation of the rule, it was within the trial court’s discretion to limit such testimony based on his understanding of the line of questioning, the evidence’s relevance to the defense and case as a whole, and its likelihood to interject the issue of third-party payments or other irrelevant matters to the jury. Accordingly, we find no abuse of discretion on the part of the trial court, and this enumeration is without merit.

Decided June 26, 2013.

Jacobs & King, Cary S. King, for appellants.

Edward J. Bauer, A. Jack Fishman, for appellee.

Case No. A13A0276

4. Based on our holding in Division 1 (a), we need not address Knighten’s enumerations of error in this cross-appeal.

Judgment affirmed in part and reversed in part.

McFadden and Boggs, JJ., concur.

       (Citation and punctuation omitted.) Fertility Technology Resources v. Lifetek Med., 282 Ga. App. 148, 149 (637 SE2d 844) (2006), quoting Warren v. Weber & Warren Anesthesia Svcs., 272 Ga. App. 232, 235 (2) (612 SE2d 17) (2005).

       (Punctuation omitted.) MARTA v. Mitchell, 289 Ga. App. 1, 2 (659 SE2d 605) (2007).

       See Parks v. Breedlove, 241 Ga. App. 72, 73 (1) (526 SE2d 137) (1999).

       The trial court allowed the fraud claim against Vol Repairs to proceed to the jury, but the jury did not award attorney fees against Vol Repairs.

       (Punctuation omitted.) Mitchell, 289 Ga. App. at f4.

       (Citations omitted.) Lowery v. Roper, 293 Ga. App. 243, 246 (666 SE2d 710) (2008). See also French v. Dilleshaw, 313 Ga. App. 834, 840 (2) (723 SE2d 64) (2012); Mitchell, 289 Ga. App. at 4-5.

       See, e.g., Secured Realty Investment v. Bank of North Ga., 314 Ga. App. 628, 630 (1) (b) (725 SE2d 336) (2012).

       (Punctuation and footnotes omitted.) Level One Contact v. BJL Enterprises, 305 Ga. App. 78, 82 (2) (699 SE2d 89) (2010).

        See Harper v. Barge Air Conditioning, 313 Ga. App. 474, 480 (2) (722 SE2d 84) (2011) (“the collateral-source rule bars the defendant from presenting any evidence as to payments of expenses of a tortious injury paid for by a third party and taking any credit toward the defendant’s liability and damages for such payments”) (punctuation omitted).

       See, e.g., Level One Contact, 305 Ga. App. at 82 (2).


text:
    A13A0410.
    In the Interest of R. B., a child.
    (745 SE2d 677)
   DOYLE, Presiding Judge.

The mother of 18-month-old R. B. appeals from the juvenile court’s deprivation order. On appeal, the mother argues that R. B. is not deprived within the meaning of OCGA § 15-11-2 because the evidence was insufficient to support the juvenile court’s finding that R. B. was currently deprived. For the reasons that follow, we affirm.

In considering an appeal from the juvenile court’s deprivation order, we review the evidence from the juvenile court hearings in the light most favorable to the court’s judgment and determine whether any rational trier of fact could have found by clear and convincing evidence that the [child was] deprived.

The record shows that on March 20, 2012, the Department of Family and Children Services (“the Department”) moved for entry of an order for shelter care of R. B., who was three months old at that time, based on the stated risk that the child was in imminent danger of sexual abuse by a member of the household. The Department also filed a deprivation complaint with regard to R. B., alleging that the mother’s five-year-old child, A. B., had been in foster care since August 2011. The complaint alleged that the mother had ongoing mental health and substance abuse issues; had failed to comply with her case plan regarding A. B.; and reported that her live-in boyfriend, who was also the purported father of R. B., had sexually abused A. B.

On March 22, 2012, the juvenile court entered a probable cause order that continuation in the home would be contrary to the welfare of R. B., finding allegations that the mother had mental health issues. A revised probable cause order was entered on March 26, 2012, in which the juvenile court amended its earlier findings, stating that the mother had mental health issues and did not cooperate with the Department, and the putative father had a sexual abuse allegation lodged against him but remained in the home; the court awarded temporary custody of R. B. to the Department.

On March 29, 2012, the Department filed a deprivation proceeding against the mother, asking that the juvenile court temporarily place R. B. with the Department and asking for a reunification plan with regard to the mother and R. B. At the hearing on the deprivation petition, Brenda Lewis, a supervisor at the Department, testified that A. B., who was in the custody of the Department at the time of the hearing, was taken into custody because of an allegation of sexual abuse by R. B.’s putative father, and when a Department employee visited the rooming home at which the family lived to investigate the complaint, A. B. was found alone; the mother had reportedly left the child with an unrelated adult named “Midnight,” who was not in the rooming home when the Department came to investigate. A hearing was held on February 17, 2012, with regard to A. B., at which time the mother stated that the putative father was living with her and R. B. Based on the previous sexual abuse complaint made against the putative father, the Department removed R. B. and filed the instant deprivation petition.

Lewis also testified that the mother lived in an apartment and received social security and disability benefits; Lewis testified that the mother told her she had criminal charges pending, but Lewis could not testify as to the nature of those charges. Lewis testified that other than the putative father’s presence in the home, the Department was “concerned that [the mother] had not completed the required evaluation and assessments in order to gauge her parental capacity with this newborn . . . and also to gauge where she is with all of the other concerns, such as domestic violence, substance abuse, and her mental health status.” Lewis also stated that the mother had a third child that was not in her custody.

On cross-examination, Lewis testified that the Department was aware that R. B. was born in December 2011, and the event that precipitated the child’s removal was the mother’s admission to the Department in February 2012 that the putative father was living in the home with R. B. Lewis explained that the Department had been unable to complete its investigation of the complaint of sexual abuse by the putative father of A. B. because the mother’s whereabouts were unknown for some time, and the putative father had not made himself available to the Department. After the hearing in February 2012, the Department sent a caseworker to the mother’s home and explained that the allegations against the putative father were never fully investigated, and Lewis was unaware of whether the Department employee at that meeting suggested to the mother that she should have the putative father leave the house. Lewis admitted that between the time R. B. was born and the time she was removed, the mother had “provided what [R. B.] needed.”

The Department case manager for A. B.’s case testified that the mother had not been compliant with her case plan with regard to A. B. A. B.’s case manager also testified that the mother was the person who made the allegation that the putative father had sexually abused A. B.

The juvenile court entered an order finding R. B. to be deprived on April 19, 2012, nunc pro tunc April 4, 2012.

The mother contends that the juvenile court erred by finding that R. B. was deprived because OCGA § 15-11-2 (8) (A) requires a showing of current deprivation, and there was no competent evidence that (1) the mother had mental health issues to warrant a finding of deprivation; (2) the mother was not providing an appropriate home or was not providing for R. B.’s needs; or (3) R. B. was at risk from being in the home with her putative father based on the unsubstantiated accusations of abuse of another sibling.

Under OCGA § 15-11-2 (8) (A), a child is deprived if he or she is without proper parental care or control, subsistence, education as required by law, or other care or control necessary for the child’s physical, mental, or emotional health or morals. The definition of a deprived child, as contained in OCGA § 15-11-2 (8), focuses upon the needs of the child regardless of parental fault. The petition is brought on behalf of the child and it is the child’s welfare and not who is responsible for the conditions which amount to deprivation that is the issue. To authorize even a loss of temporary custody by a child’s parents, on the basis of deprivation, the deprivation must be shown to have resulted from unfitness on the part of the parent, that is, either intentional or unintentional misconduct resulting in the abuse or neglect of the child or by what is tantamount to physical or mental incapability to care for the child. An order temporarily transferring custody of a child based on alleged deprivation must be grounded upon a finding that the child is at the present time a deprived child, and a finding of parental unfitness is essential to support an adjudication of present deprivation.

Nevertheless,

when it is established that a parent has previously deprived, neglected, or abused one or more of his or her children and that the detrimental conditions existing at that time have not significantly changed, a juvenile court is under no obligation to return a child to the parent and wait until the child is harmed in order to find that there is evidence of that child’s current deprivation.

A review of the hearing testimony and record establishes clear and convincing evidence sufficient to conclude that R. B. was presently deprived. As an initial matter, despite the mother’s argument to the contrary, the juvenile court is allowed to hear and weigh evidence of the past deprivation of other siblings when assessing the current deprivation of a child. But the mother is correct that there is no competent evidence to support the finding that the mother’s alleged mental health issues would cause R. B. immediate harm. Addition-ally, the mother is correct that to the extent that the previous deprivation of A. B. was based on her failure to show adequate housing and income to support that child, there has been a change in her circumstance in that she is living in an apartment rather than a rooming house, she has social security/disability income, and as testified to by A. B.’s caseworker, she was providing for R. B.’s needs between the time of her birth and the removal.

Decided June 26, 2013.

Yolanda C. Porker-Smith, for appellant.

Samuel S. Olens, Attorney General, Shalen S. Nelson, Senior Assistant Attorney General, Calandra A. Harps, Assistant Attorney General, Collins, Gordon & Henry, Jamie H. Henry, for appellee.

Nevertheless, there is evidence in the record that the mother herself made the sexual abuse allegation against the putative father, and the mother had failed to comply with the case plan for A. B., including all necessary investigations into that complaint. Furthermore, although she was not directly instructed to have the putative father leave the home or to remove R. B. from his presence somehow, she also did not take any steps to do so. Thus, the juvenile court’s finding that R. B. was presently deprived because she was living in the home where the putative father was residing despite the sexual abuse allegation is supported by the record, as is the juvenile court’s finding that the mother had failed to comply with the case plan for A. B., including any investigation of the sexual abuse allegations against the father.

Judgment affirmed.

McFadden and Boggs, JJ., concur.

       (Punctuation omitted.) In the Interest of D. W., 318 Ga. App. 725 (734 SE2d 543) (2012).

       (Citations and punctuation omitted; emphasis in original.) In the Interest of K. S., 271 Ga. App. 891, 892-893 (611 SE2d 150) (2005).

       (Emphasis in original.) In the Interest of R. B., 309 Ga. App. 407, 408 (1) (710 SE2d 611) (2011).

       See id. at 408 (1); In the Interest of A. R., 287 Ga. App. 334, 336 (651 SE2d 467) (2007) (“A juvenile court may consider a mother’s inability to properly care for one child as evidence that she will not he able to care for her other children.”).

       See In the Interest of D. W., 318 Ga. App. at 730 (3) (“Pursuant to OCGA § 15-11-94 (b) (4) (B) (i), evidence of a deficiency in the parent’s physical, mental, or emotional health must be ‘medically verifiable’ and ‘of such duration or nature as to render the parent unable to provide adequately for the physical, mental, emotional, or moral condition and needs of the child.’ ”).

       Compare with In the Interest of K. S., 271 Ga. App. at 891-892 (reversing deprivation finding based on the child’s residence at the maternal grandparent’s home when maternal grandfather had been subject of sexual abuse allegation approximately six years earlier and case was closed for lack of evidence supporting the allegation and no other evidence of lack of fitness was found on the part of the mother).


author: ANDREWS, Presiding Judge.

text:
    A13A0587.
    HOSLEY v. THE STATE.
    (746 SE2d 133)
   ANDREWS, Presiding Judge.

Darius Hosley appeals after a jury found him guilty of kidnapping, aggravated assault, false imprisonment, possession of a gun during the commission of a crime, fleeing from a police officer, carrying a gun without a license, and simple battery. Hosley contends that counsel was ineffective in failing to request a jury charge of not guilty by reason of insanity; that the trial court should have charged the jury sua sponte on not guilty by reason of insanity; that the false imprisonment conviction should have been merged with the kidnapping conviction; and, that the trial court erred in allowing certain testimony from one of the State’s witnesses. After reviewing the record, we conclude there was no error, and affirm.

The evidence at trial, viewed in the light most favorable to the jury’s verdict, was that Hosley and his wife Latisha had been separated for some time when she agreed to meet him and let him see their baby, who was two months old. Latisha was afraid of Hosley because he had previously attacked her when they were living in Virginia while he was in the Navy. Hosley was AWOL at the time, and Latisha was two months pregnant. Immediately after the attack, Latisha left Virginia and moved back to Atlanta.

When the baby was two months old, Latisha told Hosley that he could see the baby. She decided to meet him at a mall because she did not think Hosley would “try anything” in a public place. Her family was nearby during the meeting in case Hosley became violent.

Latisha met Hosley in the food court, and he became angry when she told him that she would not leave with him. He pulled out a gun and threatened to hurt her if she did not come with him. Latisha’s family saw what was happening and stopped them. Latisha’s sister tried to take the baby, but Hosley pointed the gun at her forehead and told her to “get away.” During this confrontation, Hosley released Latisha’s arm, and she was able to run outside, still holding the baby. At some point, Latisha and the baby were ducking between cars, with Hosley firing his gun randomly. Hosley found Latisha and the baby, pointed the gun at them and said “don’t think I won’t.” Hosley forced Latisha into the car at gunpoint. As they were driving away, police cars arrived and eventually surrounded the car.

An officer testified that Hosley did not stop his car when ordered to do so and ran into one of the police cars that was blocking the way. The State also submitted evidence of a car that was parked in the parking lot of the mall with a bullet hole through the door.

Hosley testified at trial, stating that he suffered physical and psychological problems as a result of his service in the Navy. He said that he saw combat in Afghanistan and Iraq. He could not explain how he saw combat in those countries when he served in the Navy and was on board a ship during that time. Hosley also stated that he had seen his best friend killed on board the ship and had to clean up the blood.

Hosley denied pointing a gun at Latisha while they were in the mall, stating Latisha’s family accosted him when they got up to leave. He said that he felt threatened and that was when he fired the shots in the air. He claimed that Latisha got in the car willingly and he never threatened her.

A clinical psychologist testified that she diagnosed Hosley with post-traumatic stress disorder (PTSD). The psychologist stated that Hosley’s worst experiences were the ones he experienced in Iraq. She stated that this diagnosis was based solely on Hosley’s “self report.” Based on this, she testified that she “[did not] think he was responsible [for the offenses] at the time.” When asked if she were informed that what Hosley told her about his military experiences was not true, the psychologist stated that her opinion would change if she found out that he had not had combat experience and had not experienced a traumatic event.

The State called a shipmate of Hosley who testified that the ship never went to Iraq or Afghanistan, was never in combat, and was never attacked. A representative from the Veterans’ Administration (VA) stated that Hosley had no land or ground service, only sea duty. Hosley’s post-deployment assessment showed that he stated that he was never in combat duty, did not see anyone wounded or killed, and never felt in grave danger. With respect to questions about possible PTSD, Hosley responded in the negative to each of those questions.

A forensic psychologist testified that he examined Hosley and found him to be responsible for his actions at the time of the crimes. The psychologist also testified that Hosley’s self report of his history proved to be “highly unreliable.” For instance, he claimed to have been diagnosed with PTSD at a VA facility in Nashville. When the records were sent to the psychologist, however, the diagnosis was “malingering.”

1. In his first enumeration of error on appeal, Hosley asserts that trial counsel was ineffective in not requesting a jury charge of “not guilty by reason of insanity.” In order to prevail on a claim of ineffective assistance under Strickland v. Washington, 466 U. S. 668 (104 SCt 2052, 80 LE2d 674) (1984), Hosley must show both that counsel was deficient and that, but for the unprofessional errors, there is a reasonable probability that the trial’s outcome would have been different. Williams v. State, 277 Ga. 853, 857 (596 SE2d 597) (2004). If an appellant fails to meet either prong of the Strickland test, it is not incumbent upon this Court to examine the other prong. Battles v. State, 290 Ga. 226, 229 (719 SE2d 423) (2011). In reviewing a trial court’s ruling on a claim of ineffective assistance of counsel, we give deference to the trial court’s factual findings, which are upheld on appeal unless clearly erroneous; and, we review de novo the trial court’s legal conclusions. Williams, supra at 857.

Defense counsel testified at the hearing on the motion for new trial that he had a “mixed bag for defense.” He said that he intended to raise the issues of mental illness, and that Hosley felt threatened when Latisha’s family stopped him in the mall and thought his actions were reasonable. Therefore, he asked for and received jury charges on self-defense and justification.

This was reasonable trial strategy, especially in light of the evidence at trial which did not support a charge on not guilty by reason of insanity. See Jackson v. State, 306 Ga. App. 33, 39 (701 SE2d 481) (2010) (“Generally, counsel’s decision as to which theory of defense to pursue is considered strategic and cannot serve as the basis for an ineffective assistance claim.”). In addition, given the evidence at trial, there is no reasonable probability that, had counsel requested this charge, the outcome of the trial would have been different. Although Hosley’s psychologist testified that she believed he was not responsible for his actions at the time of the crime, she acknowledged that her diagnosis was based on Hosley’s self report, particularly “what happened in Iraq,” which was totally discredited by later testimony.

2. Hosley argues that the trial court should have charged the jury sua sponte on not guilty by reason of insanity. Hosley cites to OCGA § 17-7-131 (b) (1) (C) as authority. But that Code section provides that the court shall charge the jury on this defense “[i]n all cases in which the defense of insanity is interposed.” Here, the defense of insanity was not interposed. Further, this was not a sole defense at trial, thus requiring a charge absent a request. See Stevens v. State, 267 Ga. 36, 37 (472 SE2d 426) (1996). For these reasons and also the reasons set forth in Division 1, above, we find there is no merit to this enumeration.

3. Next, Hosley claims that the trial court erred in not merging the false imprisonment and kidnapping convictions. We disagree.

Count 1 of the indictment charged Hosley with kidnapping by abducting and “stealing] away” Latisha; Count 6 of the indictment charged Hosley with false imprisonment by confining and detaining Latisha.

“In determining whether a merger has occurred, the first question we must resolve is whether the different offenses are proven with the same facts. If one crime is complete before the other takes place, the two crimes do not merge.” (Punctuation and footnotes omitted.) Scales v. State, 310 Ga. App. 48, 57 (712 SE2d 555) (2011). In this case, the kidnapping occurred when Hosley pulled out a gun and forced Latisha and the baby to leave the mall with him. After Latisha escaped and hid behind cars in the parking lot, Hosley found her, pointed the gun at her, threatened her, and again forced her to go with him to his car. He then put her in the car and forced her to stay there. These occurrences were separate in time and proven with separate facts. See Scales, supra.

Decided June 26, 2013.

Amanda R. Flora, for appellant.

Tracy Graham-Law son, District Attorney, Elizabeth A. Baker, Frances C. Kuo, Assistant District Attorneys, for appellee.

4. Hosley also claims that the trial court erred in allowing the State’s witness to testify as a “conduit” for a VA psychiatrist who did not testify at trial. Dr. Hughey testified as a rebuttal witness after Hosley testified that he received treatment for PTSD at the VA facility in Nashville. Dr. Hughey noted that Hosley was diagnosed “with malingering” at the VA facility. There was no error in allowing the testimony.

When an expert personally observes data collected by another, the expert’s opinion is not objectionable merely because it is based, in part, on the other’s findings, and even when such testimony is based on hearsay, the lack of personal knowledge does not result in exclusion of the expert’s opinion but merely presents a jury question as to the weight it is to be given.

Treadwell v. State, 285 Ga. 736, 742 (684 SE2d 244) (2009), rev’d on other grounds, Clay v. State, 290 Ga. 822, 838 (725 SE2d 260) (2012).

Further, this testimony was cumulative of other properly admitted evidence; specifically, Hosley’s discharge papers which stated that “[i]t is the opinion of the treatment team that any presentation of mental illness was malingered.” See McNaughton v. State, 290 Ga. 894, 900 (725 SE2d 590) (2012).

Judgment affirmed.

Dillard and McMillian, JJ., concur.


author: BARNES, Presiding Judge.

text:
    A13A0706.
    CHUNG et al. v. HAIR TREND USA, INC.
    (745 SE2d 681)
   BARNES, Presiding Judge.

The trial court in this case granted summary judgment to Hair Trend USA, Inc. (“Hair Trend”) in this suit on account, but because the appellants’ motion to dismiss for lack of venue has not been ruled on, we vacate the order and remand the case for further proceedings consistent with this opinion.

Hair Trend filed an action for suit on an account against Koo Pil Chung and Mae Hwa Chung d/b/a Beauty Mart (“appellants”) in the State Court of Sumter County on February 15, 2012. Hair Trend was unsuccessful in its attempt to serve the appellants in Sumter County. Thereafter, on March 21, 2012, it served the appellants at an address in Douglas County. The return of service reflected “notorious service” by serving “Patrick Lee — manager” at 5995 Fairburn Road in Douglasville. There is no indication as to whether the location was a business or residence, or why the complaint and summons were served at this address.

On April 20, 2012, the appellants answered and asserted as their first defense that venue was improper in Sumter County because they had been residents of Gwinnett County for approximately two years. On April 30, 2012, Hair Trend filed a motion for summary judgment in which it asserted that the appellants had defaulted under the terms of the account and included an affidavit from its accounting manager reflecting a principal amount owed of $10,827.95, pre-judgment interest of $21.36, post-judgment interest “at the rate permitted by law, and court costs.” It did not address the issue of venue.

On May 30, 2012, the appellants filed a motion to dismiss the complaint in which they argued that the original complaint had not “set forth facts establishing venue” and thus was subject to dismissal pursuant to OCGA § 9-11-8 (a) (2). Even though the appellants had pled residence in Gwinnett County, Hair Trend responded on June 5, 2012 by filing a motion to transfer in which it conceded that venue was not properly in Sumter County and requested that the case be transferred to Douglas County because “defendant has residence in Douglas County.” The trial court did not rule on the appellants’ motion to dismiss. However, on June 6, 2012, the trial court granted Hair Trend’s motion to transfer after noting that the appellants had not opposed the transfer within the ten-day period provided in Uniform Superior Court Rule (“USCR”) 19.1 (D). The record includes a summons from the Clerk of the Superior Court of Douglas County dated June 26, 2012, directing the appellants to answer “the complaint which is herewith served upon you, within 30 days after the service of the summons upon you” or risk a default judgment.

On September 21, 2012, the trial court entered an order granting Hair Trend’s motion for summary judgment. The appellants filed a motion for relief from judgment maintaining that they were residents of Gwinnett County and thus not under the court’s jurisdiction, and a hearing date was set. The motion for relief was filed on October 18, 2012, and a notice of appeal was subsequently filed on October 22, 2012. A note on a second copy of the order granting summary judgment stated to “hold fifa has court date for motion for relief.” This appeal ensued.

We note preliminarily that a notice of appeal divests the trial court of jurisdiction to supplement, amend, alter, or modify the judgment while the appeal of that judgment remains pending. See OCGA § 5-6-46 (a); Grant v. State of Ga., 304 Ga. App. 133, 137-138 (2) (695 SE2d 420) (2010). Thus, the appellants’ October 22 notice of appeal divested the trial court of jurisdiction to supplement, amend, alter, or modify the order granting Hair Trend summary judgment while the appeal was pending in this Court. Specifically, the trial court was divested of jurisdiction to rule on the appellants’ motion for relief from judgment.

On appeal, in three related enumerations, the appellants contend that the trial court erred in granting Hair Trend’s motion for summary judgment because Hair Trend did not establish proper venue and thus there remained genuine issues of material fact as to the proper venue. They also argue that pursuant to OCGA § 9-11-8 (a) (2), Hair Trend was required to allege in its complaint facts establishing venue, and that it had not done so. The appellants contend that Hair Trend did not offer proper facts establishing venue in Sumter County, as alleged in the original complaint, or when the case was transferred to Douglas County. The appellants further contend that they have always maintained that venue was proper in the county of their residence, Gwinnett County.

Hair Trend asserts that the appellants waived the defense of venue by failing to respond to the motion to transfer the case to Douglas County, and that a “bare allegation of the [appellants’] residence” was sufficient to meet the requirements under OCGA § 9-11-8 (a) (2). Hair Trend also contends that the appellants’ failure to respond to the motion for summary judgment and motion to transfer waived their venue defense; however, we have held that the failure to file a response to a motion for summary judgment pursuant to USCR 6.2 does not entitle the movant to a grant of the motion but, instead, may waive the opponent’s right to present evidence in opposition to the motion. See Neely v. Jones, 264 Ga. App. 795 (592 SE2d 447) (2003). Because we find that the trial court prematurely granted Hair Trend’s motion for summary judgment without first determining if venue was properly in its court, we vacate the judgment and remand the case back for a determination thereof.

A trial court without venue lacks authority to issue an order or judgment, and any such order or judgment is void. First American Title Ins. Co. v. Broadstreet, 260 Ga. App. 705, 707 (1) (580 SE2d 676) (2003). OCGA § 9-11-8 (a) (2) requires that the “original complaint shall contain facts upon which the court’s venue depends....” Where the complaint fails to set forth facts establishing venue it is subject to dismissal. Chancey v. Hancock, 225 Ga. 715, 716 (171 SE2d 302) (1969). Further,

[w]hen there has been no actual service, the judgment can successfully be collaterally attacked for lack of personal jurisdiction as void, because there has been no real default for failure to answer a complaint that was never served, and thus, OCGA § 9-11-12 (b) and affirmative defenses cannot be waived.

(Citation and punctuation omitted.) Focus Healthcare Med. Center v. O’Neal, 253 Ga. App. 298, 299 (558 SE2d 818) (2002). Here, the facts do not show that actual service was made.

The original complaint filed in Sumter County states only that “venue is proper in this Court.” The initial service attempt in Sumter County was made to “Koo Pil Chung d/b/a USA Beauty Mart” and “Mae Hwa Chung d/b/a USA Beauty Mart” at a street address in Americus, but the sheriff’s entry indicates that it was a bad address. The next attempted service was made in Douglas County by notorious service to someone identified as a “manager,” but nothing indicates whether the place was the residence, dwelling house, usual place of abode, or notorious place of abode of the defendants or the registered business location for the defendants. See OCGA § 9-11-4 (e) (7) (service proper at defendant’s dwelling house “with some person of suitable age and discretion then residing therein” or legal agent); former OCGA § 9-11-4 (e) (1) (for corporation, service proper when made to “president or other officer of the corporation, secretary, cashier, managing agent, or other agent thereof’).

Because the record does not show that the trial court ruled on or otherwise disposed of [the appellants’] timely motion to dismiss for improper venue, and it would be error for the trial court to enter a judgment against [the appellants] without having done so, we must vacate the trial court’s order and judgment and remand this case to the trial court for proceedings not inconsistent with this opinion. See Morgan v. Berry, 152 Ga. App. 623, 624 (263 SE2d 508) (1979) (properly raised venue defense “not waived by the fact that the case was allowed to go to default judgment”); Williams v. Willis, 204 Ga. App. 328, 330 (419 SE2d 139) (1992) (trial court erred by ruling on motion for summary judgment before ruling on properly raised motion to transfer based upon improper venue).

Decided June 26, 2013.

Cory P. Sims, David S. Perrie, for appellants.

Douglas L. Brooks, for appellee.

(Footnote omitted.) US Professionals, LLC v. Directlink India (P) Ltd., 247 Ga. App. 679, 680 (1) (545 SE2d 95) (2001).

Judgment vacated and case remanded with instruction.

Miller and Ray, JJ., concur.

       It is unclear from the record how Hair Trend obtained the Douglas County address.

       In its motion to transfer, Hair Trend alleged that “the defendants have a residence in Douglas County.”


text:
    A13A0722.
    SMITH v. THE STATE.
    (745 SE2d 683)
   Miller, Judge.

Following a jury trial, William Smith was convicted of two counts of identity fraud (OCGA § 16-9-121 (a) (1)) (2010), four counts of forgery in the second degree (OCGA § 16-9-2 (a)) (2010), and one count of giving a false name to law enforcement (OCGA § 16-10-25). Smith was also convicted of two additional counts of second degree forgery as lesser included offenses of two first degree forgery charges (OCGA § 16-9-1 (a)) (2010). Smith filed a motion for new trial, which the trial court denied. On appeal, Smith contends that (1) the evidence was insufficient to support his convictions for identity fraud, second degree forgery and giving a false name, and (2) the trial court erred in giving a sua sponte charge on the lesser included offense of forgery in the second degree. For the reasons that follow, we find that the evidence was insufficient to support Smith’s conviction for giving a false name and, therefore, reverse that conviction. We affirm Smith’s convictions on the remaining counts.

Viewed in the light most favorable to conviction, the evidence shows that in February 2010, Smith, his cousin, Dwayne Murry, and Michael Flake, went to a Best Buy store in Douglas County, Georgia. Smith, Murry and Flake took nearly $500 in merchandise, including an iPod, to the cash register. Murry presented a forged check and a fake Alabama identification card to the cashier to purchase the merchandise. Both the check and the identification card bore the name “Ernest Lawson.”

When it appeared that something was wrong with the transaction, Flake left the store. Smith and Murry left the store shortly thereafter, and all three men tried to drive off in a blue Ford Explorer. Smith was driving the vehicle.

Meanwhile, Best Buy employees reported the forged check, fake identification card and tag number of the Ford Explorer to police. The first responding officer saw Smith and his co-defendants run across the Best Buy parking lot and get into the Explorer. The officer stopped the Explorer in the parking lot, removed Smith and his co-defendants from the vehicle and took them into custody. At the time of his arrest, Smith was in possession of a valid Georgia driver’s license in the name of “Jack Spade.” When officers ran Smith’s fingerprints through the FBI database, however, the fingerprints were associated with the name William Carmichael Smith.

The Explorer was impounded, and an inventory search resulted in the discovery of several gift cards in the vehicle’s center console, including a gift card in the name of William Smith. A detective who assisted in the inventory search also found a checkbook containing 14-15 loose checks under the driver’s seat. The checks appeared to be printed from a home computer, bore the name Ernest Lawson, Ernest Construction or Lawson Construction, had account numbers from four different bank accounts and were similar to the forged check that Smith and his co-defendants presented at the Best Buy store.

The detective later determined that two of the account numbers on the checks belonged to checking accounts owned by women and none of the account numbers were connected to Ernest Lawson. The detective also contacted the Alabama Department of Motor Vehicles and ran several Internet searches. He was never able to identify Ernest Lawson.

At trial, the first identity fraud victim identified the account number listed on seven of the checks found in the Explorer as her Wachovia checking account number. The checks bore the check numbers: 10150, 10151, 10152, 10154, 10155, 10157 and 10158. Check number 10150 was made out to Office Depot for a laptop. The first victim stated that she did not recognize the names Ernest Lawson or Lawson Construction, did not know Smith or Murry, and did not give them or anyone permission to use or possess her account number. The evidence also showed that a similar fraudulent check drawn on the first victim’s account was used to purchase an iPod at a Best Buy in Tucker, Georgia.

The second identity fraud victim identified the account number on two of the checks found in the Explorer as hers. These checks bore the check numbers 10160 and 10161. The second victim also testified that she did not know Smith or Murry and never gave them or anyone else permission to use her checking account number.

At trial, the State also presented similar transaction evidence showing that Smith, who is also known as “Jack Spade,” was arrested in February 2008 in Greenville, South Carolina, for attempting to pass fraudulent checks at a department store. In the course of their investigation, Greenville police recovered approximately 38 fraudulent driver’s licenses and identification documents bearing Smith’s picture. Greenville police also recovered counterfeit business checks and sales receipts documenting Greenville area purchases, and a United States military roster containing names, birth dates and Social Security numbers of approximately 46 military individuals. Smith admitted that he had manufactured approximately 500 counterfeit business checks, traveled to the Greenville area, and passed the counterfeit checks at several stores. Smith subsequently pled guilty in federal court to passing forged securities and possessing forged false identification documents.

1. Smith contends that the evidence was insufficient to support his convictions for identity fraud (Counts 3 and 4), second degree forgery (Counts 5-8) and giving a false name (Count 9). We agree in part and reverse Smith’s conviction for giving a false name.

(a) Identity Fraud — Counts 3 and 4

A person commits the offense of identity fraud when he or she wilfully and fraudulently without authorization or consent, uses or possesses with intent to fraudulently use identifying information concerning an individual. See OCGA § 16-9-121 (a) (1) (2010). As used in the financial identity fraud statutes, the term “identifying information” includes checking account numbers. See OCGA § 16-9-120 (5) (D). Venue for identity fraud will lie in any county where the person whose means of identification or financial information was appropriated resides or is found, or in any county in which any other part of the offense took place. See OCGA § 16-9-125; Manhertz v. State, 317 Ga. App. 856, 862 (2) (734 SE2d 406) (2012). Moreover, every person who intentionally aids or abets in the commission of a crime is a party thereto and may be charged with and convicted of commission of the crime. See OCGA § 16-2-20 (a).

Here, Smith was charged with two counts of identity fraud in that he wilfully and fraudulently possessed with the intent to use the checking account numbers of the two identity fraud victims without their authorization or consent. The evidence showed that Smith stood beside his co-defendant Murry when Murry attempted to purchase an iPod at the Best Buy in Douglas County with a forged check and fraudulent identification bearing the name “Ernest Lawson.” Shortly thereafter, police found a checkbook containing 14-15 similar loose checks under the driver’s seat of the Ford Explorer that Smith was driving when he and his co-defendants attempted to leave the Best Buy.

The identity fraud victims identified their account numbers on several of the loose checks, and they both testified that they did not know Smith and did not give him or anyone permission to use or possess their bank account numbers. The evidence also showed that a similar check drawn on the first identity fraud victim’s checking account was used to buy an iPod at a Best Buy in Tucker, Georgia. Additionally, the similar transaction evidence showed that Smith had prior convictions for passing counterfeit checks. Accordingly, the evidence was sufficient to support the jury’s verdict that Smith committed identity fraud either directly or as a party to the crimes. See Manhertz, supra, 317 Ga. App. at 862-863 (2); see also Lee v. State, 283 Ga. App. 826, 826-827 (1) (642 SE2d 876) (2007) (evidence supported defendant’s identity fraud conviction where he ordered fraudulent payroll checks on his former company’s account).

(b) Second Degree Forgery — Counts 5 through 8

A person commits the offense of forgery in the second degree when with the intent to defraud he knowingly makes, alters, or possesses any writing in a fictitious name or in such manner that the writing as made or altered purports to have been made by another person, at another time, with different provisions, or by authority of one who did not give such authority.

OCGA § 16-9-2 (a) (2010). The statute does not require presentment or delivery of the writing, but only requires proof that a person possessed a writing in a fictitious name. See Velasquez v. State, 276 Ga. App. 527, 529 (2) (623 SE2d 721) (2005). Although intent to defraud is commonly proved by showing delivery or use of the writing, intent may be shown by a defendant’s contemporaneous attempts to present other, related documents. See id. Flight is also a factor, and this Court has found sufficient evidence to authorize a conviction for second degree forgery where the defendant attempted to pass a forged check, possessed another forged check and attempted to flee. See Browning v. State, 174 Ga. App. 759, 760-761 (3) (331 SE2d 625) (1985).

Here, Smith was charged with four counts of knowingly possessing checks in the fictitious name of “Ernest Lawson” with the intent to defraud. The evidence showed that all four of these checks were found under the driver’s seat of the Explorer which Smith was driving when he and his co-defendants attempted to flee the Best Buy after they presented a similar fraudulent check in an attempt to purchase an iPod. Accordingly, the evidence was sufficient for the jury to determine that Smith possessed the checks (jointly, if not solely) with the requisite intent to defraud. See Browning, supra, 174 Ga. App. at 761 (3); see also Loden v. State, 199 Ga. App. 683, 690 (9) (406 SE2d 103) (1991) (defendant’s possession of fraudulent identification credentials, combined with his use of those credentials in two fraudulent transactions supported his convictions for second degree forgery).

(c) False Name — Count 9

“A person who gives a false name, address, or date of birth to a law enforcement officer in the lawful discharge of his official duties with the intent of misleading the officer as to his identity or birthdate is guilty of a misdemeanor.” OCGA § 16-10-25. “A conviction for violating OCGA § 16-10-25 must be supported by some evidence that the name given in the subject incident was false. Generally this is established by some proof of the defendant’s real name.” (Citation omitted.) Griffin v. State, 291 Ga. App. 618, 620 (2) (662 SE2d 171) (2008).

Smith was charged with violating OCGA § 16-10-25 by giving the name “Jack Spade” to the initial responding officer who stopped Smith and his co-defendants when they tried to leave the Best Buy parking lot. The evidence showed that at the time of his arrest, Smith was in possession of a valid Georgia driver’s license in the name of “Jack Spade.” Moreover, the similar transaction evidence showed that Smith was previously arrested and convicted under the name of “Jack Spade a/k/a William Carmichael Smith” for passing counterfeit checks in South Carolina. Although Smith’s fingerprints were associated with the name “William Carmichael Smith” when run through the FBI database, no evidence showed that Smith gave either name (“Jack Spade” or “William Smith”) to the initial responding officer, and no evidence showed which of these names was Smith’s true name and which name was false. See Preston v. State, 257 Ga. 42, 44 (1) (354 SE2d 135) (1987). Accordingly, the evidence was insufficient to support Smith’s conviction for giving a false name.

2. Smith contends that the trial court erred in giving a sua sponte charge on the lesser included offense of second degree forgery with regard to Counts 1 and 2 in response to a jury question. We disagree.

During jury deliberations in this case, the trial court received a note from the jury stating that most of the jurors believed that Smith was a party to the crimes and asking whether they could change the first degree forgery charges (Counts 1 and 2) to second degree forgery. Over trial counsel’s objection, the trial court recharged the jury on first and second degree forgery and parties to a crime, and the trial court prepared new verdict forms giving the jury the option on Counts 1 and 2 of finding Smith guilty or not guilty of either first degree forgery or the lesser included offense of second degree forgery.

Trial courts are authorized to charge on lesser included offenses as long as the charge is supported by the evidence and the indictment sufficiently places the defendant on notice of the crimes which he must defend. See Brownlow v. State, 248 Ga. App. 366, 369 (3) (544 SE2d 472) (2001). Moreover, “[w]hen a jury requests additional instructions on a point of law, the trial court in its discretion can recharge in full or limit its recharge to the scope of the jury’s request.” (Citations omitted.) Boynton v. State, 277 Ga. 130, 131 (2) (587 SE2d 3) (2003). “[W]here there is any evidence, however slight, upon a particular point, it is not error to charge the law in relation to that issue.” Cochran v. State, 276 Ga. App. 840 (625 SE2d 92) (2005).

Second degree forgery is necessarily a lesser included offense of first degree forgery. See OCGA §§ 16-9-1 and 16-9-2. The distinction between the two defenses is that first degree forgery requires proof that the defendant uttered or delivered the forged writing, whereas second degree forgery does not. See Browning, supra, 174 Ga. App. at 760 (2). In this case, the indictment charged Smith with two counts of first degree forgery which includes the elements required to prove the lesser crime of second degree forgery. Accordingly, the indictment afforded Smith with sufficient notice of the conduct which he had to defend at trial. See Brownlow, supra, 248 Ga. App. at 369-370 (3). Moreover, some evidence supported a finding that Smith committed the lesser included offense of second degree forgery when he and his co-defendants presented a forged check and fake Alabama identification card in an attempt to purchase nearly $500 in merchandise, including an iPod, at the Douglas County Best Buy store. Accordingly, Smith cannot show that the trial court abused its discretion in adding a sua sponte charge on the lesser included offense when recharging the jury in response to their question. See Cochran, supra, 276 Ga. App. at 841 (holding that trial court did not err in adding sua sponte instruction on voluntary intoxication when recharging jury on aggravated assault and battery).

Decided June 26, 2013.

Drummond & Swindle, Jason W. Swindle, for appellant.

David McDade, District Attorney, James A. Dooley, Assistant District Attorney, for appellee.

In sum, we affirm Smith’s convictions for second degree forgery as a lesser included offense to the first degree forgery charges (Counts 1 and 2). We also affirm Smith’s convictions for identity fraud and second degree forgery (Counts 3 through 8). However, we reverse Smith’s conviction for giving a false name (Count 9), because the evidence did not support it.

Judgment affirmed in part and reversed in part.

Barnes, P. J., and Ray, J., concur.

        Jackson v. Virginia, 443 U. S. 307 (99 SCt 2781, 61 LE2d 560) (1979).

       Murry, who pled guilty in this case, bought the checkbook, forged checks and his Alabama identification card on craigslist for about $300.

       We note that, at his sentencing hearing, Smith presented a copy of an April 2002 name change order from Probate Court in the State of Alabama showing that he changed his name from William Carmichael Smith to Jack Spade.