author: McFADDEN, Judge. BOGGS, Judge,

text:
    A13A1643.
    DANIEL v. FULTON COUNTY.
    (752 SE2d 1)
   McFADDEN, Judge.

Karen Daniel filed a complaint for damages against Fulton County, asserting a claim of inverse condemnation. The trial court dismissed the complaint on the ground that Daniel had filed for bankruptcy without disclosing the claim and was therefore precluded from pursuing it by the doctrine of judicial estoppel. Daniel appeals, challenging the dismissal of her complaint. Because the trial court failed to consider whether, under the circumstances, Daniel would derive an unfair advantage or impose an unfair detriment on the opposing party if not estopped, we vacate the order of dismissal and remand.

We conduct a de novo review of a trial court’s ruling on a motion to dismiss. Nat. Bldg. Maintenance Specialists v. Hayes, 288 Ga. App. 25 (653 SE2d 772) (2007). The record here shows that in December 2009, Daniel served ante litem notice on Fulton County that she was seeking nearly $1 million in damages arising from alleged sewage spills on her property. In April 2010, she filed a petition for Chapter 7 bankruptcy protection. She did not include the potential claim for damages in the petition. In August 2010, she filed suit against the county and did not amend her bankruptcy petition to report the claim for damages. In August 2012, while considering a defense motion for summary judgment, the trial court asked the parties to submit briefs as to the effect of the bankruptcy proceeding on the instant action. Daniel filed her brief in October 2012, and stated that she had immediately begun taking steps to reopen the bankruptcy case to amend the schedules. On January 4, 2013, the last business day ofits November 2012 term, see OCGA § 15-6-3 (3), the trial court entered an order of dismissal, concluding that because Daniel had “failed to produce evidence that she has taken action to re-open her bankruptcy, ... [she] is judicially estopped from pursuing her claim in the instant litigation.”

Daniel filed a motion for reconsideration. In support of the motion, she attached a copy of her motion to reopen the bankruptcy case that had been filed in December 2012, and a copy of the bankruptcy court order that had been entered ten days after the trial court’s dismissal order, granting the motion and reopening Daniel’s bankruptcy case. But as the trial court had entered its order on the last day of the term, it would not have been authorized to grant the motion for reconsideration. See Paine v. Nations, 301 Ga. App. 97, 100 (2) (686 SE2d 876) (2009). Daniel filed her notice of appeal from the dismissal order before the trial court entered any ruling on her motion for reconsideration.

Judicial estoppel is an equitable doctrine that prevents a party from asserting a claim in a legal proceeding that is inconsistent with a claim taken by that party in a previous proceeding. The doctrine is commonly used in civil actions to preclude a bankruptcy debtor from pursuing a damages claim he failed to include among his assets in his petition seeking bankruptcy relief.

Vojnovic v. Brants, 272 Ga. App. 475, 476 (1) (612 SE2d 621) (2005) (citations and punctuation omitted). “This equitable doctrine is invoked by a court at its discretion, and [is] intended to prevent abuse of the judicial process.” Period Homes, Ltd. v. Wallick, 275 Ga. 486, 488 (2) (569 SE2d 502) (2002). In exercising such discretion, a court’s

determination [of] whether judicial estoppel bars a claim depends on three factors: First, the party’s later position must be clearly inconsistent with its earlier position. Second, the party must have succeeded in persuading a court to accept the party’s earlier position, because absent success in a prior proceeding, a party’s later inconsistent position introduces no risk of inconsistent court determinations. And third, a court must consider whether the party seeking to assert an inconsistent position would derive an unfair advantage or impose an unfair detriment on the opposing party if not estopped.

Zahabiuon v. Automotive Finance Corp., 281 Ga. App. 55, 57 (1) (635 SE2d 342) (2006) (citation omitted).

In this case, the trial court listed four specific factors that it had considered, which encompassed the first two factors listed above. However, the trial court did not list the third factor and apparently did not consider whether Daniel would derive an unfair advantage or impose an unfair detriment on the opposing party if not estopped. Rather, the crux of the trial court’s order was its determination that the lack of evidence that Daniel had taken steps to reopen the bankruptcy mandated application of the doctrine of judicial estoppel to bar her claim. Accordingly, the order of dismissal is vacated and the case remanded with direction that the trial court consider all pertinent factors, including whether Daniel would derive an unfair advantage or impose an unfair detriment on the opposing party if not estopped.

The dissent contends that this conclusion “ignores the well-settled principle that we will not presume the trial court committed error where that fact does not affirmatively appear.” On the contrary, our conclusion is consistent with that principle because the trial court’s error does in fact affirmatively appear in its order. As explained above, that order expressly listed the factors considered by the trial court, and it plainly shows that the trial court failed to consider the critical factor of whether Daniel would derive an unfair advantage or impose an unfair detriment on the opposing party if not estopped. Where, as here, it appears from the trial court’s stated explanation for its ruling that it engaged in an incomplete exercise of discretion based on an erroneous theory of law, the proper remedy from this court is to remand the case to the trial court for its full consideration of the appropriate factors. See Total Car Franchising Corp. v. Squire, 259 Ga. App. 114, 117 (1) (576 SE2d 90) (2003); Rowe v. Akin & Flanders, Inc., 240 Ga. App. 766, 770 (3) (525 SE2d 123) (1999) (where incomplete exercise of discretion based on erroneous theory of law, judgment vacated and case remanded with direction for trial court to consider proper test).

It is true, as the dissent notes, that the able trial judge was not required to explain his decision. If he had been trying merely to insulate himself from reversal, he could have simply refused to fully explain his ruling. He opted instead for candor and transparency, which aim at the higher goals of a correct and just result.

Judgment vacated and case remanded with direction.

Phipps, C. J., Barnes, P. J., Ellington, P. J., and Doyle, P. J., concur. Boggs and Branch, JJ., dissent.

BOGGS, Judge,

dissenting.

I believe that a remand is not appropriate in this case because there is no indication that the trial court failed to consider the three factors of Zahabiuon v. Automotive Finance Corp., 281 Ga. App. 55 (635 SE2d 342) (2006), the court was not required to make any findings regarding these factors, and in any case the factors are merely advisory. I would therefore address the merits and affirm the trial court’s ruling. For these reasons, I respectfully dissent.

1. The majority concludes that we should remand this case for the trial court to consider whether Daniel would derive an unfair advantage or impose an unfair detriment on the opposing party if not estopped. It arrives at this conclusion reasoning that “the trial court did not list the third factor” and “apparently did not consider” it, because what it did consider encompassed only two of the above factors. (Emphasis supplied.) But such a conclusion ignores the well-settled principle that we “will not presume the trial court committed error where that fact does not affirmatively appear.” (Citations and punctuation omitted.) Green v. Sun Trust Banks, 197 Ga. App. 804, 807 (3) (399 SE2d 712) (1990).

The court’s order did not impliedly list two of these three factors and omit the third as the majority suggests; rather, it listed facts and concerns that the court considered in “weighing the inequities of [the] situation.” There is no indication that the trial court based its ruling on an erroneous legal theory, and “there is a presumption in favor of the regularity of all proceedings in a court of competent jurisdiction.” Ward v. Swartz, 285 Ga. App. 788, 789 (1) (648 SE2d 114) (2007); see Green, supra (“The trial judge is presumed to know the law and presumed to faithfully and lawfully perform the duties devolving upon [the court] by law.”) (citations and punctuation omitted); see also, e.g., Smalls v. Walker, 243 Ga. App. 453, 455 (532 SE2d 420) (2000) (“Although the term judicial estoppel is not explicitly mentioned in the order, it is clear that the trial court relied on that doctrine in awarding summary judgment to the defendants.”). The trial court cited the applicable law and concluded that Daniel was judicially estopped, and we cannot assume that it failed to consider the above three factors in doing so.

Moreover, the United States Supreme Court has explained that in setting forth these factors, it did not “establish inflexible prerequisites or an exhaustive formula for determining the applicability of judicial estoppel. Additional considerations may inform the doctrine’s application in specific factual contexts.” New Hampshire v. Maine, 532 U. S. 742, 751 (II) (121 SCt 1808, 149 LE2d 968) (2001); see IBF Participating Income Fund v. Dillard-Winecoff, 275 Ga. 765, 766-767 (573 SE2d 58) (2002). The high court held further that “the circumstances under which judicial estoppel may appropriately be invoked are probably not reducible to any general formulation of principle,” and that it was simply observing that these three factors “firmly tip the balance of equities in favor of barring [the particular] complaint” before it. Id. at 750-751.

Based on the above, we should not require the trial court to make specific findings with regard to the three merely advisory factors when the court may determine that other considerations would be more applicable to the particular facts of the case. These three factors simply cannot overshadow the clear purpose of judicial estoppel: “to protect the integrity of the judicial process by prohibiting parties from deliberately changing positions according to the exigencies of the moment. [Cit.]” IBF Participating Income Fund, supra, 275 Ga. at 766.

The trial court is not required to list all things it considered, and it may have considered other factors. And an assumption that the court failed to consider any factor eviscerates the presumption of regularity. To remand in this case would have the effect of requiring the trial court to make findings of fact and conclusions of law when determining whether judicial estoppel applies to bar an action. I find no such requirement under our body of law. Even on a motion to dismiss, the trial court is not required to make specific findings and conclusions. See, e.g., OCGA § 9-11-52 (b). And in a nonjury trial, the court is required to do so only upon request. See OCGA § 9-11-52 (a); see also Sevostiyanova v. Tempest Recovery Svcs., 307 Ga. App. 868, 875 (5) (705 SE2d 878) (2011). I agree with the majority that the trial judge opted for candor and transparency in this case; but a remand under these circumstances would discourage judges from providing any explanation and would result in boilerplate orders that provide no insight into the law applied. A remand to consider a particular factor is simply not required where the factors guiding the trial court are merely advisory. And we cannot presume that because a judge elects to include some factors it considered that that is necessarily an exhaustive list of all that was considered.

For these reasons, I believe that a remand is not appropriate in this case.

2. I would also affirm the trial court’s dismissal of Daniel’s complaint. As found by the trial court, Daniel served her ante litem notice on Fulton County in December 2009, and in April 2010 filed a Chapter 7 bankruptcy petition that did not include the potential claim for damages. She filed suit against Fulton County in August 2010, and did not amend her bankruptcy petition to include the claim. In August 2012, the trial court requested the parties to submit briefs on the effect of the bankruptcy on Daniel’s action, and in response Daniel filed a brief stating that she had begun taking steps to reopen the bankruptcy. But on the last day of the term, January 4, 2013, the trial court dismissed the action, finding that Daniel was judicially estopped because she failed to produce evidence that she had taken action to reopen the bankruptcy.

Under these circumstances, the trial court did not abuse its discretion in concluding that Daniel was judicially estopped and in dismissing her claim against the county. See Zahabiuon, supra, 281 Ga. App. at 57 (1) (representation of no outstanding claims against others in bankruptcy court barred later claim for damages for conversion); Smalls, supra, 243 Ga. App. at 457 (3) (affirming dismissal of personal injury claim based upon plaintiff’s failure to submit evidence showing bankruptcy plan was amended to include personal injury claim).

I would therefore affirm the trial court’s dismissal of Daniel’s complaint.

I am authorized to state that Judge Branch joins in this dissent.

Decided November 19, 2013.

Huff, Powell & Bailey, Michael S. Bailey, Leslie E. Cline, for appellant.

Jerolyn W. Ferrari, Diane L. Freeman, Matthew C. Welch, Laura S. Lewis, for appellee.

       The majority relies upon the factors set forth in Zahabiuon, supra:
      First, the party’s later position must be clearly inconsistent with its earlier position. Second, the party must have succeeded in persuading a court to accept the party’s earlier position, because absent success in a prior proceeding, a party’s later inconsistent position introduces no risk of inconsistent court determinations. And third, a court must consider whether the party seeking to assert an inconsistent position would derive an unfair advantage or impose an unfair detriment on the opposing party if not estopped.
      (Citation and footnote omitted.) Id. at 57 (1).

       There are certain exceptions that are not applicable here. See OCGA §§ 9-11-52 (b) and 9-11-41 (b).


source: Caselaw Access Project

author: Branch, Judge.

license: Public Domain

text:
    A13A0940.
    DODSON v. SYKES INDUSTRIAL HOLDINGS, LLC et al.
    (752 SE2d 45)
   Branch, Judge.

Donald R. Dodson brought suit alleging that he has an ownership interest in and an employment agreement with Sykes Industrial Holdings, LLC (“Sykes LLC”) and that the company failed to honor those agreements and failed to pay him for his services. The defendants contend that Dodson was only ever a trainee and that they never agreed that Dodson would be an owner or receive commissions. The trial court granted summary judgment in favor of the defendants, and Dodson appeals. We hold that the trial court erred by granting summary judgment because Dodson had a motion to compel pending that appears reasonably calculated to lead to the discovery of admissible evidence and he moved for a continuance of the hearing on the motion for summary judgment so that the court could address his motion first. We agree and therefore vacate and remand for further proceedings.

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. OCGA § 9-11-56 (c). We review a grant or denial of summary judgment de novo and construe the evidence in the light most favorable to the nonmovant. Home Builders Assn. of Savannah v. Chatham County, 276 Ga. 243, 245 (1) (577 SE2d 564) (2003).

Construed in favor of Dodson, the evidence shows that in 2009, following a downturn in sales at Sykes LLC, Ralph H. Sykes, the founder, president, and 98 percent owner of Sykes LLC, was looking to expand his industrial pump sales business when he met Dodson, who was interested in helping to increase sales for the company. Sykes told Dodson that they would be partners with Dodson owning 40 percent of the company and that, as part of his compensation, Dodson would receive a commission of 40 percent of the gross profits generated by his accounts. Dodson and Sykes also agreed that in lieu of Dodson’s initial capital contribution, the company would retain Dodson’s initial commission payments to bolster the Company’s assets. Dodson began to work for Sykes LLC in mid 2009, and, at one point, Sykes wrote a letter to a third party stating that “we hired Don Dodson ... whose sole responsibility is to call on engineering firms.” Sykes referred to Dodson as his partner from time to time and described his relationship with Dodson as a partnership to at least one employee. On one occasion, Dodson and Sykes jointly held a meeting for the employees in which they said they would be offering a revenue sharing plan.

In early 2010, Sykes had his accountant George Hillegass draw up contracts regarding Dodson’s relationship with the company. The draft “Operating Agreement,” which Sykes and Dodson referred to as a partnership agreement, provided that Dodson would own 40 percent of the company. The draft employment agreement provided that Dodson would get 40 percent of the gross profits that he helped generate. The parties, however, never signed the written agreements, although, according to Dodson, Sykes gave his word that he would sign them.

Sykes began to pay Dodson in December 2010 with a check in the amount of $10,000, followed by checks for $13,000 on January 24, 2011, and $15,000 on February 8, 2011. A company document dated January 17, 2011, entitled “Pumps Order Log” for the year 2010 lists Dodson as the salesman on 37 of the company’s 89 customers. According to Dodson’s calculations, the document shows that for the year 2010, he was credited with $4,091,020 in total sales revenue, with a gross profit to the company totaling $1,407,352.34. In February 2011, Dodson asked Sykes for an accounting and payment of his commissions, but Sykes told Dodson that he thought that Dodson’s earned commissions and share in the company should remain in the company accounts for the time being. On March 14, 2011, however, Sykes paid Dodson an additional $15,000 followed by $100,000 on March 25, 2011. In May 2011, Gail Scoggins, who handles bookkeeping, accounting, office management, and other functions for the company, asked Dodson in an e-mail to provide her with an update on 24 sales accounts. But Dodson received no further payments. In July 2011, Sykes told Dodson that one of the company’s pump suppliers had been lost, that he would be winding down the company, and that no further “distributions” would be made. Sykes admits that he never told Dodson that he was not living up to expectations at the company.

Contrary to the evidence construed in favor of Dodson, Sykes deposed that he could not say whether the company had ever actually hired Dodson but that Dodson was an unpaid trainee and never rose above that level. Sykes only paid Dodson the $153,000 as a “stipend” for “living expenses” because Dodson said he needed the money, and Sykes testified that the payments were not related to Dodson’s sales performance or any purported ownership interest. Sykes also testified that Dodson would have been paid when he made a profit but that he never generated any profits during his training period. Sykes further testified that Dodson was never officially an employee of the company; rather, he was an independent contractor. Sykes testified that none of the accounts listed in the e-mail exchange between Dodson and Scoggins were actually Dodson’s accounts and that salesmen were never paid based on the Pumps Order Log. Finally Sykes testified that he never signed the draft Operating Agreement or employment agreement, that he never gave his word that he would do so, and that he never promised Dodson an ownership interest in the company or that he would be paid a 40 percent commission.

On August 29, 2011, Dodson filed a verified complaint against Sykes and Sykes LLC for injunctive relief, appointment of a receiver, and damages for breach of contract and several torts arising out of the alleged partnership and employment agreements. On October 10, 2011, the defendants filed a verified answer and asserted counterclaims. On October 31, 2011, Dodson noticed the deposition of Sykes for November 17,2011, and served Sykes with a request to produce 15 types of documents at his deposition. Dodson purported to make the request pursuant to OCGA §§ 9-11-34 and former 24-10-26, and the final sentence of the request states, “Should the date and time of this deposition be changed for any reason, this Request to Produce shall remain in full force and effect.” It is not disputed that the defendants did not provide a written response to the document request. Dodson states that at the request of the defendants, the deposition was reset to December 23 to accommodate the schedule of the defendants.

On December 13, 2011, however, the defendants moved for summary judgment and requested a hearing on the motion. Although Sykes’s deposition took place on December 23, 2011, on January 6, 2012, Dodson filed an emergency motion to extend the time to respond to the motion for summary judgment and for attorney fees on the grounds that, as of the filing of the motion for summary judgment, depositions had not been taken, the parties had yet to respond to discovery requests, and, in general, discovery had not been completed. Moreover, although Dodson had been able to depose Sykes, Dodson had not received a copy of the transcript, and he needed to take depositions of Scoggins and Hillegass. Finally, Dodson asserted that the defendants had refused to consent to such an extension of time. The defendants opposed the motion for an extension of time, but the trial court does not appear to have ruled on it. On January 13, 2012, Dodson replied to the defendants’ motion for summary judgment but argued that a decision on the motion for summary judgment would be premature and should be denied because significant discovery remained.

On January 17, 2012, Dodson, pursuant to OCGA § 9-11-34 (c), served a request for production of documents on nonparty witness Hillegass, including a request to take Hillegass’s deposition; counsel for the defendants was copied with these requests, but the defendants never objected to them. On March 2, 2012, Dodson served interrogatories and additional requests to produce on the defendants. The defendants never responded.

According to a letter that Dodson’s counsel sent to the defendants’ counsel in an attempt to resolve the discovery dispute, on March 9, 2012 the defendants produced only two sets of documents: a reproduction of documents produced by Dodson to the defendants, and evidence related to one of the projects on which Dodson allegedly worked while associated with Sykes LLC. The letter also states that the defendants never objected to the request that Hillegass produce documents nor asserted any privilege and that therefore any objections to the Hillegass request by the defendants had been waived. Counsel for Dodson objected to the defendants’ failure to produce additional documents and to any continued obstruction of Dodson’s attempts to obtain discovery from Hillegass. On March 20, 2012, four days after Dodson’s discovery letter, Hillegass moved to quash the discovery requests sent to him and for a protective order from the court in which he stated that the defendants had not consented to allow him to produce any documentation nor waived the accountant-client privilege.

On March 28,2012, Dodson moved to compel discovery regarding requests made to the defendants and to Hillegass. The defendants never responded to the motion. On April 10,2012, Dodson noticed the depositions of Gail Scoggins and Hillegass. The trial court then announced a motions hearing for April 30, 2012. Dodson thereafter moved to continue the hearing on the motion for summary judgment so that the court could hear the pending discovery matters first, including his motion to compel. The defendants opposed the motion.

The trial court held a hearing on April 30, 2012, at which the court stated that if it were to grant the defendants’ motion for summary judgment, the discovery matters would be moot:

I know that there are outstanding discovery matters and those matters . . . will be contingent on my ruling on summary judgment. If the motion is granted, there is no reason for the court to deal with the discovery issues because they will be moot.

The court took the matters under advisement, and on May 31, 2012, the trial court granted Hillegass’s motion to quash and for a protective order without explanation. Then on August 28, 2012, the trial court granted the defendants’ motion for summary judgment and held that in light of the summary judgment, Dodson’s motion to compel and for attorney fees was moot. Dodson’s motion for reconsideration was denied, and this appeal ensued.

1. Dodson first contends that the trial court erred by granting summary judgment while his motion to compel was pending. An appellate court “will not reverse a trial court’s decision on discovery matters absent a clear abuse of discretion.” (Citations and punctuation omitted.) Ambassador College v. Goetzke, 244 Ga. 322, 323 (1) (260 SE2d 27) (1979). Nevertheless, “[a]s a general rule, this Court does not condone the grant of summary judgment while a motion to compel discovery is pending, unless it can be determined that the disallowed discovery would add nothing of substance to the party’s claim.” (Citation and punctuation omitted.) Parks v. Hyundai Motor America, 258 Ga. App. 876, 877 (1) (575 SE2d 673) (2002).

In Parks, the plaintiffs filed discovery requests within the original discovery period, to which the defendant responded; the plaintiffs then filed a motion to compel more complete answers. Id. at 877 (1). The trial court scheduled a hearing on all outstanding motions, including those for summary judgment and to compel discovery. Id. The plaintiffs then sought a delay of the summary judgment hearing until the discovery issues could be fully resolved. The trial court never responded to this request and, instead, heard argument on the motion for summary judgment and deferred ruling on the motions to compel. Id. at 878 (1). At the combined hearing, the trial court stated that “there’s no reason for me to compel discovery if I throw the case out” on summary judgment. Id. On appeal of summary judgment in favor of the defendant, this Court held that the trial court’s consideration of the defendant’s motion for summary judgment was premature because, based on a review of the record, this Court could not “say that the discovery [sought by the plaintiffs] would add nothing of substance to their claim.” Id. at 878, 880 (1). This Court concluded that the plaintiffs “raised discovery issues that required judicial scrutiny,” and that the trial court’s consideration of the defendant’s motion for summary judgment motion “was premature.” Id. at 880 (!)•

Here, as shown above, within the original discovery period, Dodson requested discovery from Sykes and from a nonparty witness; the defendants never responded in writing or objected to any of Dodson’s requests; when the defendants filed their motion for summary judgment two months after their answer, Dodson sought an extension of the time to respond in order to allow more discovery; the defendants only ever produced a limited number of documents and Hillegass refused to respond fully to Dodson’s requests; Dodson’s counsel corresponded with counsel for the defendants in an attempt to resolve the discovery disputes; Dodson filed a motion to compel, to which the defendants never responded; and, after the court scheduled a hearing on all pending motions, Dodson moved to continue the hearing on the motion for summary judgment until the discovery issues could be resolved. The court never responded to Dodson’s motion to extend the time to respond to summary judgment or his motion to continue consideration of summary judgment. Instead, the trial court ultimately deemed the motion to compel moot.

Our review of the record shows that, as in Parks, we cannot say that the discovery Dodson sought would add nothing of substance to his claim. For example, Dodson sought Hillegass’s knowledge of the contract negotiations between Dodson and Sykes and all documents related to that process, which could be relevant to Dodson’s claims of breach of contract and possibly other claims, and Dodson sought from Sykes all evidence relating to Dodson’s association with Sykes LLC, including all materials or documents that reflect payments made to Dodson in connection with his association with Sykes LLC. These requests and others appear reasonably calculated to lead to the discovery of admissible evidence and, therefore, are relevant to the subject matter of the pending action.

For the reasons stated herein, we vacate the grant of summary judgment and remand the case for further proceedings consistent with this opinion. See Erickson v. Hodges, 257 Ga. App. 144, 146 (570 SE2d 420) (2002) (ruling on motion for summary judgment vacated as premature, given pending discovery); Shipley v. Handicaps Mobility Systems, 222 Ga. App. 101, 102 (473 SE2d 533) (1996) (summary judgment premature when entered before plaintiff was able to question two key defense witnesses “who avoided her discovery attempts and filed affidavits in support of defendant’s motion for summary judgment”). Compare Smith v. U-Haul Company Georgia, 225 Ga. App. 356, 357 (1) (484 SE2d 49) (1997) (trial court did not abuse its discretion denying plaintiff’s supplemental discovery requests that were served over one year after discovery began and did not conform with OCGA § 9-11-34). On remand, the trial court should address all of the issues raised by the motion to compel as well as the defendants’ arguments opposing the motion.

2. Because we are vacating the order granting summary judgment and remanding for resolution of the motion to compel, we need not reach Dodson’s remaining enumerations of error regarding the merits of his claims against the defendants.

Judgment vacated and case remanded with direction.

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

Decided November 20, 2013.

Webb, Wade & Taylor, James H. Webb, Jr., Jordan M. Jewkes, for appellant.

Jonathan B. Mason, Jeffrey L. Riddle, for appellees.

       Two of Sykes’s children own the other two percent.

       After initially granting Dodson a temporary restraining order (TRO) and a temporary receiver, the trial court eventually denied Dodson’s requests for an interlocutory injunction and appointment of a receiver. Specifically, at the time of the complaint, Dodson moved ex parte for a TRO and appointment of a temporary receiver. On September 2, 2011, the trial court granted the TRO and appointed a temporary receiver. After serving the defendants with the complaint and the order on the TRO, Dodson moved for an interlocutory injunction and appointment of a receiver. On September 28, 2011, the defendants moved to dissolve the TRO, to oppose a preliminary injunction, to discharge the temporary receiver, and for a hearing; the defendants filed an affidavit of Sykes, with exhibits attached, in support of the motion. On October 27,2011, the trial court denied Dodson’s motion for a preliminary injunction and discharged the temporary receiver.

       In his request for documents, Dodson sought, inter alia, draft and final operating agreements, partnership agreements, and employment agreements relating to Dodson; documents that pertain to meetings, discussions, or conferences with or pertaining to Dodson; documents reflecting payments made by Sykes LLC or Sykes to Dodson; payments made by Sykes LLC to Sykes; and all instructions or directions given to Hillegass by Sykes relating to Dodson’s association with Sykes LLC.

       In his motion, Dodson sought an order from the trial court (a) compelling the defendants to produce documents responsive to Dodson’s October 31, 2011, request that Sykes produce 15 types of documents; (b) compelling Hillegass to produce documents responsive to Dodson’s January 17, 2012 nonparty request to produce and to be made available for deposition; (c) denying Hillegass’s motion to quash and for a protective order; and (d) granting Dodson attorney fees in connection with the motion.

       Neither Scoggins nor Hillegass has yet been deposed.

       In order for a party to utilize the court’s compulsory process to compel discovery, any desired discovery procedures must first be commenced promptly, pursued diligently and completed without unnecessary delay and within six months after the filing of the answer. At any time, the court, in its discretion, may extend, reopen or shorten the time to utilize the court’s compulsory process to compel discovery.
      Uniform Superior Court Rule 5.1.

       It is possible that Hillegass possesses nonprivileged information subject to discovery.


author: Boggs, Judge.

text:
    A13A0941.
    SPRAGINS v. THE STATE.
    (752 SE2d 50)
   Boggs, Judge.

John Richard Spragins was stopped at a roadblock and arrested for driving under the influence of alcohol to the extent he was a less safe driver. Spragins filed a motion to suppress the evidence obtained as a result of the stop, arguing that the roadblock was unlawful. The trial court denied the motion, and following a bench trial, Spragins was found guilty and sentenced. He now appeals, challenging the trial court’s denial of his motion to suppress. For the reasons explained below, we remand this case for the trial court to apply the Supreme Court of Georgia’s recent decision in Brown v. State, 293 Ga. 787 (750 SE2d 148) (2013).

First, when a motion to suppress is heard by the trial judge, that judge sits as the trier of facts. The trial judge hears the evidence, and his findings based upon conflicting evidence are analogous to the verdict of a jury and should not be disturbed by a reviewing court if there is any evidence to support it. Second, the trial court’s decision with regard to questions of fact and credibility must be accepted unless clearly erroneous. Third, the reviewing court must construe the evidence most favorably to the upholding of the trial court’s findings and judgment. On numerous occasions the appellate courts of this state have invoked these three principles to affirm trial court rulings that upheld the validity of seizures.

(Citations, punctuation and footnote omitted.) Miller v. State, 288 Ga. 286, 286-287 (1) (702 SE2d 888) (2010).

The evidence reveals that Lieutenant LaChance with the Coweta County Sheriff’s Office, a supervising officer who supervised seven traffic officers and was authorized to implement roadblocks, authorized a roadblock to take place during the late night hours of Decernber 2, 2011. LaChance verbally instructed two deputies, who were trained to conduct roadblocks and field sobriety tests, to conduct the roadblock. He requested that they conduct the roadblock from 11:15 p.m. on December 2 to 2:00 a.m. on December 3, which was the end of the deputies’ shift, but also told them they could end the roadblock when “they got tired of holding it or they got busy or it was unsafe to work it.”

The deputies began the roadblock as instructed, and Spragins was stopped 18 minutes later and arrested for driving under the influence of alcohol to the extent he was less safe. The deputies concluded the roadblock at 12:30 a.m. Two days following the roadblock, on December 5, 2011, LaChance filled out and signed an “Approval to Initiate Road Check” form that listed the purpose of the roadblock, the date, the location, and that it took place from 11:15 p.m. on December 2 to 12:30 a.m. on December 3. The form also provided that all cars were to be stopped and that the order for the roadblock was communicated “in person.” It also noted that “well identified police check point signs” were not utilized.

Spragins argues that the roadblock was illegally authorized, implemented and conducted pursuant to the unfettered discretion of field officers.

In examining the propriety of roadblock stops, the issue for resolution is not whether there was probable cause to stop the vehicle, but whether the roadblock stop was otherwise implemented and conducted in a manner as to demonstrate that the stop of the vehicle was “reasonable” under the Fourth Amendment. It has been held that police officials may set up highway roadblocks for the purpose of requiring motorists to display their driver’s license, and that such a practice does not invade their right to use the public ways free from unreasonable and unwarranted interception. Nor does such a practice constitute an unlawful arrest or restraint or an illegal search contrary to the United States Constitution. The State can practice preventative therapy by reasonable road checks to ascertain whether man and machine meet the legislative determination of fitness.

(Citations and punctuation omitted.) LaFontaine v. State, 269 Ga. 251, 252-253 (3) (497 SE2d 367) (1998).

A roadblock is satisfactory where the decision to implement the roadblock was made by supervisory personnel rather than the officers in the field; all vehicles are stopped as opposed to random vehicle stops; the delay to motorists is minimal; the roadblock operation is well[-]identified as a police checkpoint; and the “screening” officer’s training and experience is sufficient to qualify him to make an initial determination as to which motorists should be given field tests for intoxication.

Id. at 253 (3).

Spragins contends that the roadblock was illegal because not all vehicles were stopped and the officers were not “advised or trained on any procedures to determine when a traffic backup constituted a safety hazard sufficient to temporarily halt the roadblock.” He relies on a video recording of the stop in which the first deputy, Curtis, is shown questioning him, while a second deputy, Thompson, continues to conduct the roadblock alone. The video recording was made by Curtis’ dash camera for the purpose of showing his interaction with Spragins. It recorded a portion of the intersection where the roadblock was conducted, but not the entire area, and at some points in the video, Thompson walks out of view of the camera. The video does, however, reveal that vehicles approached the roadblock area from four different directions.

Spragins argues that because Curtis testified that there was no traffic backup or safety concern that would have caused them to allow vehicles to pass through without being stopped, the deputies were not justified in randomly allowing some vehicles to pass the roadblock unchecked. But Curtis stated further that while there was no traffic backup to speak of, “[t]he only reason that you see vehicles going by there is because Deputy Thompson was by himself. That was after my contact with Mr. Spragins.” Indeed, Thompson explained that he walked off-camera at some point in the video to speak with a motorist, and afterward he waved some traffic through because “with just me in the road, that’s just too big of a delay to the motorists for me to check all vehicles,” which were approaching from several directions. He testified that some vehicles were not stopped because of a lack of manpower — “[tjhere was no one available.” Thompson explained further that one vehicle failed to stop after he signaled for the vehicle to stop with his flashlight, and when asked whether he “simply let [another] car go through the roadblock,” he responded “[t]hat could have been a vehicle we had already checked.”

LaChance testified that there are several factors to be considered by the officers when deciding whether to wave traffic through:

Was the traffic being backed up behind that vehicle and he waved it on through so there was no extended delay on motorists being stopped on the road? Was he in the road by himself? There are several different things. Was [he] and somebody else involved in a fight on the side of the road at the road check. There’s numerous . . . things that could prevent every car from getting stopped.

LaChance explained that while there is no “written policy about traffic backups,” all vehicles are to be stopped in the absence of “other circumstances to prevent that from happening.”

The trial court found:

The only discretion... which has to be given to officers in the field is when there is some type of motorist delay or lack of manpower, then all the vehicles cannot be stopped. It’s just physically impossible and they only had two people there ... it’s sometimes impossible to stop every single vehicle especially when the officers are occupied.

It acknowledged that the video showed “three vehicles backed up. Two in one direction, one, one in the other and Deputy Thompson said he waved them through because it was too many for him to check at that point, he was by himself.” The trial court found further that the deputies provided legitimate reasons to explain why some vehicles were not stopped. The court pointed to testimony that one of the vehicles stopped was off-camera and later proceeded through the roadblock, one vehicle failed to stop, and another vehicle appeared to proceed through the roadblock but in fact had been stopped for a significant time off-camera.

We have held that “[a]bsent some type of policy defining the options to supervisory personnel or else limiting the discretion of the officer in the field,” a roadblock was impermissibly based on the unfettered discretion of field officers to temporarily allow vehicles through the roadblock unchecked when “the police are busy and cannot tend to the people approaching.” State v. Manos, 237 Ga. App. 699, 699-700 (516 SE2d 548) (1999). But here, the policy, albeit unwritten, authorized the deputies to allow vehicles to pass unchecked in the event of a lack of manpower resulting in extended delay to motorists.

Decided November 20, 2013.

Stemberger & Cummins, D. Scott Cummins, for appellant.

Sandra N. Wisenbaker, Solicitor-General, Natalie Ashman, Kimberly D. Sewell, Stephen J. Tuggle, Assistant Solicitors-General, for appellee.

The trial court concluded that some vehicles were waved through the roadblock because of a lack of manpower. The Supreme Court of Georgia recently noted that sufficient staffing of a checkpoint is “relevant in evaluating all of the LaFontaine requirements.” Brown, supra, 293 Ga. at 805 (3) (c). The court held further that understaffing may “make it impossible to stop all vehicles while keeping the delay to law-abiding motorists minimal,” and that two-officer staffing, while not necessarily a constitutional violation, can inhibit the State’s “ability to show that the checkpoint was implemented and operated lawfully.” Id. at 806 (3) (c). Because the trial court ruled without the benefit of the Supreme Court of Georgia’s recent ruling in Brown, we remand this case for the trial court to reconsider its ruling on Spragins’ motion to suppress in light of that holding.

Case remanded with direction.

Doyle, P. J., and McFadden, J., concur.

       Spragins makes no argument with regard to the primary purpose of the roadblock. See Brown, supra, 293 Ga. at 794 (2) (c).

       The evidence was undisputed that at the time Spragins was stopped, all vehicles had been stopped. So the roadblock clearly satisfied this element of the LaFontaine test at that time.

       Curtis also testified that he and Thompson had to discontinue the roadblock, and that some vehicles went unchecked, while Spragins’ vehicle was moved out of the roadway.

       Spragins also complains that the roadblock was illegal because LaChance did not “specify ‘when’ to implement the roadblock” and gave the field officers “no definitive ‘end time’ to conclude the roadblock.” Because an analysis of the constitutionality of the roadblock on this ground necessarily relates to sufficient staffing, this issue should also be reconsidered on remand in light of the Supreme Court of Georgia’s holding in Brown.


text:
    A13A0998.
    LONG v. THE STATE.
    (752 SE2d 54)
   Boggs, Judge.

David Long appeals from his convictions of false imprisonment, aggravated assault, terroristic threats, and simple battery. In this appeal, Long asserts the following: (1) the State presented insufficient evidence of venue, terroristic threats, and simple battery; (2) the trial court erred by admitting evidence concerning a similar transaction, a machete and crossbow, and hearsay; (3) the trial court erred by failing to grant a mistrial after a State’s witness testified that police found marijuana in the defendant’s home; (4) the trial court erred in its instructions on simple assault and aggravated assault; (5) the trial judge erred by failing to recuse; (6) he is entitled to a new trial because the trial judge communicated with the jury outside his presence; (7) he received ineffective assistance of counsel on numerous grounds; and (8) the trial court erred by sentencing Long beyond the statutory maximum. For the reasons explained below, we affirm Long’s convictions, but vacate his sentence for terroristic threats because it exceeded the statutory maximum of five years.

1. When reviewing 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.

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

So viewed, the record shows that on October 4,2010, around 5:00 a.m., a customer at a gas station in Chattooga County saw the victim outside walking past the store window. The customer testified that the victim “had been beat up,” and “her face was bruised up and beaten and just — and she looked bad.” “[S]he had blood on her face. Her eye was almost swelled shut. . . . [S]he had abrasions on her ... wrists ..., her arms, her neck.” The store clerk testified that the victim had “scratches and stuff” on her face, a cut on her head, and a black eye.

When she came inside the store, she seemed hysterical, frantic, and very scared. She did not seem angry. Her hands were tied with blue rope that was covered with camouflage duct tape, and she was not wearing shoes. “[S]he started screaming help, help, please, help me.” After the store clerk and customer helped free her hands, “the first thing she said was don’t call the police. . . . He’ll hurt my kids.” She also stated notifying the police “would make things worse.”

After the customer determined that the victim’s children were not with the man who had beaten the victim, the police were notified. While the customer waited with the victim for the police to arrive, she kept repeating, “[Djon’t call the police,” and also stated that the man who beat her up wanted to kill her. She told the customer that after she escaped, she drove away from the Alabama state line, because she thought he would look for her in Alabama. Both the customer and the store clerk denied that they prevented the victim from leaving the store until the police arrived.

When sheriff’s deputies arrived, they ran the license tag on the car in which the victim had arrived and when they asked about the registered owner, David Long, she stated that he was the person “who did this to me” and that it had happened at his house. While she seemed “very reluctant to say anything,” she eventually “opened up just a little bit more and advised that he had got mad. And so that she wouldn’t leave he had taped her hands and ankles together and that he had struck her.” She also stated, however, that she did not want the police involved and did not want any charges to be brought, explaining “that her ex-husband had worked in law enforcement and they had had a difficult situation involving court matters.” When a female deputy arrived, the victim told her “that she’d gotten into an argument with her boyfriend over a custody battle about her children and he became angry. And she had wanted to leave and he wouldn’t let her leave. And he had duct taped her hands together and tied her feet together and then he assaulted her.” She also told the female deputy that the incident took place at her boyfriend’s house on Everett Springs Road in Rome, Georgia.

Because the car was registered at an Everett Springs Road address in Floyd County and the incident took place at this address, the officers notified the Floyd County Police Department, and Officer Jones responded. When he arrived, he observed a “blackened right eye” and a “cut above her left eye” and the victim appeared nervous and scared. The victim stated that after her argument with Long escalated, “he struck her in the face several times and threw a... Coke can at her face striking her in the head.” Officer Jones testified that the victim never said she wanted to leave and denied telling the victim that she could not drive away in Long’s car. After taking the victim to the police station, “[sjhe was still a little reluctant about giving a statement.” Officer Jones agreed that based on his experience in domestic violence cases, “it’s not uncommon for the victim to not want to talk.”

The victim’s sister testified that the victim called her the next day after she left the police station and told her that Long had “hit her and beaten her up,” giving her a cut over her eye that was still bleeding. Her sister told her to go to the emergency room, met her there, and saw that both of the victim’s eyes were black, she had a still-bleeding cut above her eyebrow, and “just bruises everywhere.” The hospital ran tests to determine if she had “internal damage [ ] from where he had beat her on her chest and on her stomach.”

The sister described the victim as “the strong one” normally, but in the hospital, the victim was terrified, completely distraught, shaking, sobbing, and crying. At the hospital, the victim told her sister, “[h]e hit me and just kept hitting me. He wouldn’t stop. I begged him, I said, please stop. Please stop. And he wouldn’t.” She also told her sister that Long would not let her leave, threatened to kill her as well as her two children, and dismember and hide her body and claim that she had left for work and he did not know what had happened to her. The victim related that Long also stated that “he knew it would be a long time before he ever got out if she escaped [from him] and that he would wait” until he got out and then kill her children, her children’s children, as well as her parents, siblings, and grandfather.

A few days after the incident and while Long was in jail, the victim, her mother, and sister went to the police station where the victim hand-wrote the following statement:

Today is October the 7th, 2010. I’m writing about events that happened on October 4th, 2010. I went to court in Alabama on contempt charges dealing with my divorce. I had planned for my son to testify that I did not interfere with the relationship between my children and the father. Sonny David Long spoke to my son on the phone after court. He was upset that my son did not get a chance to speak in court. I took my children to their visitation with their father and drove to Georgia. Sonny called and asked what I wanted for supper, that he was in town and [. . .] bring us something home. When I got to the house I was on the phone with a friend and sat in my car for a little while. He was not home yet. His nephew Chad and a friend were in the garage. He had told Chad to tell me to make brownies as soon as I got there. Since I was on the phone Chad did not interrupt me though. Sonny called the house phone and Chad brought it to me in the car. I got off the telephone with my friend and talked to Sonny. He was upset that Chad didn’t come tell me as soon as I got there and got - at me when I tried to explain that I was still in the car. He pulled up after a minute later and fussed at Chad. I didn’t hear all of it, just the end of him telling Chad and friend that everyone in his life had lied to him except his friend.
We went inside, ate supper, and got ready to go to the woods to get it ready for hunting. In the woods things were fine. On the way home he did a little fussing saying that as a mother all I had to do was tell the judge my son wanted to speak and she had to let him. Once we got home I got ready for bed and laid down. He and his friend got all the hunting stuff laid out for the next day.
Around 1:00 A.M. he came in the bedroom and started fussing at me. He said I had ruined his life now and he was never going to be happy. I tried to talk to him but he just kept saying shut up, you are nothing but a lying whore. He kept asking who taught me to lie. When I would say no one he would get madder. He said if I didn’t answer he would hit me. I told him he had promised to never hit me and he said life was over so it didn’t matter. I finally answered my mom and he hit me on the right side of my head with an open hand. He said this was his last chance in life and I had taken it away. I told him, no, I hadn’t, that we still had a court date to get permission for me and the children to move to Georgia and we were getting married and everything would be fine. He said I was a f’ing stupid bitch if I thought everything was going to be fine and he hit me again. He said it was my fault his mother died. That she gave up fighting because she thought we would marry soon. He said since I killed his mother he was going to kill my family. When I said no, please don’t, he said I was a selfish bitch that only cared about myself and he hit me several times in the head and stomach. He told me that now it was so bad he could never let me go and where did I want to be buried. He said he would take my van to Tennessee to a bad place and put some drugs in it and swear that I left for work that morning and he never saw me again. I told him I had to go to the bathroom and he said I couldn’t leave the room and that I had to go in the room. So I got a towel and used the bathroom in the floor. Then he started saying he wished he had enough pills for [us] to take together so we could just die together that night. He said he was not going back to prison no matter what.
He said he had to go to sleep, that he wasn’t going hunting and he was going to tell his friend that he wasn’t going and he knew it was going to be the last time he ever saw him. He said he had to tie me up because he knew I would try to leave. He ripped some cords off a massage pad and something else and tied my feet together. He then left the room and came back with some camo duct tape. He put a white t-shirt around my feet and duct taped them several times. He said if I had to go to the bathroom anytime between now and when I died I would have to go in the bed. He wrapped a cord around my hands and taped them up too. He said, yes, he knew what he was doing because he had done it before. He said if I happened] to get away he would find me and my kids and kill them. It didn’t matter how long from now it took, he would kill my whole family. He would kill my daughter’s kids in front of her and enjoy every minute of it. He just kept saying I had taken his last chance to be happy. He was standing over me and my hands and feet were tied and taped and he hit me in the chest with his fist and in the stomach twice. He said he wished he had a gun to shoot me and then himself. He had a machete on the dresser and he said he would just take it and stab it right through my chest and watch me die, then go get a gun and kill himself. He said he loved me so much but I took his life away so now he had to take mine because he was not going to prison. He said we could last a few days maybe. Then he looked at my head and said, no, it was so bad that I would probably be dead before he woke up.
These are a few things that happened before he tied me up that I forgot to put in. He was smoking and put a lit cigarette to the top left side of my face above my eye. I knocked it out of his hand and he lit another one saying he would put them out on me all night long. He put his hand around my neck and choked me. He threw a Coke can half full at my head and busted my eye. He laughed and said it was going to leave such a bad scar no man would ever want me. He said he had to disfigure me somehow so I would always remember him. What did I want him to cut off? a hand? arm? leg? foot what? When I said toe he hit me again. He said I would have to have a closed casket [because] no one was going to be able to recognize my face, that he was going to crack every bone in my face. He said he knew he would get 25 years for kidnaping, false imprisonment and assault.
He fell asleep shortly after tying me up. I waited a little while to make sure he was ... good and asleep. I tried to talk to him. I slowly got out of the bed and looked for my purse but couldn’t find it. I heard someone in the kitchen. I managed to get the bedroom door unlocked and get halfway down the hall. His friend was coming from the hall and I told him he had to help me, that Sonny was going to kill me. He said he couldn’t and I walked away. I grabbed a knife from the kitchen and cut my feet loose, took the extra key to his jeep and left. I drove the opposite way I normally would in case he was following me. I went to a gas station in Summerville and they cut my hands free for me and called the police.

After providing a written statement, the victim obtained a protective order for herself and her family from the same judge who presided over Long’s criminal trial in this case. The victim later requested that her petition be dismissed, stating, “It is my sincere hope to reconcile and continue my relationship with David Long. This decision comes after careful consideration and prayer. I ask the court for a quick dismissal.” She also asked the district attorney to dismiss the criminal case against Long and revoked her permission for use of her medical records.

During a search of Long’s home pursuant to a warrant, the police found three rolls of camouflage duct tape that matched the tape used to bind the victim; a partial roll was found on the floor next to the bed in the master bedroom. Police also photographed a machete on the dresser and a crossbow loaded with an arrow and cocked taut.

The victim testified at trial that she was presently engaged to Long and claimed that Long tied her up and hit her during sex with her consent because she liked “rough, violent sex.” When confronted with evidence that Long placed the duct tape over her sweatshirt and sweatpants, she contended that they had sex while she was fully clothed. She claimed that she lied about what had really happened because she was embarrassed about the nature of her sex life and did not want her ex-husband to use it against her in their ongoing custody dispute. She claimed that the details in her written statement came from her imagination and details provided to her by Officer Jones about another crime committed by Long in a different county. She also asserted that she left the house with her hands still tied because she was angry with Long and did not want to ask him for help. She admitted that the incident at issue took place at Long’s home in Floyd County and that they had argued about the hearing involving her ex-husband.

A similar transaction witness testified that she dated Long in 2005. During a period when they had parted ways, she went to his house to discuss dating again. When they were in his bedroom, he became angry when she did not want to have sex with him. He hit her everywhere, but mainly in the face, and called her a b—h and a w--re. He threatened to kill her and her family, including a niece and a nephew. He stated that he would bury her and put her car at a truck stop. He also threatened to cut off her fingers and toes and cut out her eyes.

Long hit and threatened her for a long period of time — “9:00 at night till probably 6:30/7:00 the next morning.” When she told him she needed to use the bathroom, he told her “[t]o go on the floor.” He later relented and took her to the bathroom while holding a knife against her. The first time she tried to leave and ran out of the house, he chased her and dragged her back inside. She also ran into the room where his mother was sleeping and told her that Long was going to kill her. When the mother left, Long threatened to kill himself and the witness if his mother called the police. When Long “finally passed out,” the victim grabbed her car keys and drove straight to a nearby courthouse. Following a trial on the similar transaction, Long was found guilty of numerous crimes, including false imprisonment, terroristic threats, and battery.

Long asserts that the State presented insufficient evidence of venue, terroristic threats and simple battery. With regard to venue, the victim testified that the incident took place at Long’s home in Floyd County. See Boxer X v. State, 237 Ga. App. 526, 532 (9) (515 SE2d 668) (1999) (victim testimony about location of incident within county sufficient to prove venue).

With regard to terroristic threats, the State presented sufficient evidence of corroboration under OCGA § 16-11-37 (a). “[Sjlight circumstances may be sufficient for corroboration and the question of corroboration is one solely for the jury. Furthermore, if there is any evidence of corroboration, this court will not go behind the jury verdict and pass on its probative value.” (Citation and punctuation omitted.) Maskivish v. State, 276 Ga. App. 701, 703 (2) (624 SE2d 160) (2005). A witness’s demeanor after the threat provides evidence of corroboration. See Hall v. State, 292 Ga. App. 544, 548 (2) (664 SE2d 882) (2008) (victim upset and nervous after police arrived). In this case, the victim’s demeanor after the threat provided adequate corroboration to support Long’s terroristic threat conviction. See id.; Pringle v. State, 281 Ga. App. 235, 237-238 (1) (a) (635 SE2d 839) (2006) (police officer described victim as visibly shaken, scared and jittery).

Sufficient evidence also supports Long’s simple battery conviction. The indictment alleged that Long struck the victim in the eye with his fist, and the evidence showed that the victim had two black eyes and stated numerous times before trial that Long had struck her in the face. While the victim did not use the word “fist” in any of her previous inconsistent statements, the jury could infer from the resulting black eye that Long struck her in the eye with his fist. See McGill v. State, 123 Ga. App. 20, 22 (2) (179 SE2d 297) (1970) (physical precedent only) (“jury was authorized to draw inferences from their human experience from the connection of cause and effect and observation of human conduct,... that the striking of this woman upon her head with a man’s fist could produce a knot... and her own lack of knowledge in no way causes the State’s case to fall”).

2. Long asserts that the trial court erred in its admission of certain evidence. “On appeal, the admission of evidence is reviewed for an abuse of discretion.” Burgess v. State, 292 Ga. 821, 823 (4) (742 SE2d 464) (2013).

(a) Long contends that the trial court committed numerous errors in connection with its admission of the similar transaction evidence.

(i) We find no merit in his contention that the trial court erred by allowing the State to introduce evidence of crimes other than false imprisonment because the State listed only “false imprisonment” as the “similar crime or transaction” in its notice of intent. In addition to listing the date of the crime, the victim’s name, and the county in which the crime was committed, the State attached a copy of the conviction that included other charges for which Long was convicted and also provided copies of the incident report, the victim’s statement, and an investigator’s summary. At the hearing pursuant to Uniform Superior Court Rule 31.3 (B), Long objected to the admission of any evidence other than that related to false imprisonment, but did not claim any surprise or inability to respond to the other convictions arising out of and occurring on the same date as the false imprisonment conviction listed in the notice. The trial court ruled that the State could submit evidence about “the rest of it” and that “[a]nything that surrounds the incident, the res gestae of the incident of false imprisonment, is admissible.”

Uniform Superior Court Rule 31.3 (B) requires that notice be in a specific form to ensure that the State actually notifies the defendant of its intent to use certain evidence so that the defendant will have a meaningful opportunity to rebut that evidence. The rule also is designed to provide a criminal defendant with fair and adequate notice of the State’s intention to utilize similar transaction evidence so that questions as to the admissibility of such evidence can be resolved before trial; and the purpose of the length of the notice period is to allow defendant the opportunity to investigate the validity, relevancy, and other aspects of admissibility of the prior offenses.

(Emphasis in original.) Wells v. State, 208 Ga. App. 298, 304-305 (2) (d) (430 SE2d 611) (1993). In this case, we conclude that even if the State’s notice could have been more specific, it substantially complied with the notice requirement, and Long has not demonstrated how his defense was harmed as a result of the State’s failure to provide a more complete notice. See id.; Collier v. State, 266 Ga. App. 345, 350 (1) (c) (596 SE2d 795) (2004); Sweatman v. State, 181 Ga. App. 474, 475 (1) (352 SE2d 796) (1987).

(ii) Long contends that the trial court should not have admitted the similar transaction evidence because it was “not similar and not relevant,” and the prejudicial effect outweighed the probative value of the evidence.

Evidence of a similar transaction may be admitted if the State demonstrates that (1) evidence of the independent offense or act is being offered not to raise an improper inference as to the accused’s character but for an appropriate purpose; (2) the evidence is sufficient to establish that the defendant committed the independent offense or act; and (3) there is a sufficient connection or similarity between the independent offense or act and the crime charged such that proof of the former tends to prove the latter.

(Citation and punctuation omitted.) Harvey v. State, 292 Ga. 792, 793-794 (2) (741 SE2d 625) (2013). Moreover, “[w]e will uphold the trial court’s decision to admit a similar transaction unless it is an abuse of discretion.” (Citation and punctuation omitted.) Muhammad v. State, 290 Ga. 880, 882-883 (2) (725 SE2d 302) (2012). Additionally,

[i]n cases of domestic violence, prior incidents of abuse against family members or sexual partners are more generally permitted because there is a logical connection between violent acts against two different persons with whom the accused had a similar emotional or intimate attachment. Such acts can demonstrate “the accused’s attitude or mindset (i.e., his bent of mind) as to how sexual partners should be treated. Prior acts can also show an accused’s course of conduct in reacting to disappointment or anger in such a relationship, evidencing a pattern.” Such evidence may be particularly important in domestic violence cases where the incidents often occur at home, in private, and may involve only the conflicting testimony of the two parties involved.

(Citations and punctuation omitted.) Brigman v. State, 282 Ga. App. 481, 485 (639 SE2d 359) (2006).

Long argues that the acts here were not similar because the victim in this case was falsely imprisoned through the use of binding, while the victim in the similar transaction was falsely imprisoned through the use of a knife and the presence of a shotgun. But “[w]hen considering the admissibility of similar transaction evidence, the proper focus is on the similarities, not the differences, between the separate crime and the crime in question.” (Citation and punctuation omitted.) Latimore v. State, 323 Ga. App. 848, 850 (1) (748 SE2d 487) (2013). Focusing upon the similarities here shows that in both incidents, Long hit women he was dating after losing his temper. He threatened to kill them and their families, denied them the use of the bathroom, and engaged in this conduct even though others were present in the home. He also threatened both women with bodily mutilation, and they escaped after he fell asleep. Based on these strong similarities, the trial court did not abuse its discretion by admitting evidence of the similar transaction. See McNaughton v. State, 290 Ga. 894, 895-896 (2) (a) (725 SE2d 590) (2012).

(iii) Long asserts that the trial court erred by allowing the State to introduce into evidence photographs showing injuries to the similar transaction victim’s face. Trial counsel objected on the ground that the pictures were inflammatory and demonstrated injuries for an aggravated battery charge for which Long was acquitted. The photographs show that the victim had lacerations on her face and a black eye. But the aggravated battery charge for which Long was acquitted alleged that he broke the victim’s tooth, the victim did not testify about losing her tooth, and the photographs do not show her teeth. We find no abuse of discretion in the trial court’s admission of the photographs. See Arrington v. State, 286 Ga. 335, 342-343 (13) (b) (687 SE2d 438) (2009) (finding no error in trial court’s admission of photograph of similar transaction victim’s dead body); Williams v. State, 269 Ga. App. 512, 513-514 (2) (604 SE2d 592) (2004) (no error in admission of photographs showing injuries received by victim in similar transaction).

(iv) To the extent Long asserts the following claims in his brief, they are waived based upon his failure to raise these objections during the trial: alleged deficiencies in the trial court’s instruction to the jury prior to the similar transaction testimony and a violation of the collateral estoppel doctrine through the introduction of specific facts related solely to charges for which he was acquitted. See Johnson v. State, 292 Ga. 22, 26-27 (4) (733 SE2d 736) (2012) (use of evidence of prior crime that is otherwise admissible precluded if State attempting to relitigate facts resolved in defendant’s favor in prior trial); Walker v. State, 314 Ga. App. 714, 716, n. 3 (725 SE2d 771) (2012) (“we will not consider matters, even of constitutional magnitude, that were not raised and ruled upon in the trial court”).

(b) Long argues that the trial court erred by admitting “hearsay evidence regarding the information received from running the tag on Long’s vehicle” because the officer who actually obtained the information did not testify. He contends that this evidence was harmful because it established venue. As the victim testified that the incident occurred at Long’s house and that it was located in Floyd County, any error in the admission of the alleged hearsay regarding venue was harmless because it was cumulative. Wright v. State, 291 Ga. 869, 872 (3) (a) (734 SE2d 876) (2012).

(c) Long claims that the trial court erred by allowing the victim’s sister to testify about statements the victim made to her about the incident. This claim has no merit because the victim testified and both parties were therefore entitled to prove her prior consistent and inconsistent statements. Hambrick v. State, 278 Ga. App. 768, 769-770 (2) (629 SE2d 442) (2006). See also Frazier v. State, 257 Ga. 690, 696 (13) (362 SE2d 351) (1987).

(d) Long asserts that he is entitled to a new trial because the trial court erred by allowing the State to present evidence that loaded crossbows and a machete were in his home when the State executed a search warrant. “[T]he trial court has wide discretion in determining relevancy and materiality, and furthermore, where the relevancy or competency is doubtful, it should be admitted, and its weight left to the determination of the jury.” (Citation omitted.) Ridley v. State, 290 Ga. 798, 803 (8) (725 SE2d 223) (2012).

As the victim reported in her written statement that Long threatened her with a machete, told Officer Jones it was on the dresser, and the machete was found in the bedroom where the incident occurred, the trial court did not err by admitting this evidence. To the extent that the trial court may have erred by allowing evidence of the crossbows, we find its admission harmless, particularly in light of the evidence showing that Long was preparing to go hunting the next day. Chambers v. State, 250 Ga. 856, 861 (5) (302 SE2d 86) (1983) (admission of gun not used in crime harmless even though it was not relevant evidence).

3. Long argues that the trial court erred by failing to grant him a mistrial after a State’s witness testified that the police found marijuana when they searched his home. “By failing to renew either his objection or his mistrial motion after the trial court took curative action with regard to the [marijuana evidence], appellant has waived this enumeration on appeal.” Williams v. State, 272 Ga. 335, 337 (4) (528 SE2d 518) (2000). See also Hernandez v. State, 317 Ga. App. 845, 848 (1) (733 SE2d 30) (2012). While Long asked the trial court to officially deny his motion for a mistrial after the jury returned a verdict, this untimely action failed to preserve the issue for our review. See Kim v. State, 298 Ga. App. 402, 402-403 (1) (680 SE2d 469) (2009). A renewal of a motion for mistrial “must occur immediately; it is not timely if it comes at the close of all the evidence, at the close of the State’s evidence, or following the completion of the witness’s testimony and that of a subsequent witness.” (Citations, punctuation and footnotes omitted.) Id. at 403 (1).

4. Long’s complaints about errors in the trial court’s instructions to the jury on simple assault and aggravated assault were waived because trial counsel made no objection to these charges below. See Collier v. State, 288 Ga. 756, 758-759 (4) (707 SE2d 102) (2011); OCGA § 17-8-58 (a). We must therefore review the purported error in the trial court’s instructions for plain error, even though Long has not argued plain error on appeal. See State v. Kelly, 290 Ga. 29, 32 (1), n. 2 (718 SE2d 232) (2011). As the Supreme Court has noted, “the hurdle to establishing plain error is high ..., and therefore ... the failure to specifically articulate how the alleged error satisfies this high standard increases the likelihood that . . . claims in this regard will be rejected.” Id. at 32 (1), n. 2. Having reviewed both of the charges at issue as a whole, we find no error, much less any plain error. See Clayton v. State, 319 Ga. App. 713, 716 (2) (738 SE2d 299) (2013) (finding no error in trial court’s pattern simple assault charge); Marriott v. State, 320 Ga. App. 58, 64-65 (2) (b) (739 SE2d 68) (2013) (affirming conviction because, after taking charge as a whole, jury of average intelligence would not have been confused by the charge, and trial court’s charge properly set forth the basis on which the jury was authorized to convict).

5. Long claims that the trial court erred by failing to recuse because it could not be impartial after issuing the temporary family violence protective order against Long at the victim’s request. The record shows that Long did not file a motion to recuse until the day of trial. Uniform Superior Court Rule 25.1 provides that a recusal motion

... shall be timely filed: in writing and all evidence thereon shall be presented by accompanying affidavit(s) which shall fully assert the facts upon which the motion is founded. Filing and presentation to the judge shall be not later than five (5) days after the affiant first learned of the alleged grounds for disqualification, and not later than ten (10) days prior to the hearing or trial which is the subject of recusal or disqualification, unless good cause be shown for failure to meet such time requirements. In no event shall the motion be allowed to delay the trial or proceeding.

In this case, the record shows that the trial court granted the temporary protective order on October 7,2010, that Long would have been notified of the protective order, that the trial judge was assigned to Long’s criminal case no later than April 5, 2011, that Long did not seek to recuse the trial judge until May 2, 2011, and made no attempt to excuse his late motion with a showing of good cause. Because the motion to recuse was untimely, the trial court did not err by denying it. See Crosbie v. State, 304 Ga. App. 613, 614 (1) (697 SE2d 278) (2010).

6. Long asserts that he is entitled to a new trial, because the trial court communicated with the jury outside of his presence. The record, however, does not affirmatively demonstrate this fact, and following a hearing before a senior judge who did not try the case, the senior judge concluded that Long failed to meet his burden of demonstrating that the communication occurred outside his presence. Based upon the evidence in the record supporting the senior judge’s conclusion, we find no merit in this enumeration. See Gosnell v. State, 247 Ga. App. 508, 508-509 (1) (544 SE2d 477) (2001) (rejecting claim for violation of constitutional right to be present based upon defendant’s failure to “carry his burden of showing affirmatively by the record that error was committed”).

7. Long contends his trial counsel provided ineffective assistance in numerous ways. We cannot consider several of these claims, however, because Long did not assert these particular claims of ineffective assistance below and they are therefore waived. See Gaither v. State, 312 Ga. App. 53, 55-56 (3) (a) (717 SE2d 654) (2011).

Other assertions of ineffective assistance have no merit because trial counsel either testified that he made a strategic decision or we must presume that his conduct was strategic. See Dukes v. State, 285 Ga. App. 172, 174-175 (2) (645 SE2d 664) (2007). “[T]actical errors ... will not constitute ineffective assistance of counsel unless those errors are unreasonable ones no competent attorney would have made under similar circumstances.” (Citation and punctuation omitted.) Brown v. State, 292 Ga. 454, 456 (2) (738 SE2d 591) (2013).

Still others fail because counsel’s performance was not ineffective. Other ineffective assistance claims lack merit, because Long cannot demonstrate a reasonable probability that the outcome of his trial would have been different if his counsel had performed differently.

The only ineffective assistance of counsel claim warranting a more detailed explanation of our holding is the claim that trial counsel should have objected to the introduction of Long’s prior sentence and indictment for the similar transaction. As explained in Division 2 (a) above, the trial court did not err by admitting similar transaction evidence concerning the 2005 incident with Long’s ex-girlfriend. During cross-examination of the ex-girlfriend, trial counsel established that this witness had a drug addiction and that Long was found not guilty of the more serious charges arising out of that incident — aggravated battery and aggravated assault. Long does not assert on appeal that this trial tactic amounted to ineffective assistance of counsel.

Instead, he asserts that trial counsel should have objected to the admission of his judgment of conviction, which showed his sentence, and the indictment providing additional detail for the counts outlined in the judgment of conviction. Based on the admissible evidence surrounding the similar transaction and trial counsel’s tactical decision to bring out evidence of Long’s acquittal during cross-examination, we conclude that Long cannot meet his burden of proving a reasonable likelihood that the outcome would have been different if the documents pertaining to his prior convictions had been excluded. See Matthews v. State, 294 Ga. 50, 51 (2) (751 SE2d 78) (2013) (finding it highly unlikely that the admission of the sentencing order for the defendant’s prior convictions contributed to the jury’s guilty verdict); Robbins v. State, 277 Ga. App. 843, 845 (2) (627 SE2d 810) (2006) (holding same with regard to defendant’s sentences and convictions in similar transactions); Faniel v. State, 291 Ga. 559, 562-563 (2) (731 SE2d 750) (2012) (finding admission of similar transaction for which defendant was acquitted did not contribute to convictions because acquittal “effectively in evidence” through other admissible evidence); Frazier v. State, 261 Ga. App. 508, 509-510 (3) (a) (583 SE2d 188) (2003) (no prejudice resulted from admission of similar transaction evidence regarding one charge for which defendant was acquitted when he was convicted of two other charges in connection with the similar transaction).

8. In his remaining enumeration of error, Long asserts, and the State concedes, that his ten-year sentence for terroristic threats is void because it exceeds the statutory maximum of five years. See OCGA § 16-11-37 (c). We therefore vacate his sentence for terroristic threats and remand this case for resentencing in accordance with OCGA § 16-11-37 (c). See Smith v. State, 322 Ga. App. 549, 552 (2) (745 SE2d 771) (2013).

Decided November 20, 2013.

Bruce S. Harvey, for appellant.

Leigh E. Patterson, District Attorney, Kay A. Wetherington, Assistant District Attorney, for appellee.

Judgment affirmed, sentence vacated, and case remanded for resentencing.

Doyle, P. J., and McFadden, J., concur.

       The jury acquitted Long of another count of aggravated assault alleging that Long burned the victim with a lit cigarette.

       Officer Jones testified that he could not access police reports from another county on his computer as alleged by the victim.

       The similar transaction victim testified that Long hit her with a heater that he threw at her, but Long was acquitted of a simple battery count alleging that he threw an electric heater at her and hit her with it. The only objection to this testimony raised by Long’s trial counsel was that this was beyond the scope of the notice for false imprisonment. He did not raise issues of collateral estoppel based upon Long’s acquittal when this evidence was admitted, nor during the hearing on the admission of similar transaction evidence.
      The similar transaction victim also testified that Long “hit his mother,” and he was acquitted of a simple battery count alleging that he hit his mother with a belt. Trial counsel raised no objection to this testimony.

       Long claims for the first time on appeal that trial counsel was ineffective for failing to follow the procedural requirements for a motion to recuse; failing to file a demurrer or motion to dismiss Count 2 of the indictment; and failing to object to the trial court’s charges on simple and aggravated assault.

       These assertions include that trial counsel failed to object to three parts of the State’s closing argument and failed to impeach the similar transaction victim with evidence of a prior felony conviction after she admitted that she had an addiction to narcotics. As we cannot say that trial counsel employed an unreasonable tactic that no competent attorney would have made, these particular claims of ineffective assistance fail. See, e.g., Braithwaite v. State, 275 Ga. 884, 886 (2) (572 SE2d 612) (2002) (concluding attorney did not provide ineffective assistance by failing to object to improper closing argument because “attorney reasonably chose silence, and we will not use hindsight to second-guess that decision on appeal”).

       One of these claims is that counsel failed to object to alleged improper emphasis while the trial court read the jury charges. Based upon this court’s review of the audiotape of the charge, we find nothing “which could reasonably be considered prejudicial against [Long].” Hines v. State, 248 Ga. App. 752, 755 (2) (548 SE2d 642) (2001). And based upon our holding in Division 6 affirming the trial court’s factual finding that it did not engage in ex parte communications with the jury, Dong’s corresponding ineffective assistance of counsel claim fails.

       No prejudice resulted from trial counsel’s failure to move to suppress evidence obtained during the execution of a search of Long’s home (duct tape and photographs of the defendant, machetes, and crossbows) based upon an alleged technical defect in the address of the search warrant. See Lowe v. State, 310 Ga. App. 242, 245-246 (2) (c) (712 SE2d 633) (2011). Likewise, Long cannot demonstrate prejudice flowed from trial counsel’s failure to obtain a certified copy of the gas station customer’s prior felony conviction before he finished testifying in the State’s case. Because the record does not include a certified copy of this felony conviction, we cannot evaluate its admissibility or any impact it may have had upon the outcome. See Wallace v. State, 294 Ga. 257, 259 (3) (a) (750 SE2d 302) (2013).

       Long does not assert that trial counsel was ineffective for failing to raise collateral estoppel as a bar to evidence of the crimes of which he was acquitted. See Johnson v. State, supra, 292 Ga. at 27 (4), n. 4.


text:
    A13A1053.
    THOMAS v. THE STATE.
    (752 SE2d 67)
   Boggs, Judge.

Three months after his first jury trial ended in a mistrial, Frank J ames Thomas was retried and convicted of one count of burglary. His amended motion for new trial was denied, and Thomas appeals, asserting as his sole enumeration of error that the State was required, before retrial, to file a new notice of intent to introduce his prior convictions in aggravation ofpunishment pursuant to OCGA § 17-16-4 (a) (5). But evidence was presented at the hearing on Thomas’ motion for new trial that the State gave clear notice of its intent to use Thomas’ prior convictions in the second trial, and that Thomas understood its intent to do so. The trial court was entitled to conclude from this testimony that Thomas had received adequate notice, and we therefore affirm.

Thomas was represented by the same counsel throughout the events giving rise to this appeal. The State filed its first notice of intent to use Thomas’ prior conviction for murder in aggravation of punishment on April 25, 2008. On May 5, 2008, the State filed a second notice of intent to use three additional convictions for involuntary manslaughter, armed robbery, and burglary. Thomas’ first trial in May 2008 ended in a mistrial. The State did not refile its earlier notices before Thomas’ retrial in August 2008. In the second trial, he was convicted of burglary, and the trial court sentenced him as a recidivist to 20 years without parole.

At sentencing, Thomas’ trial counsel objected that the State had failed to provide her with notice of its intent to use prior convictions. The prosecutor responded that sufficient notice was provided based upon the State’s written notice before the original trial and the continuing plea discussions with Thomas’ counsel after the first trial, in which the State continued to assert that Thomas was facing sentencing as a recidivist, and that this was sufficient notice. The trial court agreed and proceeded with sentencing.

Thomas moved for a new trial on several grounds, including that the State had failed to provide new written notices of recidivism to him after the first trial. The trial court denied the motion, finding that Thomas had received adequate notice of the State’s intent to use the prior convictions. Thomas appeals, arguing that the State failed to provide him or his counsel with the required notice before the second trial. We disagree and affirm.

The trial court correctly observed that the requirement for notice of intent to use prior convictions has been revised and recodified after some of the cases construing it were decided. The provision was included in OCGA § 17-10-2 until 2005, when it was slightly revised and recodified as part of the Criminal Justice Act of 2005. See Ga. L. 2005, p. 20, §§ 11, 13; Evans v. State, 290 Ga. App. 746, 747-748 (2), n. 5 (660 SE2d 841) (2008). But the correct standard for evaluating sufficiency of notice has not changed under either version of the statute:

The statute requiring notice . . . mandated that the State make its intent to use the convictions as aggravation of punishment at sentencing known to the defendant prior to the defendant’s trial. In evaluating the sufficiency of the State’s notice, this Court places substance over form. Thus, oral notification suffices so long as the notice is clear. The important requirement is that the defendant be given an unmistakable advance warning that the prior convictions will be used against him at sentencing so that he will have enough time to rebut or explain any conviction record. Accordingly, even plea negotiations, which identify the prior convictions as a basis for the State’s seeking enhanced punishment, suffice as notice.

(Citations, punctuation and footnotes omitted; emphasis supplied.) Id. at 747-748 (2). See also Ross v. State, 313 Ga. App. 695, 698 (1) (d) (722 SE2d 411) (2012) (relying on OCGA § 17-16-4 (a) (5); counsel not ineffective for failing to object to untimely notice when counsel was aware of convictions and made no showing that prior convictions could have been rebutted or explained).

Thomas relies upon our holding in Beecher v. State, 240 Ga. App. 457, 460 (5) (523 SE2d 54) (1999), to urge reversal. But in Beecher, as we noted in that opinion, the only evidence presented was that the State had filed a notice of intent to use prior convictions before an earlier trial. Under those circumstances, we were “constrained to agree” that there was no evidence of “clear notice” that the convictions would be used at a subsequent trial. Id. Compare Person v. State, 257 Ga. App. 464, 465-466 (1), n. 5 (571 SE2d 472) (2002) (distinguishing Beecher, motion to adopt notice in prior trial sufficient).

Here, in contrast, substantial evidence was presented from which the trial court could conclude that Thomas received clear notice of the State’s intent to use his prior convictions in aggravation of punishment. And as the finder of fact at the new trial hearing, the trial court was entitled to resolve this issue. Ransom v. State, 297 Ga. App. 902, 906 (2) (a) (678 SE2d 574) (2009). While Thomas did not receive a third, formal, written notice, evidence supports the trial court’s finding that the State notified Thomas of its continuing intention to use prior convictions in aggravation of punishment, and that he was aware of this intention. At the sentencing hearing, the prosecutor stated in her place that she and trial counsel had, pursuant to the court’s order, met to confirm that the State had given her “everything that we had.” She added, “The State never withdrew any recidivism notices, and throughout that time [between the trials] the discussion involved his possible 20 year without parole sentence.”

At the hearing on Thomas’ motion for new trial, his trial counsel acknowledged that she discussed “the recidivist issue” with Thomas “multiple times,” and that Thomas signed her standard client form confirming his understanding of his maximum sentence if found guilty. In fact, counsel admitted, “We knew that they would possibly use it, but I did, not receive a formal notice.” (Emphasis supplied.) Counsel thus explicitly acknowledged that she and Thomas were aware of his prior convictions and the State’s intent to introduce them in aggravation of punishment. Thomas is, in fact, relying simply on the absence of a “formal notice” — the elevation of form over substance rejected in Evans, supra.

[T]he purpose of the statute is not to insist upon a technical requirement for its own sake. It was designed to ensure sufficient notice to defend against the charges. ... No prejudice whatsoever to [Thomas] has been alleged or shown, and harm as well as error must be shown to warrant reversal. [Cit.]

Decided November 20, 2013.

Johnny E. C. Vines, for appellant.

S. Hayward Altman, District Attorney, Kelly A. Jenkins, Assistant District Attorney, for appellee.

Arnold v. State, 236 Ga. App. 380, 383 (4) (511 SE2d 219) (1999) (notice of similar transaction under OCGA § 17-16-4 (a) (3)).

The trial court did not err in denying Thomas’ motion for new trial on this ground.

Judgment affirmed.

Andrews, P. J., and Dillard, J., concur.

       OCGA § 17-16-4 (a) (5) provides: “The prosecuting attorney shall, no later than ten days prior to trial, or at such time as the court orders but in no event later than the beginning of the trial, provide the defendant with notice of any evidence in aggravation of punishment that the state intends to introduce in sentencing.” Former OCGA § 17-10-2 (a) provided in pertinent part: “only such evidence in aggravation as the state has made known to the defendant prior to the defendant’s trial shall be admissible.”