author: Ellington, Presiding Judge.

text:
    A16A1331.
    GEORGIA DERMATOLOGIC SURGERY CENTERS, P.C. v. PHARIS.
    (792 SE2d 747)
   Ellington, Presiding Judge.

A Fulton County jury awarded David B. Pharis, M.D., $1,300,000 in damages in his claim against Georgia Dermatologic Surgery Centers, PC. (“GDSC”) for breach of contract. On appeal, GDSC contends that because this Court in Ga. Dermatologic Surgery Centers v. Pharis, 323 Ga. App. 181 (746 SE2d 678) (2013) (“GDSC I”) affirmed the trial court’s ruling that GDSC’s termination of Pharis’s employment contract was void and of no legal effect, the trial court erred in conducting a trial based on the presumption that GDSC had breached Pharis’s employment contract. In addition, GDSC contends that the trial court erred in (i) disallowing the introduction of GDSC’s shareholders’ agreement, (ii) unilaterally redacting portions of the employment agreement, and (iii) allowing Pharis to recover as damages expenses paid by his professional corporation, a separate legal entity For the reasons set forth below, we affirm in part and reverse in part.

Pharis sued GDSC asserting, inter alia, a claim for “breach of contract/wrongful termination.” Pharis moved for partial summary judgment, and GDSC filed a cross-motion for summary judgment. The trial court granted Pharis’s motion for partial summary judgment on the issue of liability on Pharis’s breach of contract claim and denied GDSC’s motion for summary judgment. GDSC appealed the trial court’s ruling on the cross-motions for summary judgment, and this Court affirmed the trial court’s order in GDSC I. After a trial on damages, a jury awarded $1,300,000 to Pharis on his breach of contract claim. GDSC filed a notice of appeal from the judgment entered on the jury’s verdict.

The facts underlying the dispute are set forth in GDSC I:

GDSC is equally ownedby Pharis and Dr. Mark Baucom. Baucom and Pharis are the sole two directors of GDSC, each having one director’s vote apiece. Baucom and Pharis are also the sole officers of GDSC, with Baucom serving as president and Pharis serving as vice president, secretary, and treasurer. Baucom and Pharis, as GDSC’s only directors and shareholders, approved identical employment contracts and entered into those contracts with GDSC. At all times relevant to this case, Baucom and Pharis jointly operated GDSC as its equal owners, directors, officers, and key physician-employees.
On October 26, 2010, Baucom, in his capacity as president of GDSC, notified Pharis that his employment with GDSC was terminated for cause. Baucom did not call a meeting to seek or obtain the approval of GDSC’s directors or shareholders before he unilaterally decided to terminate Pharis.

GDSC I, 323 Ga. App. at 182. In GDSC I, we considered the trial court’s ruling that “the termination of Pharis was an act which fell outside the scope of Baucom’s authority as president and, therefore, it required the approval of GDSC’s board of directors.” Id. at 182 (1). We held that the trial court was correct in ruling that Baucom lacked the authority as president to unilaterally terminate Pharis’s employment and affirmed its grant of Pharis’s motion for partial summary judgment on the issue of GDSC’s liability on his claim for breach of contract. Id. at 182-184 (1).

1. GDSC contends that it did not breach Pharis’s employment contract as a matter of law. Specifically, GDSC argues that the trial court determined in its summary judgment ruling, which this Court affirmed in GDSC I, that Baucom lacked the authority to unilaterally terminate his employment and that Baucom’s attempted termination was an ultra vires act that was void and of no legal effect. Based on this determination, the trial court ordered that Pharis be reinstated as an employee and officer of GDSC. Because the termination of Pharis’s employment never occurred, as a matter of the law of the case, GDSC contends that it cannot be held liable for breaching the contract by terminating his employment and, it follows, cannot be held liable for any damages for a breach of contract that did not happen. GDSC asserts that the trial court erred in conducting the trial to determine the amount of damages based on the presumption that GDSC had breached Pharis’s employment contract, because any damages Pharis sustained were due to Baucom’s ultra vires conduct, which is not attributable to GDSC.

GDSC has not shown that the trial court, having entered judgment on the issue of liability on Pharis’s breach of contract claim, and after having its judgment affirmed on appeal, erred in conducting a trial on the issue of damages. GDSC does not set forth any relevant legal argument on appeal to support its assertion that, in light of the ultra vires acts of Baucom, GDSC could not have breached the employment contract. The trial court’s reinstatement of Pharis and its finding that Baucom lacked authority to terminate Pharis is not inconsistent with its holding that GDSC was liable on Pharis’s breach of contract claim. The gravamen of Pharis’s claim against GDSC was that Baucom lacked authority to dismiss him, but that, following Baucom’s actions, GDSC breached the employment contract by precluding Pharis from returning to work and failing to pay him the compensation owed to him thereunder.

The record also shows that, following the issuance of this Court’s remittitur in GDSC I and the Supreme Court of Georgia’s denial of GDSC’s petition for certiorari, GDSC argued to the trial court that it could not be held liable for Baucom’s unauthorized acts. GDSC could not, however, relitigate the issue of its liability. “[I]t is the duty of each party at the hearing on the motion for summary judgment to present his case in full.” (Citations omitted.) Summer-Minter & Assoc. v. Giordano, 231 Ga. 601, 604 (203 SE2d 173) (1973). “[W]e cannot permit a defendant to utilize a new defense following a ruling on summary judgment in plaintiff’s favor as to liability” (Citation and punctuation omitted.) Martin v. Hamilton State Bank, 323 Ga. App. 185, 189 (1) (746 SE2d 750) (2013). See Intl. Indem. Co. v. Reeves, 170 Ga. App. 391, 392 (1) (317 SE2d 234) (1984) (declining to address the merits of an argument as to appellant’s liability which appellant raised for the first time after this Court affirmed on appeal an order granting summary judgment on the issue of liability on another basis). We find no error.

2. GDSC claims that the trial court erred in excluding the shareholders’ agreement among GDSC, Pharis, and Baucom. The trial court granted Pharis’s motion in limine to exclude evidence of the shareholders’ agreement, and, in particular, evidence and argument as to the “stipulated value” of the shares. “A motion in limine is properly granted when there is no circumstance under which the evidence under scrutiny is likely to be admissible at trial.” (Citation and punctuation omitted.) Pribeagu v. Gwinnett County, 336 Ga. App. 753, 754 (785 SE2d 567) (2016). We review the trial court’s ruling for abuse of discretion. Id.

Under the employment contract, Pharis agreed “to practice medicine solely as an employee of [GDSC] ” and “to devote [his] entire professional clinical time, attention and energies” to GDSC’s business. Pharis was compensated by GDSC with a base salary plus quarterly distributions based on the total amount of collected cash net receipts attributable to his services, less certain expenses including his base salary. Pharis sought to recover as damages his earnings lost as a result of GDSC’s breach of his employment contract, as mitigated and lessened by the earnings he generated by opening his own medical practice. He also sought to recover expenses incurred in opening that practice.

As well as being a GDSC employee, Pharis was a 50 percent shareholder of the professional corporation. Pharis entered into a shareholders’ agreement with GDSC and Baucom, also a 50 percent shareholder, on the same date as the employment agreement. In the shareholders’ agreement, the parties acknowledge that Pharis and Baucom had entered into employment agreements with GDSC that set forth restrictive covenants in the event of termination. GDSC, Pharis, and Baucom also agreed to a procedure for the purchase by GDSC of Pharis’s and Baucom’s shares in the event their respective employment agreements were terminated, and the parties defined a stipulated value of the shares as the purchase price upon such termination.

GDSC contends that inasmuch as Pharis’s employment agreement and the shareholders’ agreement were entered into on the same day and were meant to be read together, the shareholders’ agreement was relevant to show all of the terms of the parties’ relationship. In particular, GDSC maintains that the agreed-upon stipulated value of Pharis’s shares was intended “to have served as a measure of damages in the event [he] left the practice.” However, the shareholders’ agreement provides for the payment of the stipulated value of the shares upon termination “under Section 3.1 of the Employment Agreement.” Pharis’s employment was not validly terminated for any of the reasons contemplated by the employment agreement. Rather, GDSC attempted to terminate Pharis for cause, but that action was taken without proper authority, as we determined in GDSCI. See 323 Ga. App. at 184 (1). Under the plain language of the shareholders’ agreement, the parties did not agree that the repurchase price of GDSC shares would serve as the measure of damages in the event that GDSC breached the employment agreement. SeeOCGA § 13-6-7 (“If the parties agree in their contract what the damages for a breach shall be, they are said to be liquidated and, unless the agreement violates some principle of law, the parties are bound thereby.”); 2010-1 SFG Venture LLC v. Lee Bank & Trust Co., 332 Ga. App. 894, 906 (3) (b) (775 SE2d 243) (2015) (“Aliquidated damages provision is an agreement between the parties to limit recovery for a breach of the contract to a specified amount.”) (footnote omitted). The trial court was authorized to conclude that the shareholders’ agreement, in the context of the trial on the issue of damages for breach of the employment agreement, was not relevant, and it did not abuse its discretion in excluding it. See, e.g., Dept. of Transp. v. Taylor, 264 Ga. 18, 21 (3) (c) (440 SE2d 652) (1994) (“The trial court did not err when it granted [the] motion in limine excluding evidence which was not relevant to [the plaintiff’s] recoverable damages.”) (footnote omitted).

3. GDSC contends that the trial court erred in unilaterally redacting portions of the employment agreement after it had been admitted into evidence. Exhibit Ato the employment agreement set forth the parties’ agreement as to Pharis’s compensation. Thereunder, Pharis was entitled to quarterly distributions “based on calend[a]r year quarters.” The exhibit also contained the following language:

Notwithstanding [other provisions of Exhibit A], in the event Employee’s employment with Employer is terminated for any reason, whether voluntary or involuntary, Employer shall calculate and pay, on or about the date of such termination, a quarterly distribution to Employee in accordance with these provisions, except that a short quarter, rather than a full quarter shall be used, with such short quarter beginning on the first (1st) day of the quarter in which such termination of employment occurs and ending as of the close of business on the date of such termination of employment.

At the pre-trial conference, GDSC’s counsel, after reading the provision quoted above aloud to the trial court, argued that it constituted “the sole remedy for GDSC for termination under this contract.” The trial court disagreed, finding that “none of those conditions of termination apply” because Pharis was not lawfully terminated, as decided in GDSC I. On the morning of trial, GDSC’s counsel indicated that he would nevertheless argue to the jury that Pharis was only entitled to his last quarterly distribution. The trial court told counsel “you will not argue that [Pharis is] only limited to walk away with what that last provision states.”

The employment agreement was tendered by Pharis at trial and admitted without objection. Before the employment agreement was submitted to the jury, the trial court ordered that the above-quoted provision of the employment agreement be redacted. GDSC characterizes the provision as the liquidated damages Pharis would be entitled to recover under the employment agreement were he to be terminated with or without cause. GDSC argues that, because Pharis attached the employment contract to his complaint and tendered the entire agreement into evidence, he admitted the entire contract was relevant and that the trial court erred in keeping “a crucial portion” of that contract away from the jury

The provision at issue does not address or limit damages for a breach of the employment contract. Rather, it provides for a prorated payment of compensation based on a “short quarter,” which would allow the employee to be compensated for the work performed on GDSC’s behalf through the termination of employment. See Royal Crown Cos. v. McMahon, 183 Ga. App. 543, 545 (2) (359 SE2d 379) (1987) (Liquidated damages analysis was inapplicable as the severance pay agreement at issue did not purport to be a stipulated sum for damages for a breach.). As the provision was not relevant to the issue of damages for the breach of the employment contract, the trial court did not abuse its discretion in sua sponte excluding the provision from the jury’s consideration. See, e.g., Farley v. State, 145 Ga.App. 98, 103 (5) (243 SE2d 322) (1978) (Questions of relevancy, materiality or competency are for the trial court, and this extends to the power of the court to exclude inadmissible evidence upon its own motion.). Compare Rabun v. Wynn, 209 Ga. 80, 82-83 (6) (70 SE2d 745) (1952) (Although a trial judge may on his own motion exclude or strike out evidence which is incompetent or inadmissible, the trial court erred in sua sponte excluding material and relevant evidence.). Accordingly, we find no merit in this claim of error.

4. Lastly, GDSC contends that the trial court erred in failing to treat Pharis and his incorporated medical practice, David P. Pharis, PC. (the “PC”), as separate legal entities. Because of this error, GDSC asserts, Pharis was improperly allowed to recover, over GDSC’s motion for directed verdict, start-up costs incurred by the PC in establishing Pharis’s medical practice. A directed verdict is proper only when “there is no conflict in the evidence as to any material issue and the evidence introduced, with all reasonable deductions therefrom, demands a certain verdict.” (Citations and punctuation omitted.) The Corps Group v. Afterburner, Inc., 335 Ga. App. 138, 139 (779 SE2d 383) (2015). We review a trial court’s denial of a motion for directed verdict under the “any evidence” standard. See Dagne v. Schroeder, 336 Ga. App. 36, 40 (3) (783 SE2d 426) (2016). Thus, “so long as there is some evidence to support the jury’s verdict, it must be upheld on appeal.” (Citation and punctuation omitted.) Id.

Pharis sought to recover as damages the expenses incurred in opening up his new medical practice on the theory that, but for GDSC’s breach of his employment contract, he would not have incurred the expenses and because the expenses were reasonably incurred in order to mitigate and lessen his damages. See Restatement (Second) of Contracts § 347, comment (c) (“Incidental losses,” which, like any other loss actually suffered, are recoverable, “include costs incurred in a reasonable effort, whether successful or not, to avoid loss[.]”); Joseph Perillo, Calamari and Perillo on Contracts § 14.17, pp. 588-589 (5th ed. 2003) (expenses incurred in a reasonable effort to mitigate damages may be recoverable as damages). At the close of Pharis’s case, GDSC moved for a directed verdict on Pharis’s claim for start-up expenses on the ground that the evidence showed that those costs were paid by the PC, which was not a party to the case. The trial court denied the motion, commenting that Pharis and the PC are “one and the same as a matter of.. . liability law.” As part of its special verdict, the jury awarded Pharis $283,321 in damages “for start-up expenses.”

The evidence showed that the $283,321 at issue were costs incurred by the PC in the course of opening the business where Pharis resumed his medical practice after GDSC breached the employment contract. Specifically, the evidence showed that of the $283,321 in costs, $273,321 was attributable to the PC’s purchase of depreciable assets, primarily medical equipment, and the remaining $10,000 was attributable to the legal costs of organizing the PC. “[A] cardinal precept of corporate law is that corporations are separate legal entities from their shareholders, officers, directors, and employees even in the situation in which a corporation is owned solely by one person.” (Citation and punctuation omitted.) Cobra 4 Enterprises v. Powell-Newman, 336 Ga. App. 609, 612 (785 SE2d 556) (2016). See Jerry Dickerson Presents, Inc. v. Concert/Southern Chastain Promotions, 260 Ga. App. 316, 326 (2) (c) (579 SE2d 761) (2003) (“A corporation and even its sole owner are two separate and distinct persons.”) (punctuation and footnote omitted). Thus, funds expended by the PC to establish the medical practice were not expended by Pharis. Rather, they were funds paid by a nonparty with no standing to complain of the breach of contract at issue. “The elements for a breach of contract claim in Georgia are the (1) breach and the (2) resultant damages (3) to the party who has the right to complain about the contract being broken.” (Citation and punctuation omitted; emphasis in original.) Canton Plaza v. Regions Bank, 315 Ga. App. 303, 306 (1) (732 SE2d 449) (2012). Pharis suggests that, at the least, he could have recovered as damages $110,000 in his personal savings that he contributed to the PC. But even if the PC used those funds to pay for start-up costs, Pharis made a capital contribution to the corporation; he did not pay the start-up costs. Rather, the costs were paid by the PC and inured to the PC’s benefit, largely in the form of equipment. Accordingly, we find that the trial court erred in allowing the jury, over GDSC’s motion for directed verdict, to award Pharis costs incurred by the PC in establishing its business. The judgment is reversed in part, and the trial court is instructed to deduct the amount awarded on Pharis’s claim for start-up expenses ($283,321, as set forth in the jury’s special verdict), but the judgment is otherwise affirmed. See Redmon v. Daniel, 335 Ga. App. 159, 163-164 (1), n. 5 (779 SE2d 778) (2015) (“[A] party who movedfor a directed verdict as to a specific claim will be entitled to judgment as a matter of law on that claim if [it] prevails on [its] argument on appeal that the evidence is insufficient to support the verdict as to that claim.”) (citation and punctuation omitted). See also Morris v. Bonner, 183 Ga. App. 499, 502 (3) (359 SE2d 244) (1987) (“[W]here the jury finds damages in an amount which exceeds that which is authorized by the evidence it is not necessary to grant a new trial if the erroneous amount can be accurately measured and deducted from the verdict.”) (citations and punctuation omitted).

Decided November 14, 2016

Reconsideration denied December 7, 2016

Schreeder, Wheeler & Flint, Michael D. Flint, Shira A. Critten-don, for appellant.

Stanley, Esrey & Buckley, James M. Sherman, Sherri L. Kimmell, for appellee.

Judgment affirmed in part and reversed in part.

Branch and Mercier, JJ., concur.

       Pharis also asserted claims to compel redemption of stock and for attorney fees, see GDSC I, 323 Ga. App. at 181-182, but he withdrew those claims before trial.

       GDSC argued that it could not be held liable for Baucom’s acts because he had neither actual nor apparent authority to terminate Pharis. GDSC could have raised this same argument in opposing Pharis’s motion for partial summary judgment.

       In a breach of contract action, the measure of damages “is the amount which will compensate the injured party for the loss which a fulfillment of the contract would have prevented or the breach of it entailed.” (Punctuation and footnote omitted.) Goody Prods. v. Dev. Auth. of the City of Manchester, 320 Ga. App. 530, 539 (3) (a) (740 SE2d 261) (2013). Thus, “[t]he injured party, insofar as it is possible to do so with a monetary award, is to be placed in the position he would have been in had the contract been performed.” (Citation omitted.) Oasis Goodtime Emporium I v. Cambridge Capital Group, 234 Ga. App. 641, 645 (4) (507 SE2d 823) (1998).

       The shareholders’ agreement provided that, in the event of employment termination, the stipulated purchase price of the shares “shall be equal to the Selling Shareholder’s Accounts Receivable (as . .. defined [in the agreement]) as reported by the Company’s regularly retained accountant.” “Accounts Receivable” was defined as
      those accounts receivable relating to the Selling Shareholder’s medical services collected by the Corporation over the twelve (12) month period following the Sales Event [defined as including termination of a shareholder’s employment agreement], less a collection service charge equal to eighty (80%) percent amounts collected during such twelve month period.

       The quarterly distributions were “equal to the result of: (i) Employee’s Net Receipts minus (ii) Employee’s share of Overhead minus, (iii) Employee’s Allocated Expenses minus (iv) Employee’s [base] salary ($37,500.00 per quarter). If a positive number results, Employer shall pay such amount as the quarterly distribution for said quarter.” (emphasis in original).

       In this section of its appellate brief, GDSC contends that the trial court also erred in failing to treat GDSC and Baucom as separate legal entities. In essence, GDSC repeats its argument that it could not be held liable for actions taken by Baucom without corporate authority.

       See also John K. Larkins, Jr., Georgia Contracts: Law and Litigation § 12.30 (2d ed.) (database updated October 2016) (“[EJxpenses reasonably and [necessarily] expended in an effort to reduce damages may themselves be claimed as damages by either the plaintiff or defendant.”). The jury was also charged that “[ejxpenses reasonably and necessarily expended in an effort to lessen damages may themselves be claimed as damages.”


source: Caselaw Access Project

author: MILLER, Presiding Judge.

license: Public Domain

text:
    A16A1380.
    REID v. THE STATE.
    (792 SE2d 732)
   MILLER, Presiding Judge.

Charleston Reid pled guilty on August 19, 2014, to possession with intent to distribute cocaine (OCGA § 16-13-30 (b)), two counts of aggravated assault on a peace officer (OCGA § 16-5-21 (d)), two felony counts of obstruction of a peace officer (OCGA § 16-10-24 (b)), and two misdemeanor counts of obstruction of a peace officer (OCGA § 16-10-24 (a)). Reid filed a pro se motion for an out-of-time appeal, alleging that his guilty plea was not knowing and voluntary and that some of his convictions should have merged. The trial court summarily denied Reid’s motion in a one-sentence order without an eviden-tiary hearing, and he appeals pro se from that ruling. For the reasons that follow, we affirm in part, vacate in part, and remand this case for an evidentiary hearing.

Although the record does not contain many details concerning the incident that led to Reid’s arrest, the record does show that he was indicted for one count of trafficking in cocaine, one count of aggravated assault against a peace officer for assaulting Officer Brock with debris (later identified as a tree limb), one count of aggravated assault for assaulting Officer Brock with his hands, one felony count of obstruction of a peace officer for offering and doing violence to Officer Brock with his fists, one felony count of obstruction of a peace officer for pushing Officer Duncan, one count of misdemeanor obstruction of a peace officer for failing to obey the lawful commands of Officer Duncan, and one count of misdemeanor obstruction of a peace officer for running from Officer Brock. Reid pled guilty to all counts of the indictment, with the exception of his drug charge, to which he pled to the lesser offense of possession with intent to distribute. Reid did not file a timely direct appeal. Instead, he filed a pro se motion for out-of-time appeal, which the trial court denied.

1. Through several enumerations of error, which we consider collectively, Reid argues that the trial court erred in denying his motion for out-of-time appeal because the record demonstrates that his plea was not knowing and voluntary We disagree.

A direct appeal from a judgment of conviction and sentence entered on a guilty plea is only available if the issue on appeal can be resolved by reference to facts on the record. The ability to decide the appeal based on the existing record thus becomes the deciding factor in determining the availability of an out-of-time appeal when the defendant has pled guilty Issues regarding the effectiveness of counsel [regarding failure to pursue a direct appeal] are not reached unless the requirement that the appeal [can] be resolved by reference to facts on the record is met.

(Citation omitted.) Stephens v. State, 291 Ga. 837, 838 (2) (733 SE2d 266) (2012); see also Moore v. State, 285 Ga. 855, 856 (1) (684 SE2d 605) (2009) (“When a defendant pleads guilty and then seeks an out-of-time appeal from that plea, he must make the threshold showing that he would have been entitled to file a timely direct appeal from the plea because the issues he is raising can be decided from facts appearing in the record.”) (citation and punctuation omitted).

A defendant is required to prove both that his counsel was constitutionally deficient and that he was prejudiced by the deficiency, meaning in this context, that the appeal would have been successful if taken. Stephens, supra, 291 Ga. at 838-839 (2) (citing Strickland v. Washington, 466 U. S. 668, 687, 694 (104 SCt 2052, 80 LE2d 674) (1984)).

Thus, if the claims that the defendant wants to raise in the out-of-time appeal can be resolved against him on the face of the record, so that even a timely appeal would have been unsuccessful, then plea counsel’s failure to advise the defendant to file such an appeal was not professionally deficient, nor did any prejudice result.

(Citation and punctuation omitted.) Id. at 839 (2).

In attempting to make his threshold showing that his plea was not knowing and voluntary, Reid contends that he was not advised of the constitutional rights he would waive in entering his plea, he was not advised of the nature of the charges to which he was pleading guilty, he was not informed of the maximum and minimum sentences available for the crimes to which he was pleading guilty, there was not a factual basis established on the record for the trial court to accept his guilty plea, and he was not informed of his rights to appeal or withdraw his guilty plea.

The trial court meets its obligation in accepting a guilty plea when it shows on the record that the defendant was informed of and understood the charges to which he was pleading guilty, as well as the constitutional rights he was waiving, and that with such understanding, the defendant voluntarily pled guilty in the absence of promises or threats. Clark v. State, 299 Ga. App. 558, 560 (683 SE2d 93) (2009); see also Uniform Superior Court Rule 33. In reviewing the validity of a guilty plea, this Court looks to the record as a whole to determine if the record shows that the plea was knowing and voluntary Belcher v. State, 304 Ga. App. 645, 647 (1) (b) (i) (697 SE2d 300) (2010). Moreover,

a defendant’s otherwise voluntary guilty plea is not invalidated merely because the range of punishment on the plea was never recited to him, when he makes no claim that he was disadvantaged by the omission or even that he was in fact unaware of the possible sentence which could be imposed.

(Citation omitted.) Id. at 648 (1) (b) (i). Further, we presume a defendant who is represented by counsel has received sufficiently detailed explanation from his counsel of the nature of the crimes to which he is pleading guilty to give the defendant notice of what he is being asked to admit. Clark, supra, 299 Ga. App. at 560.

Here, even with the limited record before us, we conclude that Reid’s plea was knowing and voluntary. During the plea hearing, the trial court informed Reid of his right to a trial by jury, his presumption of innocence, his right to confront his accusers, his right to counsel, and his right to remain silent. Reid stated that he understood the rights he was waiving, and despite his initial equivocation, Reid ultimately informed the trial court that he was guilty of the crimes that he was charged with based on the crimes read by the judge from his sentencing sheet. Moreover, both Reid and his trial counsel stated that counsel spoke to Reid about the State’s sentencing recommendation, which they both admitted was the same sentence announced in court. Taken as a whole, Reid cannot establish from this record that his plea was not knowing and voluntary, and consequently, a direct appeal would not have been successful. Belcher, supra, 304 Ga. App. at 647 (1) (b) (i); Clark, supra, 299 Ga. App. at 560. Accordingly, Reid is not entitled to an out-of-time appeal on this ground, and we need not address issues concerning trial counsel’s alleged ineffective assistance in this regard. Stephens, supra, 291 Ga. at 839 (2).

2. Although not separately enumerated as error, Reid argues that some of his convictions should have merged. We agree that, based on the record before us, several of Reid’s sentences are void.

In his pro se brief, Reid complains that he was

convicted on multiple offenses which were the result of the same facts used to establish several of the crimes for which he was convicted and thus some of his convictions are void, illegal, and unconstitutional in violation of both due process of law and double jeopardy as well as contrary to OCGA § 16-1-7.

“A conviction that merges with another conviction is void... and a sentence imposed on such a void conviction is illegal and will be vacated if noticed by this Court, even if no merger claim was raised in the trial court and even if the defendant does not enumerate the error on appeal.” Nazario v. State, 293 Ga. 480, 485 (2) (b) (746 SE2d 109) (2013). Indeed, “to disregard [the merger issue] and allow the defendant to serve a sentence for a criminal conviction that has been identified as illegal and void would not comport with fundamental fairness and due process of law.” Id. at 487 (2) (c). Therefore, contrary to the State’s argument that Reid’s guilty plea waives any error here, merger claims are not waived by the entry of a guilty plea, and appellate courts have an obligation to correct such errors. Id. at 485-486 (2) (b).

Nevertheless, as with any other challenge raised in a motion for an out-of-time appeal, the merits of an alleged merger issue must be established on the face of the record. See Nazario, supra, 293 Ga. at 488 (2) (d).

While an accused may be prosecuted for more than one crime arising out of the same criminal conduct, he may not be convicted of more than one crime arising out of the same criminal conduct where one crime is included in the other. OCGA § 16-1-7 (a) (1). A crime is included in the other when: (1) It is established by proof of the same or less than all the facts or a less culpable mental state than is required to establish the commission of the crime charged; or (2) It differs from the crime charged only in the respect that a less serious injury or risk of injury to the same person, property, or public interest or a lesser kind of culpability suffices to establish its commission. OCGA § 16-1-6. With respect to subsection (1), the “required evidence test” is utilized to determine whether multiple convictions are precludedbecause one of the crimes was established by proof of the same or less than all the facts that were required to establish the other crime.

(Citation, punctuation and emphasis omitted.) Regent v. State, 299 Ga. 172, 175 (787 SE2d 217) (2016).

Here, Reid was charged with two counts of aggravated assault on a peace officer, two counts of felony obstruction of a peace officer, and two counts of misdemeanor obstruction of a peace officer. We address the merger issues with respect to each of these convictions in turn.

(a) Aggravated assault on a peace officer and felony obstruction of a peace officer.

Reid was indicted for and convicted of aggravated assault on a peace officer (OCGA § 16-5-21 (d)) for

unlawfully mak[ing] an assault upon the person of [Officer] Brock, knowing said [Officer] Brock was a peace officer engaged in the performance of his official duties, said assault being with an object, to wit: hands, which when used offensively against a person, is likely to or actually does result in serious bodily injury . . .

Reid was also indicted for and convicted of felony obstruction of a peace officer (OCGA § 16-10-24 (b)) for

unlawfully, knowingly, and willfully obstructing] [Officer] Brock, a law enforcement officer in the lawful discharge of his official duties by offering and doing violence to said officer by trying to strike said officer with his fist. . . .

The record clearly shows that the crime of obstruction was established by proof of the same or less than all the facts required to establish the crime of aggravated assault on a peace officer. See Taylor v. State, 327 Ga. App. 882, 888 (5) (a) (761 SE2d 426) (2014) (obstruction of a peace officer was established by proof of the same or less than all the facts required to prove aggravated assault on a peace officer and therefore the two offenses merged); compare Gordon v. State, 337 Ga. App. 64, 69-70 (2) (785 SE2d 900) (2016) (conviction for aggravated assault did not require proof that assault was “upon a peace officer while the peace officer is engaged in, or on account of the performance of, his or her official duties”; therefore it did not merge with obstruction of a peace officer conviction) (citations omitted). Consequently, Reid’s convictions for aggravated assault on a peace officer and felony obstruction of a peace officer as to Officer Brock should have merged.

(b) Felony obstruction and misdemeanor obstruction.

Misdemeanor obstruction is a lesser included offense of felony obstruction, and therefore, Reid’s convictions for felony and misdemeanor obstruction also could have merged. OCGA § 16-10-24 (a) and (b); Chynoweth v. State, 331 Ga. App. 123, 129 (4) (768 SE2d 536) (2015); McCoy v. State, 285 Ga. App. 246, 249 (3) (645 SE2d 728) (2007) (“If a jury finds a defendant guilty of both the charged offense and the lesser included offense, the lesser offense merges into the greater offense and the court sentences on the greater offense only”) (citation and punctuation omitted). Given the scant record before this Court concerning the confrontation between Reid and Officer Duncan, we cannot conclude that Reid’s felony and misdemeanor obstruction charges should have merged. Nevertheless, in light of our conclusion that Reid opened the door to an out-of-time appeal on the merger of the other charges, we need not address that issue at this time. Rather, this is an issue for the trial court to address on remand.

(c) Ineffective assistance of counsel.

Our conclusions that Reid’s merger claims are meritorious does not end the inquiry To be entitled to an out-of-time appeal, Reid still must show that counsel was constitutionally defective for failing to advise Reid of the right to appeal or failing to file the appeal on Reid’s behalf. See, e.g., Stephens, supra, 291 Ga. at 839 (2) (if defendant makes an insufficient showing as to either the merits of his appeal or the ineffective assistance of counsel, he is not entitled to an out-of-time appeal).

Decided November 3, 2016

Reconsideration denied December 7, 2016

Charleston C. Reid, pro se.

Stephen A. Bradley, District Attorney, Reginald L. Bellury, Assistant District Attorney, for appellee.

Where, as here, the underlying merger claim has merit, the trial court must determine whether trial counsel’s deficient performance was the cause of the failure to file a timely direct appeal. Stephens, supra, 291 Ga. at 839 (2). Thus, the trial court must hold an eviden-tiary hearing on this issue. Id.

The trial court in this case summarily dismissed Reid’s motion without conducting a hearing. Having concluded that Reid’s merger claim would entitle him to relief, we find that the trial court’s failure to conduct a hearing is error. See Stephens, supra, 291 Ga. at 839 (2). We therefore vacate the trial court’s order in part and remand this case with instructions for the trial court to hold an evidentiary hearing on trial counsel’s performance.

In sum, we affirm the trial court’s order to the extent that it denied Reid’s motion for out-of-time appeal with respect to his claim that his plea was involuntary. We vacate the trial court’s order with respect to the merger issue, and we remand this case with direction that the trial court consider whether trial counsel was constitutionally ineffective for failing to advise Reid of his right to appeal his void sentence.

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

McFadden, J., concurs. McMillian, J., concurs in judgment only.

       Georgia’s aggravated assault and obstruction statutes have been amended since Reid’s guilty plea in ways which are not relevant to this appeal.

       Reid also enumerates as error that the trial court impermissibly participated in the plea negotiations. He did not raise this as error before the trial court; consequently, we will not consider it for the first time on appeal. See, e.g., Hunter v. State, 273 Ga. App. 52, 54 (2) (614 SE2d 179) (2005).

       See OCGA §§ 5-6-30, 5-6-48 (f).

       We recognize that this Court has rejected the need for an evidentiary hearing in two cases: Dowling v. State, 294 Ga. App. 413, 414 (669 SE2d 198) (2008); and Davis v. State, 286 Ga. App. 80, 82 (2) (648 SE2d 670) (2007). The statements about evidentiary hearings in those cases are arguably dicta. Moreover, we find those cases distinguishable because neither case held that the defendant’s underlying claim on appeal was meritorious.


author: BARNES, Presiding Judge.

text:
    A16A0236.
    GRIER v. THE STATE.
    (792 SE2d 737)
   BARNES, Presiding Judge.

Following the denial of his motion for new trial, Rafer Grier appeals his convictions on four counts of aggravated child molestation and statutory rape. On appeal, Grier raises several errors related to his access to the victim’s records with the Department of Family and Children Services (“DFACS”), arguing that he was entitled to the records pursuant to OCGA § 17-16-1, and that the trial court erred in finding that there was no exculpatory evidence in them. He also contends that his trial counsel was ineffective, that the trial court erred in admitting other acts evidence, and that his rights under the Equal Protection Clause were violated. Following our review, we affirm.

Viewed in the light most favorable to the verdict, Davis v. State, 275 Ga. App. 714, 715 (1) (621 SE2d 818) (2005), the evidence demonstrates that Grier was a Spanish teacher at Stephenson Middle School when he initiated a sexual relationship with the 14-year-old victim, who was in foster care under DFACS custody The sexual encounters included sodomy and intercourse, occurred multiple times in Grier’s classroom, and, on at least one occasion, outside of school, from January 2008 until the victim reported the sexual relationship in April 2008.

1. In two related enumerations, Grier contends that he was entitled to the victim’s DFACS records pursuant to OCGA § 17-16-1 et seq., and that the trial court erred in ruling that there was no exculpatory evidence in them.

(a) Grier maintains that the enactment of the reciprocal discovery act expanded discovery to include DFACS records. However, contrary to his assertion, the act does not provide an independent statutory basis for the discovery of DFACS files. Horne v. State, 192 Ga. App. 528, 531 (4) (a) (385 SE2d 704) (1989). See Ellis v. State, 289 Ga. App. 452, 456 (2) (657 SE2d 562) (2008) (“contrary to [appellant’s] contentions, the reciprocal discovery act does not provide an independent statutory basis for the discovery of [the therapist’s] files.”). Thus, access to the DFACS files “is prohibited except as [otherwise] provided by statute.’Davidson v. State, 183 Ga. App. 557, 559 (4) (b) (359 SE2d 372) (1987).

To that end, OCGA § 49-5-40 (b) provides that “[e]ach and every record concerning reports of child abuse ... which is in the custody of the [Department of Human Services], or other state or local agency, or child advocacy center is declared to be confidential, and access thereto is prohibited except as provided in Code Sections 49-5-41 and 49-5-41.1.”

OCGA § 49-5-41 (a) [(H)] grants access to such records to (a) court, by subpoena, upon its finding that access to such records may be necessary for determination of an issue before such court; provided, however, that the court shall examine such record in camera, unless the court determines that public disclosure of the information contained therein is necessary for the resolution of an issue then before it and the record is otherwise admissible under the rules of evidence.

Dodd v. State, 293 Ga. App. 816, 821 (4) (668 SE2d 311) (2008).

In this case, Grier’s trial counsel twice subpoenaed the victim’s DFACS records, but in each instance, rather than request an in camera inspection by the trial court as mandated by statute, the subpoena directed that the files be sent to the attorney’s office. DFACS filed a motion to quash, to which Grier’s trial counsel did not respond, and ultimately trial counsel never reviewed the victim’s DFACS records. Accordingly, because Grier’s trial counsel did not follow the statutorily prescribed procedure for obtaining the DFACS files, and given that OCGA § 17-16-1 et seq. does not expand discovery of DFACS records independent of the procedure provided for in OCGA § 49-5-40 (b), this enumeration fails.

(b) The trial court conducted an in camera inspection of the DFACS records after trial and before the hearing on Grier’s motion for new trial. In its order denying the motion for new trial, the trial court found that “there is no exculpatory information contained [in the victim’s DFACS file], [and] that any information in the DFACS records was either irrelevant or cumulative of other evidence in the case.” Grier contends that the trial court erred in finding that there was no exculpatory information in the file. We do not agree.

“A defendant who is denied access to certain information after the court performs an in camera inspection has the burden on appeal of showing both the materiality and the favorable nature of the evidence sought.” (Footnote omitted.) Stephens v. State, 305 Ga. App. 339, 343 (3) (699 SE2d 558) (2010). Evidence is material“only if there is a reasonable probability that, had the evidence been disclosed to the defense, the result of the proceeding would have been different. A ‘reasonable probability’ is a probability sufficient to undermine confidence in the outcome.” (Citation and punctuation omitted.) Young v. State, 290 Ga. 441, 443 (2) (721 SE2d 839) (2012). This Grier has not done. His core contention appears to be that the victim lacked credibility and that the DFACS records chronicled her prior misconduct, and were thus exculpatory. But, as noted by the trial court, this information was merely cumulative of testimony about the victim’s misconduct presented at trial. Further, Grier has not met his burden on appeal of demonstrating what excluded information in the DFACS records, which are included in the record on appeal, would have been so material that there is a reasonable opportunity that the outcome of his case would have been different, if the records had been disclosed at trial.

Moreover, Grier’s contention that due process per Brady v. Maryland, 373 U. S. 83 (83 SCt 1194, 10 LE2d 215) (1963), requires that he have access to any exculpatory information regardless of its duplicative nature is also meritless. This court has found that the trial court’s in camera inspection of evidence satisfies the requirements of Brady because this procedure balances the public’s interest in protecting the confidentiality of those records and the defendant’s right to due process. Davidson, 183 Ga. App. 557. As previously noted, on appeal Grier has the burden of showing both the materiality and the favorable nature of the evidence sought. Young, 290 Ga. at 443 (2). “Evidence is constitutionally material when its exculpatory value is ... of such a nature that a defendant would be unable to obtain other comparable evidence by other reasonably available means.” (Citation omitted.) State v. Mussman, 289 Ga. 586, 590 (2) (713 SE2d 822) (2011). Grier has not demonstrated that the evidence he contends was contained in the DFACS file meets this standard, and thus this argument fails.

2. Grier contends that his trial counsel was ineffective in several regards relating to the DFACS records. He maintains that his trial counsel was ineffective by failing to obtain them, failing to argue that portions of the record were discoverable under OCGA § 17-16-1 et seq., and failing to object and request the DFACS records when the State’s expert testified that he had viewed portions of the records.

To prevail on a claim of ineffective assistance, Grier

must show counsel’s performance was deficient and that the deficient performance prejudiced him to the point that a reasonable probability exists that, but for counsel’s errors, the outcome of the trial would have been different. A strong presumption exists that counsel’s conduct falls within the broad range of professional conduct.

(Citation and punctuation omitted.) Pruitt v. State, 282 Ga. 30, 34 (4) (644 SE2d 837) (2007). If he fails to meet his burden on one prong of the two-prong test, then the appellate court need not review the other prong. Wright v. State, 291 Ga. 869, 870 (2) (734 SE2d 876) (2012). “We accept the trial court’s factual findings and credibility determinations unless clearly erroneous, but we independently apply the legal principles to the facts.” (Citation and punctuation omitted.) Robinson v. State, 277 Ga. 75, 76 (586 SE2d 313) (2003).

(a) Grier contends that his trial counsel was ineffective for failing to subpoena the records to the trial court’s chambers instead of to counsel’s office, following the procedure established in Davidson, 183 Ga. App. at 559 (4) (b). However, he did not assert this claim of ineffectiveness in his motion for new trial, nor did the trial court rule on it. Thus, “this aspect of his ineffective assistance claim was waived because it was not raised at the hearing on the motion for new trial.” Thompkins v. State, 272 Ga. 835, 836 (2) (c) (536 SE2d 747) (2000).

Moreover, even if this claim were not waived, Grier has failed to show how this deficiency prejudiced him “to the point that a reasonable probability exists that, but for counsel’s errors, the outcome of the trial would have been different,.” (Citations omitted.) Pruitt, 282 Ga. at 34 (4). The trial court reviewed the records before ruling on the motion for new trial and held that there was “no exculpatory evidence contained therein.” Thus, Grier has not shown that the trial court would have reached a different conclusion if it had viewed the records before trial.

(b) Grier also contends that his trial counsel was ineffective for failing to argue that portions of the record were discoverable under OCGA § 17-16-1 et seq., the reciprocal discovery act. However, as noted previously, the act does not provide an independent statutory basis for the discovery of DFACS files. Horne, 192 Ga. App. at 531 (4) (a). A meritless argument provides no basis for an ineffectiveness claim.

(c) Grier contends that his trial counsel was ineffective for failing to object and request a continuance after the State’s expert testified that she had viewed portions of the victim’s DFACS records. We do not agree.

During Grier’s cross-examination of the State’s expert, his trial counsel asked her if she had viewed the victim’s forensic interview, and she responded that she had. Counsel later asked her if she had reviewed any of the statements that the victim gave to “doctors or nurses when she was examined,” and she responded, “I believe in the case file, when she was forensically examined, it was in that report.” Grier’s counsel then questioned the expert about what documents she had reviewed to prepare for her testimony, and the following exchange took place:

[COUNSEL]: As a part of your preparation to come in and testify about this case . . . were you given access to [the victim’s] DFACS records?
[EXPERT]: The full file DFACS, no.
[COUNSEL]: Were you given access to her school records? [EXPERT]: The full records, I was not.
[COUNSEL]: Any of them from school?
[EXPERT]: I did not ask. My understanding of testimony is not so much as to fact in this particular case, but, rather, my experience in the area of child sexual abuse. If I were to have been asked to assess a bucket load of records, I would be happy to do so.... [I]n this particular case, I was given a copy of discovery, and in that discovery was included the areas of the investigation, a synopsis of the general medical, the forensic interview, the steps of when the case was disclosed, when the outcry was made and as such. And so, no, I did not ask for the full DFACS records nor did I ask for the full school records.

(Emphasis supplied.)

Contrary to Grier’s assertion, the expert’s testimony did not reveal that she had access to any records other than those supplied to him in discovery, or that she had viewed the DFACS records in whole or part. Further, Grier did not subpoena the expert for the hearing on his motion for new trial to ascertain whether she viewed any DFACS records. Trial counsel testified that he did not recall his reasoning for not objecting to the testimony or requesting a continuance. He testified, “I don’t know whether at the time I took that to mean that she didn’t ask for or didn’t receive any of the records at all or whether at the time I’m thinking that she had gotten some of the records but not. . . the full records. I just don’t remember what I was thinking at that time.”

We need not determine whether counsel’s performance was deficient if we determine that the prejudice prong is not satisfied in any event. The general requirement is that the defendant must affirmatively prove prejudice, because attorney errors come in an infinite variety and are as likely to be utterly harmless in a particular case as they are to be prejudicial. Consequently, mere speculation on the defendant’s part is insufficient to establish Strickland prejudice.

(Citations and punctuation omitted.) Pierce v. State, 286 Ga. 194, 198 (4) (686 SE2d 656) (2009).

In this case, Grier’s mere speculation that the State’s expert may have reviewed DFACS records and his trial counsel’s failure to object thereto does not demonstrate prejudice to the point that a reasonable probability exists that the outcome of his trial would have been different.

3. Grier maintains that the sodomy statute is unconstitutionally vague, because the statute was never amended to reflect the redefinition of the offense in Powell v. State, 270 Ga. 327, 335 (3) (510 SE2d 18) (1998). The statute still states that “[a] person commits the offense of sodomy when he or she performs or submits to any sexual act involving the sex organs of one person and the mouth or anus of another,” OCGA § 16-6-2 (a) (1), but Grier argues that because the court in Powell decriminalized sodomy between consenting adults, a person of ordinary intelligence would be misled by the statute into thinking that anyone engaging in any act of sodomy, regardless of the other participant’s age, is committing a crime. He further argues that under OCGA § 16-6-2, the sentence for a conviction of engaging in an act of sodomy with someone younger than sixteen is one to twenty years with the possibility of parole or probation, in contrast to the sentence for aggravated child molestation based on an act of sodomy OCGA §§ 16-6-4 (c), (d) and 17-10-6.1 (b) (2) (C) provide that the sentence for a conviction of aggravated child molestation based on an act of sodomy with someone younger than 16 is a mandatory minimum of 25 years to life imprisonment, followed by life on parole, and none of the prison time in the sentence can be probated or paroled.

However, our Supreme Court has exclusive appellate jurisdiction over “[a]ll cases ... in which the constitutionality of a law, ordinance, or constitutional provision has been drawn in question.” Ga. Const. 1983, Art. VI, Sec. VI, Par. II (1). This court’s jurisdiction over constitutional questions does not reach cases that “ ‘involve construction of some constitutional provision directly in question and doubtful either under its own terms or under the decisions of [this court] or the Supreme Court of the United States.’ [Cit.]” Watson v. State, 283 Ga. App. 635, 637 (2) (642 SE2d 328) (2007). Moreover, we note that our Supreme Court has instructed that challenges to the constitutionality of a statute “ ‘must be made at the first opportunity, and it is too late to raise such question after a guilty verdict has been returned by the jury.’ [Cit.]” Lacey v. State, 270 Ga. 37 (1) (507 SE2d 441) (1998). See also Glean v. State, 268 Ga. 260, 263 (2) (b) (486 SE2d 172) (1997). Grier did not raise this constitutional issue before the jury returned its verdict, and this court has no jurisdiction over this issue. This enumeration thus fails.

Further, while Grier argues his trial counsel were ineffective for failing to argue that OCGA § 16-6-2 was unconstitutional, Grier also did not argue that issue in his motion for new trial, and did not examine Grier’s trial counsel about it. Allegations of ineffective assistance that were not raised before the trial court are procedurally barred. Seese v. State, 235 Ga. App. 181, 183-184 (3) (509 SE2d 94) (1998). See Felix v. State, 271 Ga. 534, 539 (523 SE2d 1) (1999) (“An error of law has as its basis a specific ruling made by the trial court.”). Accordingly, we do not consider this ineffective assistance claim.

4. Grier also asserts that his trial counsel were ineffective “for failing to understand how Powell[, 270 Ga. 327,] impacted the crime of aggravated child molestation” in Grier’s case. Our Supreme Court in Powell limited the crime of sodomy to acts committed in public, for money, or with someone under the age of consent. 270 Ga. at 335 (3). Grier maintains that after Powell, the crime of aggravated child molestation based on an act of sodomy under OCGA § 16-6-4 (c) and the crime of sodomy based on an allegation that the victim was a child under 16 under OCGA § 16-6-2 are identical and redundant. Therefore, he argues, he should have been punished under the less-severe sentencing provisions of the sodomy statute. He maintains that his trial counsel were ineffective for failing to make that argument, and also for failing to request a charge on sodomy as a lesser included offense.

Grier was represented by two attorneys at trial. When asked about the application of Powell to Grier’s case, one trial counsel testified:

[I]n my mind at the time, sodomy was not applicable [to] . . . Grier’s case. It was only applicable in the context of it’s kind of a sub[-] definition of the aggravated child molestation statute. ... I saw aggravated child molestation and sodomy as two completely separate and distinct offenses as defined in the [C]ode, and it never occurred to me to ask for sodomy as a lesser included offense of child molestation.

The other trial counsel testified that in hindsight he should have asked for a charge on the lesser included offense of sodomy, but he would not have thought of that argument at trial because he did not recognize the merits of the argument then.

[T]he standard for effectiveness of counsel does not require a lawyer to anticipate changes in the law or pursue novel theories of defense. [Grier] has not cited, and we have not found, any case addressing a similar . . . challenge to OCGA §[§ 16-6-2 and 16-6-4]. Trial counsel’s failure to raise this novel legal argument does not amount to ineffective assistance of counsel.

(Punctuation and footnotes omitted.) Hughes v. State, 266 Ga. App. 652, 655 (3) (a) (598 SE2d 43) (2004).

5. Grier also maintains that the trial court erred by admitting a portion of an out-of-court statement that he gave to a detective recounting that a female student had once falsely accused him of touching her, arguing that the statement was inadmissible evidence of a prior bad act that warrants a reversal of his convictions. We do not agree.

Before the detective testified, the jury was excused. During an ensuing bench conference, Grier requested that his taped statement be stopped before he mentioned that other kids had made false allegations about him, including “one girl said I held her after class and touched her inappropriately” He argued that the statement would be more prejudicial than probative. Grier acknowledged that he had been provided with the statement the week before his trial began, but maintained that the State had not filed notice of its intention to introduce evidence of prior bad acts and was therefore foreclosed from offering the evidence. The trial court overruled his objection and allowed the State to play the entire statement.

“[T]he admission of evidence is a matter which rests largely within the sound discretion of the trial court and will not be disturbed absent an abuse of discretion.” (Citation and punctuation omitted.) Barclay v. State, 306 Ga. App. 766, 766 (702 SE2d 907) (2010). In its order denying Grier’s motion for new trial, the trial court found that this portion of Grier’s statement was not prior bad act evidence subject to analysis under OCGA § 24-4-404 (b), but was rather a declaration against penal interest and admissible under OCGA § 24-8-801 (d) (2).

“The test for determining nonconstitutional harmless error is whether it is highly probable that the error did not contribute to the verdict.” (Citation omitted.) Rivera v. State, 295 Ga. 380, 382 (2) (761 SE2d 30) (2014). Pretermitting whether Grier’s statement that he had been falsely accused constituted prior bad act evidence under OCGA § 24-4-404 (b) and should have been excluded, we find this enumeration to be without merit. Under the highly probable test,

a reversal is not required if the evidence of guilt is overwhelming in that there is no reasonable probability that the verdict of the jury would have been different in the absence of this error. Having reviewed the transcript of the proceedings below, we find that.. . the [admission of the] statement does not constitute reversible error, since, viewing the posture of the entire record, we find that it is highly probable that [its admission] did not contribute to the verdict.

(Citations and punctuation omitted.) Lowther v. State, 263 Ga. App. 282, 283 (1) (587 SE2d 335) (2003) (admission of defendant’s statement to officer that he would not have been alone with the eight-year-old victim because he learned his lesson after he ran off with a fifteen-year-old girl and got her pregnant did not warrant reversal under highly probable test).

6. Grier last contends that his rights under the Equal Protection Clause of the United States Constitution were violated by the grossly disproportionate and thus cruel and unusual sentence for the crime of aggravated child molestation by sodomy, particularly compared to the much lesser sentence for the crime of sodomy. He further argues that his equal protection rights were violated because similarly situated people — those who commit the act of sodomy with someone younger than 16 — may be charged under either OCGA § 16-6-2 or OCGA § 16-6-4 (c), resulting in widely disparate sentences. Finally, he argues that because his fundamental right to equal protection is implicated by this sentencing disparity, the State must demonstrate a compelling state interest that requires the radically different, sentences for the similar crimes.

Our Supreme Court previously considered the slightly different argument that

there is no rational basis for treating child molestation based on an act of sodomy differently from child molestation based on other acts, and the different, treatment [for the act of sodomy] violates . . . equal protection and due process rights under the United States and Georgia Constitutions.

Odett v. State, 273 Ga. 353, 354 (2) (541 SE2d 29) (2001). The appellant in Odett argued that

in light of Powell, there is no rational basis for treating child molestation based on an act of sodomy differently from child molestation based on other acts, and the different treatment violate[d] his equal protection and due process rights under the United States and Georgia Constitutions.

Id. Our Supreme Court observed that Powell did not hold that the right to privacy protects sodomy generally, that sexual conduct with a minor is not protected by any privacy right, and that, “[a]s the statute at issue does not affect a fundamental right or a suspect class, to survive the [appellant’s] constitutional challenge [OCGA § 16-6-4 (c)] need only bear a rational relationship to some legitimate state purpose.” (Citation omitted.) Id. It concluded that the statute met this standard.

Here, Grier compares the aggravated child molestation statute by sodomy to the general sodomy statute, but he previously argued that OCGA § 16-6-2 too broadly defines sodomy between anyone as a criminal because it fails to recognize that under Powell, the criminalization of private, consensual, noncommercial sodomy between people over the age of consent is unconstitutional. If, under Powell, the State cannot convict someone for criminal sodomy unless the act was either public, performed for money, or performed on someone under the age of consent, and OCGA § 16-6-2 (a) (2) defines aggravated sodomy as involving a victim younger than ten, then Grier could not even be convicted under that statute with an offense involving a fourteen-year-old victim. The only statute that permissibly criminalizes that conduct with a victim of that age is OCGA § 16-6-4 (c) and (d), and thus Grier has no valid equal protection argument.

Further, even if, as Grier argues, he could still be charged under either the sodomy statute or the child molestation statute and that his equal protection rights were violated because the same act of consensual sodomy is punished differently under those statutes,

[u]nder OCGA § 16-1-7 (a), “when the same conduct of an accused may establish the commission of more than one crime, the accused may be prosecuted for each crime.” Therefore, as [Grier’s] conduct satisfied the elements of aggravated child molestation, the argument that he should have been sentenced for the lesser crime of simple sodomy is unavailing. The State is not required to prosecute only a lesser offense committed. It may prosecute the defendant under any or all statutes that fit the defendant’s conduct. [Grier’s] arguments that the . . . sodomy statute conflicts with the aggravated child molestation statute, and that his equal protection rights were violated as a result, are equally without merit. The . . . sodomy statute is irrelevant here as [Grier] was not charged with that crime. [He] was charged with aggravated child molestation and his actions satisfied the elements of that offense. See OCGA § 16-6-4 (c).

(Citations omitted.) Hunter v. State, 263 Ga. App. 747, 748-749 (2) (589 SE2d 306) (2003).

Regarding Grier’s claim that the mandatory sentence for aggravated child molestation constitutes cruel and unusual punishment based on the disparity between the sentences for sodomy and aggravated child molestation, first, accepting without deciding that Grier’s argument that the current sodomy statute does not comport with Powell, then he could not be charged under the sodomy statute with criminal conduct for committing the act of sodomy against someone older than ten.

Second,

[i]f the sentence falls within the statutory range of punishment set by the legislature, the presumption is that the sentence does not violate the Eighth Amendment, and the presumption remains until a defendant sets forth a factual predicate showing that such legislatively authorized punishment was so overly severe or excessive in proportion to the offense as to shock the conscience.

(Punctuation omitted.) Jones v. State, 325 Ga. App. 845 (1) (755 SE2d 238) (2014). Grier has failed in so demonstrating. See Pepe-Frazier v. State, 331 Ga. App. 263, 273 (3) (c) (770 SE2d 654) (2015) (no ineffective assistance for failing to object to appellant’s life sentence for one act of oral sex with 14-year-old because it “does not raise a threshold inference of gross disproportionality”).

Decided November 9, 2016

Reconsideration denied December 8, 2016

L. David Wolfe, for appellant.

Robert D. James, Jr., District Attorney, Elizabeth D. Racine, Lee Y. Williams, Deborah D. Wellborn, Assistant District Attorneys, for appellee.

Judgment affirmed.

Boggs and Dillard, JJ., concur.

       The court,
      by subpoena that is filed contemporaneously with a motion seeking records and requesting an in camera inspection of such records, may make such records available to a party seeking such records when . . . [s]uch motion is filed [and] . . . [s]uch motion is served . . . [o]n all parties to the action . . . and . . . [a]fter an in camera inspection of such records, the court finds that access to such records calculated to lead to the of admissible evidence.
      OCGA § 49-5-41 (a) (11).'

       OCGA § 16-6-2 (d) provides an exception to the mandatory minimum felony sentencing if the victim in an aggravated child molestation conviction based on sodomy is at least thirteen and younger than sixteen and the defendant is eighteen or younger and not more than four years older than the victim. Under those circumstances, the crime is a misdemeanor, and the sentence is not subject to the restrictions on probation and parole set out in OCGA § 17-10-6.1.

       OCGA § 24-4-404 (b) provides:
      Evidence of other crimes, wrongs, or acts shall not be admissible to prove the character of a person in order to show action in conformity therewith. It may, however, be admissible for other purposes, including, but not limited to, proof of motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or accident. . . .

       OCGA § 24-8-801 (d) (2) (A) provides in pertinentpartthat“[a]nadmissionis a statement offered against a party which is . . . [t]he party’s own statement, in either an individual or representative capacity.”

       The offense of aggravated sodomy carries the same sentence as an offense of aggravated child molestation. See OCGA §§ 16-6-2 (b) (2), 16-6-4 (d).


author: DOYLE, Chief Judge.

text:
    A16A0877.
    A16A0878.
    MARLOW v. THE STATE. TRIM v. THE STATE.
    (792 SE2d 712)
   DOYLE, Chief Judge.

Following a joint trial, Kelly Marlow and Robert Trim (collectively, “the appellants”) were each convicted of two felony counts of making a false statement. In separate appeals, the appellants challenge the denial of their subsequent motions for new trial. They assert identical enumerations of error: (1) the evidence was insufficient to support their convictions; (2) the rule of lenity should have been applied to their convictions; (3) the trial court erred in charging the jury; and (4) the trial judge should have recused sua sponte. We consolidate these appeals for disposition in a single opinion, and for the reasons that follow, we affirm the appellants’ convictions, but vacate their sentences and remand for resentencing.

Viewed in the light most favorable to the verdict, the record shows that on June 13, 2013, at approximately 11:00 p.m., a Canton police officer responded to a 911 call made by Barbara Knowles outside the Painted Pig restaurant in Canton. When he arrived, the officer spoke with Knowles, Marlow, and Trim, and they advised that

they had left a school board meeting that was very heated[,] and when they crossed the [two-lane, one way] street . . . between the crosswalk and the actual entrance of the restaurant, . . . [Cherokee County Schools Superintendent Frank] Petruzielo . . . came speeding by in an aggressive manner[,] and he came very close to them[,] and they felt threatened.

The officer took a report, but he advised the trio that he would not pursue an investigation or charges and that they could obtain a citizen warrant in magistrate court if they wished to further pursue the matter.

A police supervisor subsequently reviewed the incident report, and on June 14, 2013, he referred the matter to a detective for investigation. The detective contacted Knowles, Trim, and Marlow and asked them to provide written statements via e-mail. On June 19, 2013, Trim e-mailed his written statement to the detective, and he went into the police station and signed it on July 1, 2013. In the statement, Trim advised that he, Knowles, and Marlow were crossing the street, and as they reached the centerline of the road, a white BMW ‘Tegan to accelerate and then switched from the right lane to the left lane, where we were approximately halfway across.” According to his statement, Knowles “moved out of the way quickly[,] and [Trim] pushed... Marlow out of the lane to avoid being hit by the car. The car passed, and [he] could feel the closeness of the car. ... It was incredibly close, and [Trim] barely got out of the way” Trim stated that the BMW was very similar to that driven by Petruzielo, who had attended the school board meeting earlier that night and “was clearly angry and frustrated and directed much of that publicly at . . . [Marlow].”

Marlow also sent the detective a written statement via e-mail, which statement she later signed on July 1, 2013. Marlow stated therein that on June 13, 2013, as she, Knowles, and Trim reached the center lane of the two-lane, one-way road in front of the restaurant, a white BMW SUV “abruptly changed lanes and accelerated in [their] direction.”

Trim . . . noticed the vehicle approaching [them] and felt it was necessary to push [Marlow] from behind onto the sidewalk to ensure [her] safety.... [Marlow] recognized the SUV as the vehicle that the school superintendent parks in his space at the school district offices almost every day.

On June 20, 2013, the detective obtained surveillance video from outside the Painted Pig at 10:40 p.m. on June 13, 2013. According to the detective, the video shows Knowles “casually” walk across the street to the sidewalk without turning around and walk into the restaurant. Trim then reaches the sidewalk, followed by Marlow. The video does not show Trim pushing Marlow out of the way in the way they both described in their statements. It does depict Petruzielo driving past in his vehicle. The detective described the surveillance video as “inconsistent” with the accusations made by the appellants and Knowles.

On July 2, 2013, Knowles and the appellants met with police at the scene, and they gave recorded oral statements and reenacted their version of the events involving Petruzielo, narrating as they did so. Their statements essentially repeated their written statements, and according to the detective, their statements and reenactment remained inconsistent with the video surveillance.

As a result of the investigation, Marlow was charged with two felony counts of making a false statement, one on July 1, 2013 (Count 8), and another on July 2, 2013 (Count 9). Trim also was charged with two felony counts of making a false statement, one on July 1, 2013 (Count 11), and another on July 2, 2013 (Count 12). They were each convicted of both counts and sentenced to serve ten years, with sixty days in confinement, and the remainder on probation. The trial court denied their subsequent motions for new trial, and these appeals followed.

1. The appellants contend that the evidence was insufficient to support their convictions. We disagree.

On appeal from a criminal conviction, we view the evidence in the light most favorable to the verdict and an appellant no longer enjoys the presumption of innocence. This Court determines whether the evidence is sufficient under the standard of Jackson v. Virginia,[ \ and does not weigh the evidence or determine witness credibility. Any conflicts or inconsistencies in the evidence are for the jury to resolve. As long as there is some competent evidence, even though contradicted, to support each fact necessary to make out the State’s case, we must uphold the jury’s verdict.

OCGA § 16-10-20 provides as follows:

Aperson who knowingly and willfully falsifies, conceals, or covers up by any trick, scheme, or device a material fact; makes a false, fictitious, or fraudulent statement or representation; or makes or uses any false writing or document, knowing the same to contain any false, fictitious, or fraudulent statement or entry, in any matter within the jurisdiction of any department or agency of state government or of the government of any county, city, or other political subdivision of this state shall, upon conviction thereof, be punished by a fine of not more than $1,000.00 or by imprisonment for not less than one nor more than five years, or both.

Here, the jury viewed the video surveillance footage and read and heard the testimony regarding the appellants’ statements to police. The fact that witnesses conceded on cross-examination that the appellants’ statements “could have been the product of an innocent lapse in memory, since the[ ] statements were not given until days or weeks after the incident^] and [the appellants] made these statements from a ‘cold’ memory [without reviewing the video surveillance footage]” is unavailing.

It is the province of the jury to resolve any conflicts in the evidence and to determine the credibility of witnesses, and the fact that such conflicts may be resolved adversely to the [appellants] does not render the evidence insufficient. The evidence was sufficient to authorize the jury to determine that the State excluded all reasonable hypotheses save that of [the appellants’] guilt, and to authorize a rational trier of fact to find [Trim and Marlow] guilty beyond a reasonable doubt of the crimes for which [they were] convicted.

2. Citing the rule of lenity, the appellants contend that their felony sentences for making false statements should be vacated and that they should be resentenced for misdemeanor making a false report of a crime. We agree.

As this Court recently explained in Gordon v. State, a whole-court case decided after the trial court denied the appellants’ motions for new trial,

the rule of lenity finds its roots in the vagueness doctrine, which requires fair warning as to what conduct is proscribed. The rule of lenity, more specifically, ensures that if and when an ambiguity exists in one or more statutes, such that the law exacts varying degrees of punishment for the same offense, the ambiguity will be resolved in favor of a defendant, who will then receive the lesser punishment. But if after applying the traditional canons of statutory construction the relevant text remains unambiguous, the rule of lenity will not apply The fundamental inquiry when making this assessment, then, is whether the identical conduct would support a conviction under either of two crimes with differing penalties, i.e., whether the statutes define the same offense such that an ambiguity is created by different punishments being set forth for the same crime.
In explaining the appropriate analysis to apply in making this assessment, however, the Supreme Court of Georgia has cautioned that simply because a single act may, as a factual matter, violate more than one penal statute does not implicate the rule of lenity. By way of example,... depending upon attendant circumstances, it is possible for the act of striking another person with an object to meet the definitions of each of the crimes of: simple battery, OCGA § 16-5-23, a misdemeanor; aggravated battery, OCGA § 16-5-24, a felony; simple assault, OCGA § 16-5-20, a misdemeanor; aggravated assault, OCGA § 16-5-21, a felony; and malice murder, OCGA § 16-5-1, a felony In the foregoing circumstance, a defendant could be prosecuted for multiple crimes. But when a defendant is prosecuted for and [found guilty] of multiple crimes based upon a single act, the injustice that must be avoided is sentencing the defendant for more than one crime following [a guilty verdict for] multiple crimes based upon the same act.

Thus, the rule of lenity applies where there is ambiguity in the two statutes such that “ ‘both crimes could be proved with the same evidence.’ ”

Here, the appellants were charged with the felony offense of making a false statement, which is committed when a person

. . . knowingly and willfully falsifies ... a material fact; makes a false, fictitious, or fraudulent statement or representation; or makes or uses any false writing or document, knowing the same to contain any false, fictitious, or fraudulent statement or entry, in any matter within the jurisdiction of any department or agency of state government or of the government of any county, city, or other political subdivision of this state. . . .

The appellants argue that the rule of lenity required that they be sentenced for committing the misdemeanor offense of making a false report of a crime, which is committed when a person “willfully and knowingly gives or causes a false report of a crime to be given to any law enforcement officer or agency of this state. . . .

In Counts 8 and 11, the indictment charged the appellants with committing the felony offense of making a false statement in the following ways.

COUNT 8
[And the grand jurors] . . . further charge and accuse . . . [Marlow] with the offense of MAKING A FALSE STATEMENT (O.C.G.A. § 16-10-20) for that [Marlow], on the 1st day of July, 2013,.. . did ... knowingly and willfully provide a false written statement to Detective Andrew Henson in a matter within the jurisdiction of the Canton Police Department . . . , to wit: . . . Marlow stated that when [she], . . . Trim[,] and . . . Knowles were crossing Main Street on the evening of June 13, 2013, a white BMW vehicle that . . . Marlow saw daily in the parking spot of . . . Petruzielo accelerated and abruptly changed lanes [,] driving towards... Marlow,... Trim[,] and... Knowles; and stated that... Trim pushed... Marlow out of the way of said vehicle to prevent... Marlow from being struck by said vehicle; and . . . Marlow stated that there were several witnesses at the entrance of the restaurant who inquired whether . . . Marlow, . . . Knowles[,] and . . . Trim knew the driver of said vehicle. . . .
COUNT 11
[And the grand jurors] . . . further charge and accuse . . . [Trim] with the offense of MAKING A FALSE STATEMENT (O.C.G.A. § 16-10-20) for that [Trim], on the 1st day of July, 2013, . . . did . . . knowingly and willfully provide a false written statement to Detective Andrew Henson in a matter within the jurisdiction of the Canton Police Department to wit: .. . Trim stated that when [he], .. . Knowles[,] and .. . Marlow were crossing Main Street on the evening of June 13, 2013, a white BMW vehicle, similar to the vehicle owned by Frank Petruzielo, accelerated and changed lanes driving towards . . . Trim as . . . Trim crossed the center of Main Street; and stated that... Trim physically moved... Marlow to prevent . . . Marlow from being struck by said vehicle; and . . . Trim stated that. . . Trim was barely able to get out of the way of said vehicle; and.. .Trim stated that there were approximately four to six people on the sidewalk outside of the Painted Pig restaurant who witnessed the said events and commented on the actions of the individual driving said vehicle. . . .

In Counts 9 and 12, the indictment charged the appellants as follows:

COUNT 9
[And the grand jurors] . . . further charge and accuse . . . [Marlow] with the offense of MAKING A FALSE STATEMENT (O.C.G.A. § 16-10-20) for that [Marlow], on the 2nd day of July, 2013, . . . did . . . knowingly and willfully make a false statement to Detective Andrew Henson in a matter within the jurisdiction of the Canton Police Department. . . , to wit:... Marlow stated that when [she],... Trim[,] and... Knowles were crossing Main Street on the evening of June 13, 2013; a vehicle being driven by Frank Petruzielo accel-eratedtoward... Marlow,... Trim[,] and... Knowles; and... Marlow stated that. .. Trim physically moved ... Marlow to prevent... Marlow from being struck by said vehicle; and... Marlow stated that... Marlow stopped and paused when... Marlow reached the sidewalk; and . . . Marlow stated that there were witnesses on the sidewalk who observed the actions of. . . Petruzielo. . . .
COUNT 12
[And the grand jurors] . . . further charge and accuse . . . [Trim] with the offense of MAKING A FALSE STATEMENT (O.C.G.A. § 16-10-20) for that [Trim], on the 2nd day of July, 2013, . . . did . . . knowingly and willfully make a false statement to Detective Andrew Henson in a matter within the jurisdiction of the Canton Police Department . . . , to wit: . . . Trim stated that when . . . Trim was crossing Main Street on the eveningof June 13,2013, a vehicle being driven by Frank Petruzielo accelerated toward . . . Trim, . . . Knowles[,] and Marlow; and . . . Trim stated that . . . Trim physically moved . . . Marlow to prevent . . . Marlow from being struck by said vehicle; and . . . Trim stated that . . . Trim, . . . Marlow[,] and . . . Knowles then stopped on the sidewalk to discuss the actions of... Petruzielo; and... Trim stated that there were multiple witnesses on the sidewalk who observed the actions of . . . Petruzielo. . . .

“Upon review of the two statutes at issue, although there are many ways that the crime of making a false statement may be committed, [the appellants’] conduct, as charged, subjected [them] to prosecution and sentencing under both OCGA §§ 16-10-20 and 16-10-26. Indeed, [the appellants] wilfully and knowingly made . . . false statement[s] to [a law enforcement officer] by falsely reporting to [that] officer[ ] a crime that [they] alleged to have occurred in [his] jurisdiction. Thus, because these two statutes provide different, grades of punishment for the same criminal conduct, [the appellants are] entitled to the rule of lenity.” Accordingly, we vacate the appellants’ sentences for the felony offense of making a false statement and remand for resentencing for the misdemeanor offense of making a false report of a crime, OCGA § 16-10-26.

3. The appellants argue that the trial court erred by failing to give two requested charges. We find no basis for reversal.

(a) The appellants contend that the trial court erred by denying their requests to instruct the jury on the affirmative defense of mistake of fact. At trial, the appellants argued that their statements to police were either true or, if false, were a result of faulty memory or mistake of fact. They requested a jury charge on mistake of fact, and the trial court refused to give such a charge.

Under OCGA § 16-3-5, “[a] person shall not be found guilty of a crime if the act or omission to act constituting the crime was induced by a misapprehension of fact which, if true, would have justified the act or omission.” “Generally, however, ignorance or mistake-of-fact constitutes a defense to a criminal charge only if it is not superin-duced by the fault or negligence of the party doing the wrongful act.”

Here, the appellants’ insistence that their testimony was not false certainly does not support a mistake-of-fact charge. And if their memory was faulty or they somehow misunderstood the actual events surrounding their crossing of the street and Petruzielo’s travel in his car at that time, such mistakes were superinduced by their own fault or negligence. Thus, “[the] evidence does not raise a mistake of fact defense.”

Further, a conviction generally should not be reversed in any case, however, where the charge of the court fully and adequately covers the requisite elements of the crime charged, the requirement of criminal intent to commit the crime charged, and other material defenses thereto, and where a reasonable trier of fact could find from the evidence proof of guilt beyond a reasonable doubt. This is so because where the jury has heard the defense and has been properly charged as to the [Sjtate’s burden of proof, the elements of the crime and the requirement of criminal intent, and as to material defenses, a finding of guilt necessarily finds the requisite criminal intent and therefore negates any possibility that the jury, had it been charged mistake of fact, would have acquitted.

Here,

[t]he transcript. . . shows that the trial court’s charge fully informed the jury on the charge . . . , the presumption of innocence, the State’s burden to prove [the appellants’] guilt beyond a reasonable doubt, credibility of witnesses, impeachment, [and] criminal intent.... Nevertheless, the jury found [Marlow and Trim] guilty Therefore, based on the evidence of record and the charge given, we find that, even if a charge of mistake of fact had been required, any error in failing to give the charge was harmless.

(b) The appellants also argue that the trial court erred by denying their request to charge the jury on the lesser included misdemeanor offense of obstruction. Given our holding in Division 2 vacating the appellants’ felony sentences for making a false statement, this argument — that obstruction is a lesser included offense of making a false statement — is moot.

4. Finally, the appellants contend that the trial judge erred by failing to recuse. We disagree.

Several months after the trial, the appellants filed motions to recuse the trial judge, supported by the affidavits of trial counsel alleging that (a) the trial judge failed to disclose that she “is purported to be a member of the Board of Trustees for Reinhardt University,” and “Petruzielo is also purported to be an officer at Reinhardt University”; and (b) Reinhardt University had “a partnership agreement” with the Cherokee County Board of Education, for which Petruzielo served as superintendent. The appellants argued that the trial judge should have recused sua sponte, and that her failure to do so required that their convictions be vacated. The trial judge denied the motions.

“There is no duty for a trial judge to sua sponte recuse [her] self absent a violation of a specific standard of OCGA § 15-1-8 or [former] Canon 3 (E) (1) (a) through (c) of the Code of Judicial Conduct.” Here, the appellants claim that the trial judge should have recused herself pursuant to former Canon 3 (E) (1) (a), which provides in relevant part that a judge should disqualify herself “in any proceeding in which [her] impartiality might reasonably be questioned, including .. . instances [in which] . .. the judge has a personal bias or prejudice concerning a party . .

In construing [former] Canon 3, this Court has interpreted the phrase “impartiality might reasonably be questioned” as meaning the existence of a reasonable perception of lack of impartiality by the judge, held by a fair minded and impartial person based upon objective fact or reasonable inference; it is not based upon the perception of either interested parties or their lawyer-advocates.

On appeal,

a trial judge’s failure to sua sponte recuse [herself] will be reversed only [if] the conduct or remark of the judge constitutes an egregious violation of a specific ethical standard, and it must support the inescapable conclusion that a reasonable person would consider the judge to harbor a bias that affects [her] ability to be impartial.

To warrant recusal, the alleged bias must be

of such a nature and intensity to prevent the complaining party from obtaining a trial uninfluenced by the court’s prejudgment. To warrant disqualification of a trial judge the affidavit supporting the recusal motion must give fair support to the charge of a bent of mind that may prevent or impede impartiality of judgment.

Here, the basis for the recusal motion is the trial judge’s alleged extrajudicial professional contact and involvement with Petruzielo through her position at a local college. The appellants, however, cite to no evidence that the two had any actual contact or involvement, much less of the extent of such a relationship. Similarly, the appellants cite to no evidence regarding actual involvement between the trial judge and the school board.

The focus here is not on bias in fact but whether the judge’s impartiality might reasonably be questioned, keeping in mind the reality that any judge will have come to the bench after having had extensive contacts with the community and the legal profession. . . . Any analysis of the necessity for recusal is necessarily fact-bound, requiring an examination of the nature and extent of any business, personal, social or political associations, and an exercise of judgment concerning just how close and how extensive (and how recent) these associations are or have been.

The allegations in this case simply are “not enough reasonably to call into question the trial judge’s impartiality in this case.” Accordingly, the trial judge did not err by failing to recuse.

Decided October 11, 2016

Reconsideration denied December 8, 2016

Steel Law Firm, Brian Steel, for appellant (case no. A16A0877).

Michael R. Duponte, for appellant (case no. A16A0878).

Shannon G. Wallace, District Attorney, Rachelle L. Carnesale, Cliff Head, Assistant District Attorneys, for appellee.

Judgments of conviction affirmed, sentences vacated and cases remanded for resentencing.

Andrews, P. J., and Ray, J., concur.

       OCGA § 16-10-20.

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

       Knowles was charged with and convicted of four felony counts of making a false statement and one misdemeanor count of making a false crime report. She was tried jointly with Marlow and Trim, but Knowles is not a party to this appeal.

       According to the responding officer, Knowles did most of the speaking that evening. Marlow spoke as well, “but not as assertively,” and Trim “spoke, . . . [but not] a whole lot.”

       The surveillance video was played for the jury at trial.

       At trial, the State introduced the testimony of a police officer, who worked in the intelligence division of the police department and analyzed the surveillance video. Based on his analysis of the frames in the video, the officer opined that Petruzielo was traveling approximately 11.4 miles an hour as he drove past the scene. A defense expert refuted this conclusion, testifying that Petruzielo was traveling between 21 and 24.5 miles per hour.

       The statements and reenactment were recorded and played at trial.

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

       (Punctuation omitted.) McClendon v. State, 287 Ga. App. 238, 239 (1) (651 SE2d 165) (2007).

       (Citations omitted.) Banta v. State, 282 Ga. 392, 395-396 (1) (651 SE2d 21) (2007).

       334 Ga. App. 633 (780 SE2d 376) (2015).

       In order to ensure that similarly situated defendants are treated similarly and to maintain the integrity of the judicial process while still providing finality, [the Supreme Court of Georgia] deem [s] it appropriate to adopt the “pipeline” approach, that is, that a new rule of criminal procedure . .. will be applied to all cases then on direct revie w or not yet final. .. . Application of the new rule to a pending case will, of course, depend on the preservation of the issue for appellate review. . . .
      (Citation omitted.) Taylor v. State, 262 Ga. 584, 586 (3) (422 SE2d 430) (1992). Here, the appellants generally challenged the legality of their sentences in their respective motions for new trial. And “a sentence that is void for any reason is a mere nullity and may be vacated at any time in any court where it becomes material to the interest of the parties to consider it.” (Punctuation omitted.) Mosley v. State, 301 Ga. App. 47, 48 (686 SE2d 833) (2009).

       (Punctuation and footnotes omitted; emphasis in original and supplied.) Gordon, 334 Ga. App. at 634-636, citing United States v. Lanier, 520 U. S. 259, 266 (II) (117 SCt 1219, 137 LE2d 432) (1997) (“[A]s a sort of ‘junior version of the vagueness doctrine,’... the canon of strict construction of criminal statutes, or rule of lenity, ensures fair warning by so resolving ambiguity in a criminal statute as to apply it only to conduct clearly covered.”) (citation omitted). See also McNair v. State, 293 Ga. 282, 283 (745 SE2d 646) (2013); Banta v. State, 281 Ga. 615, 617-618 (2) (642 SE2d 51) (2007).

        Gordon, 334 Ga. App. at 637.

       OCGA § 16-10-20.

       OCGA § 16-10-26.

        Gordon, 334 Ga. App. at 640-641. We reject the State’s contention on appeal that a conviction for making a false crime report requires that the defendant initiate contact with the police to make the report. There is no such requirement in OCGA § 16-10-26.

       See id. at 641.

       (Punctuation omitted.) Hines v. State, 276 Ga. 491, 495 (5) (578 SE2d 868) (2003), quoting Crawford v. State, 267 Ga. 543, 544 (480 SE2d 573) (1997).

       See Williams v. State, 221 Ga. App. 296, 297 (1) (471 SE2d 258) (1996) (“One cannot deny committing an act, while at the same time argue he committed the act by mistake.”).

        Hall v. State, 258 Ga. App. 156, 158 (1) (573 SE2d 415) (2002). See also Castaneira v. State, 321 Ga. App. 418, 422 (1) (740 SE2d 400) (2013).

       (Citations and punctuation omitted.) Hall, 258 Ga. App. at 158 (2). See also Castaneira, 321 Ga. App. at 418, 422-423 (1).

        Hall, 258 Ga. App. at 158 (2).

       The trial judge denied the initial motions, finding them substantively meritless and untimely. The appellants filed supplements to their motions to recuse, and the motions were referred to another trial judge, who also denied them, finding that neither disclosure of the information nor recusal was required.

       The court found that the trial judge had served on the Board of Trustees for Reinhardt College since 2012, and Petruzielo “serves as an Ambassador for the College and attends a yearly partnership meeting between the Cherokee County School District and Reinhardt College leadership.”

       “ ‘OCGA § 15-1-8 pertinently provides that a judge shall not sit in any case in which [s]he has a pecuniary interest, a familial relationship with a party, or in any case in which [s]he previously served as counsel or judge.’ ” Baptiste v. State, 229 Ga. App. 691, 697 (1) (494 SE2d 530) (1997).

       (Citations and punctuation omitted.) Lemming v. State, 292 Ga. App. 138, 141 (1) (663 SE2d 375) (2008).

       (Punctuation omitted.) Id., quoting Baptiste, 229 Ga. App. at 694 (1).

       (Citation and punctuation omitted.) Robinson v. State, 312 Ga. App. 736, 753 (7) (719 SE2d 601) (2011), quoting Lemming, 292 Ga. App. at 141 (1).

       (Punctuation omitted.) In re Estate of Robertson, 271 Ga. App. 785, 790 (5) (611 SE2d 680) (2005).

       We note that “[i]t is a sound rule of appellate practice that the burden is always on the appellant in asserting error to show it affirmatively by the record.. . . [I]t is not the function of this [CJourt to cull the record on behalf of a party in search of instances of error.” (Punctuation and footnote omitted.) Walker v. State, 296 Ga. App. 531, 537 (2) (b) (675 SE2d 270) (2009).

       (Punctuationomitted.) Sears v. State, 262 Ga. 805, 805-806 (1) (b) (426 SE2d 553) (1993), overruled on other grounds, Brogdon v. State, 287 Ga. 528, 531 (2) (697 SE2d 211) (2010).

        Sears, 262 Ga. at 806 (1) (b) (recusal not required even though the victim’s attorney husband and the trial judge both served in the Air National Guard, the husband appeared before the trial judge as an attorney on a single contested case, and the two had minimal social contact). See also Turner v. State, 280 Ga. 174, 175 (626 SE2d 86) (2006) (recusal not required even though the trial judge may have had knowledge of the victim and had professional encounters with the defendant’s mother while both worked at the courthouse); Smith v. State, 189 Ga. App. 27, 32 (2) (b) (375 SE2d 69) (1988) (affirming denial of recusal motion where the trial judge and the victim had a regular working relationship).