author: Reese, Judge.

text:
    A17A0968.
    PUCKETT v. THE STATE.
    (804 SE2d 648)
   Reese, Judge.

A Gwinnett County jury found Mary Puckett guilty of kidnapping, felony theft by taking a motor vehicle, and two counts each of armed robbery and false imprisonment. She appeals from the denial of her motion for new trial, contending that the evidence was insufficient to support her convictions, that the evidence was insufficient to support a felony sentence on the theft by taking charge, and that she received ineffective assistance of counsel. For the reasons set forth infra, we affirm.

Viewed in the light most favorable to the jury’s verdict, the record reveals the following facts. On April 2 and 3, 2015, two incidents involving armed robbery, false imprisonment, kidnapping, and theft by taking occurred at the Red Roof Inn on Lawrenceville-Suwanee Road in Gwinnett County The parties to the crimes included Kayla Folds, Andy Ulysse, Teddy Williams, Cornelius Cupsa, and the Appellant, Mary Puckett. The Appellant was Ulysse’s girlfriend, and the couple lived with Folds and Williams.

Before the first incident occurred on April 2, Ulysse told the Appellant to get some bullets and bring them to him in Room 232 of the Red Roof Inn, and the Appellant complied. The Appellant then left the room and waited in Williams’ car in the motel’s parking lot.

The first incident involved a man named Joshua Smith, who called Folds, a prostitute, and made an appointment for her services. Folds instructed Smith to come to Room 232 of the Red Roof Inn. When he arrived at the motel, Smith noticed a car with its headlights on in the parking lot, parked so it was facing the street and could exit quickly. Smith knocked on the door to Room 232 and, when Folds answered the door, she mouthed the words “I’m sorry.” As Smith took a step into the room, he was struck in the head by Ulysse, who had been standing behind the door. Williams and Cupsa then came out of the bathroom carrying guns and forced Smith to the floor, threatened to kill him, and demanded his wallet, credit cards, phone, and car keys.

Smith informed Ulysse that he had already withdrawn the maximum amount of cash allowed from the ATM because he was going on vacation, but told him there was more money at his apartment. Ulysse forced Smith down the motel’s stairs at gunpoint and made him get into the driver’s seat of Smith’s car. The Appellant, who was sitting in Williams’ car and saw the men walk to Smith’s car, called Ulysse to ask for the address of where they were going. Smith drove Ulysse to Smith’s apartment. The Appellant followed them in Williams’ car, accompanied by Folds, who was in the front passenger seat, and Williams, who was in the seat directly behind the Appellant. During the trip, however, the Appellant got lost and called Ulysse for directions.

While the Appellant, Folds, and Williams were lost, Ulysse and Smith arrived at Smith’s apartment. Ulysse took $1,200 in cash and other items from the apartment. Ulysse then called the Appellant and told her to come pick him up from Smith’s apartment. The Appellant eventually found her way to Smith’s apartment complex, picked up Ulysse, and drove back to the Red Roof Inn.

Smith did not call the police after the armed robbery, explaining to the jury at the Appellant’s trial that he was happy to be alive and had only lost material things that could be replaced. Police officers subsequently interviewed him, however, as a result of their investigation of the second incident at issue in this case. During the interview, Smith told the officers that the people who attacked and robbed him knew where he lived and he was terrified of them.

The second incident occurred later the same night when another man, Duane Gardner, called Folds and arranged to meet her at the same Red Roof Inn. Upon entering Room 232, Gardner saw Folds and the Appellant. The two claimed they were sisters, and the Appellant left the room shortly after Gardner arrived. However, before the Appellant left, Folds gave her the room key to give to Ulysse and Williams.

The Appellant went downstairs to Williams’ car, where Ulysse and Williams were waiting, and sat in the back seat of the car. Williams drove to the other side of the motel and parked so the car was facing Room 232. Ulysse and Williams then left the car while the Appellant remained in the back seat.

Shortly after the Appellant had left Room 232, Gardner and Folds were on the bed when there was a knock on the door. Folds told Gardner that it was her sister, and she opened the door. Instead of the Appellant, however, it was Ulysse and Williams; both men were carrying guns. Ulysse and Williams entered and immediately demanded Gardner’s money, car keys, cell phone, and debit card pin number. Ulysse forced Gardner to lie down in a corner of the room and threw a sheet over his head. Ulysse warned Gardner that, if the pin number did not work, “my friend is going to shoot you,” and then left.

Ulysse went downstairs and told the Appellant, who was still waiting in Williams’ car, to get out and follow him. The Appellant and Ulysse got into Gardner’s 2002 Honda Accord, and the Appellant started to drive. They heard a gunshot coming from the direction of Room 232, however, so the Appellant parked the car in front of the Red Roof Inn. The Appellant and Ulysse got out of Gardner’s car and walked to the parking lot of the Super 8 motel next door. Ulysse told the Appellant to go back to the Red Roof Inn to see if the police were there, and the Appellant complied. When the Appellant returned to Ulysse, they hid in some nearby bushes for about five minutes. Ulysse and the Appellant then separated briefly before meeting up again at a nearby Chevron gas station.

Meanwhile, shortly after Ulysse had left the hotel room, Williams’ shotgun went off. Gardner jumped up, scuffled with Williams, and escaped the motel room. Gardner ran outside and into the street, where he encountered an officer who was conducting a traffic stop. Gardner told the officer that he had just been robbed by two men with guns. The officer had Gardner sit in the patrol car and called for backup assistance. While waiting, Gardner suddenly saw the Appellant and Ulysse outside the Chevron station, and he alerted the officer.

Two other officers went to the Chevron station, where they saw the Appellant and Ulysse standing outside a car, talking to the car’s driver. One of the officers asked the Appellant and Ulysse to step over to the patrol car so he could talk with them, while the other officer spoke with the driver. The driver said that the Appellant and Ulysse had approached her car and asked if they could use her phone. During a subsequent search of a nearby area of trees and overgrown brush, an investigator found a sweatshirt that matched Gardner’s description of one worn by one of his assailants, along with a hat, a loaded handgun, and car keys. The car keys belonged to Gardner. Further, at the time the Appellant and Ulysse were detained by officers outside the Chevron station, Ulysse was not wearing a shirt.

Police officers transported the Appellant and Ulysse to a police station, where an investigator interviewed them separately. The Appellant admitted to him that she had been in Room 232 of the Red Roof Inn earlier that night to smoke marijuana, but she repeatedly denied any knowledge about the armed robbery. Officers released both the Appellant and Ulysse after their interviews, but, following further investigation of both incidents, including a second interview of the Appellant, police officers arrested the Appellant on the instant crimes. The State ultimately charged the Appellant with the armed robberies of Smith and Gardner, the false imprisonment of Smith and Gardner, the kidnapping of Smith, and the felony theft by taking of Gardner’s car.

At the Appellant’s jury trial, in addition to presenting the above evidence, the State played a patrol car “dashcam” recording of Gardner’s encounter with the police officer in the street immediately after the armed robbery and the resulting detention of the Appellant and Ulysse at the Chevron station. The recording at the Chevron station showed the Appellant laughing and joking with Ulysse and two police officers while they waited outside the patrol car for information about the investigation that other officers were conducting at the Red Roof Inn. After the officers put Ulysse in the back seat of the patrol car, the recording shows that the Appellant continued to laugh and chat with the officers outside the car. Despite being physically separated from Ulysse and in the presence of two police officers, however, the Appellant never told the officers that she was afraid of Ulysse, that she was being coerced by him, or that she needed their protection from him. Instead, she consistently expressed complete ignorance about any crimes that had been committed at the Red Roof Inn. The State also played an audio-recording of a phone call from the Appellant to Ulysse that she made while incarcerated on the instant charges, as well as surveillance tapes from the Red Roof Inn and the Super 8 motel next door that showed, among other things, the Appellant driving away in Gardner’s car and the Appellant’s attempt to flee the area with Ulysse after they heard the gunshot that preceded Gardner’s escape.

The Appellant’s defense at trial was that she did not know that Ulysse and the others were planning to commit the crimes before they occurred, she did not know that crimes were being committed at the time they happened, and she did not participate in the armed robberies and false imprisonments of Smith and Gardner. Regarding the other crimes (the kidnapping of Smith and the theft of Gardner’s car), she claimed that her participation was the result of being coerced by Ulysse and, to a lesser extent, Williams. She testified that Ulysse often threatened and was violent toward her and that she believed he would hurt her if she refused to do what he told her to do during the commission of the crimes. Based upon this evidence, the trial court instructed the jury on the affirmative defense of coercion during its jury charge at the end of the trial.

The jury found the Appellant guilty beyond a reasonable doubt on all of the charges, and the court sentenced her to 30 years of imprisonment, to serve 12, with the balance on probation. The Appellant filed a motion for new trial, which the court denied after conducting a hearing. This appeal followed.

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.

With these guiding principles in mind, we turn now to the Appellant’s specific claims of error.

1. The Appellant contends that there was insufficient evidence to prove that she was guilty beyond a reasonable doubt of committing the armed robberies of Smith and Gardner. Specifically, the Appellant argues that there was no evidence that she was actually present in the motel room at the time the armed robberies took place or that she was aware of or participated in the planning of the armed robberies. She claims, instead, that she was merely present at the Red Roof Inn during the commission of those crimes and that such presence is insufficient as a matter of law to convict her as a party to the crimes.

A participant to a crime may be convicted although he is not the person who directly commits the crime. Aperson who intentionally aids or abets in the commission of a crime or intentionally advises, encourages, hires, counsels or procures another to commit the crime may be convicted of the crime as a party to the crime. Mere presence at the scene is not sufficient to convict one of being a party to a crime, but criminal intent may be inferred from conduct before, during, and after the commission of a crime.

(a) As an initial matter, the Appellant has not offered any argument or authority in support of an insufficient evidence claim as to her convictions for the kidnapping of Smith or the theft of Gardner’s car. Regardless, we find that the evidence presented at trial was legally sufficient for the jury to find her guilty beyond a reasonable doubt of those crimes.

(b) As to the armed robberies and related false imprisonments of Smith and Gardner that were committed in Room 2 32 of the motel, the State presented evidence showing that the Appellant obtained bullets for Ulysse shortly before the crimes occurred; waited in a car outside the room and acted as a lookout during the armed robbery of Smith; drove Williams’ car to Smith’s apartment after Ulysse forced Smith to drive there so he (Ulysse) could steal more money and other items; picked up Ulysse after that robbery; and drove Ulysse, Folds, and Williams back to the Red Roof Inn. Further, Folds specifically testified that while she, the Appellant, Ulysse, and Williams were still in the car after arriving back at the motel, they discussed robbing Gardner, who was on his way to the motel to have sex with Folds. After this discussion, the Appellant and Folds walked up to Room 232 and, when Gardner arrived, Folds gave the Appellant a room key to give to Ulysse and Williams, who were waiting outside in Williams’ car. The Appellant went down to Williams’ car, talked with Ulysse and Williams, and again waited in the car as a lookout while the men committed the armed robbery Then, while Williams held Gardner at gunpoint in the motel room, the Appellant followed Ulysse to Gardner’s car and, using the keys Ulysse stole from Gardner, drove the car away, stopping only after she heard Williams’ shotgun go off. Finally, after abandoning Gardner’s car in a nearby parking lot, the Appellant started to escape into a wooded area with Ulysse; ran back to the motel to see if the police had arrived to investigate the gunshot; waited while Ulysse disposed of his sweatshirt, hat, and handgun and Gardner’s car keys in the brush; and then went with Ulysse to the nearby Chevron station, where they were detained by police officers.

The issue of whether the Appellant aided or abetted in the commission of the armed robberies or even knew about the robberies was a question for the jury to decide. Furthermore, “[a] jury is authorized to believe or disbelieve all or any part of the testimony of witnesses, and it serves as the arbiter of conflicts in the evidence before it.” Given the overwhelming evidence of the Appellant’s conduct before, during, and after the crimes at issue were committed, the jury was authorized to reject her testimony regarding her complete ignorance about the crimes and her claim that she was merely present at the motel while they were being committed.

Consequently, after viewing the evidence in the light most favorable to the jury’s verdict, we conclude that it was sufficient for the jury to find that the Appellant was guilty beyond a reasonable doubt as a party to the crimes of armed robbery and false imprisonment as charged in the indictment.

2. The Appellant contends that her trial counsel provided ineffective assistance when he failed to call an expert on “Battered Person Syndrome” (“BPS”) to testify on her behalf at trial or, alternatively, for failing to file a motion asking the court to provide funds to hire an expert witness.

In order to prevail on a claim of ineffective assistance of counsel, a criminal defendant must show that counsel’s performance was deficient and that the deficient performance so prejudiced the client that there is a reasonable likelihood that, but for counsel’s errors, the outcome of the trial would have been different. [] The criminal defendant must overcome the strong presumption that trial counsel’s conduct falls within the broad range of reasonable professional conduct. [The appellate court accepts] the trial court’s factual findings and credibility determinations unless clearly erroneous, but [it] independently applies] the legal principles to the facts.

“Since an appellant claiming ineffective assistance of counsel must show both deficient performance and actual prejudice stemming from that deficiency, an insufficient showing on either of these prongs relieves the reviewing court of the need to address the other prong.”

During the hearing on the motion for new trial in this case, the Appellant’s trial counsel explained that he did not call an expert on BPS to testify at trial because he had been retained and was being paid by the Appellant’s mother, and she could not afford to pay for a psychological examination of the Appellant or an expert witness. Counsel also testified that he did not ask the court for funds to hire an expert witness because he did not think it would be granted, since he had been retained, not appointed.

Although the Appellant argues that this evidence demonstrates that counsel’s failure to hire an expert witness constituted deficient performance, it is unnecessary for this Court to address that issue, because the Appellant has failed to meet her burden of demonstrating the second prong of the Strickland ineffective assistance standard, i.e., that she was prejudiced by counsel’s deficient performance.

In assessing the prejudicial effect of counsel’s failure to call a witness (whether that failure resulted from a tactical decision, negligent oversight, or otherwise), a [defendant] is required to make an affirmative showing that specifically demonstrates how counsel’s failure would have affected the outcome of his case. The failure of trial counsel to employ evidence cannot be deemed to be “prejudicial” in the absence of a showing that such evidence would have been relevant and favorable to the defendant.

In this case, the Appellant’s appellate counsel failed to proffer any expert witness’ testimony to show that, in the expert’s opinion, (1) the Appellant was suffering from BPS at the time of the crimes and (2) as a result, the Appellant may have believed that she was in imminent danger of Ulysse’s use of violent force against her if she did not commit the illegal acts at issue. Consequently, because there is no evidence that the testimony of an expert on BPS would have been relevant in this case (absent evidence that the Appellant actually suffered from BPS) or that the testimony would have been favorable to the Appellant’s case, the Appellant cannot show that there is a reasonable probability that the outcome of the trial would have been different if counsel had called such an expert witness at trial.

Significantly, all three cases cited by the Appellant in support of her specific claim of ineffective assistance, Smith v. State, Pickle v. State, and McLaughlin v. State, are clearly distinguishable from the instant case, because the defendants in each of those cases proffered the expert testimony at issue in the trial court and demonstrated that the testimony would have been relevant to the issues, favorable to the defendant, and otherwise admissible. For example, in Smith, the issue was whether the trial court abused its discretion in excluding the testimony of an expert on BPS, and trial counsel proffered the expert’s testimony outside of the jury’s presence. The expert testified that she had interviewed the defendant and the defendant’s family members and had concluded that the defendant suffered from what was then referred to as “Battered Woman’s Syndrome.” Similarly, in Pickle, in order to show that the trial court erred in excluding the testimony of an expert on BPS and to perfect the appellate record, trial counsel proffered the testimony of the expert, who would have explained to the jury how the specific facts of the case “fit within the cycle of violence” of an abusive relationship. Finally, in McLaughlin, in order to demonstrate that trial counsel’s failure to present the testimony of an expert on BPS constituted deficient performance that probably affected the outcome of the trial, appellate counsel proffered the testimony of an expert witness during the motion for new trial hearing. The expert testified that he had examined the defendant; that, in his opinion, she suffered from BPS at the time she committed the offense at issue; and that he would have testified at trial about how the syndrome influences a person’s perceptions and reactions to situations.

Because the Appellant in this case failed to proffer the testimony of an expert on BPS and, as a result, failed to meet her burden of demonstrating prejudice that arose from counsel’s failure to call the expert at trial, it necessarily follows that she cannot prevail on her claim of ineffective assistance of counsel.

3. The Appellant argues that the trial court erred in imposing a felony sentence on her conviction for theft by taking of a motor vehicle, which was based on her act of driving Gardner’s 2002 Honda Accord away from the motel shortly after Ulysse robbed him and took his keys. She argues that the State failed to prove that the fair market value of Gardner’s car was more than $1,500 at the time the theft was committed.

Under OCGA § 16-8-12 (a) (1) (C), the determination of whether a theft by taking is classified as a misdemeanor or a felony for sentencing purposes is whether the fair market value of the stolen property was more than $1,500 but less than $5,000 at the time of the crime. Thus, the trial court was only authorized to sentence the Appellant for felony theft by taking if the State presented sufficient evidence for the jury to find that, at the time the Appellant stole Gardner’s car, the car was worth at least $1,500.01.

Although Gardner never testified about how much his 2002 Honda Accord cost when it was purchased as a “certified pre-owned” car in 2009, he did testify that he would not sell it for less than $1,500 at the time of the Appellant’s trial. Gardner testified that, at the time the Appellant stole his car, there was nothing mechanically wrong with it and it had less than 200,000 miles on the odometer, but it did have a dent in the right front fender. Gardner also stated that, a few months after the April 2015 armed robbery, his car hadbeen damaged in an accident, and it cost $4,000 to repair it. In addition, the State showed the jury what the car actually looked like at the time of the theft by presenting photographs of the car and a surveillance tape of the Red Roof Inn parking lot.

While it is true that evidence of purchase price, standing alone, is insufficient to establish stolen property’s value, cost price of an item coupled properly with other evidence such as a showing of the condition of the item at the time of purchase and at the time its value is in issue may be admitted as an element upon which an opinion may be formed as to the item’s value. Direct proof of value is not essential in prosecutions for theft by taking but proof of value may be shown by inference.

Decided August 9, 2017.

Haddad Law Group, Juwayn N. Haddad, for appellant.

Daniel J. Porter, District Attorney, Thomas L. Williams, Christopher M. Quinn, Assistant District Attorneys, for appellee.

In this case, the testimony Gardner provided in regard to the value of his car is analogous to that provided by the victim in Wilson v. State. In Wilson, the victim’s television, stereo, speakers, handbags, and comforter were stolen. While testifying as to the value of each item, the victim also provided the court with the condition each item was in at the time of the theft. This Court concluded that the victim’s testimony as to the age and condition of the stolen items, coupled with the original cost of each item, provided a basis for her opinion that the value of the stolen items exceeded the minimum value to authorize a felony sentence.

Similarly, we find that there was sufficient evidence to support the jury’s conclusion that the fair market value of the 2002 Honda Accord was more than $1,500. Consequently, the trial court did not err in sentencing the Appellant for a felony on her conviction for theft by taking.

Judgment affirmed.

Miller, P. J., and Doyle, J., concur.

       OCGA §§ 16-5-40 (a); 16-8-2; 16-8-12 (a) (1) (C); 16-8-41 (a); 16-5-41 (a).

       See Rankin v. State, 278 Ga. 704, 705 (606 SE2d 269) (2004).

       It appears that officers were unable to locate Ulysse and arrest him and that he was still at large at the time of the Appellant’s trial.

       See OCGA § 16-3-26 (coercion).

       443 U. S. 307, 319 (III) (B) (99 SCt 2781, 61 LE2d 560) (1979).

        Rankin, 278 Ga. at 705 (citations omitted).

        Huntley v. State, 331 Ga.App. 42, 43 (1) (769 SE2d 757) (2015) (citation and punctuation omitted). See also OCGA §§ 16-2-6 (The trier of fact may find that a person acted with criminal intent through “consideration of the words, conduct, demeanor, motive, and all other circumstances connected with the act” for which the person is being tried.); 16-2-20 (a), (b) (3) (when a person may be convicted as a party to a crime).

       See Darst v. State, 323 Ga. App. 614, 617 (1), n. 8 (746 SE2d 865) (2013) (physical precedent only) (“Because due process requires the existence of sufficient evidence as to every element of the crime of which a defendant is convicted, the fact that this issue was not explicitly raised does not prevent us from addressing . . . the issue at this juncture.”) (citations and punctuation omitted).

       See OCGA §§ 16-5-40 (a) (“A person commits the offense of kidnapping when such person abducts or steals away another person without lawful authority or warrant and holds such other person against his or her will.”); 16-8-2 (“A person commits the offense of theft by taking when he unlawfully takes ... any property of another with the intention of depriving him of the property).]”).

       See OCGA § 16-8-41 (a) (“A person commits the offense of armed robbery when, with intent to commit theft, he or she takes property of another from the person or the immediate presence of another by use of an offensive weapon).]”).

       See OCGA § 16-5-41 (a) (“A person commits the offense of false imprisonment when, in violation of the personal liberty of another, he arrests, confines, or detains such person without legal authority.”).

        See Huntley, 331 Ga.App. at 43 (1).

        Lewis v. State, 287 Ga. App. 379, 381 (651 SE2d 494) (2007) (citations and punctuation omitted). See also Gordon v. State, 329 Ga. App. 2, 4 (1) (763 SE2d 357) (2014) (The jury determines the credibility of the witnesses and, thus, was authorized to disbelieve the defense offered by the defendant.).

       The trial transcript shows that the court gave comprehensive jury instructions at the end of the trial that included, inter alia, charges on mere presence and party to a crime.

        See Rankin, 278 Ga. at 705.

       See Buruca v. State, 278 Ga. App. 650, 653 (1) (629 SE2d 438) (2006) (The evidence, although circumstantial, was sufficient for the jury to find that the defendant was the “getaway” driver who assisted others in committing an armed robbery and, as a result, to convict him as a party to the crime, noting that the jury “heard and clearly rejected [the defendant’s] claim that the robbery was a spur of the moment idea of which he had no knowledge.”) (punctuationomitted); cf. Johnson v. State, 277 Ga.App. 499, 504-505 (1) (b) (627 SE2d 116) (2006) (In a prosecution for an armed robbery committed by three masked men, the State presented no eye witness identification of the defendant as one of the participants in the crime; no evidence linking the defendant to the crime scene, the weapon used in the crime, or proceeds of the crime; no evidence that the defendant received any proceeds from the robbery; or any other incriminating evidence. Instead, the evidence showed only that the defendant was an associate of his co-defendants and was with them “at some point before and after the time of the alleged crimes.” Consequently, this Court held that there was insufficient evidence to support his conviction, noting that a conviction cannot be based solely upon mere presence or “guilt by association.”).

       See Strickland v. Washington, 466 U. S. 668 (104 SCt 2052, 80 LE2d 674) (1984).

        Robinson v. State, 277 Ga. 75, 75-76 (586 SE2d 313) (2003) (citations and punctuation omitted).

        Williams v. State, 277 Ga. 853, 858 (6) (a) (596 SE2d 597) (2004) (citation and punctuation omitted).

       See id.

        Goodwin v. Cruz-Padillo, 265 Ga. 614, 615 (458 SE2d 623) (1995) (citations and punctuation omitted). See Ware v. State, 273 Ga. 16, 18 (3) (537 SE2d 657) (2000) (“Absent a proffer of what the testimony of an expert would have been at trial, a defendant cannot show that there is a reasonable probability that the outcome of the trial would have been different had counsel taken the suggested course.”) (citation and punctuation omitted).

       Notably, the record does not show that appellate counsel (who was appointed after the Appellant’s conviction) filed a motion asking the trial court to approve funds to hire an expert on BPS to examine the Appellant and testify on her behalf during the motion for new trial hearing.

       See OCGA § 16-3-26 (coercion).

       See Ware, 273 Ga. at 18 (3); Goodwin, 265 Ga. at 615; see also, e.g., Darst, 323 Ga. App. at 622-626 (2) (a) (ii), (iii), 629-630 (2) (b) (physical precedent only) (In order to demonstrate that trial counsel’s failure to present the testimony of certain experts constituted deficient performance that prejudiced the defendant’s case and probably affected the outcome of the trial, appellate counsel proffered the testimony of expert witnesses during the motion for new trial hearing, who offered admissible and relevant opinions on children’s behavior and forensic interviews that would have rebutted the State’s evidence.).

       247 Ga. 612, 613-614 (277 SE2d 678) (1981).

       280 Ga. App. 821 (635 SE2d 197) (2006) (physical precedent only as to Division 1 (a)).

       338 Ga. App. 1 (789 SE2d 247) (2016) (physical precedent only).

       We also note that the relevant portions of both Pickle and McLaughlin are not binding precedent for this Court, but are, instead, physical precedent only. See Court of Appeals Rule 33 (a).

       See Smith, 247 Ga. at 613-614.

       See id.

       See Pickle, 280 Ga. App. at 823 (1) (a).

        See McLaughlin, 338 Ga.App. at 8-9.

       See id.

       See Ware, 273 Ga. at 18 (3); Goodwin, 265 Ga. at 615-616.

       See Williams v. State, 328 Ga. App. 898, 900 (1) (763 SE2d 280) (2014); see also Partin v. State, 302 Ga. App. 589, 590 (692 SE2d 32) (2010) (“The proper measure of value [in a theft by taking case] is the fair cash market value either at the time and place of the theft or at any time during the receipt or concealment of the property.”) (punctuation and footnote omitted).

       See OCGA § 16-8-12 (a) (1) (C); Partin, 302 Ga. App. at 590.

       The trial transcript shows that the court instructed the jury that the State had the burden of proving the fair market value of Gardner’s car beyond a reasonable doubt and that its verdict should include its finding as to the car’s value.

        Wilson v. State, 304 Ga. App. 743, 747 (1) (c) (698 SE2d 6) (2010) (punctuation and footnotes omitted).

       304 Ga. App. at 746-747 (1) (c).

       See id.

       See id.

       See id. at 747 (1) (c); see also OCGA § 24-14-8 (“The testimony of a single witness is generally sufficient to establish a fact.”).


source: Caselaw Access Project

author: Rickman, Judge.

license: Public Domain

text:
    A17A1224.
    DUNCAN v. THE STATE.
    (804 SE2d 156)
   Rickman, Judge.

Frank Lee Duncan was tried by a jury and convicted of two counts of aggravated sexual battery, aggravated child molestation, nine counts of child molestation, and two counts of cruelty to children in the first degree. On appeal, Duncan contends that his convictions must be reversed because his right to be present at his trial was violated by his absence from a hearing, there is a reasonable belief that the jurors convicted him of incest for conduct that was not a crime, the State failed to prove venue beyond a reasonable doubt for one of the child molestation counts, the trial court erroneously permitted extrinsic act evidence, and his trial counsel was ineffective for failing to object when the State asked his character witnesses guilt-assuming hypotheticals. Duncan also contends that the trial court gave an improper jury instruction and the sentences on his child molestation convictions are illegal. For the following reasons, we affirm in part, reverse in part, and remand this case for proceedings consistent with this opinion.

On appeal from a criminal conviction, we view the evidence in the light most favorable to support the jury’s verdict, and the defendant no longer enjoys a presumption of innocence. We do not weigh the evidence or judge the credibility of the witnesses, but determine only whether the evidence authorized the jury to find the defendant guilty of the crimes beyond a reasonable doubt in accordance with the standard set forth in Jackson v. Virginia, 443 U. S. 307 (99 SC[t] 2781, 61 LE2d 560) (1979).

(Citation and punctuation omitted.) Hall v. State, 335 Ga. App. 895 (783 SE2d 400) (2016).

So viewed, the evidence showed that in 2010, Duncan was the father of four daughters, 13-year-old triplets, V. D., F. D., and E. D., and 6-year-old L. D.On the evening of September 11, 2010, V. D. sent a text message to her grandmother that read, “[ojkay I don’t have much time, but [Duncan] sucked on [E. D.’s] nipple last night and kissed her [vagina], and [E. D.] just told her and Mom believes her and they are fighting and he said we’re liars, don’t say anything.” After receiving the text message, the grandparents went to Duncan’s residence to retrieve the triplets, took them back to their house, and called the police.

The text message was not the first time the triplets’ grandfather had heard about the sexual abuse. Prior to the September 2010 incident, the triplets’ grandfather was fishing with E. D. when she told him that Duncan was touching her inappropriately At some point after the triplets’ grandfather spoke with E. D., V. D. told him that Duncan had also fondled her, touched her inappropriately, and rubbed up against her.

An investigator with the Walton County Sheriff’s Office responded to the grandparents’ residence. The investigator spoke with each of the triplets. E. D. told the investigator that Duncan hadbeen going in and out of her bedroom throughout the day of the September 2010 incident to perform sexual acts on her. E. D. disclosed that Duncan kissed her, rubbed his penis on her, and touched her vagina. After dinner that evening, Duncan came into E. D.’s room and sucked her breast. V. D. told the investigator that Duncan had previously touched her inappropriately and that she had told her mother what had happened.

After speaking with the triplets, the investigator went to Duncan’s residence, which was located in Walton County. The investigator spoke with Duncan and his wife, who is the mother of the triplets and L. D. The triplets’ mother initially told the investigator that she was not aware of the allegations, but then told the investigator that she had previously heard the triplets talking about Duncan molesting them, but that they ultimately recanted those allegations.

The investigator also spoke with Duncan, who denied the allegations. However, Duncan told the investigator that his wife confronted him in the past about allegations that he had touched and kissed V. D.’s stomach and touched the triplets between their legs in the pool while they were on vacation.

The triplets went to a child advocacy center for recorded forensic interviews during which they detailed allegations of sexual and physical abuse. Each of the triplets’ forensic interviews was played for the jury.

At trial, E. D. testified that on the date of the September 2010 incident, Duncan put his lips on her breast and then kissed her vagina. E. D. heard her mom coming upstairs and Duncan “darted” out of her bedroom. E. D. told her mom what happened, and her mom dismissed her concerns and told her to go to bed. After speaking with her mom, E. D. told V. D. what happened, and V. D. sent the text message to their grandparents.

E. D. also testified regarding other incidents involving Duncan that made her feel uncomfortable. E. D. testified that one time Duncan came in her bedroom and touched her pubic hair. Duncan would also kiss her on the mouth and rub against her body so that she could feel his penis. E. D. told her mom about these incidents, and her mom replied that they would resolve it within the family. In addition to disclosing to her mother, E. D. also told a friend and her grandfather about the sexual abuse. Regarding physical abuse, E. D. testified that she witnessed Duncan choking V. D. at some point prior to the September 2010 incident.

F. D. testified that on the night of the September 2010 incident, she heard Duncan and her mother arguing because her mother had seen Duncan on top of E. D. E. D. told F. D. that Duncan had put his mouth on her breasts and touched her “privates.” F. D. heard Duncan come in her room earlier in the evening but pretended that she was asleep because she was afraid he would touch her inappropriately Later in the evening, both E. D. and V. D. revealed to F. D. that on other occasions Duncan had come in their rooms and touched them inappropriately

One time after F. D. was cutting the grass, Duncan approached her, lifted her shirt, and commented that she had “a flat sexy stomach” which would be attractive to boys. On vacation in Florida, Duncan touched her “private” with his finger on top of her bathing suit. On two separate occasions in the car, Duncan rubbed her legs in a manner that made her feel uncomfortable. Additionally, Duncan would hit her and was physically violent with E. D.

V. D. testified that on the night of the September 2010 incident, she was in the kitchen doing homework when Duncan inquired as to where E. D. was and stated that he was going upstairs to fix E. D.’s computer. At some point after that, V. D.’s mother asked where Duncan was and after V. D. told her that he was upstairs, her mother went upstairs. After her mother went upstairs, V. D. heard people screaming and decided to go see what was going on. Once upstairs, V. D. saw Duncan on his knees kneeling in front of E. D., who was lying flat on her back. Duncan went downstairs with her mother and, at that point, V. D. sent a text message to her grandmother asking her to come pick the triplets up because E. D. had been molested by Duncan and was scared. While Duncan and her mother were fighting, V. D. heard her mother ask Duncan “[w]hy were you on your knees in [E. D.’s] bedroom?” E. D. told V. D. that Duncan put his mouth on her breast and “mess[ed] with” her vagina.

Prior to the September 2010 incident, Duncan had touched V. D. inappropriately. The first time, V. D. was in the bed with Duncan and her mother, watching television. Her mother fell asleep and Duncan started rubbing V. D.’s legs. Duncan then began to suck on her toes, touch her bottom, and rub close to her vaginal area. At some point, he touched her vagina and his finger went inside her vagina. Duncan got up to use to the bathroom, and V. D. went to her bedroom. Duncan then came into her bedroom and kissed her neck and licked her stomach. Duncan asked V. D. if the way he touched her was okay, and she responded affirmatively because she was scared. Later, Duncan tried to apologize about the incident and gave V. D. flowers and a card that said he was sorry and asked for her forgiveness. The card was admitted as evidence and published to the jury.

While on vacation, Duncan would grab the triplets’ bottoms and he took V. D. out to the beach and “grind[ed]” on her. One time, after the vacation, V. D. was in the car with Duncan and he told her that it would be okay if she viewed pornography. Duncan was also physically violent “[a]ll the time.” Duncan threw V. D. against the wall and on the floor. Duncan would also hit the triplets.

V. D. told her mother about Duncan’s inappropriate touching and her mother responded that V. D. did not know what it was like to have a dad. V. D. also told her grandfather about the sexual abuse while they were fishing.

E. D.’s friend testified that E. D. told her that Duncan touched her breasts and legs and that she woke up to him licking her vagina. E. D.’s friend also explained that she felt uncomfortable on one occasion when she was at E. D.’s home because Duncan said something inappropriate about her legs. The comment “really upset” her, enough so that she told her parents about it.

The triplets’ mother testified that Duncan denies all of the allegations and she believes him. The triplets’ mother now views her daughters as a “liability”

The grand jury returned an indictment charging Duncan with two counts of aggravated sexual battery, eleven counts of child molestation, one count of aggravated child molestation, one count of incest, and three counts of cruelty to children in the first degree. Duncan was tried by a jury and found guilty of two counts of aggravated sexual battery, aggravated child molestation, incest, nine counts of child molestation, and two counts of cruelty to children in the first degree; the trial court merged one of the child molestation counts into one of his two convictions for aggravated sexual battery and the incest count into his conviction for aggravated child molestation. The trial court directed a not guilty verdict as to two of the child molestation counts, and the jury acquitted Duncan of one of the cruelty to children counts. Duncan timely filed a motion for new trial, which was denied. Duncan appeals from the denial of his motion for new trial.

1. Duncan contends that his convictions mustbereversedbecause his right to be present at his trial was violated by his absence from a hearing.

On the date of jury selection, prior to conducting voir dire, the trial court heard motions to address some evidentiary issues. The proceedings concluded, and the trial court directed the parties to return at noon. At some point after that, the trial court indicated that the case was back on the record and inquired as to Duncan’s whereabouts. Duncan’s trial counsel stated that Duncan was not present but he was aware of what was taking place and his presence was not necessary.

Thereafter, Duncan’s trial counsel explained to the trial court that the guardian ad litem (hereinafter “GAL”) from the deprivation case involving the triplets was present with her file. Duncan’s trial counsel requested that he have an opportunity to review the file and noted that he did not believe the State objected to the request. The State confirmed that it did not object to Duncan’s trial counsel viewing the file but was under the impression that the information contained in the file could not be disclosed without the consent of a superior court judge. The trial court ordered that the GAL sit down with counsel for both parties and go over the contents of the file that may be relevant to the case. The trial court clarified that if there was any dispute as to the relevance of anything in the file, the parties could address the issue with the trial court.

Duncan argues that his absence from this hearing violated his right to be present under the Georgia Constitution because he could not assist his counsel “with issues relating to this [mjotion hearing, including the review of [the GAL’s] file.”

The right to be present “exists where there is a reasonably substantial relation to the fullness of opportunity to defend against the charge and to the extent that a fair and just hearing would be thwarted by the defendant’s absence.” (Citation and punctuation omitted.) Campbell v. State, 292 Ga. 766, 770 (4) (740 SE2d 115) (2013). “[T]he constitutional right to be present does not extend to situations where the defendant’s presence would be useless, or the benefit but a shadow.” (Citation and punctuation omitted.) Heywood v. State, 292 Ga. 771, 774 (3) (743 SE2d 12) (2013).

The hearing at issue in this case dealt with a purely legal issue. The State did not object to Duncan’s trial counsel having access to the GAL’s file, yet counsel for both parties felt that the proper procedural mechanism for release of the file, which may have contained privileged information, was for the trial court to release the file. That was the sole purpose of the hearing. Additionally, at the hearing on Duncan’s motion for new trial, Duncan’s trial counsel acknowledged that he reviewed the GAL’s file and that if it had contained anything exculpatory, he would have done whatever was necessary to admit the exculpatory evidence at trial. At the same hearing, Duncan testified that, at the time of trial, he knew that there was a GAL who may have had evidence but he had “no idea” how to gain access to the file. Moreover, Duncan believed that if his trial counsel had found anything exculpatory in the GAL’s file that he would have brought attention to it.

Accordingly, “[sjince there was not a reasonably substantial relationship between [Duncan’s] presence during the discussion of these legal matters and his opportunity to defend against the charges, we conclude that his right to be present during critical stages of his criminal trial was not violated.” Campbell, 292 Ga. at 770 (4). See id. (defendant’s right to be present not violated by his absence from motions hearings, including a motion in limine and motion to suppress, discussing legal matters); see also Bethune v. State, 291 Ga. App. 674, 675 (1) (662 SE2d 774) (2008) (defendant’s absence from a pre-trial hearing dealing with solely legal matters did not violate his right to be present).

2. Duncan contends that there is a reasonable belief that the jurors convicted him of incest for conduct that was not a crime. Specifically, Duncan argues that because, prior to May 2010, a conviction for incest could not be based on an act of sodomy and there was testimony at trial that September 2010 was not the first time that sexual contact occurred with E. D., it was possible the jury found Duncan guilty for acts that occurred prior to the change in the law.

However, this contention is moot because although Duncan was found guilty of incest, that count merged into his conviction for aggravated child molestation. Long v. State, 287 Ga. 886, 889-890 (2) (700 SE2d 399) (2010). See Collins v. State, 327 Ga. App. 590, 592-593 (760 SE2d 606) (2014); Vergara v. State, 287 Ga. 194, 196 (1) (b) (695 SE2d 215) (2010).

3. Duncan contends that the State failed to prove venue beyond a reasonable doubt for one of the child molestation counts.

“Venue is a jurisdictional fact that must be proven beyond a reasonable doubt in every criminal trial. While the burden of proving venue rests with the State, the determination whether venue has been established is an issue soundly within the province of the jury.” (Citations and punctuation omitted.) Jones v. State, 299 Ga. 377, 381 (3) (788 SE2d 477) (2016). “To meet its burden of establishing venue, the State may use both direct and circumstantial evidence.” Id.

The count at issue alleged that Duncan,

between the 2nd day of August, 2010, and the 11th date of August, 2010, the exact date of the offense being unknown to the Grand Jury in Walton County, Georgia ... did commit an immoral and indecent act to [F. D.], a child under the age of 16 years, with the intent to arouse and satisfy the sexual desires of himself by touching the stomach of [F. D.] with his hand.

At trial, the State presented evidence that the home the triplets lived in with Duncan was in Walton County In September 2010, the triplets and Duncan had lived in that home for about five years. At the time of the September 2010 incident, the triplets were 13 years old. F. D. testified that, when she was almost 12 years old, Duncan would touch her stomach inappropriately and that one of those instances occurred after she and Duncan were cutting grass together. F. D. also described this incident during her forensic interview, which was played to the jury, in which she explained that after she cut the grass with Duncan, they were inside the basement and he touched her stomach. Additionally, F. D. testified that Duncan would come in her bedroom to touch her on her stomach.

Viewing all of the evidence as a whole, we conclude that the evidence was sufficient to prove venue in Walton County beyond a reasonable doubt as to the challenged child molestation count. See Jones, 299 Ga. at 381-382 (3); see also Hernandez v. State, 319 Ga. App. 876, 879 (2) (738 SE2d 701) (2013).

4. Duncan contends that his convictions should be reversed because the trial court erroneously permitted extrinsic act evidence. Specifically, he argues that the trial court abused its discretion by finding that Duncan’s trial counsel “opened the door” to E. D.’s friend testifying about an incident in which Duncan made her uncomfortable when she was visiting his house. However, this alleged error was not preserved for review.

During an off-the-record bench conference, the trial court found that while cross-examining E. D.’s friend, Duncan’s trial counsel opened the door to the State asking her about the incident where she felt uncomfortable around Duncan. There was no objection by Duncan’s trial counsel noted in the record. Additionally, Duncan’s trial counsel testified at the hearing on Duncan’s motion for new trial that while he thought he made an objection, he was “not 100% sure.”

“[Wjhere the transcript or record does not fully disclose what transpired at trial, the burden is on the complaining party to have the record completed in the trial court under the provisions of OCGA § 5-6-41 (f). [] When this is not done, there is nothing for the appellate court to review.” (Citation omitted.) Jackson v. State, 256 Ga. App. 829, 832 (5) (570 SE2d 40) (2002). Accordingly, because the alleged objection was not noted for the record, this enumerated error is waived. See id.; see also Pennymon v. State, 261 Ga. App. 450, 453 (4) (582 SE2d 582) (2003) (“In order to preserve a ground for error, the objecting party must state the specific ground upon which the objection is based. A defendant must do more than merely state that he objects.”) (punctuation and footnote omitted).

5. Duncan contends that his trial counsel was ineffective for failing to object to the State using guilt-assuming hypotheticals in its cross-examination of his character witnesses.

To prevail on an ineffective assistance of counsel claim, Duncan must prove both that his trial counsel’s performance was deficient and that he was prejudiced by this deficient performance. Strickland v. Washington, 466 U. S. 668, 687 (III) (104 SCt 2052, 80 LE2d 674) (1984).

To satisfy the first prong of the test, [Duncan] must overcome the strong presumption that his attorney’s performance fell within a wide range of reasonable professional conduct, and that counsel’s decisions were made in the exercise of reasonable professional judgment; the second prong of the test requires that [Duncan] show there is a reasonable probability that, absent the demonstrated deficient performance, the result of his trial would have been different.

(Citation and punctuation omitted.) Smiley v. State, 288 Ga. 635, 637 (2) (706 SE2d 425) (2011). “In reviewing a lower court’s determination of a claim of ineffective assistance of counsel, we give deference to the trial court’s factual findings, which are upheld on appeal unless clearly erroneous; however, we review the lower court’s legal conclusions de novo.” Washington v. State, 276 Ga. 655, 658 (3) (581 SE2d 518) (2003).

Duncan challenges the following exchanges that took place when the State was cross-examining his character witnesses. The first exchange took place while the State was cross-examining two of the triplets’ former teacher.

[THE STATE]: Okay. Would it change your opinion — and we’ve talked about you being a mandated reporter. Would it change your opinion about [Duncan’s] trustworthiness with children if I were to tell you that he had touched the vagina of [V. D.] on New Year’s Eve night? Would that change your opinion?
[TEACHER]: No, because I wouldn’t believe it.
[THE STATE]: But if I were to tell you that happened, would that change your opinion?
[TEACHER]: No, because I wouldn’t believe it. That’s not the person I know.
[THE STATE]: Okay So would it change your opinion — I understand it’s not the person you know. I’m asking you, if it happened, if it, would it change your opinion if I told you [Duncan] had put his mouth on [E. D.’s] vagina? Would that change your opinion of his trustworthiness with children to you?
[TEACHER]: Well, if there wasn’t any evidence or anything like that, I wouldn’t believe it because I know how [E. D.] can be.
[THE STATE]: Okay. Well, you’re talking about evidence.
You can’t actually know any of the evidence in this case; correct?
[TEACHER]: I’m saying I’d have to see evidence to believe it.
[THE STATE]: Right. So you haven’t seen any evidence in this case. So I’m simply asking you the question, if you take that statement as it is, would that change your opinion?
[TEACHER]: No, because I don’t believe he would do that.

The second exchange took place during the State’s cross-examination of Duncan’s daughter from a previous marriage.

[THE STATE]: Lastly, you said you would trust [Duncan] with children. You don’t have any children; correct?
[DAUGHTER]: No.
[THE STATE]: Okay. You’ve just been around him yourself?
[DAUGHTER]: Yes.
[THE STATE]: Okay Would it change your opinion of [Duncan’s] trustworthiness with children if I were to tell you that he had put his mouth on [E. D.’s] vagina? Would that change your opinion?
[DAUGHTER]: If I knew, if it was true.
[THE STATE]: If it was true, that would change your opinion?
[DAUGHTER]: I would believe that it would change anybody’s opinion.

Duncan’s daughter nevertheless testified that she did not believe the triplets’ allegations. Additionally, Duncan’s daughter testified that she “know [s] my truth by my life with my father. He never showed any of this kind of action or any sign that this would even be possible.”

“Georgia adopted a new Evidence Code effective January 1, 2013.” Leslie v. State, 292 Ga. 368, 369 (2) (a), n. 3 (738 SE2d 42) (2013). Prior to the adoption of the new Evidence Code, “it [was] not error to allow the State to pose such a hypothetical question to a character witness on cross-examination.” Roberson v. State, 214 Ga. App. 208, 211 (9) (447 SE2d 640) (1994). However, Duncan argues that under United States v. Guzman, 167 F3d 1350, 1352 (III) (11th Cir. 1999), these guilt-assuming hypotheticals are now prohibited. Pretermitting whether Duncan’s trial counsel was deficient for failing to object to the hypotheticals, we do not find that Duncan was prejudiced by the alleged deficient performance.

In this case, after being asked the guilt-assuming hypotheticals, both witnesses insisted that they did not believe the triplets’ allegations. “The harm in allowing the use of this type of [allegedly] improper hypothetical lies in the effect of having the defendant’s own character witness assume that the defendant is guilty Here, the witnesses] essentially refused to accept that assumption.” Guzman, 167 F3d at 1353 (III). Additionally, at the hearing on Duncan’s motion for new trial, Duncan’s trial counsel testified that as to one of the witnesses, he believed the answer was helpful to his defense. Here, “[t]he government’s [allegedly] improper question backfired and, arguably, [Duncan’s] case was strengthened by [the witnesses’] response[s].” Id. Accordingly, Duncan has failed to show that absent the alleged deficiency, the outcome of his trial would have been different. See id.; see generally Gipson v. State, 332 Ga. App. 309, 323 (8) (h) (772 SE2d 402) (2015).

6. Duncan contends that his aggravated sexual battery convictions must be reversed because the trial court gave an improper jury instruction. We are constrained to agree.

The trial court instructed the jury that “[a] person commits the offense of aggravated sexual battery when he intentionally penetrates with a foreign object the sexual organ of another person without the consent of that person.” See OCGA § 16-6-22.2 (b). The trial court further charged that “[considerations of consent and force are irrelevant in... aggravated sexual battery cases against children under 16 years of age, for children under the age of 16 years are legally incapable of consenting to illicit sexual acts.”

“Although the charge was a correct statement of the law at the time it was given, following the trial, the Supreme Court of Georgia held that the crime of sexual battery requires actual proof of the victim’s lack of consent, regardless of the victim’s age.” (Citation and punctuation omitted.) Laster v. State, 340 Ga. App. 96, 100 (2) (796 SE2d 484) (2017); see Watson v. State, 297 Ga. 718, 720 (2) (777 SE2d 677) (2015).

Thus, the Watson Court determined that it is erroneous for a trial court to instruct a jury that an underage victim is not capable of consenting to contact constituting sexual battery. [] The instant case was in the appellate “pipeline” at the time Watson was decided and, consequently, the Watson holding governs our analysis. We therefore must determine whether the charge was harmless, i.e., whether it is highly probable that the erroneous charge did not contribute to the jury’s verdict.

(Citations omitted.) Laster, 340 Ga. App. at 100 (2).

Because the erroneous jury instruction here effectively relieved the State of its burden to prove an essential element of the crime of [aggravated] sexual battery, the instruction cannot be said to have been harmless. Accordingly, [Duncan’s] convictions for [aggravated] sexualbattery must be reversed.

Watson, 297 Ga. at 721 (2); see Laster, 340 Ga. App. at 100 (2).

7. Duncan contends that he must be resentenced on his child molestation convictions because the trial court’s sentences are illegal and void. Specifically, Duncan argues that pursuant to New v. State, 327 Ga. App. 87, 106-109 (5) (755 SE2d 568) (2014), his sentence is void because the trial court failed to impose a split sentence as to each of his child molestation convictions as required by OCGA § 17-10-6.2 (b). The State agrees.

Decided August 9, 2017

The Steel Law Firm, Brian Steel, for appellant.

Layla H. Zon, District Attorney, Randal M. McGinley, Assistant District Attorney, for appellee.

As to Duncan’s convictions for child molestation, “because the trial court failed to sentence [Duncan] in accordance with OCGA § 17-10-6.2 (b), we must vacate [Duncan’s] sentence[s] and remand to the trial court for resentencing consistent with the mandates of that Code section.” New, 327 Ga. App. at 109 (5).

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

Ellington, P. J., and Andrews, J., concur.

       OCGA § 16-6-22.2 (b).

       OCGA § 16-6-4 (c).

       OCGA § 16-6-4 (a)(1).

       OCGA § 16-5-70 (b).

       Each of Duncan’s daughters has the same first initial. For clarity, the daughters will be referred to by their middle and last initials in this opinion.

       Duncan adopted the triplets and is the biological father of L. D.

       Both of Duncan’s trial attorneys testified at the hearing on his motion for new trial that they did not have authority from Duncan to waive his presence from proceedings.

       The trial court issued a written order releasing the file.

       We note that the GAL’s file is not included in the record.

       Article I, Section I, Paragraph XII of the Georgia Constitution provides: “No person shall be deprived of the right to prosecute or defend, either in person or by an attorney, that person’s own cause in any of the courts of this state.”

       See OCGA § 16-6-22 (a) (2010).

       Moreover, at the conclusion of E. D.’s friend’s testimony, the trial court stated that the bench conference “resulted in the defense opening the door with its questioning on cross examination of [E. D.’s friend] about the issue of the statement about legs . . . and the Court ruled that the door had been open to enable the [S]tate to redirect on that incident, and that was what we discussed in that bench conference.” After the trial court summarized what took place at the bench conference, Duncan’s trial counsel stated “ [t] hat’s correct” and did not, at any point, note that he had objected.

       Where any party contends that the transcript or record does not truly or fully disclose what transpired in the trial court and the parties are unable to agree thereon, the trial court shall set the matter down for a hearing with notice to both parties and resolve the difference so as to make the record conform to the truth. If anything material to either party is omitted from the record on appeal or is misstated therein, the parties by stipulation, or the trial court, either before or after the record is transmitted to the appellate court, on a proper suggestion or of its own initiative, may direct that the omission or misstatement shall be corrected and, if necessary, that a supplemental record shall be certified and transmitted by the clerk of the trial court. The trial court or the appellate court may at any time order the clerk of the trial court to send up any original papers or exhibits in the case, to be returned after final disposition of the appeal.
      OCGA § 5-6-41 (f).

       “The new Evidence Code applies in cases tried on or after January 1, 2013. [Duncan] was tried in [February 2015], and so, the new Evidence Code applies in this case.” (Citation omitted.) Olds v. State, 299 Ga. 65, 69 (2), n. 5 (786 SE2d 633) (2016).

       Many provisions of the new Evidence Code were borrowed from the Federal Rules of Evidence, and when we consider the meaning of these provisions, we look to decisions of the federal appellate courts construing and applying the Federal Rules, especially the decisions of the United States Supreme Court and the Eleventh Circuit.

        Olds, 299 Ga. at 69 (2).

       We are making no comment regarding whether guilt-assuming hypotheticals are improper under Georgia’s new Evidence Code. See Jones v. State, 300 Ga. 543, 550 (4) (796 SE2d 659) (2017) (where our Supreme Court recognized the rule in Guzm an but found it inapplicable because the questions posed in the case were not guilt-assuming hypotheticals).

       In Watson, our Supreme Court recognized that “sexual battery as defined in our Code does not necessarily involve sexual conduct.” Watson, 297 Ga. at 721 (2). The same holds true for aggravated sexual battery. Aggravated sexual battery could encompass innocent conduct, such as “a physician’s [vaginal] examination on a 15-year-old patient.” Id. at 720 (2). Accordingly, we extend the holding of Watson to cases involving aggravated sexual battery.

       We reject the State’s contention that plain error review applies. See Watson, 297 Ga. at 721 (2); cf. Hammond v. State, 289 Ga. 142, 144 (2) (710 SE2d 124) (2011) (applyingthe “highly probable” test to determine whether the failure to charge the jury as to the rule in Garza v. State, 284 Ga. 696 (670 SE2d 73) (2008) was harmless).

       ”[A]ny person convicted of a sexual offense shall be sentenced to a split sentence which shall include the minimum term of imprisonment specified in the Code section applicable to such sexual offense.” OCGA § 17-10-6.2 (b).


author: BARNES, Presiding Judge.

text:
    A17A0727, A17A0728.
    GEORGIA COMMERCIAL STORES, INC. v. FORSMAN; and vice versa.
    (803 SE2d 805)
   BARNES, Presiding Judge.

Georgia Commercial Stores, Inc. (“Georgia Commercial”), is a judgment creditor of Pargar, LLC, an insolvent company. Daniel T. Forsman was the managing member of Pargar who controlled its day-to-day operations. Unable to collect on its debt from Pargar, Georgia Commercial sued Forsman to recover an alleged preferential payment that Forsman authorized Pargar to make to himself when Pargar was insolvent and faced foreclosure on all of its assets. Georgia Commercial alleged several causes of action against Fors-man, including breach of fiduciary duty and violation of Georgia’s Uniform Fraudulent Transfers Act, OCGA § 18-2-70 et seq. (“UFTA”). The trial court granted summary judgment to Forsman and denied it to Georgia Commercial on the latter’s breach of fiduciary duty claim. The trial court denied summary judgment to Forsman on Georgia Commercial’s UFTA claim. The parties now appeal the summary judgment rulings in these companion cases.

In Case No. A17A0727, we conclude that genuine issues of material fact exist as to whether Forsman breached his fiduciary duty to conserve and manage the assets of Pargar in trust for its creditors by causing Pargar to pay him $239,011 when the company was insolvent and faced foreclosure on all of its assets. Accordingly, we reverse the trial court’s grant of summary judgment to Forsman on Georgia Commercial’s breach of fiduciary duty claim, and we affirm the trial court’s denial of summary judgment to Georgia Commercial on that claim. In Case No. A17A0728, we conclude that genuine issues of material fact exist as to whether the $239,011 payment to Forsman was made with the intent to defraud Pargar’s creditors and therefore affirm the trial court’s denial of summary judgment to Forsman on Georgia Commercial’s UFTA claim.

Summary judgment is appropriate only if the pleadings and evidence “show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law.” OCGA§ 9-11-56 (c).

Summary judgments enjoy no presumption of correctness on appeal, and an appellate court must satisfy itself de novo that the requirements of OCGA § 9-11-56 (c) have been met. In our de novo review of the grant or denial of a motion for summary judgment, we must view the evidence, and all reasonable inferences drawn therefrom, in the light most favorable to the nonmovant.

(Citation and punctuation omitted.) Essien v. CitiMortgage, 335 Ga. App. 727, 728 (781 SE2d 599) (2016).

So viewed, the record reflects that Pargar was a Georgia limited liability company formed in December 1998. Pargar had two members, Forsman and the Prudential Real Estate Financial Services of America, Inc. (“Prudential”), with Prudential controlling a majority of the membership interests. Forsman, a certified public accountant with significant prior experience as a controller and chief financial officer, managed Pargar’s day-to-day operations and served as its sole Director, President, Treasurer, and Secretary. Prudential, however, had to approve all of Pargar’s significant financial transactions.

Upon its formation, Pargar purchased an existing realty company that was valued at over $16 million. Pargar funded the purchase in part through an $11,750,000 loan obtained from Prudential. The Prudential loan was secured by a first priority blanket security interest in all of Pargar’s assets and a pledge of all of Pargar’s membership interests not already owned by Prudential. The Prudential loan had an original maturity date of December 31, 2005, which was later extended to June 30, 2012. Pargar also later obtained a $250,000 loan from Forsman pursuant to an unsecured promissory note.

During 2007, Pargar entered into a written lease agreement to rent certain property in Dunwoody for a period of ten years, with a lease termination date of July 31, 2017. Georgia Commercial subsequently purchased the property, assumed the lease, and became Pargar’s landlord.

Several years later, when the Prudential loan to Pargar matured on June 30, 2012, Pargar was unable to repay it. Pargar’s financial records reflect that it was insolvent both on a “going concern” basis because it was unable to repay all of its debts as they matured and on a “balance sheet” basis because its debts exceeded the fair valuation of its assets. According to Pargar’s financial records, the total value of Pargar’s assets was $7,223,403, but it still owed $8,496,012 on the Prudential loan.

During this same time period in 2012, Forsman, acting in his capacity as Pargar’s managing member, had Pargar pay him $239,011 to satisfy the outstanding balance of the unsecured loan he had previously extended to the company. The payment to Forsman was made with the knowledge and approval of Prudential.

In March 2013, when the Prudential loan remained unpaid and Pargar’s insolvent financial condition remained unchanged, Prudential foreclosed on its first priority security interest in Pargar’s assets and on Forsman’s membership interest in Pargar. Prudential then sold Pargar’s remaining assets and began winding down the company’s affairs.

Pargar made monthly lease payments to Georgia Commercial through March 2013, when Prudential conducted the foreclosure, but Pargar defaulted on its payments to Georgia Commercial from that point forward and vacated the leased property Georgia Commercial was notified of Prudential’s foreclosure and sale of Pargar’s assets, but not of the $239,011 payment made to Forsman.

Georgia Commercial sued Pargar for the rent due for the remaining term of the lease and obtained a judgment against Pargar in the principal amount of $1,051,702, plus interest. During post-judgment discovery, Georgia Commercial first learned of the $239,011 that Pargar paid to Forsman in 2012 based on his previous loan to the company

Georgia Commercial subsequently filed the instant action against Forsman, contending that Georgia Commercial had been unable to collect on its judgment against Pargar in part because of the allegedly improper $239,011 payment to Forsman that occurred when Pargar was insolvent and foreclosure on its assets was imminent. Georgia Commercial sought imposition of a constructive trust and disgorgement ofthe $239,011 from Forsman, andit alleged multiple causesof action against him in its complaint, as amended, including breach of fiduciary duty and intentional fraudulent transfer in violation of the UFTA.

After the parties filed cross-motions for summary judgment, the trial court granted summary judgment to Forsman and denied it to Georgia Commercial on the latter’s breach of fiduciary duty claim, concluding that Georgia Commercial had failed to prove a sufficient causal connection between the alleged breach and its alleged injury. The trial court denied summary judgment to Forsman on Georgia Commercial’s UFTA claim for intentional fraudulent transfer, concluding that genuine issues of material fact existed as to whether the payment to Forsman in 2012 was made with the actual intent to hinder, delay, or defraud Pargar’s creditors. These appeals followed.

Case No. A17A0727

1. Georgia Commercial contends that the trial court erred in granting Forsman’s motion for summary judgment, and denying Georgia Commercial’s cross-motion for summary judgment, on Georgia Commercial’s breach of fiduciary duty claim. Because genuine issues of material fact exist that preclude the grant of summary judgment to either party, the trial court erred in granting summary judgment in favor of Forsman on Georgia Commercial’s claim for breach of fiduciary duty.

To support a claim for breach of fiduciary duty, a plaintiff must prove the existence of such a duty, the breach of that duty, and injury proximately caused by the breach. Engelman v. Kessler, 340 Ga. App. 239, 246 (2) (797 SE2d 160) (2017).

A fiduciary or confidential relationship arises where one party is so situated as to exercise a controlling influence over the will, conduct, and interest of another or where, from a similar relationship of mutual confidence, the law requires the utmost good faith, such as the relationship between partners, principal and agent, etc. Such relationship may be created by law, contract, or the facts of a particular case.

(Citation and punctuation omitted.) Megel v. Donaldson, 288 Ga. App. 510, 515-516 (5) (654 SE2d 656) (2007). See OCGA § 23-2-58.

“In a solvent, going concern, directors are the agents or fiduciaries of the corporation, not of its creditors.” McEwen v. Kelly, 140 Ga. 720, 724 (3) (79 SE 777) (1913). In contrast, when a company becomes insolvent, “the directors stand in a trust relation toward creditors.” Id. See Bank Leumi-Le-Israel v. Sunbelt Indus., 485 FSupp. 556, 559 (S.D. Ga. 1980) (“In the case of an insolvent corporation, the directors and officers stand as trustees of corporate properties for the benefit of creditors [.] ”). Hence, “the directors of an insolvent corporation[,] who originally stood in a fiduciary relation to the company, become placed in a fiduciary relation to its creditors.” (Citation and punctuation omitted.) Lowry Banking Co. v. Empire Lumber Co., 91 Ga. 624, 631 (17 SE 968) (1893).

Relevant here is that Georgia courts have recognized that the managing officers and directors of a corporation are charged with the duty of conserving and managing the remaining assets of an insolvent corporation in trust for the creditors. Accordingly, when a corporation becomes insolvent its directors are bound to manage the remaining assets for the benefits of its creditors, and cannot in any manner use their powers for the purpose of obtaining a preference or advantage to themselves. Thus, corporate officers and directors may not give preference to existing debts which the corporation owed to other persons, and for which such officers and directors were primarily liable unless a preference or payment is made in the performance of an agreement entered into at or prior to the time when the liabilities to the creditors were incurred, or before the insolvency of the corporation. Consistent with this duty, any scheme or device [,] the purpose of which is to indemnify the owners, officers, or directors of a corporation against loss, whether as creditors or as endorsers of notes given by the corporation or otherwise, constitutes legal fraud.

(Citations and punctuation omitted.) U.S. Capital Funding VI v. Patterson Bankshares, 137 FSupp.3d 1340, 1375 (II) (C) (S.D. Ga. 2015). See Hickman v. Hyzer, 261 Ga. 38, 40 (2) (401 SE2d 738) (1991); Fountain v. Burke, 160 Ga. App. 262, 263-264 (2) (287 SE2d 39) (1981) (physical precedent only); Ware v. Rankin, 97 Ga. App. 837, 838 (2) (104 SE2d 555) (1958).

If the managing officers and directors violate their fiduciary duty to the creditors of the insolvent corporation by making a preferential transfer of corporate assets to themselves, a creditor may bring an action against the officers and directors seeking to set aside the transfer and recover the monies paid to them as impermissible preferences. See Hodge v. Howes, 260 Ga. App. 107, 110 (4) (578 SE2d 904) (2003); Randall & Neder Lumber Co. v. Randall, 202 Ga. App. 497, 499 (1) (414 SE2d 718) (1992). See also McEwen, 140 Ga. at 724 (3) (noting that, “aside from statutory provisions,” creditors have the right to sue the directors of the insolvent corporation based on the theory of a trust or quasi-trust relationship).

“The management duties of the... managers of a limited liability company are similar to the duties of the directors of a corporation.” Kaplan’s Nadler, 2 Ga. Corporations, Limited Partnerships & Limited Liability Companies, § 18-17 (Oct. 2016 update). Thus, like corporate directors of an insolvent corporation, the managing members of an insolvent limited liability company owe a fiduciary duty to the company’s creditors to conserve and manage the remaining assets of the company in trust for the benefit of those creditors. See In re McCook Metals, 319 BR 570, 595 (3) (a) (Bankr. N.D. Ill. 2005) (concluding that the duties of directors in managing the assets of insolvent corporations “are fully applicable to managers of insolvent limited liability companies”). We therefore conclude that if a managing member of an insolvent limited liability company breaches his fiduciary duty to the company’s creditors by making an improper preferential transfer of company assets to himself, a creditor may bring an action against the member to set aside the transfer and recover the funds impermissibly paid to that member. See McEwen, 140 Ga. at 724 (3); Hodge, 260 Ga. App. at 110 (4); Randall & Neder Lumber Co., 202 Ga. App. at 499 (1).

Applying these principles to the present case, we conclude that Georgia Commercial came forward with sufficient evidence to support a finding that when Forsman, in his capacity as managing member, caused Pargar to pay him $239,011, he owed a fiduciary duty to Pargar’s creditors arising out of Pargar’s insolvency As previously noted, Georgia Commercial presented evidence that at the time of the payment, Pargar was insolvent both on a “going concern” basis because it was unable to repay all of its debts as they matured and on a “balance sheet” basis because its debts exceeded the fair valuation of its assets. Georgia Commercial presented further evidence that during the same time period, Pargar defaulted on its loan to Prudential and was liable to Prudential in an amount that exceeded its assets by over $1 million. This combined evidence, when construed in favor of Georgia Commercial, would support the conclusion that Pargar met the definition of an insolvent company at the time of the alleged preferential payment, thereby triggering Forsman’s fiduciary duty to conserve and manage the assets of Pargar in trust for the benefit of its creditors.

Georgia Commercial also presented evidence that Forsman breached his fiduciary duty owed to Pargar’s creditors, including Georgia Commercial. Construed in favor of Georgia Commercial, the evidence would support a finding by a jury that Pargar, acting at the direction of managing member Forsman and with the approval of its other member Prudential, made the $239,011 payment to Forsman when Pargar was insolvent and faced foreclosure in which all of its remaining assets would be sold and the proceeds taken by Prudential to the exclusion of all other creditors. Furthermore, the evidence reflects that while Pargar informed Georgia Commercial by letter about the foreclosure and distribution of the proceeds of the foreclosure sale to its member Prudential, it omitted any reference to its distribution of funds to its other member Forsman and never disclosed that distribution to Georgia Commercial. Given this combined evidence, a jury could find that Pargar paid Forsman in an effort to indemnify and protect him against any loss resulting from the impending foreclosure and dissolution of the company in preference to all of Pargar’s outside secured and unsecured creditors. “It thus becomes a jury question, under these allegations, whether payment to [Forsman] of sums due [him], at a time when the corporation was insolvent^] . . . was in fact a mere scheme and device on the part of [Forsman] to indemnify [himself] against loss, and as such constituted a legal fraud.” Ware, 97 Ga. App. at 839 (3).

Finally, Georgia Commercial presented evidence that it suffered an injury as a proximate result of Forsman’s alleged breach of fiduciary duty. The evidence shows that Georgia Commercial is a judgment creditor of Pargar owed more than $1 million for Pargar’s default on its lease payment obligations. And, given the allegedly $239,011 preferential pay-out to Forsman by Pargar, Georgia Commercial was left without the ability to look to those funds as a source for repayment from Pargar to partially satisfy its consent judgment. Under these circumstances, Georgia Commercial came forward with sufficient evidence that Forsman’s alleged breach of fiduciary duty proximately caused it damage. See U.S. Capital Funding VI, 137 FSupp.3d at 1376 (II) (C) (concluding that plaintiff could prove that it was damaged as a proximate result of the director defendants’ breach of fiduciary duty through evidence that the alleged improper transfer by the defendants “left [the plaintiff] without the ability to look to that asset as a source of funds for repayment”) (punctuation omitted).

The trial court, however, concluded that Forsman was entitled to summary judgment on Georgia Commercial’s breach of fiduciary duty claim because Georgia Commercial failed to come forward with sufficient evidence to create a jury issue over causation. In moving for summary judgment, Forsman argued that the proximate cause of Georgia Commercial’s injury was Prudential’s foreclosure and sale of all of Pargar’s assets, which caused Pargar to stop making lease payments, rather than the $239,011 paid to Forsman. Forsman also argued that Georgia Commercial could not establish proximate cause because Prudential and another creditor, Prudential Real Estate Affiliates, Inc. (“PREA”), held security interests in all of Pargar’s assets and would have been entitled to the $239,011 in funds rather than Georgia Commercial, if those funds had not been paid out to Forsman. The trial court accepted Forsman’s arguments and concluded that Georgia Commercial had failed to establish causation as a matter of law. The trial court’s conclusion was erroneous.

As an initial matter, the fact that Prudential’s foreclosure on its security interest and sale of Pargar’s assets was a proximate cause of Georgia Commercial’s inability to collect on its consent judgment against Pargar does not end the matter. It is well established that “there may be more than one proximate cause of an injury” (Citation and punctuation omitted.) Walker v. Giles, 276 Ga. App. 632, 643 (2) (624 SE2d 191) (2005). And, as our Supreme Court has explained:

[T]he general rule is that if, subsequently to an original wrongful act, a new cause has intervened, of itself sufficient to stand as the cause of the misfortune, the former must be considered as too remote, still if the character of the intervening act claimed to break the connection between the original wrongful act and the subsequent injury was such that its probable or natural consequences could reasonably have been anticipated, apprehended, or foreseen by the original wrong-doer, the causal connection is not broken, and the original wrong-doer is responsible for all of the consequences resulting from the intervening act. . . . Moreover, it is axiomatic that questions regarding proximate cause are undeniably a jury question and may only be determined by the courts in plain and undisputed cases.

(Citation and punctuation omitted.) Ontario Sewing Machine Co. v. Smith, 275 Ga. 683, 686-687 (2) (572 SE2d 533) (2002).

Guided by these causation principles, we conclude that the evidence created a jury issue as to whether the $239,011 payment to Forsman and the subsequent foreclosure sale by Prudential were concurring proximate causes of Georgia Commercial’s injury. In this regard, when the evidence is construed in favor of Georgia Commercial, a jury would be authorized to find that Forsman could have reasonably anticipated or foreseen, when he caused Pargar to make the $239,011 payment to him, that Prudential would foreclose on all of Pargar’s assets, given Pargar’s insolvency and its default on the loan from Prudential, and given that Forsman was the managing member of Pargar who controlled its day-to-day operations. Likewise, Pargar could have reasonably anticipated or foreseen, when the payment was made to Forsman, that Prudential would foreclose on all of its assets, given that Forsman and Prudential were members of Pargar whose knowledge could be imputed to the company See Graphic Arts Mut. Ins. Co. v. Pritchett, 220 Ga. App. 430, 431 (1) (469 SE2d 199) (1995) (“A company is chargeable with the composite knowledge acquired by its officers and agents acting within the scope of their duties.”) (citation and punctuation omitted). Consequently, a jury could find that Prudential’s foreclosure of Pargar’s assets did not break the chain of causation between the payment to Forsman and Georgia Commercial’s inability to collect on its consent judgment, but rather that the Forsman payment and subsequent foreclosure were concurrent proximate causes. Summary judgment to For sman on the basis that the foreclosure sale was the sole proximate cause of Georgia Commercial’s injury therefore was inappropriate. See Ontario Sewing Machine Co., 275 Ga. at 686-687 (2). Compare Cieplinski v. Caldwell Elec. Contractors, 280 Ga. App. 267, 276 (633 SE2d 646) (2006) (uncontroverted evidence showed that intervening act could not have reasonably been foreseen, and thus intervening act was sole proximate cause of plaintiff’s injury as a matter of law).

The trial court also erred in concluding that Georgia Commercial could not establish causation because Prudential and PREA held security interests in Pargar’s assets that were superior to Georgia Commercial’s rights as a judgment creditor, such that Prudential and/or PREA rather than Georgia Commercial would have been entitled to the $239,011, if those funds had not been paid out to Forsman. The claims of a creditor that diligently pursues a cause of action challenging a preferential transfer made to an officer, director, or managing member of an insolvent company are not reduced or defeated by the hypothetical claims of other creditors who have slept on their rights and have failed to challenge the preferential transfer. See McLarty v. Emhart Corp., 227 Ga. 104, 106 (2) (179 SE2d 46) (1970). And, here, there is no evidence of record that any creditor other than Georgia Commercial has pursued any claims against Forsman for the alleged preferential payment.

For these combined reasons, we conclude that Georgia Commercial presented evidence sufficient to create a genuine issue of material fact as to whether Forsman breached his fiduciary duty to Pargar’s creditors, including Georgia Commercial, by authorizing the $239,011 payment to himself when Pargar was insolvent and faced foreclosure, and as to whether the payment to Forsman proximately caused an injury to Georgia Commercial. The trial court thus erred in granting summary judgment to Forsman on Georgia Commercial’s claim for breach of fiduciary duty.

Case No. A17A0728

2. In his cross-appeal, Forsman contends that the trial court erred in denying his motion for summary judgment on Georgia Commercial’s claim of intentional fraudulent transfer in violation of the UFTA, OCGA § 18-2-74 (a) (1). According to Forsman, the uncon-troverted evidence of record demonstrates that Pargar did not make the $239,011 payment to him with the actual intent to hinder, delay, or defraud Georgia Commercial or other creditors. Given the standard applicable on summary judgment, we are unpersuaded.

The UFTA prohibits transfers by a debtor made “[wjith actual intent to hinder, delay, or defraud any creditor of the debtor.” OCGA § 18-2-74 (a) (1). “Acreditor who can show a fraudulent conveyance has numerous remedies under the [UFTA,] including ... avoidance of the transfer and attachment of the asset transferred.” (Punctuation omitted.) Bloom v. Camp, 336 Ga. App. 891, 894 (1) (785 SE2d 573) (2016), quoting Daniel F. Hinkel, 2 Pindar’s Ga. Real Estate Law & Procedure, § 19:102 (7th ed., updated April 2015).

“Because actual intent to defraud is difficult to prove, the [UFTA] lists 11 nonexclusive factors (sometimes called ‘badges of fraud’) that can be considered in determining whether funds were transferred with the actual intent to defraud a creditor.” SRB Investment Svcs. v. Branch Banking and Trust Co., 289 Ga. 1, 3-4 (2) (709 SE2d 267) (2011). Specifically, OCGA § 18-2-74 (b) provides:

In determining [whether a transfer was made with the actual intent to defraud a creditor], consideration may be given, among other factors, to whether: (1) The transfer or obligation was to an insider; (2) The debtor retained possession or control of the property transferred after the transfer; (3) The transfer or obligation was disclosed or concealed; (4) Before the transfer was made or obligation was incurred, the debtor had been sued or threatened with suit; (5) The transfer was of substantially all the debtor’s assets; (6) The debtor absconded; (7) The debtor removed or concealed assets; (8) The value of the consideration received by the debtor was reasonably equivalent to the value of the asset transferred or the amount of the obligation incurred; (9) The debtor was insolvent or became insolvent shortly after the transfer was made or the obligation was incurred; (10) The transfer occurred shortly before or shortly after a substantial debt was incurred; and (11) The debtor transferred the essential assets of the business to a lienor who transferred the assets to an insider of the debtor.

The existence of badges of fraud is “relevant evidence as to the debtor’s actual intent, from which the finder of fact may draw an inference of actual intent to defraud.” (Citation, punctuation and footnote omitted.) SRB Investment Svcs., 289 Ga. at 4 (2).

Construed in favor of Georgia Commercial, the evidence in this case reflected the existence of at least three badges of fraud (namely, 1, 3, and 9) from which the jury could draw an inference that Pargar acted with the actual intent to defraud its creditors in making the $239,011 payment to Forsman. First, Forsman was the managing member of Pargar who controlled its day-to-day operations and served as its sole Director, President, Treasurer, and Secretary F or sman thus was an “insider” of Pargar as that term is defined in the UFTA. See OCGA § 18-2-71 (8) (B) (i)-(iii) (an “insider” of a debtor corporation includes a “director,” “officer,” or “[a] person in control of the debtor”). It follows that there was evidence that the transfer at issue was made to an insider, the first badge of fraud as set forth in OCGA § 18-2-74 (b) (1).

Second, the evidence reflects that Pargar sent a letter to Georgia Commercial describing the foreclosure and distribution of the proceeds of the foreclosure sale to its member Prudential, but omitting any reference to the distribution of funds to its other member Forsman. Georgia Commercial learned of the $239,011 payment to Forsman only later, while conducting post-judgment discovery in the litigation it had commenced against Pargar. This evidence, viewed in the light most favorable to Georgia Commercial, reflected that the payment to Forsman was concealed rather than disclosed to outside creditors, which falls under the third badge of fraud as set forth in OCGA § 18-2-74 (b) (3).

Third and finally, the evidence reflects that at the time of the payment to Forsman, Pargar had defaulted on the Prudential loan, was unable to repay all of its debts as they matured, and its debts exceeded the fair valuation of its assets. Pargar therefore met the definition of an insolvent company under the UFTA. See OCGA § 18-2-72 (a), (b); Target Corp. v. Amerson, 326 Ga. App. 734, 741-742 (1) (g) (755 SE2d 333) (2014) (plaintiff seeking to prove that debtor was insolvent under the UFTA “was required to establish that, at the time of the conveyance, the sum of [the debtor’s] debts was greater than all of [its] assets, at a fair valuation,” or that the debtor was “generally not paying [its] debts as they became due”) (citations and punctuation omitted). Hence, there also was evidence of the ninth badge of fraud as set forth in OCGA § 18-2-74 (b) (3).

Given the existence of these badges of fraud, we conclude that Georgia Commercial came forward with sufficient evidence to create a jury issue regarding whether Pargar acted with an actual intent to defraud its creditors in making the $239,011 payment to Forsman. “Because fraud is inherently subtle, it may be proved by slight circumstances, and whether a misrepresentation is fraudulent and intended to deceive is generally a jury question.” (Citation and punctuation omitted.) Maxey v. Sapp, 340 Ga. App. 116, 120 (796 SE2d 740) (2017). That is the situation here, as the trial court properly concluded when it denied Forsman’s motion for summary judgment on Georgia Commercial’s UFTA claim.

Decided August 10, 2017.

Burbage & Weddell, Bruce B. Weddell, for Georgia Commercial Stores, Inc.

Knight Johnson, James M. Johnson, Sherri G. Buda, for Fors-man.

Judgment affirmed in part and reversed in part in Case No. A17A0727. Judgment affirmed in Case No. A17A0728.

McMillian and Mercier, JJ., concur.

       The UFTA was revised and renamed the Uniform Voidable Transactions Act in 2015, but those revisions are not applicable here. See OCGA § 18-2-70; Ga. L. 2015, p. 996, § 4A-1/SB 65. See also Ga. L. 2015, p. 996, § 7-1(d)/SB 65 (Uniform Voidable Transactions Act does not apply to transfers made or obligations incurred before July 1, 2015).

       The trial court granted summary judgment in favor of Forsman on several other claims brought against him by Georgia Commercial, but those claims are not at issue in these appeals.

       These appeals originally were filed in the Supreme Court of Georgia, which transferred them to this Court.

       The rule that directors owe a fiduciary duty to manage the remaining assets of an insolvent corporation for the benefit of its creditors originated in the common law and was later extended by Georgia courts to apply not only to directors, but also to managing officers and sole owners of an insolvent corporation. See Tindall v. H & S Homes, No. 5:10-CV-044, 2011 WL 5827227, at *4-5 (II) (M.D. Ga. Nov. 18, 2011) (discussing history of the rule). See also Milledgeville Banking Co. v. McIntyre Alliance Store, 98 Ga. 503, 506 (25 SE 567) (1896) (“It is a principle recognized in equity from time immemorial, that a trustee can derive no personal benefit to himself from the exercise of powers conferred upon him under the trust; and as the directors of an insolvent corporation hold its assets as a trust fund for the benefit of creditors, equity will not allow such directors to secure themselves from loss to the injury of the creditors whom they represent in the capacity of trustees.”); Lowry Banking Co., 91 Ga. at 624 (2) (syllabus by court) (noting that rule arose out of “principles of general law”); Ware, 97 Ga. App. at 838 (2) (applying rule to managing officers of insolvent corporation); Fountain, 160 Ga. App. at 263-264 (2) (applying rule to sole owner and president of insolvent corporation).

       A debtor corporation is considered insolvent if, at the time the preferential transfer was made to the officer or director, “the property left or retained by the debtor [was] not ample to pay [its] existing debts.” (Citations and punctuation omitted.) Randall & Neder Lumber Co. v. Randall, 202 Ga. App. 497, 499 (1) (414 SE2d 718) (1992).

       Georgia Commercial was a creditor of Pargar at the time of the alleged preferential payment to F orsman based on the contractual payment obligations that Pargar owed to Georgia Commercial under the long-term lease. SeeOCGA § 18-2-1 (“Whenever one person, by contract or by law, is liable and bound to pay to another an amount of money, certain or uncertain, the relation of debtor and creditor exists between them.”). As previously noted, Georgia Commercial later became a judgment creditor of Pargar.

       “Suppression of a material fact which a party is under an obligation to communicate constitutes fraud. The obligation to communicate may arise from the confidential relations of the parties or from the particular circumstances of the case.” OCGA § 23-2-53. See Inland Atlantic Old Nat. Phase I v. 6425 Old Nat., 329 Ga. App. 671, 676 (2) (766 SE2d 86) (2014) (suppression of material financial information by fiduciary constitutes fraud). As discussed supra in Division 1, a fiduciary relationship arose between Forsman and Pargar’s creditors, including Georgia Commercial, in light of Pargar’s insolvency.

       Forsman argues that because Prudential was Pargar’s creditor with a first priority security interest in all of Pargar’s remaining assets, and Pargar did not have sufficient assets to satisfy its obligations to Prudential, Pargar was not focused on its outside creditors like Georgia Commercial and did not intend to defraud them when it made the payment to Forsman. However, given the existence of several badges of fraud, a genuine issue of material facts exists as to Pargar’s intent, and Forsman’s argument is best left for a jury to consider.