text:
    A12A2355.
    FOSTER v. THE STATE.
    (738 SE2d 651)
   McFADDEN, Judge.

After a jury trial, Larry Foster was convicted of felony theft by shoplifting, see OCGA § 16-8-14 (b) (1) (C), and sentenced as a recidivist. The trial court denied his motion for new trial. Foster challenges his treatment as a recidivist, but the trial court did not err in considering, for purposes of sentencing, his conviction on a prior offense to which he had pled guilty. He also challenges the effectiveness of his trial counsel, but he has not shown that he was prejudiced by deficiencies in his counsel’s performance. Accordingly, we affirm.

1. Facts.

Viewed in the light most favorable to the verdict, the evidence showed that on November 9, 2006, Foster entered a Dollar General store carrying a bag, placed items inside his jacket and left the store without paying for those items. A store employee witnessed Foster take the items and called the police. Shortly thereafter, law enforcement officers apprehended Foster near the store. They found Foster’s bag, containing the stolen merchandise, nearby. Similar transaction witnesses testified to other occasions where Foster had entered stores, placed merchandise inside his jacket, left without paying for the items, and then stashed the items in a bag.

2. Recidivist sentence.

The trial court sentenced Foster as a recidivist under OCGA § 17-10-7 (c), after the state presented evidence of three prior felony convictions. Foster objected to the admission of one of the prior convictions on the ground that it stemmed from a constitutionally invalid guilty plea.

To support a recidivist sentence, a guilty plea must be valid under Boykin v. Alabama, 395 U. S. 238 (89 SC 1709, 23 LE2d 274) (1969). See State v. Cooper, 281 Ga. 63 (1) (636 SE2d 493) (2006). The United States Supreme Court held in Boykin that “[s]everal federal constitutional rights are involved in a waiver that takes place when a plea of guilty is entered in a state criminal trial.” 395 U. S. at 243. These rights are the privilege against compulsory self-incrimination, the right to trial by jury, and the right to confront one’s accusers. Beckworth v. State, 281 Ga. 41, 42 (635 SE2d 769) (2006). The record must show that a defendant entering a guilty plea was specifically advised of the three Boykin rights. See Childs v. State, 311 Ga. App. 891, 891-892 (1) (717 SE2d 509) (2011).

(a) Foster claims that he was not specifically advised of one of the Boykin rights —• the right to a jury trial — during the plea proceeding on the prior offense. The record of the plea proceeding in the prior case belies Foster’s claim that he was not adequately advised of this right.

During the plea colloquy, the court first mentioned Foster’s right to jury trial while informing him that he could withdraw his guilty plea after sentencing: “[I]f when we’re through here I announce a sentence which is more severe than what you bargain for then the law gives you the right if you want to at that time to withdraw your plea of guilty, or your tender of a plea of guilty and go to trial before a jury [.]” Later in the colloquy, Foster indicated that he understood that at any point during the plea proceeding he could change his plea and “[h] ave a trial.” The transcript also shows that the prosecutor referred to the right to a jury trial while informing Foster about rights inherent in a jury trial that he would waive by pleading guilty. The prosecutor identified those rights as the right to confront his accuser, the right to cross-examine the state’s witnesses, the right to subpoena witnesses, and the right either to testify in his own behalf or to remain silent, and he stated that a guilty plea “means that you will not have a jury trial, and there are certain rights that you can only use if you do have a jury trial and we want to make sure you understand what you’re going to be giving up.” Foster indicated that he understood this. The prosecutor then asked Foster if he wanted to “waive those rights, give up those rights that you would have if you had a jury trial, and go ahead with your plea of guilty here.” Foster replied “[y]es.”

Foster argues that the information given him in the plea colloquy was insufficient because the phrase “right to a jury trial” was not used, except in the limited context of withdrawing his plea after sentencing, and he analogizes this case to Wilson v. Kemp, 288 Ga. 779, 779-780 (727 SE2d 90) (2011), in which our Supreme Court held that the trial court’s discussion of a defendant’s “right to remain silent” was specifically limited to the plea hearing itself, rather than at trial, and did not comply with the Boykin requirements. But “[njothing in Boykin requires the use of any precisely-defined language or ‘magic words’ during a guilty plea proceeding.” (Citation omitted.) Brown v. State, 290 Ga. 50, 52 (2) (718 SE2d 1) (2011).

[A]s long as the trial court, in explaining the three constitutional rights an accused must waive in order to enter a valid guilty plea, makes sure the accused has a full understanding of the concepts involved, the appellate courts will not invalidate a guilty plea for failure to use the precise language of those three rights as set forth in Boykin[.]

(Citations and punctuation omitted.) Hawes v. State, 281 Ga. 822, 824 (642 SE2d 92) (2007). The court in Wilson noted that “the record in th[e] case fail[ed] to show that any comment by the trial court, or by [the defendant’s] counsel, informed him that by pleading guilty he would waive his privilege against compulsory self-incrimination.” (Citation and punctuation omitted; emphasis supplied.) Wilson, 288 Ga. at 780. Here, in contrast, the statements by the court and prosecutor during the plea colloquy, taken as a whole, conveyed the core principle that if Foster did not enter a plea he could have a jury trial. See Rogers v. State, 286 Ga. 55, 56 (685 SE2d 281) (2009) (underlying purpose of Boykin — to ensure defendant’s receipt of adequate information about his rights so that he can make an intelligent and voluntary decision about pleading guilty — is met if language used during plea proceeding adequately conveyed to him the core principles of the Boykin rights); Hawes, 281 Ga. at 824 (“[T]he focus, upon review, is whether the record shows that the trial court explained or referred to the right in a manner reasonably intelligible to that defendant. To hold otherwise would be to elevate formalistic litany of constitutional rights over the substance of the dialogue between the trial court and the accused.”) (citation omitted). See also Campos v. State, 292 Ga. 83 (734 SE2d 359) (2012) (identifying, as an instance in which the plea court “explicitly informed [the defendant] of his right to trial by jury,” the court’s statement “that a trial had been scheduled for his case, and if he wished, his ‘case would be tried before a jury’ ”).

Because the transcript of the plea proceeding in the earlier case reflects that Foster was sufficiently informed of his right to a jury trial, the trial court in this case was authorized to consider evidence of that prior conviction over Foster’s objection in sentencing.

(b) Foster also claims that he was not informed of his right to counsel or to the presumption of innocence during the plea proceeding, but he was represented by counsel and has cited no authority supporting his position that a guilty plea is invalid if matters other than the Boykin rights are not specifically explained. See generally Britt v. Smith, 274 Ga. 611, 614 (556 SE2d 435) (2001) (“decisions [of the Supreme Court of Georgia] dealing with the validity of a guilty plea are generally couched in terms of the defendant’s waiver of the three Boykin rights”) (citation omitted).

3. Ineffective assistance of counsel.

Foster argues that his trial counsel rendered ineffective assistance during both the plea bargain process and at trial.

To prevail on a claim of ineffective assistance of counsel under Strickland v. Washington, 466 U. S. 668 (104 SC 2052, 80 LE2d 674) (1984), the defendant must show that counsel’s performance was deficient and that the deficient performance so prejudiced the defendant that there is a reasonable likelihood that, but for counsel’s errors, the outcome of the trial would have been different.

(Citation and punctuation omitted.) Arnold v. State, 315 Ga. App. 831, 832 (728 SE2d 342) (2012). On appeal, we “accept the trial court’s factual findings and credibility determinations unless they are clearly erroneous, but . . . independently apply the legal principles to the facts.” (Citation omitted.) Johnson v. State, 290 Ga. 382, 383 (2) (721 SE2d 851) (2012). As detailed below, Foster has not shown that his trial counsel performed deficiently during the plea bargaining process, or that counsel’s cross-examination of an eyewitness at trial was deficient, and he has not shown that he was prejudiced by counsel’s decision not to call rebuttal witnesses at trial.

(a) Counsel’s effectiveness during plea bargaining.

Foster argues that his trial counsel was deficient in failing to adequately advise him about the state’s plea offer or the implications of being sentenced as a recidivist. “In the context of the plea bargain process, a defendant may prove that trial counsel was ineffective by showing that counsel failed to inform him that an offer to plead guilty had been made and failed to advise him of the consequences of the choices confronting him.” (Citation and punctuation omitted.) Arnold, 315 Ga. App. at 832.

At the hearing on his motion for new trial, Foster testified that trial counsel informed him that the state was willing to make a plea offer that involved incarceration. Foster testified that he told his counsel he would not accept an offer that involved confinement, but also that he and trial counsel agreed to defer a decision on the offer until after they had a chance to meet to review the case. Foster testified that they never met to review the case. He further testified that trial counsel never explained to him the implications of a recidivist sentence. Finally, he testified that, had he understood those implications, he would have accepted the state’s plea offer.

Trial counsel’s hearing testimony conflicted with Foster’s testimony in several pertinent respects. Counsel testified that he conveyed to Foster the state’s plea offer, but that Foster immediately rejected the offer and refused to hear any details regarding it because it involved confinement. Counsel also testified that he met with Foster two or three times to discuss the facts of the case. And he testified that, after the state served notice of its intent to seek recidivist punishment, he explained the implications of that punishment to Foster.

It was for the trial court to determine the credibility of Foster and his trial counsel to resolve the factual dispute about the advice trial counsel gave Foster on the choices confronting him. See Johnson, 290 Ga. at 384 (2) (a); Arnold, 315 Ga. App. at 832-833. The hearing evidence authorized the trial court to find that trial counsel did not perform deficiently in connection with the plea bargain process.

(b) Counsel’s effectiveness at trial.

Foster argues that the testimony of an eyewitness who saw him take the merchandise from the store conflicted with information in the police report on the incident. He argues that his trial counsel was ineffective in failing either to cross-examine this witness on the inconsistencies or to call as rebuttal witnesses the police officer who wrote the report or a store manager who also witnessed the incident. We disagree.

At the hearing on the motion for new trial, trial counsel testified — and Foster’s post-conviction counsel conceded — that some of the alleged inconsistencies between the eyewitness’s testimony and the police report were not material. For that reason, and because the eyewitness did not write the police report, trial counsel testified that he believed he would not gain much from trying to impeach the eyewitness on these points. He also testified that he felt he could cast doubt on the witness’s memory during closing argument and did not want to “give the [s]tate the chance to rehabilitate the witness.” Finally, trial counsel testified that he believed it would be more effective to question the police officer who wrote the report, whom he thought the state would call because the officer was the person who arrested Foster and was on the state’s witness list. When trial counsel realized during trial that the state was not going to call this witness, it was too late for him to begin the subpoena process.

Given this evidence, Foster has not shown that his trial counsel performed deficiently in cross-examining the eyewitness. There is a “strong presumption that counsel’s conduct falls within the wide range of reasonable professional assistance.” Lawrence v. State, 274 Ga. 794, 795 (3) (560 SE2d 17) (2002). Furthermore, “[t]he scope of cross-examination is grounded in trial tactics and strategy, and will rarely constitute ineffective assistance of counsel.” (Citation omitted.) Simpson v. State, 277 Ga. 356, 359 (4) (b) (589 SE2d 90) (2003). See also Payne v. State, 289 Ga. 691, 697 (3) (b) (715 SE2d 104) (2011) (“Decisions about what questions to ask on cross-examination are quintessential trial strategy.”) (citation omitted). Trial counsel offered a reasonable explanation for his decision not to cross-examine the witness on the contents of the police report.

In addition, even if we assume arguendo that trial counsel should have called as rebuttal witnesses either the police officer who wrote the report (rather than depending upon the state to do so) or the store manager to provide additional testimony about what occurred in the store, Foster “has failed to demonstrate how counsel’s failure to call [the rebuttal] witness[es] . . . would have affected the outcome of his case.” Dunn v. State, 291 Ga. 551, 554 (4) (d) (732 SE2d 524) (2012). He did not present any evidence at the motion for new trial hearing regarding what either the officer or the store manager would have said, had those witnesses testified at trial. ‘Without a proffer of evidence that would have been admissible and favorable to his case, [Foster] has failed to demonstrate a reasonable probability that the testimony of these witnesses would have affected the outcome at trial.” Thomas v. State, 282 Ga. 894, 896 (2) (a) (655 SE2d 599) (2008).

Judgment affirmed.

Barnes, R J., and McMillian, J., concur.

Decided February 20, 2013.

Alixe E. Steinmetz, for appellant.

Kenneth W. Mauldin, District Attorney, Brian V. Patterson, Assistant District Attorney, for appellee.


source: Caselaw Access Project

author: ANDREWS, Presiding Judge.

license: Public Domain

text:
    A12A2498.
    BANKSTON v. WARBINGTON.
    (738 SE2d 656)
   ANDREWS, Presiding Judge.

Paige Bankston appeals from the trial court’s order entered pursuant to OCGA § 9-15-14 (b) awarding: (1) attorney fees incurred by Timothy Warbington in response to Bankston’s motion asking the court to hold Warbington in contempt for failure to comply with visitation provisions of a child custody decree, and (2) other expenses incurred by Warbington as a result of the visitation dispute. The court denied the contempt motion and subsequently considered Warbington’s request for the award of attorney fees and expenses. Finding pursuant to OCGA § 9-15-14 (b) that the contempt motion lacked substantial justification, was interposed for harassment, and unnecessarily expanded the proceedings, the trial court awarded Warbington $2,832.50 in attorney fees incurred in response to the motion, plus $1,468 for airline tickets purchased as a result of the visitation dispute. We find no abuse of discretion and affirm the trial court’s decision that Warbington was entitled to the award of attorney fees pursuant to OCGA § 9-15-14 (b). For the reasons that follow, we vacate the court’s award of attorney fees in the amount of $2,832.50 and remand for reconsideration of the amount, and reverse the court’s award of $1,468 to Warbington for the expense of airline tickets purchased as a result of the visitation dispute.

1. The parties submitted the motion for attorney fees to the trial court by letter briefs. We find no merit to Bankston’s contention that the court was required to dismiss the motion because Warbington’s letter brief was not filed within ten days as ordered by the court. The court’s order awarding attorney fees pursuant to OCGA § 9-15-14 (b) found that Warbington’s letter brief was timely delivered to the judge’s chambers, but not filed with the Clerk until a few days later “because the Clerk refused to accept submissions made in the letter brief format directed by the order.” The trial court did not err in refusing to dismiss the claim.

2. Bankston claims that there was no basis for an award of sanctions under OCGA § 9-15-14 (b). An award of sanctions pursuant to OCGA § 9-15-14 (b) is reviewed under an abuse of discretion standard. Century Center at Braselton v. Town of Braselton, 285 Ga. 380, 382 (677 SE2d 106) (2009). Here, the trial court found that, for purposes of harassment, Bankston used the motion for contempt to unnecessarily expand what was otherwise an honest disagreement over an ambiguity in the custody order as to which airports in the Los Angeles area could be used to exchange the child after visitation. We conclude that the trial court did not abuse its discretion by finding that Bankston’s use of the contempt motion justified an award of attorney fees under OCGA § 9-15-14 (b).

Bankston also contends that the trial court erred by awarding attorney fees in the amount of $2,832.50 because the court failed to hold a hearing and because there was a lack of evidence establishing the actual attorney fees incurred. Generally, before an award of attorney fees is made against a party under OCGA § 9-15-14 (b), that party “is entitled to an evidentiary hearing upon due notice permitting him an opportunity to confront and challenge the value and the need for legal services claimed.” (Citation and punctuation omitted.) Ellis v. Caldwell, 290 Ga. 336, 340 (720 SE2d 628) (2012). But a party may waive the right to this hearing. Id. The record shows that, when the trial court asked for letter briefs on the issue of sanctions under OCGA § 9-15-14 (b), it also asked the parties to inform the court whether or not a hearing was waived. Bankston informed the court in her letter brief that she did not waive a hearing. But the court’s subsequent order considering Bankston’s letter brief and awarding sanctions notes that, after filing the brief, Bankston agreed that the court could consider the motion for attorney fees without a hearing. Accordingly, we find that Bankston waived the right to an evidentiary hearing.

Nevertheless, Bankston’s letter brief opposing sanctions objected that there was no affidavit or other evidence in the record showing the amount of attorney fees incurred by Warbington. We agree that the record contains no evidence sufficient to support the amount of attorney fees awarded, and Bankston did not acquiesce in the trial court’s determination of the amount of attorney fees based solely on unsupported assertions made in the briefs. Compare Murray v. DeKalb Farmers Market, 305 Ga. App. 523, 525-526 (699 SE2d 842) (2010) (party did not request a hearing and acquiesced in the trial court’s method of determining the amount of attorney fees to be awarded pursuant to OCGA § 9-15-14 (b)). “In order to recover attorney fees [under OCGA § 9-15-14 (b)], a prevailing party must prove both their actual cost and their reasonableness.” Johnston v. Correale, 285 Ga. App. 870, 871 (648 SE2d 180) (2007). Accordingly, we vacate the award of attorney fees in the amount of $2,832.50 and remand the case for a hearing (if requested on remand) or other opportunity to establish the appropriate amount of attorney fees. Dave Lucas Co. v. Lewis, 293 Ga. App. 288, 292-294 (666 SE2d 576) (2008).

Decided February 20, 2013.

Moss & Rothenberg, Robert A. Moss, for appellant.

Timothy L. Warbington, pro se.

3. As part of its award of sanctions pursuant to OCGA § 9-15-14 (b), the trial court also awarded Warbington expenses he incurred by the purchase of airline tickets as a result of the visitation dispute with Bankston. This was not an expense of litigation recoverable in a sanction award pursuant to OCGA § 9-15-14 (b). Accordingly, the ticket expense award of $1,468 is reversed.

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

Doyle, P. J., and Boggs, J., concur.

       Under OCGA § 9-15-14 (b),
      [t]he court may assess reasonable and necessary attorney’s fees and expenses of litigation in any civil action in any court of record if, upon the motion of any party or the court itself, it finds that an attorney or party brought or defended an action, or any part thereof, that lacked substantial justification or that the action, or any part thereof, was interposed for delay or harassment, or if it finds that an attorney or party unnecessarily expanded the proceeding by other improper conduct, including, but not limited to, abuses of discovery procedures available under Chapter 11 of this title, the “Georgia Civil Practice Act.” As used in this Code section, “lacked substantial justification” means substantially frivolous, substantially groundless, or substantially vexatious.


author: DOYLE, Presiding Judge.

text:
    A12A2563.
    RILEY v. THE STATE.
    (738 SE2d 659)
   DOYLE, Presiding Judge.

Dontavious Dannie Riley was found guilty of armed robbery, five counts of aggravated assault, and six counts of possession of a firearm during the commission of a felony. Riley appeals, arguing that the evidence was insufficient to support the verdict and that trial counsel was ineffective for (1) failing to request an alibi charge, (2) failing to object to a police officer’s testimony that she took out a warrant for burglary when it was not a charged offense, and (3) failing to request that certified indictments be redacted to exclude inadmissible misdemeanor offenses before going out with the jury. For the reasons that follow, we affirm.

On appeal from a criminal conviction, we view the evidence in the light most favorable to the verdict, and the defendant no longer enjoys the presumption of innocence. We do not weigh the evidence or determine witness credibility, but only determine if the evidence is sufficient for a rational trier of fact to find the defendant guilty of the charged offense beyond a reasonable doubt.

“This same standard applies to our review of the trial court’s denial of [Riley’s] motion for new trial. The verdict must be upheld if any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt.”

Viewed in the light most favorable to the verdict, the evidence shows that Riley, at the invitation of Lucius Tomes, attended a barbeque on October 4, 2008, at the apartment home of Jerome Reeves. Freddie and Katherine Reeves arrived at the barbeque around 6:00 p.m., after Riley, and Katherine and Riley played cards together during the course of the event. Although Freddie was not engaged in the game, he overheard Riley and Katherine as they played and noticed that Riley wore black Timber land brand boots. Riley eventually left the barbeque while Katherine and Freddie were still there.

At around 11:30 p.m., Riley returned to the barbeque brandishing a handgun and ordered the guests not to move because “this is a robbery.” Although he was wearing darker clothing and had a bandana over his face, Katherine, Freddie, and Lucius identified him as the robber. When Katherine attempted to flee, Riley shot her in the back.

As Riley fled the apartment, he saw Jermaine Jones and Keisha Taylor, grabbed Taylor, and told Jones to give him money. Taylor, who lived a few apartments away from Riley, identified him as the assailant.

On October 29, Riley entered a seafood restaurant at around 10:00 p.m., brandished a gun, and demanded money of the cashier. The cashier testified that Riley was not wearing a mask when he entered the store, but later pulled a mask over his face. The cashier testified that he was able to see Riley’s face clearly before the robbery.

Katherine, Freddie, Tomes, and Taylor were able to identify Riley from a photographic lineup. From the lineup results, investigators prepared a flyer alerting residents to be on the lookout for Riley, and upon delivering the flyer to the seafood restaurant, the detective stated that the cashier identified Riley as the individual who robbed him on October 29.

Riley presented the testimony of Twana Walker, his sister, who lived in the apartment complex where the barbeque occurred and who testified that Riley was not at her apartment on October 4. Riley also took the stand in his own defense and denied being involved in either incident.

1. Riley first argues that the evidence was insufficient to support the verdict. He simply argues that the witnesses identifying him as the perpetrator were not credible. As this Court has repeatedly explained, however, “the determination of a witness’s credibility, including the accuracy of eyewitness identification, is within the exclusive province of the jury.” The mere fact that Riley presented an alibi witness is insufficient to reverse the determination of the jury. Accordingly, this enumeration is without merit.

2. Riley next contends that he received ineffective assistance of counsel.

In evaluating a claim of ineffective assistance of counsel, we apply the two-prong test set forth in Strickland v. Washington.[ ] [Riley] must show that counsel’s performance was deficient and that, but for that deficient performance, there is a reasonable probability that the outcome of his trial would have been different. In evaluating the first prong of this test, a strong presumption exists that counsel’s conduct falls within the broad range of professional conduct. On appellate review of the trial court’s ruling, we accept the trial court’s factual findings and credibility determinations unless clearly erroneous, but we independently apply the legal principles to the facts.

(a) Riley argues that his trial counsel was ineffective for failing to request a jury charge regarding his alibi defense. The trial court found this argument unavailing, and its determination is not clearly erroneous.

[T]he true effect of an alibi defense is to traverse the State’s proof that the defendant committed the crime [. Thus,] the charge that the burden is on the [S]tate to prove that the defendant committed the crime beyond a reasonable doubt itself necessarily covers the question of whether the evidence of alibi was sufficient to create a reasonable doubt.

In this case, the trial court charged the jury on the burden of proof, reasonable doubt, and presumption of innocence of the accused. Riley testified that he was not at the barbeque at the time of the October 4 armed robbery, and he testified that he had never entered a Supreme Fish Delight restaurant, which was the location of the October 29 incident. Because “[t]he absence of a charge on alibi did not change the fact that no juror who believed [Riley’s] testimony could find that the [S]tate had carried its burden of proof,” the trial court correctly determined at the motion for new trial that Riley failed to carry his burden of proof under the second prong of Strickland by establishing that there was a reasonable probability the outcome of his trial would have been different had trial counsel requested and received a jury charge on alibi.*

(b) Next, Riley argues that trial counsel was ineffective for failing to object to the investigator’s statement at trial that she took out a warrant against him for burglary in addition to the charges in this case. Riley contends that this was prejudicial character evidence, and trial counsel should have objected to the statement. We disagree.

The investigator made a single, brief mention of taking out a warrant for burglary against Riley when she did so for the rest of the charges in this case, and no other mention of a burglary charge was made during trial. On the other hand, five witnesses identified Riley as the assailant in the October 4 and October 29 incidents. “In order to satisfy the second part of the Strickland test, the defendant must show that there is a reasonable probability that, absent counsel’s deficiency, the result would have been different. This [Riley] failed to do.” Accordingly, there was no clear error on the part of the trial court for finding that Riley did not establish ineffective assistance of counsel on this ground.

Decided February 20, 2013.

Teresa L. Smith, for appellant.

Tracy Graham-Lawson, District Attorney, Billy J. Dixon, Elizabeth A. Baker, Assistant District Attorneys, for appellee.

(c) Finally, Riley contends that trial counsel was ineffective for failing to request that the trial court redact inadmissible misdemeanor offenses from his conviction records prior to admitting them into evidence. The misdemeanors in question, which included possession of marijuana, theft by receiving stolen property, and carrying a concealed weapon, were introduced as part of properly admitted felony conviction records for theft by receiving and possession of a gun and possession of a knife during the commission of a felony, and Riley failed to establish that the outcome of the trial would have been different if these misdemeanor convictions had been redacted when the related, more prejudicial felony convictions were properly admitted. Accordingly, the trial court did not clearly err by denying Riley’s motion for new trial on this ground.

Judgment affirmed.

Andrews, P. J., and Boggs, J., concur.

       OCGA § 16-8-41 (a).

       OCGA § 16-5-21 (a) (2).

       OCGA § 16-11-106 (b) (1).

       (Citation omitted.) Bartley v. State, 267 Ga. App. 367 (599 SE2d 318) (2004), citing Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560) (1979).

       (Footnotes omitted.) Stephens v. State, 247 Ga. App. 719 (545 SE2d 325) (2001).

       (Punctuation omitted.) Bartley, 267 Ga. App. at 367-368, quoting Parks v. State, 257 Ga. App. 25 (1) (570 SE2d 350) (2002).

       See Davis v. State, 267 Ga. App. 668, 669 (1) (600 SE2d 742) (2004).

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

       (Punctuation omitted.) Donald v. State, 312 Ga. App. 222, 227 (4) (718 SE2d 81) (2011).

       (Punctuation omitted.) Hill v. State, 290 Ga. App. 140, 142 (2) (658 SE2d 863) (2008).

        Rivers v. State, 250 Ga. 288, 300 (8) (298 SE2d 10) (1982). See also Davis, 267 Ga. App. at 670 (2) (a).

       (Citations and punctuation omitted.) Davis, 267 Ga. App. at 670 (2) (a).

       See Hernandez v. State, 317 Ga. App. 845, 850 (2) (b) (733 SE2d 30) (2012) (concluding that it was highly improbable that victim’s testimony in an aggravated battery case that defendant was involved in a cocaine sale contributed to the guilty verdict in light of the overwhelming evidence of guilt).


author: Ray, Judge.

text:
    A12A2577.
    WILLIAMS v. THE STATE.
    (738 SE2d 637)
   Ray, Judge.

After a jury trial, Lisa Michelle Williams was found guilty of two counts of aggravated assault with a deadly weapon,* two counts of cruelty to children, and one count of possession of a weapon during the commission of a crime. She appeals the denial of her second amended motion for a new trial, contending that she received ineffective assistance of counsel. For the reasons that follow, we affirm.

Viewed appropriately, the evidence, which includes Williams’ testimony and a video recording filmed with the victim’s cell phone, shows Williams twice shot Zekkenya Johnson, who was unarmed. Johnson, who was shot in the stomach, leg, and hand, has undergone eight surgeries, and has experienced other medical problems related to the shooting. Two of Johnson’s three minor children were in the home during the shooting. One of the children, who saw Williams with the gun, said, “[Y]ou shot my mom.” Williams admitted that she was carrying a gun and that she shot Johnson. She argued that she acted in self-defense because she believed that Johnson had asked an adult friend, who also was present, to retrieve her shotgun. The friend testified that no one in the house touched the shotgun, and Johnson testified that she never received it. The jury acquitted Williams of nine charges in a fourteen-count indictment, including an acquittal on one charge of attempted murder.

In her sole enumeration of error, Williams contends that her trial counsel provided ineffective assistance in not perfecting her self-defense claim. Williams argues that counsel was ineffective in introducing the victim’s shotgun “sleeve,” or carrying case, but in failing to tender the victim’s shotgun into evidence; in failing to contact the police while the shotgun was in their custody; and in failing to examine the officer who retrieved the shotgun from Johnson’s house. Specifically, Williams contends that because her testimony about the shotgun conflicted with the victim’s testimony, trial counsel’s failures to act, as outlined above, caused the jury to question whether the shotgun existed.

Under the test established in Strickland v. Washington, to establish ineffective assistance of counsel, Williams must show that counsel’s performance was so deficient that it fell “below an objective standard of reasonableness,” and that as a result of counsel’s deficient performance, she suffered actual prejudice such that “there is a reasonable probability that, but for counsel’s unprofessional errors, the result of the proceeding would have been different.” Failure to show both deficiency and prejudice defeats a claim of ineffective assistance. To show prejudice, “[t]he likelihood of a different result must be substantial, not just conceivable.” “The trial court’s determination with respect to effective assistance of counsel will be affirmed unless its findings are clearly erroneous.”

Decided February 20, 2013.

Kenneth R. Ellis, for appellant.

Williams’ contention that trial counsel’s actions caused the jury to believe the shotgun did not exist are without merit. Although Williams called a police officer to testify at the motion for new trial hearing that he had retrieved the shotgun from Johnson’s house, his testimony added nothing to what was already in the record before the jury from the trial. Thus, counsel’s failure to elicit such testimony did not prejudice Williams’ defense. Further, Johnson testified at trial that she had a shotgun. She also testified that after Williams shot her, she called out for someone to retrieve her gun, but no one got it for her. The adult visitor testified that she knew Johnson had a shotgun, but that neither she nor Johnson touched the shotgun that night. Williams testified that she knew that a police officer had taken control of Johnson’s shotgun during the investigation. Williams also testified that only she fired shots during the incident in question. Even assuming that trial counsel was professionally deficient in failing to call the officer to testify, in failing to contact the police while the shotgun was in their custody, and in failing to introduce the shotgun into evidence, Williams still cannot show prejudice.

Given the uncontroverted testimony of Johnson, her visitor, and Williams herself about the existence of the shotgun, the jury could not reasonably have believed that, as Williams contends, there was no shotgun. Because of this testimony, and the overwhelming evidence of Williams’ guilt, Williams has failed to show a “substantial” likelihood that the jury’s credibility determinations and weighing of the evidence regarding her claim of self-defense would have resulted in a different trial outcome if her trial counsel had pursued the suggested course of action.

Judgment affirmed.

Miller, P. J., and Branch, J., concur.

Tracy Graham-Lawson, District Attorney, Elizabeth A. Baker, Assistant District Attorney, for appellee.

       OCGA § 16-5-21 (a) (2).

       OCGA § 16-5-70.

       OCGA § 16-11-106 (b).

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

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

       Id. at 688 (III) (A), 694 (III) (B).

       Id. at 697 (IV).

       (Citation omitted; emphasis supplied.) Hill v. State, 291 Ga. 160, 164 (4) (728 SE2d 225) (2012).

       (Citation and punctuation omitted.) Lee v. State, 316 Ga. App. 227, 227 (728 SE2d 847) (2012).

        Hill, supra; Lee, supra at 231 (1) (c).


text:
    A10A1047, A10A1048.
    JOHNSON v. LEIBEL et al.; and vice versa.
    (738 SE2d 685)
    Decided February 21, 2013.
   DOYLE, Presiding Judge.

In Leibel v. Johnson, 291 Ga. 180 (728 SE2d 554) (2012), the Supreme Court reversed the judgment of this Court in Division 2 of our decision in Case No. A10A1048 in Johnson v. Leibel, 307 Ga. App. 32 (703 SE2d 702) (2010).

Because the Supreme Court only addressed one of the divisions in our opinion, we are required to (1) read the Supreme Court’s opinion within the context of the opinion being reversed; (2) to determine whether any portions of the opinion being reversed were neither addressed nor considered by the Supreme Court; and (3) enter an appropriate disposition with regard to those portions that are consistent with the issues addressed and considered by the Supreme Court.

After so doing, we find that Division 1 (Case No. A10A1047) and Divisions 3-6 (Case No. A10A1048) are consistent with and were not affected by the Supreme Court’s decision, and thus remain in effect. Division 2, however, was reversed by the Supreme Court. Accordingly, Division 2 of our opinion is vacated, the judgment of the Supreme Court is hereby made the judgment of this Court for Division 2, and the judgment of the trial court denying Leibel’s motion for judgment notwithstanding the verdict is reversed. The case is remanded for a new trial consistent with the opinion of the Supreme Court.

Judgments reversed. Ellington, C. J., and Andrews, P. J., concur.

Bird, Loechl, Brittain & McCants, Wendell R. Bird, Richard L. Brittain, Jones, Jensen & Harris, Jenny E. Jensen, Richard E. Harris, for appellant.

Hawkins, Parnell, Thackston & Young, Michael J. Goldman, Christine L. Mast, Joseph H Wieseman, Balch & Bingham, Michael J. Bowers, Arnall, Golden & Gregory, David J. Marmins, for appellees.

       The Supreme Court did not address the single enumeration in Case No. A10A1047 (Division 1) or the remaining divisions of Case No. A10A1048.

        Wiggins v. State, 279 Ga. App. 901, 901-902 (633 SE2d 381) (2006), citing Shadix v. Carroll County, 274 Ga. 560, 563-564 (554 SE2d 465) (2001).


text:
    A12A1722.
    ANNAMALAI v. CAPITAL ONE FINANCIAL CORPORATION et al.
    (738 SE2d 664)
   DOYLE, Presiding Judge.

Annamalai Annamalai filed a complaint for malicious arrest and intentional infliction of emotional distress against Capital One Financial Corporation (“Capital One”) and Christine Razor, a law enforcement coordinator for Capital One. The trial court dismissed the complaint on the ground that it violated Georgia’s Anti-SLAPP (“Strategic Lawsuit Against Public Participation”) Statute. Finding no error, we affirm.

The undisputed evidence shows that in 2008, the Gwinnett County Police Department began receiving numerous complaints from individuals throughout the country alleging that they were victims of credit card fraud committed by the Hindu Temple of Georgia and Annamalai (the Temple’s founder). Specifically, the victims claimed that they contacted the Hindu Temple in order to purchase religious services or materials, only to later discover that their credit cards had been charged more than the agreed-upon amount. Officer Paul Cwalina was assigned to investigate the complaints, including one by Seema Patel. Cwalina contacted Razor to gather information for his investigation, and Razor provided what relevant information she could. Cwalina decided to arrest Annamalai and seek criminal charges against him and the Temple. The charges ultimately were not pursued.

In September 2009, Annamalai filed the instant suit against Capital One and Razor, alleging that they wrongfully prosecuted him. He attached an affidavit verifying the truth of the allegations therein. Thereafter, Annamalai amended his complaint and attached another affidavit verifying the truth of his allegations and averring that his claim was well founded and not filed for any improper purpose or to harass or cause unnecessary delay.

Razor successfully moved to dismiss for lack of service, and following discovery, Capitol One moved for summary judgment. Following a hearing, the trial court granted its motion on anti-SLAPP grounds as well as on the merits of Annamalai’s claims. Annamalai filed this appeal from that order.

Annamalai contends that the trial court erred by ruling (1) that OCGA § 9-11-11.1 applies to his claims and (2) that he failed to comply with its requirements. OCGA § 9-11-11.1 (a) provides that “the valid exercise of the constitutional rights of freedom of speech and the right to petition government for a redress of grievances should not be chilled through abuse of the judicial process.” Accordingly,

[f]or any claim asserted against a person or entity arising from an act by that person or entity which could reasonably be construed as an act in furtherance of . . . the right to petition government for a redress of grievances ... in connection with an issue of public interest or concern, both the party asserting the claim and the party’s attorney of record, if any, shall be required to file, contemporaneously with the pleading containing the claim, a written verification under oath . . . ,

The verification must, in material part,

certify that . . . [the claim] is well grounded in fact and is warranted by existing law or a good faith argument for the extension, modification, or reversal of existing law; that the act forming the basis for the claim is not a privileged communication under paragraph (4) of [OCGA §] 51-5-7; and that the claim is not interposed for any improper purpose such as to suppress a person’s or entity’s ... right to petition government, or to harass, or to cause unnecessary delay or needless increase in the cost of litigation. ... If a claim is verified in violation of this Code section, the court, upon motion or upon its own initiative, shall impose ... an appropriate sanction which may include dismissal of the claim and an order to pay to the other party or parties the amount of the reasonable expenses incurred because of the filing of the pleading, including a reasonable attorney’s fee.

1. We note at the outset that this is not the first time Annamalai has challenged OCGA § 9-11-11.1 asapplied to litigationhe initiated. In fact, in a similar case filed by Annamalai against similar complainants of credit card fraud, this Court held as follows:

Each of appellantf’s] claims are predicated solely and exclusively upon appellees’ statements to police or statements made in furtherance of an ongoing investigation regarding appellant[’s] alleged criminal activity. Suffice it to say, such speech is “in furtherance of the right... to petition government for a redress of grievances” and thus represents the type of speech that the anti-SLAPP statute is designed to protect. Moreover, it goes without saying that the perceived (and substantially documented) victimization of individuals throughout the country constitutes “an issue of public interest or concern.” Indeed, it is hard to imagine a more clear example of the type of “abuse of judicial process” that OCGA § 9-11-11.1 aims to deter than the serial filing of civil complaints against individuals lawfully reporting alleged unlawful activity. We therefore have little trouble concluding that appellant[’s] complaint falls within the ambit of OCGA § 9-11-11.1, which imposes on them the procedural requirement of filing sworn verifications . . . .

We reach the same conclusions based on the record here. Annamalai’s argument otherwise is contrary to case law and to the holding in his own prior litigation in this Court.

2. Annamalai’s claim that he complied with the verification requirement is also meritless. The record shows essentially no material factual dispute that the defendants were merely reporting alleged criminal activity to police. There is an absence of any evidence that their actions were overly zealous, malicious, or in any way wrongful. Further, the trial court took judicial notice of numerous other lawsuits against similarly victimized defendants, as we noted in Annamalai’s prior appearance in this Court, reaching the same conclusion: Annamalai has “filed similar lawsuits in various courts throughout Georgia against numerous individuals from across the country — all of whom claim to have been victimized by appellant [’s] alleged criminal activity.” Based on the record before us, “we agree with the trial court that appellant[’s] verifications were false to the extent that the complaint was neither filed for a proper purpose nor well-grounded in fact, and that dismissal of the complaint was . . . warranted.”

Decided February 21, 2013.

Eric A. Kane, for appellant.

Burr & Forman, Joshua H. Threadcraft, for appellee.

Judgment affirmed.

Andrews, P. J., and Boggs, J., concur.

       OCGA § 9-11-11.1. The trial court also granted summary judgment on the merits of Annamalai’s claims, but in light of the holding herein, we need not review that ruling.

       OCGA § 9-11-11.1 (b).

       Id.

       (Footnotes omitted.) Hindu Temple and Community Center of the High Desert, Inc. v. Raghunathan, 311 Ga. App. 109, 114-115 (1) (714 SE2d 628) (2011).

       Id. at 116 (2).

       Id. We note that no frivolous appeal penalties have been sought in this case. See Court of Appeals Rule 15 (b).


text:
    A12A1733.
    THE STATE v. ROGERS.
    (738 SE2d 667)
   DOYLE, Presiding Judge.

The State charged Travis Delroy Rogers with possession of marijuana, possession of marijuana with intent to distribute, possession of piperazine in violation of the Georgia Controlled Substances Act, and possession with intent to distribute piperazine. Prior to trial, Rogers moved on a number of grounds to suppress evidence obtained pursuant to a search warrant of a Clayton County home, and the trial court granted in part the motion, finding that the warrant was supported by probable cause, and the search was constitutional, but that some evidence required suppression because the seizure was overly broad. The State appeals this determination, and we reverse.

In reviewing the trial court’s grant or denial of a motion to suppress, we apply the well-established principles that the trial court’s findings as to disputed facts will be upheld unless clearly erroneous and the trial court’s application of the law to undisputed facts is subject to de novo review.

So viewed, the evidence shows Officer Scott Malette received a call from a detective in connection with the drug arrest because the arrestee was willing to cooperate with police and provide names of individuals selling narcotics in the area — specifically, that a confidential informant (“the Cl”) identified Travis Rogers, who resided on Babbling Brook Drive and would sell him marijuana or ecstasy. Based on the Cl’s statements regarding Rogers, Officer Malette set up two controlled buys using the Cl to purchase marijuana and ecstasy from Rogers at 7068 Babbling Brook Drive. Based on the controlled buys, Officer Malette prepared an affidavit in support of a search warrant and later obtained a search warrant for the home. The warrant stated that

there is now located certain instruments, articles, person(s), or things, namely marijuana a controlled substance[.] Evidence of the crime of possession and/or the sale/distribution of marijuana and its proceeds, and fruits of the crime of violation of the Georgia Controlled Substances Act[,] which is being possessed in violation of Georgia Law.

Officers executed the warrant on February 18, 2011, but the home was empty at the time. Officers discovered “51 ounces ... of marijuana, several [piperazine] tablets,hydrocodone [tablets], receipts in Rogers’[s] name as well as billing statements,” and other items in Rogers’s co-defendant’s name. Officers also seized photographs picturing Rogers and his co-defendant together, and a camera. Officer Malette testified that although no one was in the residence at the time of the search, the home was furnished, but the mail addressed to Rogers did not contain the Babbling Brook address. Rogers was later arrested at an apartment with his girlfriend.

1. As an initial matter, the State argues that Rogers did not have standing to challenge the search and seizure conducted at Babbling Brook Drive because he argued that he did not reside there.Although Rogers responds that the State has waived this argument because the State failed to object on standing grounds before the trial court, we find Rogers’s argument unpersuasive because the trial court implicitly addressed the issue of standing by addressing the merits of Rogers’s motion. Nevertheless, there was at least some evidence before the trial court that Rogers lived at the Babbling Brook address based on the testimony of Officer Malette, and we will not disturb that finding on appeal.

2. The State contends that the trial court erred by granting in part Rogers’s motion to suppress on the basis that the seizure of items including papers, receipts, photographs, and a camera, was overly broad based on the language of the search warrant. We agree.

A search which is reasonable at its inception may violate the Fourth Amendment by virtue of its intolerable intensity and scope. The scope of the search must be strictly tied to and justified by the circumstances which rendered its initiation permissible. Evidence may not be introduced if it was discovered by means of a seizure and search which were not reasonably related in scope to the justification for their initiation. A lawful search is limited to that which is described in the warrant. The warrant shall particularly describe the things to be seized and the search must be limited to that matter described.

In this case, the trial court erred by suppressing evidence, including photographs, receipts, and a camera based on its determination that these “personal items” seized were “outside the scope of the search warrant.” The search warrant contained a residual clause allowing officers to search and seize “[ejvidence of the crime of possession and/or the sale/distribution of marijuana and its proceeds, and fruits of the crime,” which “sufficiently limited the searching officers’ discretion” to seize only those items (namely, photographs of him within the home, documents bearing his name, and a camera, which could contain photographic evidence of possession of the narcotics) that linked Rogers to the marijuana and other contraband discovered in the home.

Decided February 21, 2013.

Tracy Graham-Lawson, District Attorney, Elizabeth A. Baker, Assistant District Attorney, for appellant.

Dorian Murry, for appellee.

Accordingly, the trial court’s order is reversed to the extent that it suppressed these items.

Judgment reversed.

Andrews, P. J., and Boggs, J., concur.

       The trial court also granted in part Rogers’s motion to the extent that he moved to suppress evidence seized during his subsequent arrest at an apartment (not the same location as the home named in the search warrant at issue here), but the State does not challenge this portion of the trial court’s ruling, and therefore, we do not address it.

       (Citation and punctuation omitted.) State v. Palmer, 285 Ga. 75, 78 (673 SE2d 237) (2009).

       Officer Malette visually identified the pills as ecstasy, the crime lab determined that the pills were actually l-(3-trifluoromethylphenyl) piperazine, which is a controlled substance similar to ecstasy. See OCGA § 16-13-25 (8).

        See Moody v. State, 232 Ga. App. 499, 504 (4) (a) (502 SE2d 323) (1998) (when a defendant lacks ownership or possessory interest in a residence, then he has “no expectation of privacy in the premises and lacks standing to challenge the validity of the search warrant”).

       We note that OCGA § 17-5-30 (b) requires that a defendant file a written motion to suppress stating “facts showing that the search and seizure were unlawful,” specifically, “the suppression motion must be sufficient to put the State on notice as to the type of search or seizure involved, which witness to bring to the hearing on the motion, and the legal issues to be resolved at that hearing.” (Punctuation omitted.) Young v. State, 282 Ga. 735, 736 (653 SE2d 725) (2007), quoting State v. Gomez, 266 Ga. App. 423, 425 (2) (597 SE2d 509) (2004). In this case, Rogers’s motion to suppress claimed that the affidavit offered to support the warrant application was based on unreliable statements of a Cl and did not establish probable cause to issue the warrant, that the warrant was stale, and that his later warrantless arrest was illegal and required suppression of any evidence garnered as a result. Those claims were insufficient to notify the State that one of the legal issues for resolution was the breadth of the seizure at the Babbling Brook address. See Gomez, 266 Ga. App. at 425 (2). Compare with Glenn v. State, 288 Ga. 462,465 (2) (a) (704 SE2d 794) (2010). Regardless of whether Rogers properly presented this argument, the trial court erred by granting in part the motion because the seizure was not overly broad.

       (Citations and punctuation omitted.) Grant v. State, 220 Ga. App. 604, 607 (1) (469 SE2d 826) (1996).

       (Emphasis supplied.)

       (Punctuation omitted.) Reaves v. State, 284 Ga. 181, 188 (2) (d) (664 SE2d 211) (2008), quoting State v. Reid, 38 Wn. App. 203, 212 (687 P2d 861) (1984).


text:
    A12A2222.
    SCHWEITZER v. THE STATE.
    (738 SE2d 669)
   DOYLE, Presiding Judge.

In this interlocutory appeal, Stephanie Schweitzer appeals from the denial of her motion to suppress evidence found in her purse during a traffic stop. She contends that the officer lacked authority to search her purse and that the contents of her purse would not be discovered inevitably as a part of her arrest processing. For the reasons that follow, we affirm.

On review of the denial of a motion to suppress, we consider all the evidence of record, including evidence introduced at trial. Where the evidence at a hearing on a motion to suppress is uncontroverted and no question of credibility is presented, we review the trial court’s application of the law to these undisputed facts de novo. As to questions of fact and credibility, however, we construe the evidence in favor of the trial court’s findings and judgment, which must be accepted unless clearly erroneous.

Here, the facts are undisputed. A uniformed officer from the criminal investigations division and the property unit in the Hall County Sheriff’s Office was driving back from a call about a theft. He noticed a small, black Ford Ranger pickup truck matching a description of a truck implicated in recent thefts and performed a computer check of the license plate on the truck. The information he received indicated that the tag was issued to a full-size Chevrolet pickup truck, not the black Ford he was observing.

Based on that information, the officer initiated a traffic stop and made contact with the driver. The officer began explaining the reason for the stop, and immediately the passenger, Schweitzer, explained that the truck was her boyfriend’s and that they had had trouble registering it because of problems with the title. The officer asked Schweitzer for her name, and she said “Heather.” The officer asked for her identification and date of birth, and she stated that she did not have identification but gave a date of birth. The officer then walked around to the passenger side of the vehicle as Schweitzer looked for paperwork in the glove compartment. The officer believed Schweitzer was behaving nervously and trying to discreetly slide her purse underneath her seat. The officer said, “What is your name? Stop lying to me and tell me the truth.” Schweitzer replied that her real name was Stephanie Schweitzer and she “may have a warrant on her.”

As Schweitzer remained in the vehicle, the officer then contacted dispatch and confirmed that there was an outstanding warrant for failure to appear. At that point, the officer asked Schweitzer to step out of the vehicle and placed her under arrest, handcuffing her hands behind her back. As a backup officer arrived, the officer retrieved the purse from the truck and placed it on the hood of the truck. Schweitzer said, “That’s my purse. I don’t want you to search it,” and the officer told her that he could search it because she was arrested and the purse was going back to the jail with her.

The officer looked inside the purse and initially pulled out Schweitzer’s wallet with her identification in it, which confirmed Schweitzer’s name. After pulling out the wallet and identification, the officer pulled out a small change purse and opened it, discovering what appeared to be methamphetamine. No other suspected contraband was found.

Based on the encounter, Schweitzer was charged with possession of methamphetamine and giving false information to a police officer. She moved to suppress the evidence obtained during the traffic stop, and the trial court denied the motion, certifying its decision for immediate review. This Court granted Schweitzer’s application for interlocutory appeal.

The trial court denied Schweitzer’s motion on the ground that discovery of the contents of the purse was inevitable due to a valid police practice to inventory an arrestee’s personal effects when they are booked into jail. We find no error, based on the record before us.

Under the inevitable discovery doctrine, “if the State can prove by a preponderance of the evidence that evidence derived from police error or illegality would have been ultimately or inevitably discovered by lawful means, then the evidence is not suppressed as fruit of [an impermissible search or seizure].” In other words,

there must be a reasonable probability that the evidence in question would have been discovered by lawful means, and the prosecution must demonstrate that the lawful means which made discovery inevitable were possessed by the police and were being actively pursued prior to the occurrence of the illegal conduct.

At the outset, we note that the initial traffic stop was lawful because the officer had reason to believe that the truck displayed a license plate issued to another vehicle in violation of the law. The officer’s conversation with Schweitzer, who professed knowledge of the registration status of the vehicle, was a permissible part of his investigation of the improperly displayed license plate. Schweitzer quickly identified herself as the subj ect of a warrant, so the officer had authority to confirm that information and arrest her.

Decided February 21, 2013.

Clinton W. Teston, for appellant.

Upon her arrest, Schweitzer was subject to being transported to jail for booking, and the officer, who was familiar with and testified about the jail policy of searching inmates’ personal effects, elected to search her purse because he expected them to be inventoried as part of the booking process at the jail. The officer explained his reason for sending Schweitzer’s purse as follows:

[I] f someone’s wallet or purse or something like that is in the vehicle, we generally send it with them just for the plain and simple fact that if this person gets to the jail and says, “[0]h, well, where is my purse?” “I[, the officer,] left it in the car.” “Why did you do that [—] ... it had a thousand dollars in it. It had a 24-karat diamond ring in it.” So to protect ourselves from false accusations and things of that nature, we send it with them and let the j ail check it in. They do their inventory, and everything goes from there.

This demonstrated a valid reason to send Schweitzer’s purse to the jail with her, and the officer testified as to the jail’s inventory policy. In light of the record before us, we discern no error in the trial court’s ruling that the contents of Schweitzer’s purse would have been inevitably discovered as part of the booking process associated with the valid arrest of Schweitzer.

Judgment affirmed.

Andrews, P. J., and Boggs, J., concur.

Lee Darragh, District Attorney, Kelley M. Robertson, Assistant District Attorney, for appellee.

       (Citations omitted.) Wilson v. State, 308 Ga. App. 383 (708 SE2d 14) (2011).

       We find unavailing the State’s argument that Schweitzer lacked standing to challenge the search other purse merely because it was in a vehicle that belonged to another person. The purse was in plain view of the officer during the initial encounter, and the search of the purse was not conducted as part of a larger search of the entire car and its contents. Compare State v. Harris, 236 Ga. App. 525, 529 (3) (513 SE2d 1) (1999) (noting the different privacy interests in a vehicle and a passenger’s purse in the vehicle). “It is the recognized relationship of the person with the property searched that gives rise to the protective device of suppression.” (Punctuation omitted.) State v. Jackson, 201 Ga. App. 810, 813 (1) (412 SE2d 593) (1991). Here, Schweitzer explicitly claimed the purse as hers. See State v. Hanson, 243 Ga. App. 532, 542 (532 SE2d 715) (2000) (A purse “is an item that is universally recognized as one in which a person has a reasonable expectation of privacy.”) (Barnes, J., concurring specially). Therefore, we conclude that Schweitzer had standing to challenge the search of her purse.

       The trial court also based its decision on an alternate ground that the officer had authority to search Schweitzer’s purse because it was within her recent possession at the time of arrest, citing Hilly. State, 263 Ga. App. 365, 366 (587 SE2d 843) (2003), and Sprinkles v. State, 227 Ga. App. 112, 113 (1) (488 SE2d 492) (1997) (“Since the arrest was lawful, the search of items within [the defendant’s] immediate possession was lawful as a search incident to a lawful arrest. That [the defendant] was already in the police car and no longer had immediate control over the purse or the overnight bag she had just been carrying does not require a different result. The decisive factor is whether she was, at the time of the arrest, in recent possession of the object being searched.”) (citation omitted). We need not reach the merits of that rationale.

        Taylor v. State, 274 Ga. 269, 274 (3) (553 SE2d 598) (2001).

       (Punctuation omitted.) Id. at 274-275 (3).

       See OCGA § 40-2-6.

       See Taylor v. State, 228 Ga. App. 325, 326 (1) (a) (491 SE2d 417) (1997). Cf. Clay v. State, 290 Ga. 822, 830 (2) (725 SE2d 260) (2012) (applying the inevitable discovery rule); Stringer v. State, 285 Ga. App. 599, 602-603 (1) (647 SE2d 310) (2007) (“protecting police against claims for stolen or lost property’ is a legitimate purpose for searching a properly impounded vehicle).

       This rationale is not based on a vehicle search incident to arrest as analyzed in Arizona v. Gant, 556 U. S. 332 (129 SC 1710, 173 LE2d 485) (2009), so Schweitzer’s reliance on that case on appeal is misplaced.


author: Branch, Judge.

text:
    A12A2340.
    CAUSEY v. THE STATE.
    (738 SE2d 672)
   Branch, Judge.

Omar Daetz Causey was tried by a Clayton County jury and convicted of two counts of aggravated assault (OCGA § 16-5-21 (a)) and a single count each of making terroristic threats (OCGA § 16-11-37 (a)), criminal trespass (OCGA § 16-7-21 (a)), and theft by taking (OCGA § 16-8-2). He now appeals from the denial of his motion for a new trial, asserting that his trial counsel was ineffective for failing to request a mistrial after learning of improper contact between two jurors and a spectator at the trial. We find no error and affirm.

When we consider a claim of ineffective assistance, we defer to findings of fact made by the trial court unless they are clearly erroneous, but we review the trial court’s application of the law to those facts de novo. Ferguson v. State, 307 Ga. App. 232, 237 (2) (704 SE2d 470) (2010).

The facts relevant to this appeal are undisputed and show that on the second day of jury deliberations, juror number 53 failed to appear at the courthouse. The clerk of court attempted to contact him, and reached a man who identified himself as the juror’s brother. The brother stated that the juror “had something else to do this morning,” but that the brother would try and reach him. After reporting these facts to the parties, the trial court asked if they had any objection to replacing juror number 53 with the alternate juror. Causey, his lawyer, and the prosecutor all agreed to the substitution of the alternate juror for juror number 53. At that point the substitution occurred, and the jury was told to resume deliberations. Less than ten minutes later, the jury foreperson reported to the bailiff that the alternate juror had just told the rest of the jurors about contact between the alternate, juror 53 and a trial spectator, whom the alternate believed was a supporter of Causey’s. The court thereafter questioned both the jury foreperson and the alternate juror under oath and in the presence of the parties.

According to the alternate juror, on the previous evening he and juror 53 were leaving the courthouse together when they saw a man they recognized as being “affiliated with” Causey getting into his car. The man asked the jurors if they had reached a verdict, but the jurors did not respond and continued walking to their own car. The court asked the alternate juror if, as a result of the encounter in the parking lot, he felt “intimidated in any way.” The alternate juror responded, “Oh, no” and also testified that the encounter would not affect his ability to remain fair and impartial.

Because the testimony of both the alternate juror and the foreperson established that the alternate juror had related the incident in the parking lot to the rest of the jury, the trial court decided to ask all the jurors regarding their ability to remain fair and impartial. Specifically, the trial court asked the jury: “Based upon whatever was said in the jury room this morning about whatever happened last night and that incidental contact, is there any one of you that cannot be a fair and impartial juror as a result of that? If so, please raise your hand.” After noting that no hands were raised, the court sent the jurors back out to resume their deliberations. The court then asked the parties if they had any objections to the procedure that had just occurred, and both the prosecutor and Causey’s attorney affirmatively stated that they had no objection.

On appeal, Causey argues that his attorney’s failure to move for a mistrial based upon the improper encounter between juror number 53 and the alternate juror and the spectator believed to be affiliated with Causey constituted ineffective assistance of counsel, and that he was therefore entitled to a new trial. We disagree.

To prevail on a claim of ineffective assistance, Causey bears the burden of proving both that the performance of his lawyer was deficient and that he suffered prejudice as a result of this deficient performance. Strickland v. Washington, 466 U. S. 668, 687 (III) (104 SC 2052, 80 LE2d 674) (1984). If Causey cannot meet his burden of proving either prong of the Strickland test, then we need not examine the other prong. Battles v. State, 290 Ga. 226, 229 (2) (719 SE2d 423) (2011). Here, we find that Causey failed to establish that his lawyer’s performance was deficient.

In determining whether defense counsel afforded his client adequate representation, “we bear in mind that ‘(j)udicial scrutiny of counsel’s performance must be highly deferential.’ Strickland, 466 U. S. at 689 (III) (A).” Arnold v. State, 292 Ga. 268, 270 (2) (a) (737 SE2d 98) (2013). Thus,

[t]o demonstrate deficient representation, a convicted criminal defendant must show that counsel’s representation fell below an objective standard of reasonableness. Such a defendant must overcome the strong presumption that counsel’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 reasonableness of counsel’s conduct is examined from counsel’s perspective at the time of trial and under the circumstances of the case.

(Citation, punctuation and footnote omitted.) Smith v. State, 302 Ga. App. 128, 133 (2) (690 SE2d 449) (2010).

The law in Georgia is that where there has been an improper communication between a juror and a third party, there arises a presumption of harm to the defendant “and the burden is on the State to show the lack thereof.” (Citation and punctuation omitted.) Ledford v. State, 264 Ga. 60, 65 (9) (439 SE2d 917) (1994). We will not disturb a jury verdict solely because of such improper communication, however, unless it involved statements that were so inherently prejudicial to the defendant “that the verdict must be deemed inherently lacking in due process.” (Citation and punctuation omitted.) Sims v. State, 266 Ga. 417, 419 (3) (467 SE2d 574) (1996). And where “the substance of the communication is established without contradiction, the facts themselves may establish the lack of prejudice or harm to the defendant.” (Punctuation and footnote omitted.) Holcomb v. State, 268 Ga. 100, 103 (2) (485 SE2d 192) (1997). We find that to be the situation here.

The communication at issue involved a spectator asking two jurors whether a verdict had been reached in the case and no response by the jurors to the question. It did not involve extrajudicial information, a discussion of the facts or legal issues in the case, or improper conduct by the jurors themselves. Additionally, the juror who testified about the communication stated that he did not perceive it as threatening or intimidating and that it would not affect his ability to decide the case fairly and impartially. Similarly, all of the remaining jurors indicated that their knowledge of the communication would have no impact on their ability to remain fair and impartial during their deliberations. Under these circumstances, we find that the communication itself was “inherently innocuous” and did not prejudice Causey. Ledford, 264 Ga. at 65 (9) (no prejudice to defendant where spectator asked juror “can you hear okay?”). See also Sims, 266 Ga. at 420 (3) (no reversible error arising out of juror misconduct by violating court orders not to discuss the case because the substance of the communication was established without contradiction and the statements “did not involve extrajudicial information, or demonstrate that they were deliberating the case prior to the close of evidence, or that one juror was attempting to persuade another on any issue or testimony in the case”); Henry v. State, 265 Ga. 732, 738 (7) (a) (462 SE2d 737) (1995) (no harm to defendant as a result of sequestered juror’s unauthorized contact with girlfriend where facts established that their conversation did not involve a discussion of the merits of the case); Huff v. State, 239 Ga. App. 83, 87-88 (3) (519 SE2d 263) (1999) (defendant suffered no prejudice where, contrary to court’s instructions, jurors had a general discussion about the case during a trial recess; the jurors were interviewed and “stated that they could remain impartial and that the conversation did not influence their final decisions in the case”).

Decided February 21, 2013.

Shofaetiyah D. Watson, for appellant.

Tracy Graham-Lawson, District Attorney, Elizabeth A. Baker, Assistant District Attorney, for appellee.

Given these facts, trial counsel did not perform deficiently when he failed to move for a mistrial. The proceedings below show

that the limited contact between [the spectator and juror number 53 and the alternate juror] was not prejudicial to [Causey], and trial counsel could not have expected to prevail on a motion for mistrial on that account. [And] [f]ailure to pursue a futile motion does not constitute ineffective assistance.

(Citation and punctuation omitted.) Dowels v. State, 289 Ga. App. 369, 373 (2) (657 SE2d 279) (2008) (affirming trial court’s finding that defense counsel’s failure to move for a mistrial, based on improper communication among jurors and an out-of-court communication between a juror and a witness for the state, did not constitute ineffective assistance of counsel).

Judgment affirmed.

Miller, P. J., and Ray, J., concur.


author: Boggs, Judge.

text:
    A12A2344.
    EAGLE GA I SPE, LLC v. ATREUS COMMUNITIES OF FAIRBURN, INC. et al.
    (738 SE2d 675)
   Boggs, Judge.

Eagle GAI SPE, LLC (“Eagle”) filed an application for confirmation of a foreclosure sale. Following a hearing, the trial court found that Eagle did not sell the property for its true market value and denied confirmation. The court also denied Eagle’s request for a resale. Eagle now appeals from the trial court’s order. Having reviewed the record, we discern no error and affirm.

OCGA § 44-14-161 sets forth the procedure for confirming a nonjudicial foreclosure sale. That Code section provides:

(a) When any real estate is sold on foreclosure, without legal process, and under powers contained in security deeds, mortgages, or other lien contracts and at the sale the real estate does not bring the amount of the debt secured by the deed, mortgage, or contract, no action may be taken to obtain a deficiency judgment unless the person instituting the foreclosure proceedings shall, within 30 days after the sale, report the sale to the judge of the superior court of the county in which the land is located for confirmation and approval and shall obtain an order of confirmation and approval thereon.
(b) The court shall require evidence to show the true market value of the property sold under the powers and shall not confirm the sale unless it is satisfied that the property so sold brought its true market value on such foreclosure sale.
(c) The court shall direct that a notice of the hearing shall be given to the debtor at least five days prior thereto; and at the hearing the court shall also pass upon the legality of the notice, advertisement, and regularity of the sale. The court may order a resale of the property for good cause shown.

In a confirmation proceeding, the

judge sits as a trier of fact, and his findings and conclusions have the effect of a jury verdict. He hears the evidence and his findings based upon conflicting evidence should not be disturbed by a reviewing court if there is any evidence to support them. What value is, or may have been, is a question of fact to be resolved as others are.

(Citations and punctuation omitted.) Govt. Nat. Mtg. Assn. v. Belue, 201 Ga. App. 661, 662 (1) (411 SE2d 894) (1991). This court does not “determine witness credibility or weigh the evidence and we view the evidence in the light most favorable to the trial court’s judgment.” (Citation and punctuation omitted.) Ciuperca v. RES-GA Seven, LLC, 319 Ga. App. 61 (735 SE2d 107) (2012).

So viewed, the record reveals that a builder/developer now known as Atreus Communities of Fairburn, Inc. (“Atreus”) received a loan from Eagle’s predecessor in interest that was secured by certain real property. The loan was guaranteed by Jonathan Been and evidenced by a promissory note. When Atreus defaulted on the payment of the note, Eagle foreclosed on the property which consisted of 13 developed lots. The property sold to Eagle for $155,000 at the foreclosure sale. Eagle then filed an application for confirmation of the foreclosure sale. The parties stipulated that the report of the sale (see OCGA § 44-14-161 (a)) and the manner of advertisement of the sale (see OCGA § 44-14-162) were proper.

Following a hearing on Eagle’s confirmation application, the trial court issued an order denying confirmation. It concluded that Eagle’s expert, who reported a value of $155,000 for the property, failed to consider the sales comparison approach to value the property as required by the USPAP (Uniform Standards of Professional Appraisal Practice), wrongly calculated the tax liability of the property, and admitted that the absorption period in his report was a “guesstimate.” The court also found that the expert’s DCF (discounted cash flow) model “is unreliable and his opinion of value is unsupported.” The court found that Atreus’ expert “presented reliable testimony that the value of the Property derived from a bulk sales comparison approach is $228,000,” and that the “bulk sales comparison provides a better appraisal of the true market value at the time of sale and is a more credible methodology than the income approach to valuation.” The court found that the testimony of Atreus’ expert appraiser was more credible than that of Eagle’s expert appraiser.

The court denied Eagle’s application for confirmation because Eagle only sold the property for $155,000 — less than its true market value. The court also ruled that “[Eagle] has shown no facts or evidence that would prove good cause and [is] not entitled to resell the Property.”

1. Eagle contends that the trial court erred “in holding that the DCF analysis was unreliable where the case law is clear that the DCF analysis is an appropriate methodology for appraising real property.” But the trial court did not conclude that DCF was an inappropriate methodology; rather it ruled that Eagle’s expert’s valuation based upon that model was unreliable because he admitted that his lot-to-house ratio and the absorption period he used were not based on empirical data but were only educated guesses based on his experience. The court also held that the bulk sales comparison approach provided a better appraisal of the true market value at the time of the sale.

Eagle’s expert appraiser testified that he used the DCF methodology to determine the value of the lots. He explained that he first developed the retail price of the lots to be sold “by looking at comparable subdivisions in the market... in the same general price point.” He calculated a retail value of $27,500 per lot. Eagle’s expert then applied a lot-to-home price profit ratio resulting in an appraised value of $155,000 for the 13 lots.

On cross-examination, Eagle’s expert admitted that there was nothing in his report to explain how he arrived at his lot-to-home price ratio and “that there were no actual sales or a single property identified in [his] report” that would explain this ratio. He admitted that the ratio he used was based upon his experience and “data contained in files on over 200 subdivisions,” and that had he used the actual ratios from other subdivisions, the retail value would have been higher; but he insisted that his opinion as to value would have been the same.

On cross-examination, Eagle’s expert agreed that the validity of the DCF model is “based on the accuracy of all the assumptions and predictions [he] made with respect to those variables” and that the alternative sales comparison approach requires “zero predictions” but does not “reflect what people today are anticipating in the market.” And he admitted that “you have to look at actual sales in the market, how fast the property is selling out, and perform a market analysis to come up with your absorption period,” but he nevertheless estimated this value based only upon his experience.

Atreus’ expert appraiser testified that his appraised value for the 13 lots was $228,000. He arrived at this value using a bulk sales analysis through a sales comparison approach, which he opined was a better method than the D CF “because it is a true market value of the current market, what is going on in the market at the present time... a DCF has too much estimation as to absorption time to that estimation as to the discount rate. Everything in a DCF is estimated.” He explained further that a bulk sale is a sale typically bought by investors to hold for future investment “and/or to build on themselves,” while a retail sale is “a lot sale that’s sold, typically one sale, and it’s sold to an individual or a builder to build a house on.”

Atreus’ expert stated that he had looked at eight bulk sales he felt were comparable in the general market area which were listed on his report. He explained that he made adjustments for the quantity of lots, the location and the size of the lots, and amenity packages, and that after weighing the data, concluded that the value of the property was $17,500 per lot or $227,500 for the 13 lots, which he rounded to $228,000.

On appellate review, the test is not whether this court would have accepted appellant’s expert appraisals as the most reliable and accurate, but whether the record contains any evidence to support the findings of the trial court that the property brought its true market value at the foreclosure sale.

(Citation, punctuation and footnote omitted.) TKW Partners v. Archer Capital Fund, 302 Ga. App. 443, 448 (2) (a) (691 SE2d 300) (2010). The trial court, as the trier of fact, was authorized to weigh the evidence presented here and judge the credibility of both experts to conclude that Eagle’s expert’s valuation under the DCF model was unreliable and that Atreus’ expert was more credible and used a more appropriate valuation method. The record contains evidence to support the findings of the trial court, and we cannot second guess the court’s ruling. Id. at 449 (2) (b); see also REL and Assoc. v. Fed. Deposit Ins. Corp., 304 Ga. App. 33, 35 (1) (a), (b) (695 SE2d 370) (2010).

2. Eagle contends that the trial court erred in refusing to order a resale of the property. “The trial court is authorized by OCGA § 44-14-161 (c) to order a resale of the property ‘for good cause shown.’ It has been held that this statute confers upon the trial court a legal discretion in determining whether to order a resale.” (Citation omitted.) Belue, supra, 201 Ga. App. at 662 (2).

The language of the confirmation statute places the burden of proof on the creditor not only to show that the sale brought true market value of the property, but also to show good cause for a resale, and the statute vests considerable discretion in the trial court in this determination. The statute does not entitle the creditor to a resale, either for mere failure to show the sale brought true market value, for a mere flawed appraisal, or for any reason. The provision that resale may be granted for good cause shown (§ 44-14-161 (c)) means there is no presumption in favor of resale and there is no entitlement to a resale. The statutory language authorizing resale is entirely permissive and not mandatory.
Moreover, the statute does not define what constitutes “good cause,” does not require a finding by the trial court of bad faith or negligence in the appraisal or sale, and does not even require evidence of bad faith or negligence. We have declined to set restrictions on the trial court’s discretion in denying resale, for to set restrictions would be to require evidence of misfeasance, malfeasance, or defect in the sale before a resale can be denied, which would put the burden of proof on the debtor. To the contrary, we have held: [w]here no good cause has been shown which would demand a resale, there is no abuse of the exercise of the trial court’s discretion, as a matter of law.

(Citations and punctuation omitted; emphasis in original.) Resolution Trust Corp. v. Morrow Auto Center, Ltd., 216 Ga. App. 226, 227-228 (2) (454 SE2d 138) (1995).

The court ruled here that “[Eagle] has shown no facts or evidence that would prove good cause and [is] not entitled to resell the Property.” Eagle argues that the failure to sell the property for its true market value alone constitutes good cause for a resale. But “a holding that if a sale fails to bring true market value the creditor is entitled to resale, would obliterate the statute and remove the trial court’s discretion.” Resolution Trust Corp., 216 Ga. App. at 229 (3). And we have held that the fact that the property sold at the value determined by the creditor’s appraiser does not constitute good cause to authorize a resale. Id. at 229 (2).

Eagle contends it has shown good cause because it obtained an appraised value of $155,000 from its expert appraiser before the foreclosure sale and sold the property for that price, and there was no evidence that it intentionally sold the property for less than its true market value. Eagle cites Gutherie v. Ford Equip. Leasing Co., 206 Ga. App. 258, 261 (424 SE2d 889) (1992) in support of this argument. In Gutherie, this court concluded that a resale was “authorized” where the creditor did not prove that it sold the property for true market value but did" obtain an appraisal before the sale and sold the property at the appraised value. Id. at 261 (2). But we have already observed that Gutherie does not demand this outcome:

[w]e have held in particular cases that a resale was “authorized,” ... this does not constitute a holding that a resale was demanded in those cases or that there would be any “entitlement” to resale in other cases with similar circumstances. Discretion to grant a resale is discretion to deny a resale. There are special reasons that the issues of “good cause” and resale are left to the “considerable discretion” of the trial court, as this case proves.

(Citations omitted; emphasis in original.) Resolution Trust Corp., supra, 216 Ga. App. at 228 (2).

Decided February 21, 2013

McGuireWoods, Jennifer R. Burbine, for appellant.

Bloom, Sugarman & Everett, Simon H. Bloom, Stephanie A. Everett, Ariel D. Zion, Christian B. Turner, for appellee.

“Traditionally, where a trial court is vested by statute with broad discretion, appellate courts do not disturb that exercise of discretion unless it is clearly, patently, and manifestly abused.” Resolution Trust Corp., supra, 216 Ga. App. at 229 (3). Therefore, we hold that the trial court did not abuse its discretion here in denying Eagle’s request for a resale. Id.

Judgment affirmed.

Doyle, R J., and Andrews, P. J., concur.

       Absorption period is the time within which property will be sold on the market. See Black’s Law Dictionary, p. 6 (7th ed. 2000).

       The record also supports the trial court’s finding that Eagle’s expert incorrectly calculated property taxes.


text:
    A12A2366.
    TAYLOR v. THE STATE.
    (738 SE2d 679)
   DOYLE, Presiding Judge.

Jeremy Taylor appeals from his convictions of aggravated battery upon a correctional officer and felony obstruction of a correctional officer. On appeal, Taylor argues that the trial court erred by denying his motion for a directed verdict as to aggravated battery upon a correctional officer because the State failed to establish evidence that the victim was a correctional officer within the definition of the statute. For the reasons that follow, we reverse and remand with direction.

Viewing the evidence in the light most favorable to the verdict, the record shows that on August 22, 2010, while housed at the Bibb County Law Enforcement Center, Taylor and his co-defendant, Antwoin Roberson, left the showers, passing the cells of other inmates with whom they stood and talked. Officer Jeremy Haddock, who was wearing civilian clothes and had been working at the facility for five months, and Officer Enos Curry approached Taylor and Roberson in order to escort them back to their cells, but Roberson punched Officer Curry in the face. Officer Haddock assisted Officer Curry in forcing Roberson to the ground, when Taylor punched Officer Haddock in the face. Roberson then punched Officer Haddock in the nose, breaking it, and while Officer Haddock was on top of Roberson, Taylor punched Officer Haddock in the face, breaking his jaw. Taylor also hit Officer Curry in the face during the struggle.

Taylor was indicted for aggravated battery of Officer Haddock. At the close of evidence, Taylor moved for a directed verdict of acquittal on the count of aggravated battery upon a correctional officer on the basis that the State failed to present any evidence that Officer Haddock was certified as required by the language of OCGA § 16-5-24 (e) (1). The trial court denied the motion and charged the jury on aggravated battery upon a correctional officer and the lesser included offense of battery.

In his sole enumeration on appeal, Taylor contends that the trial court erred by denying his motion for a directed verdict of acquittal as to the charge of aggravated battery upon a correctional officer because the State failed to establish proof that Officer Haddock was “certified by the Georgia Peace Officer Standards and Training Council pursuant to Chapter 8 of Title 35” as required under the statute. We agree and reverse as to the conviction for aggravated battery upon a correctional officer.

A motion for a directed verdict in a criminal case should only be granted when there is no conflict in the evidence and the evidence demands a verdict of acquittal as a matter of law. The test established in Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560) (1979), is the appropriate one to use when the sufficiency of the evidence is challenged, whether the challenge is from the denial of a directed verdict or the denial of a motion for new trial based upon alleged insufficiency of the evidence.

OCGA § 16-5-24 (e) (2) states that “[a] person who knowingly commits the offense of aggravated battery upon a correctional officer . . . engaged in . . . his duties” is subject to an increased term of imprisonment for the offense. The Code section defines “correctional officer” as

superintendents, wardens, deputy wardens, guards, and correctional officers of state, county, and municipal penal institutions who are certified by the Georgia Peace Officer Standards and Training Council pursuant to Chapter 8 of Title 35 and employees of the Department of Juvenile Justice who are known to be employees of the department or who have given reasonable identification of their employment. The term “correctional officer” shall also include county jail officers who are certified or registered by the Georgia Peace Officer Standards and Training Council pursuant to Chapter 8 of Title 35.

In 1985, the Georgia Legislature passed an act “[t]o amend [the Code] relating to crimes of battery, so as to define the crime of.. . aggravated battery upon a correctional officer [and] to define the term ‘correctional officer.’ ” This language indicates that the Georgia Legislature intended to create a “separate and distinct crime” from aggravated battery rather than a separate, enhanced penalty based on the victim’s status at the time of the battery. Thus, because aggravated battery upon a correctional officer is a distinct crime, it requires proof of the essential element of knowledge on the part of the defendant that the individual was a correctional officer at the time of the battery.

Nevertheless, the State, relying on Cornwell v. State, argues that despite the plain language of OCGA § 16-5-24 (e) (1), it was not required to present evidence that Officer Haddock was “certified by the Georgia Peace Officer Standards and Training Council pursuant to Chapter 8 of Title 35” at the time of the incident in order to establish a necessary element of the crime of aggravated battery upon a correctional officer. In Cornwell, this Court addressed the issue of whether the State was required to present evidence that a victim was certified as a peace officer “by the Georgia Peace Officer Standards and Training Council” in order to establish the crime of aggravated assault upon a police officer pursuant to OCGA § 16-5-21 (c). This Court determined that specific evidence of certification was not necessary in order to present sufficient evidence that the victim was a police officer in order to fulfill the statutory elements.* Subsection (c) of the aggravated battery and aggravated assault Code sections, however, does not contain the same language of subsection (e) (1) of those statutes. The Legislature, when it amended both the aggravated assault and aggravated battery Code sections, chose to include within the description of correctional officers a requirement that they be “certified by the Georgia Peace Officer Standards and Training Council pursuant to Chapter 8 of Title 35” even though the subsections defining aggravated assault and aggravated battery upon a police officer, which were already in existence at that time, did not include such language. And although the Legislature later amended subsection (e) (1) to include county jail officers, it still chose to include within the description of such individuals the requirement that they be “certified by the Georgia Peace Officer Standards and Training Council pursuant to Chapter 8 of Title 35.” Accordingly, Cornwell does not control in this instance, and the trial court erred by denying Taylor’s motion for directed verdict and motion for new trial as to Count 1. There was sufficient evidence, however, to support a conviction for the lesser included charge of battery, so we remand in order for a retrial or resentencing as to the lesser included charge.

Decided February 21, 2013.

Green B. Moore III, for appellant.

Judgment reversed and case remanded with direction.

Andrews, P. J., concurs. Boggs, J., concurs in judgment only.

Gregory W. Winters, District Attorney, Nancy S. Malcor, Dorothy V. Hull, Assistant District Attorneys, for appellee.

       OCGA § 16-5-24 (e) (2).

       OCGA § 16-10-24 (b).

       See White v. State, 289 Ga. App. 224 (656 SE2d 567) (2008). See also Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560) (1979).

       (Citations omitted.) Grier v. State, 262 Ga. App. 777, 779 (2) (586 SE2d 448) (2003).

       OCGA § 16-5-24 (e) (1).

       (Emphasis supplied.) Ga. L. 1985, pp. 628, 629, § 2. See Bundren v. State, 247 Ga. 180, 181-182 (2) (274 SE2d 455) (1981) (interpreting 1976 amendment to the aggravated assault statute adding aggravated assault upon a police officer as the enactment of a “separate and distinct crime”).

       See Bundren, 247 Ga. at 181-182 (2). See also Chandler v. State, 204 Ga. App. 816, 821 (3) (421 SE2d 288) (1992) (aggravated battery statute, which tracks the language of the relevant section of the aggravated assault statute, also required proof that defendant knew the individual was a police officer).

       See Bundren, 247 Ga. at 181-182 (2) (reversing this Court’s prior decisions, which held that the Code section was simply a penalty enhancement, rather than a distinct crime). Compare with Howard v. State, 230 Ga. App. 437, 439-440 (5) (496 SE2d 532) (1998) (holding that proof of age of victim over 65 was not required to convict under aggravated assault because the legislature intended to amend the statute to enhance a penalty and not to create a separate and distinct crime), overruled on other grounds by Curtis v. State, 275 Ga. 576, 578 (1) (571 SE2d 376) (2002). See also Ga. L. 1984, pp. 900, 901, § 2 (age-related enhancement as applied to aggravated battery statute, which tracks the language in the aggravated assault statute interpreted by Howard).

       193 Ga. App. 561, 561-562 (1) (388 SE2d 353) (1989).

       See id.

       See id. We note that aggravated battery upon apolice officer pursuantto OCGA § 16-5-24 (c) tracks the language of the aggravated assault statute interpreted in Cornwell.

         Compare with Grier, 262 Ga. App. at 779-780 (2) (holding that proof that a correctional officer is certified is not an essential element of obstruction of a correctional officer), citing Dennis v. State, 220 Ga. App. 420 (1) (469 SE2d 494) (1996). OCGA § 16-10-24 (b) states that “[w]hoever knowingly and willfully resists, obstructs, or opposes any... correctional officer... in the lawful discharge of his official duties ... is guilty of a felony...” but does not contain the restrictive phrase at issue in the statute before us.

       See Ga. L. 1985, pp. 628, 629, § 2.

       See Ga. L. 1976, p. 543, § 2.

       See Ga. L. 2000, p. 1626, § 2.

       See Chandler v. State, 204 Ga. App. at 821-822 (3).