text:
    A16A1960.
    MORRIS v. THE STATE.
    (797 SE2d 207)
   DILLARD, Presiding Judge.

Following a trial by jury, Taurean Morris was convicted of criminal attempt to commit armed robbery, aggravated assault, aggravated battery, violation of the Georgia Street Gang Terrorism and Prevention Act (three counts), and possession of a firearm during the commission of a felony Morris appeals from these convictions, arguing that (1) the evidence was insufficient to sustain his convictions for violation of the Street Gang Terrorism and Prevention Act; (2) his trial counsel rendered ineffective assistance in a number of instances; (3) the trial court erred in denying a motion to sever his trial from that of a co-defendant; (4) the trial court erroneously admitted evidence under OCGA § 24-4-404 (b); (5) the trial court erred in giving limiting instructions to the jury; (6) the trial court erred in admitting irrelevant and cumulative hearsay testimony regarding his alleged gang connections; and (7) certain counts should have merged for purposes of sentencing. For the reasons set forth infra, we affirm Morris’s convictions in part, vacate in part, and remand to the trial court for resentencing.

Viewed in the light most favorable to the jury’s verdict, the record reflects that on January 8, 2014, the victims, Raymond Ball and Jazmine Webb, were at home in their apartment when there was a sudden knock at the door. Webb peered through the peephole and recognized a person with “little twist dreads,” whom she had seen purchase marijuana from Ball on numerous occasions. Webb also recalled previously seeing this person associated with a gray, four-door vehicle.

When Ball looked through the peephole and saw two men, he was hesitant to open the door because he was not expecting visitors. But he eventually did so after recognizing one of the two men as “Tee,” someone who had purchased marijuana from him more than 20 times. Ball and Webb later identified “Tee” in court as Morris. And when Morris and the other man entered the apartment, Webb immediately recognized the other man as Dekarri Ruffin, a former classmate.

Morris and Ruffin feigned interest in purchasing marijuana from Ball, which he went to retrieve from a back bedroom. But upon returning to the hallway, Ball was confronted by the men and, though he subsequently blacked out and could not remember exactly what occurred, both he and Webb testified that Morris fired shots from a handgun, two of which struck Ball, inflicting serious injuries. Ball then recalled seeing both Morris and Ruffin appear to look for items to steal before fleeing the apartment after Webb’s brother emerged from his room. In a 911 call that followed, Webb identified Ruffin by name. And immediately after the incident, a neighbor who heard multiple gunshots saw two males matching Morris and Ruffin’s description run into the parking lot and, shortly after that, saw a gray, four-door vehicle depart from the scene.

The same night as the incident, Webb visited Ruffin’s Facebook page and, while perusing the account, identified both Ruffin and Morris in pictures as having been the perpetrators. She then showed these pictures to an investigating officer. Webb then found more pictures on Facebook later that same night, including a photograph of the vehicle that she had previously associated with Morris, and she provided the officer with those pictures as well. Using the photograph of the gray, four-door vehicle, officers were able to associate the vehicle’s tag number with Morris’s name and address.

Thereafter, law enforcement presented Ball with two photographic lineups, and he identified Ruffin and Morris in both of them. And when Morris was later apprehended, he was found with his hair in “little twist dreads” like those Webb had described. Morris and Ruffin were jointly indicted, tried together for the offenses enumerated supra after the trial court denied their motions to sever, and ultimately convicted of the enumerated offenses. Morris appeals following the denial of his motion for new trial.

At the outset, we note that when a criminal conviction is appealed, the appellant no longer enjoys a presumption of innocence. And the relevant question before us is whether, “after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt.” We are not at liberty to weigh the evidence or determine witness credibility, and the jury’s verdict will be upheld so long as there is some competent evidence, even though contradicted, to support each fact necessary to make out the State’s case. With these guiding principles in mind, we turn now to Morris’s enumerations of error.

1. Morris argues that the evidence was insufficient to sustain his convictions in Counts 4, 5, and 6 for violation of the Street Gang Terrorism and Prevention Act. Specifically, he contends that the State failed to establish that he was associated with a criminal street gang or to establish the necessary nexus between the predicate crimes and criminal-gang activity We disagree.

A criminal street gang is a “group of three or more persons associated in fact. . . which engages in criminal gang activity.” The existence of such a gang may be established by evidence of “symbols, tattoos, graffiti,... attire or other distinguishing characteristics” that include, but are not limited to “common activities, customs, or behaviors.” And in Georgia it is “unlawful for any person employed by or associated with a criminal street gang to conduct or participate in criminal gang activity through the commission of” specific enumerated offenses.

Here, Morris was charged with three counts of violating the Georgia Street Gang Terrorism and Prevention Act by participating in criminal street gang activity through the commission of attempted armed robbery, aggravated assault, and aggravated battery while associated with “Sex Money Murder,” a criminal street gang, and “a subset of the Blood criminal street gang.” In order to prove that he violated the Act in these ways, the State was required to show that (1) Morris was, in fact, associated with Sex Money Murder; (2) Sex Money Murder was a “criminal street gang” as defined by law; (3) Morris committed the predicate acts of “criminal street gang activity,” namely attempted armed robbery, aggravated assault, and aggravated battery; and (4) the commission of the predicate acts was intended to further the interests of Sex Money Murder. As to this final factor, it is well established that “[p]roof that the commission of the predicate act was intended to further the interests of the gang is essential to prove a violation of OCGA § 16-15-4 (a).”

First, although Morris does not challenge the sufficiency of the evidence as to the underlying predicate offenses of attempted armed robbery, aggravated assault, and aggravated battery, we note that the evidence, as recounted supra, was sufficient for the jury to conclude that he committed same and, thus, to sustain his convictions for Counts 1 through 3.

As to Morris’s association with Sex Money Murder and the fact that Sex Money Murder is a criminal street gang, the State presented extensive evidence of both Morris and Ruffin’s association with other members of Sex Money Murder, and witnesses testified regarding the criminal activities committed by those other members and/or the criminal activities of the gang. Additionally, an expert in criminal street gangs described for the jury the “symbols, tattoos, graffiti, . . . attire[,]” and “other distinguishing characteristics,” including “common activities, customs, or behaviors,” that are associated with Sex Money Murder. Then, after reviewing Facebook posts by Morris and Ruffin in which the two displayed various distinguishing characteristics associated with Sex Money Murder (e.g., hand signs/symbols, language, tattoos), the State’s expert witness opined that both were indeed members of the gang. As a result, the State presented sufficient evidence to connect Morris to Sex Money Murder and to establish that Sex Money Murder is a criminal street gang as defined by law.

Morris next argues that the State’s evidence failed to show that the commission of the attempted armed robbery, aggravated assault, and aggravated battery were intended to further the interests of Sex Money Murder. In other words, Morris argues that the State failed to establish the necessary nexus between those crimes and participation in a criminal street gang. And in Randolph v. State, in which we reversed the criminal conviction due to the State’s failure to establish the necessary nexus between the predicate acts and participation in a criminal street gang, we noted that whenever we have found the evidence sufficient to sustain such a conviction, “the [S]tate has shown something more than the mere commission of a crime by gang members.”

In this case, the State presented evidence of both Morris and Ruffin’s association with members of Sex Money Murder; evidence of both Morris and Ruffin publicly displaying symbols and using language associated with Sex Money Murder; and evidence of Sex Money Murder’s criminal activities. And in order to connect Morris and Ruffin’s association with Sex Money Murder to the predicate crimes, the State presented evidence that just three days after the incident in question, Ruffin—to whom Webb was connected via Facebook— posted a status update that read as follows: “Yall been waiting on a reply... keep waiting yall will 3 me when yall 3 me ... say no more ... #BLATT #SMM #GunzUP.” Testimony by a law-enforcement officer established that the hashtags used at the end of the status update were words or references commonly used by the Sex Money Murder gang. And Webb saw Ruffin’s Facebook post and testified that she commented on it (“He a bitch once again an he aint gone shoot shit dats y da pussy out hiding now. #dem real goons gne cme get da bitch!”) because she believed he was making reference to shooting Ball.

Once again, when reviewing the sufficiency of the evidence, this Court does not weigh the evidence or determine witness credibility, and we will uphold the jury’s verdict so long as there is some competent evidence, even though contradicted, to support each fact necessary to make out the State’s case. It is well established that criminal intent is a question for the jury, and such intent “may be inferred from that person’s conduct before, during, and after the commission of the crime.” And here, in light of the above-referenced Facebook post, its gang-related content, its timing relevant to the incident in question, and Webb’s understanding of the post as referring to the incident, we cannot say that the State failed to present any evidence from which the jury could infer criminal intent to further the interests of the Sex Money Murder criminal street gang through the attempted robbery and shooting of Ball. Accordingly, we sustain Morris’s convictions for violation of the Georgia Street Gang Terrorism and Prevention Act.

2. Next, Morris argues that his trial counsel rendered ineffective assistance in a number of instances. Again, we disagree.

Before addressing Morris’s contentions, we note that, in general, when a defendant claims that his trial counsel was ineffective, he has the burden of establishing that “(1) his attorney’s representation in specified instances fell below an objective standard of reasonableness and (2) there is a reasonable probability that, but for counsel’s unprofessional errors, the result of the proceeding would have been different.” And when a trial court determines, as the court below did here, that a defendant did not receive ineffective assistance, we will affirm that decision unless it is clearly erroneous. With these guiding principles in mind, we turn now to Morris’s specific arguments.

(a) First, Morris contends that counsel was ineffective by failing to file a special demurrer as to Counts 4, 5, and 6. We find this argument unavailing.

To begin with, a special demurrer challenges “the sufficiency of the form of the indictment,” and in such a demurrer, the defendant claims that the indictment is “imperfect as to form or that the accused is entitled to more information.” Morris argues that Counts 4, 5, and 6 were subject to a special demurrer because the indictment (1) “did not inform [him] of the act(s) he allegedly committed that were considered as criminal street gang activity in furtherance of a gang,” (2) the criminal street gang activity must be “separate and distinct from the acts alleged in the indictment,” and (3) the “State failed to allege a specific date on which the gang came into existence or existed prior to the alleged occurrence of the enumerated offenses . . .

As to the first and second contentions, they are wholly without merit when, as discussed in Division 1 supra, Morris was charged with violating the Georgia Street Gang Terroris m and Prevention Act in Counts 4, 5, and 6 by, “on or about the 8th day of January, 2014, being associated with Sex Money Murder, a criminal street gang, and a subset of the Blood criminal street gang” and unlawfully “conducting] and participating] in criminal gang activity through the commission of” attempted armed robbery, aggravated assault, and aggravated battery.

As to the third contention, it too is without merit when, just as in Hood v. State, the indictment here “sufficiently alleged that the criminal street gang was in existence and ongoing at the time of the commission of the enumerated offenses.” And as we expressed in Hood,

it was not necessary for the indictment also to contain a specific allegation that the gang existed prior to the commission of any of the enumerated offenses, or to include a specific enumerated offense that was committed prior to the commission of any of the enumerated offenses in this case.

Furthermore, even if counsel somehow rendered ineffective assistance by failing to file a special demurrer as to Counts 4, 5, and 6, Morris cannot establish that he suffered prejudice. Indeed, if a special demurrer is granted,

the trial court quashes the indictment. However, the quashing of an indictment merely bars trial on the flawed indictment; it does not bar the State from reindicting the defendant. Thus, even if [Morris’s] attorney had filed a demurrer, it would not have prevented the State from reindicting and trying [Morris]. And [Morris] does not argue that the imperfect indictment prejudiced his defense in any way . . . .

Thus, this claim of ineffective assistance of counsel fails.

(b) Second, Morris contends that counsel was ineffective by failing to object to the trial court’s erroneous limiting instructions. However, Morris has abandoned this enumeration of error by failing to provide citation to authority in support of same, or to fully develop an argument as to why an objection was necessary or appropriate such that his counsel rendered ineffective assistance by failing to object. Furthermore, trial counsel testified at the motion-for-new-trial hearing that the decision not to object to the trial court’s limiting instructions was a matter of strategy because counsel “felt they were in [Morris’s] interest.” And it is well established that “[m]atters of trial strategy do not support a claim of ineffective assistance.”

(c) Finally, Morris argues that counsel was ineffective by failing to object to hearsay testimony from the State’s gang expert. Once again, we disagree.

Although Morris alleges that the State’s gang expert provided inadmissible hearsay testimony, he cites to no such portion of the record. Instead, the only portion of the record to which Morris cites is wherein the gang expert testified to not having personally investigated the case at hand. But the investigator never testified regarding any information that was relayed to him by another individual.

Instead, the record reflects that the investigator testified regarding his extensive training and experience in investigating criminal street gangs; his personal knowledge as to the history and characteristics of Sex Money Murder as a subset of the Blood criminal street gang; his personal knowledge as to the graffiti, symbols, hand signs, colors, language, and tattoos associated with criminal street gangs and, in particular, with Sex Money Murder; and his familiarity with Sex Money Murder members with whom Morris and Ruffin associated. The expert was then shown previously admitted exhibits of various photographs and social-media posts made by Ruffin and Morris. After reviewing same, he identified different hand signs, language, and other symbols displayed in those exhibits that indicated association with Sex Money Murder before testifying that, based upon a review of that evidence, it would be his opinion that both Ruffin and Morris are associated with the gang.

In light of the foregoing, Morris has failed to establish that his counsel rendered ineffective assistance by failing to object when the State’s expert testified from personal knowledge and did not provide inadmissible hearsay testimony.

3. Morris contends that the trial court erred in denying a motion to sever his trial from that of Ruffin. Yet again, we disagree.

When a defendant seeks severance, he must “show clearly that he will be prejudiced by a joint trial, and in the absence of such a showing, this Court will not disturb the trial court’s denial of a severance motion.” When it rules upon such a motion, the trial court is to consider “whether a joint trial will create confusion of the evidence and law, whether there is a danger that evidence implicating only one defendant will be considered against a co-defendant despite limiting instructions, and whether the defendants are asserting antagonistic defenses.” But this Court will not find that the denial of a motion for severance was an abuse of discretion “unless it appears that the defendant suffered prejudice that amounted to a denial of due process.”

Here, citing to only a single 1970 case from the United States Court of Appeals for the Fifth Circuit and to no binding precedent from Georgia, Morris argues that the trial court erred in denying his motion to sever because (1) the trial involved evidence that was presented only as to Ruffin; (2) the jury could not have been expected to follow the trial court’s numerous limiting instructions as to the evidence; (3) the joint trial permitted the jury to find Morris guilty by association; and (4) his defense was antagonistic to Ruffin’s simply by the fact that a conflict attorney had been appointed. But Morris has failed to make a clear showing of prejudice and a denial of due process in the absence of severance. Indeed, the number of defendants involved—two—was not so large as to create confusion as to the evidence and law applicable to each defendant. Moreover, as to evidence that was applicable only to Ruffin and to Morris’s “guilt by association” assertion, the trial court instructed the jury about “the limited purposes of such evidence and also that it was not authorized to find a person guilty of a crime who was ‘merely associated’ with other involved persons.” And other than citing the appointment of a conflict defender, Morris does not specify how or why his defense was antagonistic to Ruffin’s defense, especially given that both defendants appeared to challenge identification and the sufficiency of the State’s evidence to prove its case. Thus, the trial court did not err in denying Morris’s motion to sever his trial from that of Ruffin.

4. Morris next asserts that the trial court erroneously admitted evidence under OCGA § 24-4-404 (b) (i.e., Rule 404 (b)). Specifically, he argues that the trial court erred by admitting evidence of his prior theft conviction in order to establish motive and intent. Morris also appears to take issue with the admission of evidence regarding his prior conviction for possession of marijuana. We disagree that the trial court committed reversible error by admitting any of this evidence.

First, OCGA § 24-4-404 (b) provides: And evidence that is offered for a proper purpose under Rule 404 (b) may be excluded under OCGA § 24-4-403 (i.e., Rule 403) if the evidence’s “probative value is substantially outweighed by the danger of unfair prejudice, confusion of the issues, or misleading the jury or by considerations of undue delay, waste of time, or needless presentation of cumulative evidence.”

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

The Supreme Court of Georgia has adopted a three-part test by which we evaluate the admissibility of so-called “other acts” evidence: “(1) the evidence must be relevant to an issue other than defendant’s character; (2) the probative value must not be substantially outweighed by its undue prejudice; [and] (3) the government must offer sufficient proof so that the jury could find that defendant committed the act.” As to the first factor, relevant evidence is “evidence having any tendency to make the existence of any fact that is of consequence to the determination of the action more probable or less probable than it would be without the evidence.” And as to the second factor, even if Rule 404 (b) evidence is relevant, we must then decide whether “the probative value of the other acts evidence is substantially outweighed by its unfair prejudice, i.e., the evidence must satisfy the requirements of Rule 403.” Of course, application of the Rule 403 balancing test is “a matter committed principally to the discretion of the trial courts, but as we have explained before, the exclusion of evidence under Rule 403 is an extraordinary remedy which should be used only sparingly.” Finally, we review the admission of Rule 404 (b) evidence “for a clear abuse of discretion,” a review requiring us to make “a common sense assessment of all the circumstances surrounding the extrinsic offense, including prosecutorial need, overall similarity between the extrinsic act and the charged offense, as well as temporal remoteness.”

Here, Morris argues that the trial court erred in admitting evidence of his theft conviction when that incident was “remote in time to the charges stated within the indictment” and “there were no similarities or nexus between the prior independent acts and the instant case.” He also maintains that the trial court erred by admitting evidence of his prior conviction for possession of marijuana.

As to the evidence of theft, the State presented the testimony of a woman who stated that, in 2012, both Morris and Ruffin accompanied a friend to her home so that they could all shoot her father’s firearm. But when the group returned to her home after shooting the gun on a farm, Morris and Ruffin refused to return it to her possession, with Morris in particular telling her that she could not have the gun back. She then immediately notified law enforcement, who located the vehicle in which Morris and Ruffin were traveling and, during the ensuing stop, located two firearms inside the vehicle beneath Ruffin’s seat, including the one that belonged to the victim’s father. Morris thereafter pleaded guilty to a charge of theft by taking. The trial court admitted the evidence of Morris’s prior conviction for theft by taking because it found the evidence relevant to show intent, knowledge, and plan with regard to the charge of possessing a firearm during the commission of a felony; and the court instructed the jury that it was being admitted for that purpose.

As to the evidence of possession of marijuana, a law-enforcement officer testified that during a traffic stop in September 2013, he detected the odor of marijuana, and the driver, Morris, admitted that there was marijuana in the driver’s side door. Morris thereafter pleaded nolo contendere to a charge of possessing less than one ounce of marijuana. The trial court admitted the evidence of Morris’s prior possession of marijuana after concluding that the evidence was relevant to show his motive and intent with regard to the charge of attempt to commit armed robbery (i.e., to show motive and intent to steal Ball’s stash of marijuana), and the court instructed the jury as to its reason for doing so.

But even if the trial court erred in admitting the foregoing evidence, any error was harmless because “it is highly probable that the error did not contribute to the verdict.” And when we determine whether error was harmless, “we review the record de novo” and “weigh the evidence as we would expect reasonable jurors to have done so as opposed to viewing it all in the light most favorable to the jury’s verdict.”

In this case, looking to the evidence as recounted supra, it is highly probable that any error in admitting testimony regarding a misdemeanor conviction for possessing less than one ounce of marijuana and testimony regarding a dissimilar theft in which there were no threats of or use of violence (and the victim was apparently unaware that Ruffin or Morris possessed their own firearm) did not contribute to the verdict in light of the strength of the other evidence presented by the State. Indeed, the extensive evidence in this case consisted of the victims’ testimony identifying Morris as a perpetrator because he had purchased marijuana from Ball numerous times in the past; that Morris and Ruffin feigned interest in purchasing marijuana from Ball on the night in question; that the shooting occurred right as Ball returned from retrieving marijuana from a bedroom; that Ball recalled watching as Morris and Ruffin appeared to look for items to steal before fleeing the scene; and the State presented evidence connecting Morris to the Sex Money Murder criminal street gang. Accordingly, even if the trial court erred, the error was harmless.

5. Next, Morris argues that the trial court erred in giving certain limiting instructions to the jury with regard to evidence it admitted under OCGA § 24-4-404 and OCGA § 16-15-9. Morris takes issue with the fact that, on three different occasions, “the court failed to state the specific purpose the limited instructions were being issued.” Once again, we disagree that the trial court committed reversible error.

In the first instance, the trial court instructed the jury that “the next witness is . . . also being offered for a limited purpose that is the same as the last witness, also testifying about the same events. And it’s being offered for the same purposes and no other purposes.” The instruction was given prior to testimony from the law-enforcement officer who apprehended Morris and Ruffin on the Rule 404 (b) theft charge, discussed in Division 4 supra. The officer was the last of two witnesses to testify as to this incident. And as to the first witness, the victim herself, the trial court charged the jury as follows:

We’re hearing . . . from another witness, ladies and gentlemen, that’s being offered for a limited purpose. You’re about to hear evidence that relates to both . . . defendants and it’s being offered by the State for ... purposes of proving the charge of possession of a firearm during the commission of a felony, which both defendants are charged with in this case. And as to that charge, it’s being offered to show their intent, knowledge or plan.

In the second instance, the trial court instructed the jury that “the same limiting instruction I gave for the last witness applies to this witness. The evidence is being offered solely to show the existence of a criminal gang and you’re to consider it for that purpose and for no other purpose.” This instruction was given prior to testimony from a law-enforcement officer who worked in the jail division and testified regarding his personal knowledge as to the nicknames and tattoos associated with a specific inmate who was a member of Sex Money Murder. The witness just prior to this officer was also a law-enforcement officer who gave the same type of testimony as to another inmate who was a member of Sex Money Murder. And as to the first witness, the trial court instructed the jury as follows:

Ladies and gentlemen, once again, this evidence that you’re about to hear is being offered for a limited purpose.... It’s being offered for a limited purpose and .. . this evidence, again, is being—it doesn’t—you’re going to hear about events that don’t have anything to do with either one of these defendants. The evidence is being offered only to show the existence of a criminal street gang and for no other purpose. And you can’t consider it for any other purpose.

In the third instance, the trial court instructed the jury that “the same instruction I just gave for the last witness applies to this witness.” This instruction was given prior to the testimony of a law-enforcement officer as to an attack that was perpetrated upon a jail inmate by four other inmates, which included Morris and members of Sex Money Murder. The witness prior to this law-enforcement officer was the inmate the officer testified had been attacked; however, in his brief testimony, the inmate denied the attack or making any prior statements that he had been attacked. But prior to the inmate’s testimony, the trial court instructed the jury as follows:

[T]he testimony you’re about to hear, I’m going to give you a limiting instruction on that as I did earlier. And this testimony, you’re . . . going to hear about some events that involve—they’re going to go to the gang charges as to Mr. Morris only and also as to the existence of a criminal gang. And you’re—the testimony is limited to that purpose and not to be considered for anything else.

The record reflects that while Morris objected to the admission of the evidence as to each of these witnesses, he did not object to the instructions that were given by the trial court. And asa result, we will review the court’s instructions only for plain error. Accordingly, we must determine if the three instructions about which Morris complains on appeal were “erroneous, whether [they were] obviously so, and whether [they] likely affected the outcome of the proceedings.”

Our Supreme Court has adopted a four-part test for plain-error review:

First, there must be an error or defect — some sort of deviation from a legal rule — that has not been intentionally relinquished or abandoned, i.e., affirmatively waived, by the appellant. Second, the legal error must be clear or obvious, rather than subject to reasonable dispute. Third, the error must have affected the appellant’s substantial rights, which in the ordinary case means he must demonstrate that it affected the outcome of the trial court proceedings. Fourth and finally, if the above three prongs are satisfied, the appellate court has the discretion to remedy the error — discretion which ought to be exercised only if the error seriously affects the fairness, integrity or public reputation of judicial proceedings.

Applying this standard to each of the above-quoted instructions, Morris has failed to establish that the trial court committed plain error. Each of the three complained-of instructions was immediately preceded by testimony from witnesses as to whom the trial court gave explicit, clear limiting instructions, and the court then referred back to those instructions. The testimony from the preceding witnesses was relatively brief, making it highly unlikely that the jurors would have forgotten or been confused about the instruction to which the court referred and, thus, unlikely that the instructions affected the outcome of the proceedings. Accordingly, this enumeration of error is without merit.

6. Morris contends that the trial court erred in admitting irrelevant and cumulative hearsay testimony regarding his alleged gang connections. Again, we disagree.

(a) First, Morris argues that the trial court erred in permitting hearsay testimony provided by the State’s expert witness. But because counsel did not make a hearsay objection to the expert’s testimony, any such objection was waived. Furthermore, as detailed supra in Division 2 (c), which addresses Morris’s contention that counsel rendered ineffective assistance by failing to object to the expert’s testimony, the expert witness did not provide hearsay testimony and instead testified from personal knowledge based upon his training, experience, and review of relevant exhibits at trial.

(b) Morris next argues that the trial court erred in admitting testimony by nine additional witnesses. However, he provides no citation to authority in support of his contentions that the testimony by these witnesses was irrelevant, inadmissible, and/or highly prejudicial. Accordingly, he has abandoned these enumerations for appellate review.

7. Finally, Morris argues that his convictions for criminal attempt to commit armed robbery, aggravated assault, and aggravated battery should have merged for purposes of sentencing. Because we agree that his convictions and sentence for criminal attempt to commit armed robbery and aggravated assault should have merged, we vacate his sentence in part and remand to the trial court for resentencing.

The question of whether offenses merge is a legal question that we review de novo. When a defendant is convicted of multiple crimes based upon the same act, “the principle of factual merger operates to avoid the injustice.” One crime is included in another when

(1) [i]t is established by proof of the same or less than all the facts or a less culpable mental state than is required to establish the commission of the crime charged; or
(2) [i]t differs from the crime charged only in the respect that a less serious injury or risk of injury to the same person, property, or public interest or a lesser kind of culpability suffices to establish its commission.

To answer the question of whether offenses merge, the Supreme Court of Georgia has adopted the “required evidence” test set forth by the Supreme Court of the United States to resolve these situations. Accordingly, when determining whether convictions for multiple crimes merge for purposes of sentencing,

the applicable rule is that [when] the same act or transaction constitutes a violation of two distinct statutory provisions, the test to be applied to determine whether there are two offenses or only one, is whether each provision requires proof of a fact which the other does not.

Here, Morris was charged with criminal attempt to commit armed robbery in that he, “with intent to commit theft by taking United States currency and by taking marijuana from the person and the immediate presence of [Ball], did brandish a firearm, an offensive weapon, at said [victim] and did point said firearm at said [victim] ...Morris was charged with aggravated assault in that he “did make an assault upon the person of [Ball] with a deadly weapon, to wit: a 9mm handgun, by brandishing a firearm at said person, by brandishing and menacing said person with said firearm, and by shooting said person with said firearm . . . Finally, Morris was charged with aggravated battery in that he “did maliciously cause bodily harm to [Ball] by seriously disfiguring his colon, his rib, and his chest cavity, members of said person’s body . . .

First, as to whether the convictions for criminal attempt to commit armed robbery and aggravated assault should have merged, our Supreme Court has previously observed that armed robbery requires “an intent to rob, the use of an offensive weapon, and the taking of property from the person or presence of another.” And as to whether aggravated assault with a deadly weapon merges with armed robbery, the Supreme Court has held that aggravated assault with a deadly weapon “does not require proof of a fact that armed robbery does not.” Indeed, the Supreme Court has concluded that “the assault requirement of aggravated assault is the equivalent of the ‘use of an offensive weapon’ requirement of armed robbery,” and that the “ ‘deadly weapon’ requirement of this form of aggravated assault is the equivalent of the ‘offensive weapon’ requirement of armed robbery.” Thus, there is “no element of aggravated assault with a deadly weapon that is not contained in armed robbery.”

In this case, Morris’s conviction for aggravated assault should have merged with his conviction for criminal attempt to commit armed robbery because those acts were predicated upon the same act or transaction, i.e., Morris’s use of a handgun to overpower and intimidate Ball for the purpose of attempting to rob him of his belongings. Accordingly, the conviction and sentence for aggravated assault must be vacated and the case remanded to the trial court for resentencing.

Having determined that the conviction and sentence for aggravated assault must be vacated, we must now determine whether Morris’s convictions for criminal attempt to commit armed robbery and aggravated battery should have merged. Once again, armed robbery requires “an intent to rob, the use of an offensive weapon, and the taking of property from the person or presence of another.” And aggravated battery requires proof that “the victim was deprived of a member of his body, or that such member was rendered useless or seriously disfigured.” Armed robbery requires an “intent to rob,” which aggravated battery does not, and aggravated battery requires proof that a victim was deprived of a member of his body or that a member was rendered useless, which is a requirement not contained in armed robbery. Thus, each provision required “proof of a fact which the other [did] not,” and the offenses did not merge.

Decided February 21, 2017.

The Leslie Group, Deborah L. Leslie, for appellant.

Peter J. Skandalakis, District Attorney, John H. Cranford, Jr., Assistant District Attorney, for appellee.

Accordingly, for all of the foregoing reasons, we affirm in part, vacate in part, and remand to the trial court for resentencing consistent with this opinion.

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

Reese and Bethel, JJ., concur.

        See OCGA § 16-15-1 et seq. (“This chapter shall be known and may be cited as the ‘Georgia Street Gang Terrorism and Prevention Act.’ ”).

        See, e.g., Muse v. State, 323 Ga. App. 779, 780 (748 SE2d 136) (2013).

       Ball was subsequently charged with and pleaded guilty to several marijuana-distribution charges in the aftermath of this incident.

       Despite performing surgery that saved his life, doctors were unable to remove the two bullets lodged in Ball’s body.

        Arbegast v. State, 332 Ga. App. 414, 415 (1) (773 SE2d 283) (2015); Westbrooks v. State, 309 Ga. App. 398, 399 (1) (710 SE2d 594) (2011).

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

        Miller v. State, 273 Ga. 831, 832 (546 SE2d 524) (2001); Westbrooks, 309 Ga. App. at 399-400 (1).

       Morris also separately enumerates that the trial court erred by failing to grant a directed verdict as to these counts; however, we “review a denial of a motion for directed verdict under the same standard as that for determining the sufficiency of the evidence to support a conviction.” Jordan v. State, 322 Ga. App. 252, 253 (2) (744 SE2d 447) (2013); see also Bounds v. State, 264 Ga. App. 584, 584 (1) (591 SE2d 472) (2003) (“In a criminal case, alleging error based upon a trial court’s failure to grant a directed verdict of acquittal is tantamount to challenging the sufficiency of the evidence. Accordingly, we review the denial of a motion for a directed verdict of acquittal under the [same standard].” (punctuation omitted)).

       OCGA § 16-15-3 (2); see also OCGA § 16-15-3 (1) (defining “[c]riminal gang activity” as “commission, attempted commission, conspiracy to commit, or solicitation, coercion, or intimidation of another person to commit any of [certain thereafter specified] offenses on or after July 1, 2006”); accord In the Interest of C. P, 296 Ga. App. 572, 575 (675 SE2d 287) (2009).

       OCGA § 16-15-3 (2); accord In the Interest of C. P, 296 Ga. App. at 575.

       OCGA § 16-15-4 (a); see also OCGA § 16-15-3 (1) (defining “[c]riminal gang activity” as “commission, attempted commission, conspiracy to commit, or solicitation, coercion, or intimidation of another person to commit any of [certain thereafter specified] offenses on or after July 1, 2006”).

        See OCGA § 16-15-3 (2) (defining “[cjriminal street gang” as a “group of three or more persons associated in fact . . . which engages in criminal gang activity”).

       See OCGA § 16-15-3 (1) (J) (defining“[cjriminal gang activity” to include“[a]ny criminal offense in the State of Georgia, any other state, or the United States that involves violence, possession of a weapon, or use of a weapon, whether designated as a felony or not, and regardless of the maximum sentence that could be imposed or actually was imposed”).

        See Jones v. State, 292 Ga. 656, 659 (1) (b) (740 SE2d 590) (2013) (listing the evidence necessary to prove a violation of the Georgia Street Gang Terrorism and Prevention Act).

         Nolley v. State, 335 Ga. App. 539, 543 (1) (782 SE2d 446) (2016) (punctuation omitted) (emphasis supplied); accord Jones, 292 Ga. at 659 (1) (b); see also In the Interest of C. P., 296 Ga. App. at 575 (“[O]ur Supreme Court has . . . held that a conviction under OCGA § 16-15-4 (a) requires that there be some nexus between the enumerated act and an intent to further street gang activity.” (punctuation omitted)).

       OCGA § 16-4-1 (“A person commits the offense of criminal attempt when, with intent to commit a specific crime, he performs any act which constitutes a substantial step toward the commission of that crime.”); OCGA § 16-8-41 (a) (“A person commits the offense of armed robbery when, with intent to commit theft, he or she takes property of another from the person or the immediate presence of another by use of an offensive weapon, or any replica, article, or device having the appearance of such weapon.”).

       OCGA § 16-5-21 (b) (2) (“Aperson commits the offense of aggravated assault when he or sheassaults[ ]... [w] ith a deadly weapon or with any object, device, or instrument which, when used offensively against a person, is likely to or actually does result in serious bodily injury [.] ”).

       OCGA § 16-5-24 (a) (“A person commits the¡offenseof aggravated battery whenheorshe maliciously causes bodily harm to another by depriving him or her of a member of his or her body, by rendering a member of his or her body useless, or by seriously disfiguring his or her body or a member thereof.”).

        See Jackson, 443 U. S. at 319 (III) (B) (setting forth that in assessing the sufficiency of the evidence, the relevant question is whether, “after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt”). The evidence was also sufficient to sustain Morris’s conviction for possession of a firearm during the commission of a felony (Count 7), because he possessed a firearm during the aggravated assault and aggravated battery of Ball, as indicted. See OCGA § 16-11-106 (b) (1) (“Any person who shall have on or within arm’s reach of his or her person a firearm ... during the commission of, or the attempt to commit... [a]ny crime against or involving the person of another . . . and which crime is a felony, commits a felony and, upon conviction thereof, shall be punished by confinement for a period of five years, such sentence to run consecutively to any other sentence which the person has received.”).

        Cf. In the Interest of A. I).. 311 Ga. App. 384, 386-87 (715 SE2d 787) (2011) (reversing convictions when State failed to establish that alleged street gang engaged in criminal activities other than the predicate acts for which defendants were on trial).

       OCGA § 16-15-3 (2).

        See Hayes v. State, 298 Ga. 339, 342 (a) (781 SE2d 777) (2016) (holding that State connected defendant and his co-defendants to criminal street gang when it presented expert testimony regarding criminal street gangs and explanation of words and symbols commonly associated with the street gang at issue, evidence of defendants publicly displaying those words and symbols, and evidence of defendants’ participation in gang-related activity just prior to committing the predicate crime); cf. Jones, 292 Ga. at 659 (1) (b) (holding that State failed to connect defendant to criminal street gang when no witness testified that defendant was a member of the relevant gang, that those accompanying defendant at time of crime were members of the gang, that defendant was associated in any way with the gang, or that defendant or accomplices displayed gang’s symbols or colors, either on the day of the crime or at any other time).

       3 34 Ga. App. 475 (780 SE2d 19) (2015).

        Id. at 482 (4).

        Id. at 481 (4).

        See generally Anita Campbell, What is a Hashtag? And What Do You Do With. Hashtags ?, Small Business Trends (Aug. 11, 2013), https://smallbiztrends.com/2013/08/what-is-a-hashtag.html (“Hashtags are used mostly on social media sites.. . . Anyone sharing content on a relevant topic can add the hashtag label to their message. Others searching for that topic [ ] can search for that label to find other messages on that same social media platform.”); see also, e.g., Jason R Steed (@5thCirAppeals), Twitter (Jan. 3, 2017, 7:25 PM), https://twitter.com/ 5thCircAppeals/status/816485743564562436 (noting benefits of #AppellateTwitter hashtag and online community of appellate practitioners).

        Miller, 273 Ga. at 832; Westbrooks, 309 Ga. App. at 399-400 (1).

        Coe v. State, 293 Ga. 233, 235 (1) (748 SE2d 824) (2013) (punctuation omitted) (emphasis supplied); accord Jones, 292 Ga. at 658 (1) (a).

        See In the Interest of D. M., 307 Ga. App. 751, 752 (1) (706 SE2d 683) (2011) (holding that evidence was sufficient to sustain conviction when State showed that defendant wore a black bandana during commission of crime, and expert testimony established that wearing a black bandana “was a proclamation that the shooting was a gang act”); cf. Randolph, 334 Ga. App. at 482 (4) (holding that State failed to present any evidence to establish a nexus between predicate drug crime and a specific intent to further the interests of criminal street gang).

        Muldrow v. State, 322 Ga. App. 190, 193 (2) (b) (744 SE2d 413) (2013) (punctuation omitted); accord Owens v. State, 317 Ga. App. 821, 823 (1) (733 SE2d 16) (2012).

        Muldrow, 322 Ga. App. at 193 (2) (b); accord Owens, 317 Ga. App. at 823 (1).

        Bramblett v. State, 239 Ga. 336, 337 (1) (236 SE2d 580) (1977); accord State v. Hood, 307 Ga. App. 439, 441 (706 SE2d 566) (2010).

        Hood, 307 Ga. App. at 441 (punctuation omitted); accord State v. Delaby, 298 Ga. App. 723, 724 (681 SE2d 645) (2009).

       It is not entirely clear what Morris means by this contention, and he fails to cite any authority in support thereof. See Court of Appeals Rule.25 (a) (3) (“Part Three [of the appellant’s brief] shall contain the argument and citation of authorities. It shall also include a concise statement of the applicable standard of review with supporting authority for each issue presented in the brief.”).

       307 Ga. App. at 439.

        Id. at 443 (1).

        Id.

        Chapman v. State, 318 Ga. App. 514, 517 (1) (a) (733 SE2d 848) (2012) (punctuation omitted); accord Cuzzort v. State, 307 Ga. App. 52, 56-57 (2) (b) (703 SE2d 713) (2010).

        See In re Whittle, 339 Ga. App. 83, 91 (2) (793 SE2d 123) (2016) (deeming enumeration of error abandoned when appellant provided no citation to authority); Amaya v. State, 308 Ga. App. 460, 463-64(3), 464(4) (708 SE2d 28) (2011) (same); see also Court of Appeals Rule.25 (c) (2) (“Any enumeration of error which is not supported in the brief by citation of authority or argument may be deemed abandoned.”).

        Paschal v. State, 335 Ga. App. 411, 416 (3) (780 SE2d 681) (2015) (rejecting claim that counsel rendered ineffective assistance by failing to object to limiting instruction when counsel testified that not doing so was a matter of trial strategy).

        Cf. Green v. State, 266 Ga. 237, 239 (2) (466 SE2d 577) (1996) (holding that officer’s testimony was insufficient to establish a “pattern of criminal gang activity” when his opinion was based not upon facts he personally observed but upon information gleaned from other investigators).

        See, e.g., Ventura v. State, 284 Ga. 215, 218 (4) (663 SE2d 149) (2008) (“The failure to pursue a futile objection does not amount to ineffective assistance.”).

        Denny v. State, 281 Ga. 114, 115-16 (1) (636 SE2d 500) (2006).

        Id. at 116 (1).

        Ham v. State, 303 Ga. App. 232, 241 (5) (692 SE2d 828) (2010); see also Owen v. State, 266 Ga. 312, 314 (2) (467 SE2d 325) (1996) (“[A] defendant must do more than raise the possibility that a separate trial would give him a better chance of acquittal. He must make a clear showing of prejudice and a consequent denial of due process.” (punctuation omitted)).

        See Court of Appeals Rule 25 (a) (3) (“Part Three [of the appellant’s brief] shall contain the argument and citation of authorities. It shall also include a concise statement of the applicable standard of review with supporting authority for each issue presented in the brief.”).

        Denny, 281 Ga. at 116 (1); see also Ward v. State, 288 Ga. 641, 644 (3) (706 SE2d 430) (2011) (“[TJhere was no danger of confusion because only two defendants were on trial and the same evidence was applicable to each.”).

        Denny, 281 Ga. at 116 (1).

        See Adkins v. State, 279 Ga. 424, 427 (3) (614 SE2d 67) (2005) (“[T]he defenses were complimentary [sic], not antagonistic, in that all defendants argued that the State had charged the wrong men and had failed to prove its case.”).

       OCGA § 24-4-404 (b); accord Smart v. State, 299 Ga. 414, 417 (2) (788 SE2d 442) (2016).

       OCGA § 24-4-403; accord Smart, 299 Ga. at 417 (2). See generally Ronald L. Carlson & Michael Scott Carlson, Carlson on Evidence 130 (5th ed. 2016) (“Evaluating the balance between probativity and prejudice under Rule 403 calls for a commonsense assessment of all the circumstances surrounding the other act, including [the] proponent’s need for the [Rule 404 (b)] evidence, the overall similarity between the extrinsic evidence and the offense at issue, and the temporal proximity of the two.”).

        Smart, 299 Ga. at 417 (2). See generally Bradshaw v. State, 296 Ga. 650, 656 (3) (769 SE2d 892) (2015) (adopting the three-part test used by the Eleventh Circuit Court of Appeals in evaluating such evidence pursuant to the Federal Rules of Evidence, upon which Georgia’s new Evidence Code is modeled).

        Smart, 299 Ga. at 417 (2) (punctuation omitted), quoting United States v. Ellisor, 522 F3d 1255, 1267 (II) (A) (11th Cir. 2008). We note that Morris does not challenge the third prong, and the State presented evidence to show that Morris was convicted of the crimes relevant to the Rule 404 (b) evidence.

       OCGA § 24-4-401; accord Smart, 299 Ga. at 418 (2) (a).

        Smart, 299 Ga. at 418 (2) (b) (punctuation omitted); accord State v. Jones, 297 Ga. 156, 159 (1) (773 SE2d 170) (2015).

        Smart, 299 Ga. at 418 (2) (b) (punctuation omitted).

        Graham v. State, 337 Ga. App. 664, 669 (2) (788 SE2d 555) (2016) (punctuation omitted); accord Brannon v. State, 298 Ga. 601, 606 (4) (783 SE2d 642) (2016).

         Edmonson v. State, 336 Ga. App. 621, 624 (1) (785 SE2d 563) (2016) (punctuation omitted); accord Peoples v. State, 295 Ga. 44, 55 (4) (c) (757 SE2d 646) (2014); Boothe v. State, 293 Ga. 285, 289-90 (2) (b) (745 SE2d 594) (2013); Lindsey v. State, 282 Ga. 447, 450 (2) (651 SE2d 66) (2007).

        Edmonson, 336 Ga. App. at 624 (1) (punctuation omitted); accord Peoples, 295 Ga. at 55 (4) (c); Boothe, 293 Ga. at 289 (2) (b).

        Edmonson, 336 Ga. App. at 624 (1) (punctuation omitted); accord Peoples, 295 Ga. at 55 (4) (c); Boothe, 293 Ga. at 289 (2) (b).

        See Dixon v. State, 173 Ga. App. 280, 282 (325 SE2d 893) (1985) (“[When] error is committed in the trial of the case in the form of the admission of prejudicial evidence, the verdict cannot carry the same presumption of validity, but the evidence is examined to determine whether the legal evidence is so strong or overwhelming that it is highly probable the illegal evidence didnot contribute to the verdict.”), cited with approval in Boothe, 293 Ga. at 289 (2) (b).

        See Edmonson, 336 Ga. App. at 625-26 (1) (recounting other evidence presented by the State, which did not include the questioned Rule 404 (b) evidence, and concluding that even if Rule 404 (b) evidence was admitted in error, it was highly probable that the error did not contribute to the verdict); cf. Brooks v. State, 298 Ga. 722, 727-28 (2) (783 SE2d 895) (2016) (holding that evidence of defendant’s guilt was sufficient to convict him of murder but was not overwhelming, and holding that erroneously admitted Rule 404 (b) evidence that defendant previously participated in the murder of a state trooper “was extremely prejudicial in the eyes of the jury” and, thus, court could not conclude that it was “highly probable that the erroneous admission of the challenged other acts evidence did not contribute to the verdict”).

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

       See OCGA § 16-15-9 (“For the purpose of proving the existence of a criminal street gang and criminal gang activity, the commission, adjudication, or conviction of any offense enumerated in paragraph (1) of Code Section 16-15-3 by any member or associate of a criminal street gang shall be admissible in any trial or proceeding.”); see also OCGA § 16-15-3 (1) (defining “[cjriminal gang activity” as “commission, attempted commission, conspiracy to commit, or solicitation, coercion, or intimidation of another person to commit any of [certain thereafter specified] offenses on or after July 1, 2006”).

        See Smith v. State, 297 Ga. 214, 216 (3) (773 SE2d 209) (2015) (holding that because appellant failed to object or request a different instruction be given, “any challenge to the instruction given could only be.reviewedfor plain error”);Bishop v. State, 314 Ga. App. 830, 832 (2) (726 SE2d 112) (2012) (holding that failure to object to limiting instruction given prior to admission of similar-transaction evidence and in court’s final charge resulted in waiver of issue unless appellant could show plain error).

        State v. Kelly, 290 Ga. 29, 33 (2) (a) (718 SE2d 232) (2011) (punctuation omitted); accord Wagner v. State, 311 Ga. App. 589, 594 (716 SE2d 633) (2011) (Blackwell, J., concurring specially).

        Smart, 299 Ga. at 420-21 (3) (punctuation omitted).

        See OCGA § 24-8-802 (“Hearsay shall not be admissible except as provided by this article; provided, however, that if a party does not properly object to hearsay, the objection shall be deemed waived, and the hearsay evidence shall be legal evidence and admissible.”). We note, of course, that the new Evidence Code applies to this case because Morris was tried in 2015. See Ga. L. 2011, pp. 99, 214 § 101 (providing that Georgia’s new Evidence Code applies “to any motion made or hearing or trial commenced on or after” January 1, 2013).

        See In re Whittle, 339 Ga. App. at 91 (2) (deeming enumeration of error abandoned when appellant provided no citation to authority); Amaya, 308 Ga. App. at 463-64 (3), 464 (4) (same); see also Court of Appeals Rule 25 (c) (2) (“Any enumeration of error which is not supported in the brief by citation of authority or argument may be deemed abandoned.”).

        Haynes v. State, 322 Ga. App. 57, 60 (2) (743 SE2d 617) (2013); McGlasker v. State, 321 Ga. App. 614, 616 (2) (741 SE2d 303) (2013).

        Gordon v. State, 334 Ga. App. 633, 636 (780 SE2d 376) (2015) (punctuation omitted); see also Regent v. State, 299 Ga. 172, 175 (787 SE2d 217) (2016) (“While an accused may be prosecuted for more than one crime arising out of the same criminal conduct, he may not be convicted of more than one crime arising out of the same criminal conduct [when] one crime is included in the other.”).

       OCGA § 16-1-6 (l)-(2).

        Drinkard v. Walker, 281 Ga. 211, 214 (636 SE2d 530) (2006); see also Blockburger v. United States, 284 U. S. 299 (52 SCt 180, 76 LE 306) (1932).

        Drinkard, 281 Ga. at 215 (punctuation omitted) (quoting Blockburger, 284 U. S. at 304).

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

        Lucky v. State, 286 Ga. 478, 481 (2) (689 SE2d 825) (2010); accord Long v. State, 287 Ga. 886, 888 (2) (700 SE2d 399) (2010).

       OCGA § 16-5-21 (b) (2) (“Aperson commits the offense of aggravated assault when he or sheassaults[ ]... [w] ith a deadly weapon or with any object, device, or instrument which, when used offensively against a person, is likely to or actually does result in serious bodily injury [.] ”).

        Long, 287 Ga. at 889 (2); accord Hall v. State, 313 Ga. App. 66, 68 (720 SE2d 181) (2011); see Lucky, 286 Ga. at 482 (2) (“[AJggravated assault with intent to rob does not contain a provision that is not a fact which must be proved in armed robbery. Both crimes require proof of an intent to rob, and the ‘assault’ requirement of aggravated assault is the equivalent of the armed robbery requirement that the taking be ‘by use of an offensive weapon’ since ‘use of an offensive weapon’ takes place when the weapon is used as an instrument of actual or constructive force—that is, actual violence exerted on the victim or force exerted upon the victim by operating on the victim’s fears of injury to the person, property, or character of the victim.”).

        Long, 287 Ga. at 889 (2); accord Lucky, 286 Ga. at 482 (2).

        Long, 287 Ga. at 889 (2); accord Hall, 313 Ga. App. at 68 n.8.

        Long, 287 Ga. at 889 (2); accord Hall, 313 Ga. App. at 68 n.9.

        See Long, 287 Ga. at 886-90 (l)-(2) (holding that convictions for armed robbery and aggravated assault should have merged when they were predicated upon the same course of conduct); Mullís v. State, 321 Ga. App. 720, 721-22 (742 SE2d 750) (2013) (holding that convictions for criminal attempt to commit armed robbery and aggravated assault merged because “the aggravated assault arose out of the same ‘act or transaction’ as the criminal attempt to commit armed robbery”); Haynes, 322 Ga. App. at 62 (2) (holding that convictions should have merged when “the aggravated assault and armed robbery . . . were predicated on the same conduct”); Hall, 313 Ga. App. at 69 (“[W]hat dictates merger is the fact that both crimes for which [the defendant] was convicted were predicated upon the same conduct[.]”).

        See Long, 287 Ga. at 889 (2) (vacating conviction and sentence for aggravated assault when that count should have merged with conviction for armed robbery, and remanding to trial court for resentencing).

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

         Lucky, 286 Ga. at 481 (2); accord Long, 287 Ga. at 888 (2).

       OCGA § 16-5-24 (a) (“A person commits the.offenseof aggravated battery when he or she maliciously causes bodily harm to another by depriving him or her of a member of his or her body, by rendering a member of his or her body useless, or by seriously disfiguring his or her body or a member thereof.”).

        Ledford v. State, 289 Ga. 70, 73 (1) (709 SE2d 239) (2011) (punctuation omitted).

        Drinkard, 281 Ga. at 215 (punctuation omitted) (quoting Blockburger, 284 U. S. at 304).

        See Smashum v. State, 293 Ga. App. 41, 43 (2) (666 SE2d 549) (2008) (holding that convictions for armed robbery and aggravated battery did not merge when “[t]he evidence needed to prove aggravated battery was not the same as that necessary to establish armed robbery” and “the required evidence was entirely different”).


source: Caselaw Access Project

author: DILLARD, Presiding Judge.

license: Public Domain

text:
    A16A2003.
    NEW CINGULAR WIRELESS PCS, LLC et al. v. GEORGIA DEPARTMENT OF REVENUE et al.
    (797 SE2d 190)
   DILLARD, Presiding Judge.

New Cingular Wireless PCS, LLC; Chattanooga MSA LP; Georgia RSA No. 3, LP; and Northeastern Georgia RSA Limited Partnership (“appellants”) filed suit against the Georgia Department of Revenue and Lynnette T. Riley in her official capacity as commissioner (the “Department”) following the Department’s refusal to issue a refund of what the appellants contend were erroneously paid taxes. The Department moved to dismiss the appellants’ action, and this appeal follows the trial court’s grant of that motion. For the reasons set forth infra, we affirm.

The appellants allege that from 2005 until 2010, they sold wireless Internet access services to Georgia customers, which were exempt from state sales tax under OCGA § 48-8-2. In November 2010, the appellants filed refund claims with the Department for sales tax that they claimed was, until September 2010, erroneously charged to Georgia customers on the purchase of wireless Internet access service. The Department officially refused to pay the requested refund claims on March 19, 2015. Accordingly, on April 17, 2015, the appellants filed their complaint to challenge this denial.

The Department answered and moved to dismiss for a lack of subject-matter jurisdiction and the failure to state a claim upon which relief could be granted. Thereafter, the Department amended its answer and attached as an exhibit a copy of a global settlement agreement entered into between the appellants and their customers. The Department argued that the complaint should be dismissed because (1) the appellants did not reimburse the alleged illegally collected sales tax to customers before seeking a refund from the Department, in violation of Department Regulation 560-12-1-.25; (2) the appellants lacked standing to file sales-tax-refund claims on behalf of customers for periods prior to May 5, 2009; and (3) the action was barred by Georgia class-action law. Following a hearing on the motion to dismiss, the trial court granted it on all three grounds. We then granted the appellants’ application to file a discretionary appeal. This appeal follows.

1. The appellants argue that the trial court erred in granting the motion to dismiss after concluding that they must first refund the alleged erroneously collected tax to their customers before seeking a refund from the Department. We disagree.

The trial court’s order contemplates the question of dismissal under both sovereign immunity/subject-matter jurisdiction and the failure to state a claim upon which relief can be granted, but it appears to ultimately conclude that dismissal is proper on the grounds of sovereign immunity. Nevertheless, we may affirm the grant of a motion to dismiss if it is right for any reason. And setting aside the question of whether appellants’ action is also barred on the grounds of sovereign immunity, it is undoubtedly barred by a failure to state a claim upon which relief can be granted because (1) “the allegations of the complaint disclose with certainty that the [appellants] would not be entitled to relief under any state of provable facts asserted in support thereof” and (2) the Department has established that the appellants “could not possibly introduce evidence within the framework of the complaint sufficient to warrant a grant of the relief sought.” This is so even though in deciding a motion to dismiss, “all pleadings are to be construed most favorably to the party who filed them, and all doubts regarding such pleadings must be resolved in the filing party’s favor.” Indeed, even under this forgiving analytical framework, the appellants’ action must be dismissed.

OCGA § 48-2-35 of the Public Revenue Code—under which the appellants filed suit against the Department—provides in relevant part:

A taxpayer shall be refunded any and all taxes or fees which are determined to have been erroneously or illegally assessed and collected from such taxpayer under the laws of this state, whether paid voluntarily or involuntarily, and shall be refunded interest^]... Refunds shall be drawn from the treasury on warrants of the Governor issued upon itemized requisitions showing in each instance the person to whom the refund is to be made, the amount of the refund, and the reason for the refund.

According to our Supreme Court, this statutory authorization to bring an action for a tax refund in superior court against a governmental body is “an express waiver of sovereign immunity, and the State’s consent to be sued must be strictly construed.”

In seeking to dismiss the appellants’ action regarding the denial of their tax-refund requests, the Department argued that, because “[t]he doctrine of sovereign immunity requires that the conditions and limitations of the statute that waives immunity be strictly followed,” the appellants’ failure to comply with a Department regulation applicable to dealers seeking tax refunds on behalf of customers barred the action on grounds of sovereign immunity and/or the failure to state a claim upon which relief can be granted. And as we have previously recognized, the Revenue Commissioner has “explicit authority to promulgate regulations for the enforcement of the Public Revenue Code and the collection of revenues thereunder.” Furthermore, we are mindful that with regard to statutes an administrative agency has the duty to enforce or administer, as well as rules and regulations an agency has enacted to fulfill its function, the agency’s interpretations of these rules and regulations are to be given considerable weight and deference.

Here, the relevant regulation provides, in pertinent part:

In the case of taxes illegally or erroneously collected, the dealer may secure a refund as provided in OCGA Section 48-2-35, provided, however, the dealer must affirmatively show that the tax so illegally or erroneously collected was paid by him and not paid by the consumer, or that such tax was collected from the consumer as tax and has since been refunded to the consumer.

The Department asserts that, per this regulation, before seeking a refund on behalf of their customers under OCGA § 48-2-35, the appellants were required to affirmatively show that the alleged erroneously or illegally collected tax had been refunded by them to their customers. But it is wholly undisputed in this case that, even now, the appellants have not refunded to their customers, the consumers, the tax that they allege was illegally or erroneously collected and for which the appellants, as dealers, sought a refund from the Department.

Nevertheless, the appellants argue that the Department’s interpretation of the regulation is not supported by its plain language and is, in essence, unreasonable. The appellants are correct that OCGA § 48-2-35, which expressly authorizes refunds of allegedly erroneously or illegally paid sales taxes, “does not require that a dealer advance its own funds to customers before knowing if the Department will grant the claimed refund of sales tax.” But as previously noted, the Revenue Commissioner has explicit statutory authority to “promulgate regulations for the en forcemen t of the Public Revenue Code and the collection of revenues thereunder” with judicial deference afforded to “the agency’s interpretation of rules and regulations it has enacted to fulfill the function given it by the legislative branch.” To that end, under its power to promulgate regulations for the enforcement of the Public Revenue Code (of which OCGA § 48-2-35 is a part), the Department has enacted a regulation governing the procedure for dealers who seek to obtain refunds on behalf of their customers under OCGA § 48-2-35. And the Department interprets that regulation, Ga. Comp. R. & Regs. r. 560-12-1-.25 (2), as requiring dealers to refund the tax to customers/consumers prior to requesting a refund from the Department.

In considering the Department’s interpretation of this regulation, we turn to the Oxford English Dictionary, which defines “secure,” the word with which appellants take issue, as meaning, inter alia, “[t]o ensure (a person’s) obtaining (something)” and “[t]o get hold or possession of (something desirable) as the result of effort or contrivance.” Thus, to the extent that the effort required for a dealer to “secure” a refund under Ga. Comp. R. & Regs. r. 560-12-1-.25 (2) is in any way ambiguous, we defer to the Department’s interpretation of this regulation, which it enacted in order to fulfill the function delegated to it by our General Assembly.

Given the foregoing, we are unpersuaded by the appellants’ argument that the Department’s interpretation is erroneous or unreasonable due to the language used in a portion of the regulation that concerns refunds for the “overpayment of sales tax paid to the State as a result of tangible personal property returned by the purchaser,” and which provides two methods by which a dealer may be refunded for such overpayment. One such method specifies that when “the property has been returned to the dealer after ninety (90) days following the original sale, the dealer may request a credit memorandum for use against subsequent taxes.” And upon approval of such “request,” the dealer “will be furnished with a credit memorandum authorizing a deduction on the appropriate line of the Sales and Use Tax Report.” But the use of “request” in this portion of the regulation, which deals with an entirely different, set of circumstances, does not render unreasonable an interpretation that the process by which a dealer may “secure” a refund on behalf of its customers for “taxes illegally or erroneously collected” requires repayment to customers prior to making a request for such a refund, especially in light of the broad definition of “secure,” discussed supra.

Furthermore, and as an aside, we note that the appellants’ own settlement agreement with their customers undercuts their assertion that an interpretation requiring repayment to consumers prior to seeking a refund is unreasonable or erroneous. Appellants argue that if repayment to customers was required before seeking a refund from the Department, should the Department refuse to pay, appellants “would have lost millions in its own funds—and the customers would have received refunds that the Department determined were not due.” The very terms of the settlement agreement, however, undermine this argument:

To the extent that any [tjaxing [jjurisdiction requires that, prior to the [tjaxing [jjurisdiction’s grant and/or payment of a claimed refund of Internet Taxes, [Appellants] refund those amounts to the affected customers in the Settlement Class, the Settling Parties agree that such payment shall be made by [appellants] in escrow to a fund (the “Pre-Refund Escrow Fund”) ....

The agreement goes on to provide that “[s]uch payment[s] shall be made con temporaneously with the filing of the refund claim, if such requirement is known at such time, or within 15 days after receiving notice of such requirement by the [tjaxing [jjurisdiction.” Further, under this section of the agreement, all settling class members agree that

for purposes of satisfying the requirement of any [tjaxing [jjurisdiction, that [appellants] refund taxes to the affected customers prior to granting or paying a refund claim, the payment by [appellants] of an amount representing Internet Taxes paid by that [class member] into the Pre-Refund Escrow Fund will be considered the payment by [appellants] of such taxes to such [class member].

Finally, the agreement specifies that “[a]mounts paid to the Pre-Refund Escrow Fund shall be held in a mutually agreeable account maintained by a party unrelated to the Settling Parties, until the occurrence of” one of two so-called “Pre-Refund Escrow Release Events.”

The first “Pre-Refund Escrow Release Event” deals with scenarios in which refund payments are made by the taxing jurisdiction. The agreement provides that if the taxing jurisdiction “pays monies to [appellants] or provides tax credits in full or partial satisfaction of the refund claims with the [tjaxing [jjurisdiction,” appellants become subject to additional provisions of the settlement agreement. One of those additional provisions specifies that if a taxing jurisdiction grants a refund to the appellants, the appellants “shall assign all of [their] rights, title and interest in the refund related to the members of the Settlement Class, subject to any claims or conditions that may be imposed on such refund by the [tjaxing [jjurisdiction,” and the refunded monies will be paid directly to escrow accounts established elsewhere in the settlement agreement. The other provision specifies that if the appellants receive a tax credit from a taxing jurisdiction, they must “remit monies in the amount of the credit as they relate to members” of the settlement class to the escrow accounts established elsewhere in the agreement.

The second “Pre-Refund Escrow Release Event” deals with scenarios in which the taxing jurisdiction denies a refund. This portion of the agreement applies when

a final determination has been issued, for which further appeal is either not available or not pursued, by either the [tjaxing [jjurisdiction in question denying all or any portion of the refund claims for Internet Taxes filed with that [tjaxing [jjurisdiction or by a court of competent jurisdiction in an action initiated to compel the [tjaxing [jjurisdiction to act on the refund claim, which action results in no refund or credit being received by [appellants].

The paragraph that follows the description of these two “Pre-Refund Escrow Release Events” provides, in relevant part, that upon occurrence of such an event, “all amounts previously paid by [appellants] to the Pre-Refund Escrow Fund, and any interest earned thereon, that are attributable to the refund claims filed with the particular [tjaxing [jjurisdiction at issue shall be paid to [appellants].” Thus, if a refund is given by the taxing jurisdiction in some form, money is then paid directly to class members via separate escrow accounts, and appellants receive back from the Pre-Refund Escrow Account what was pre-paid into it to satisfy the “pre-pay” requirements of the taxing jurisdiction. And if no refund is given by the taxing jurisdiction, the appellants still receive back from the Pre-Refund Escrow Account the amount that they pre-paid. Accordingly, the appellants’ own settlement agreement contemplates a scenario in which pre-payment to the customer is required but an ultimate refund from the Department is never obtained; and in such a situation, there is no “windfall” to the customer because the amount pre-paid into escrow is returned to the appellants.

In sum, because the appellants admit that they have not repaid the alleged erroneously collected tax to their customers, as even their own settlement agreement contemplates, the trial court properly dismissed the action when such a prepayment was required by the Department regulations prior to requesting a refund.

Decided February 21, 2017

Bryan A. Vroon, for appellants.

Samuel S. Olens, Attorney General, W. Wright Banks, Jr., Deputy Attorney General, Nancy M. Gallagher, Alex F. Sponseller, Senior Assistant Attorneys General, for appellees.

2. The appellants also argue that the trial court erred in granting the motion to dismiss after concluding that (1) they lacked standing to seek a refund for taxes collected prior to May 5, 2009, and (2) the appellants’ action for a refund is a class action barred by Georgia law. But because the motion was properly dismissed for a failure to state a claim upon which relief could be granted due to the appellants’ admitted failure to refund the tax to customers prior to seeking a refund from the Department, we need not address these additional enumerations of error.

Accordingly, for all of the foregoing reasons, we affirm the trial court’s grant of the Department’s motion to dismiss.

Judgment affirmed.

Reese and Bethel, JJ., concur.

        See OCGA § 48-8-2 (39) (F) (specifying that, for purposes of state sales and use tax, “[t]elecommunications service” shall not include, inter alia, “Internet access service”).

        See, e.g., Bobick v. Cmty. & S. Bank, 321 Ga. App. 855, 869-70 (4) (b) (743 SE2d 518) (2013) (affirming dismissal under “right for any reason” doctrine); C. C. Leasing Corp. v. Bd. of Tax Assessors of Hall Cty., 143 Ga. App. 520, 521 (239 SE2d 204) (1977) (same).

        Webb v. Bank of Am., N.A., 328 Ga. App. 62, 63 (761 SE2d 485) (2014) (punctuation omitted); accord Austin v. Clark, 294 Ga. 773, 774-75 (755 SE2d 796) (2014).

        Webb, 328 Ga. App. at 63 (punctuation omitted); accord Austin, 294 Ga. at 775.

        Austin, 294 Ga. at 775 (punctuation omitted).

       OCGA § 48-2-35 (a).

        Sawnee Elec. Membership Corp. v. Ga. Dep’t of Rev., 279 Ga. 22, 23 (2) (608 SE2d 611) (2005) (citation omitted); see also City of Atlanta v. Barnes, 276 Ga. 449, 452 (3) (578 SE2d 110) (2003) (“When a statute provides the right to bring an action for a tax refund against a governmental body, that statute provides an express waiver of immunity and establishes the extent of the waiver (the amount of the refund) . . . .”), superseded by stat ute, OCGA § 48-2-35 (b) (5) (2003), as recognized in Sawnee Elec. Membership Corp., 279 Ga. at 25 (3) n.1; Ga. Emission Testing Co. v. Jackson, 259 Ga. App. 250, 252 (576 SE2d 642) (2003) (“OCGA § 48-2-35 is a partial waiver of sovereign immunity by the State.”). See generally Ga. Const. Art. I, Sec. II, Par. IX (e) (“Except as specifically provided in this Paragraph, sovereign immunity extends to the state and all of its departments and agencies. The sovereign immunity of the state and its departments and agencies can only be waived by an Act of the General Assembly which specifically provides that sovereign immunity is thereby waived and the extent of such waiver.”).

        Ga. Dep’t of Labor v. RTT Assoc., Inc., 299 Ga. 78, 83 (2) (786 SE2d 840) (2016) (punctuation omitted); accord Dep’t of Human Res. v. Hutchinson, 217 Ga. App. 70, 71 (1) (456 SE2d 642) (1995); Ingalls Iron Works Co. v. Blackmon, 133 Ga. App. 164, 165 (210 SE2d 377) (1974).

        Ga. Dep’t of Rev. v. Ga. Chemistry Council, Inc., 270 Ga. App. 615, 616 (607 SE2d 207) (2004) (punctuation omitted); see also OCGA § 48-2-12 (a) (“The commissioner shall have the power to make and publish in print or electronically reasonable rules and regulations not inconsistent with this title or other laws or with the Constitution of this state or of the United States for the enforcement of this title and the collection of revenues under this title.”).

        See Ga. Dep’t of Rev. v. Owens Corning, 283 Ga. 489, 490 (660 SE2d 719) (2008) (“[T]he interpretation of a statute by an administrative agency which has the duty of enforcing or administering it is to be given great weight and deference.”); Pruitt Corp. v. Ga. Dep’t of Comm. Health, 284 Ga. 158, 159 (2) (664 SE2d 223) (2008) (“When an administrative agency decision is the subject of judicial review, judicial deference is to be afforded the agency’s interpretation of statutes it is charged with enforcing or administering and the agency’s interpretation of rules and regulations it has enacted to fulfill the function given it by the legislative branch.”); Kelly

        v. Lloyd’s of London , 255 Ga. 291, 293 (336 SE2d 772) (1985) (“It is a well-settled principle of law that even though an interpretation of a statute by an agency charged with the duty of enforcing it is not conclusive, it is entitled to great weight.” (punctuation omitted)). See generally David E. Shipley, The Chevron Two-Step in Georgia’s Administrative Law, 46 Ga. L. Rev. 871, 877 (I) (Summer 2012) (noting that recent decisions of the Supreme Court of Georgia “confirm that Georgia is a strong deference state where the courts will defer to the agency interpretation as long as it is not contrary to the statute” (punctuation omitted)). But see Jeffrey A. Pojanowski, Without Deference, 81 Missouri L. Rev. 1075 (January 12,2017) (exploring what judicial review of agency interpretations would look like if the Supreme Court of the United States abandoned Chevron deference in favor of de novo review), available at https://papers. ssrn.com/sol3/papers.cfm?abstract_id=2806435.

       Ga. Comp. R. & Regs. r. 560-12-1-.25 (2) (emphasis supplied).

        Ga. Chemistry Council, Inc., 270 Ga. App. at 616 (punctuation omitted) (emphasis supplied); see also OCGA § 48-2-12 (a) (“The commissioner shall have the power to make and publish in print or electronically reasonable rules and regulations not inconsistent with this title or other laws or with the Constitution of this state or of the United States for the enforcement of this title and the collection of revenues under this title.”).

        Pruitt Corp., 284 Ga. at 159 (2); see also Atlanta Journal v. Babush, 257 Ga. 790, 792 (2) (364 SE2d 560) (1988) (“[I]n construing administrative rules, ‘the ultimate criterion is the administrative interpretation, which becomes of controlling weight unless it is plainly erroneous or inconsistent with the rule.’ ” (punctuation omitted)), relying upon United States v. Larionoff, 431 U. S. 864, 872 (II) (A) (97 SCt 2150, 53 LE2d 48) (1977) (“In construing administrative regulations, the ultimate criterion is the administrative interpretation, which becomes of controlling weight unless it is plainly erroneous or inconsistent with the regulation.” (punctuation omitted)).

        See Couch v. Red Roof Inns, Inc., 291 Ga. 359, 361 (1) (729 SE2d 378) (2012) (looking to dictionary for plain and ordinary meaning of word); A.A. Professional Bail v. State of Ga., 265 Ga. App. 42, 44 (592 SE2d 866) (2004) (same).

       The Compact Oxford English Dictionary 1696 (2d ed. 1991).

        See supra notes 9-10, 13; see also Bentley v. Chastain, 242 Ga. 348, 350-51 (1) (249 SE2d 38) (1978) (“Whether operating in the federal, state, or local sphere, agencies provide a high level of expertise and an opportunity for specialization unavailable in the judicial or legislative branches. They are able to use these skills, along with the policy mandate and discretion entrusted to them by the legislature, to make rules and enforce them in fashioning solutions to very complex problems.”).

       Ga. Comp. R. & Regs. r. 560-12-1-.25 (1).

       Ga. Comp. R. & Regs. r. 560-12-1-.25 (1) (b) (emphasis supplied).

        Id.

        See Ga. Oilmen’s Ass’n v. Dep’t of Rev., 261 Ga. App. 393, 398-99(2) (582 SE2d 549) (2003) (“Because of agencies’ presumed expertise in dealing with complex issues, we defer to the [Department] on the issue of reasonableness unless there is evidence the regulation is arbitrary and capricious.”), cited with approval by Hill v. Owens, 292 Ga. 380, 385 (2) (b) (738 SE2d 56) (2013); cf. New Cingular Wireless PCS, LLC v. Director, Div. of Taxation, 28 N.J. Tax 1, 15 (III) (A) (2014) (interpreting N.J.S.A. § 54:32B-20 (a) as “containing] a repayment provision that must be fulfilled before an ‘actual’ refund—the payment of money from the State treasury—can be made to a person required to collect the tax and not before the validity of the refund claim can be considered” (emphasis supplied)); id. at 16-17 (III) (A) (further notingthat “[t]he Director has not promulgated regulations under the statute” and, as a result, “taxpayers and the courts have no written guidance, adopted through the Administrative Procedure Act, detailing the criteria that the Director will use to determine whether the repayment obligation in N.J.S.A. § 54:32B-20 (a) has been satisfied”); N.J.S.A. § 54:32B-20 (a) (“In the manner provided in this section the director shall refund or credit any tax, penalty or interest erroneously, illegally or unconstitutionally collected or paid if application to the director for such refund shall be made within four years from the payment thereof.... Such application may also be made by a person required to collect the tax, who has collected and paid over such tax to the director, ... but no actual refund of moneys shall be made to such person until the person shall first establish to the satisfaction of the director, under such regulations as the director may prescribe, that the person has repaid to the customer the amount for which the application for refund is made. . . .”).

        See supra note 15 and accompanying text.

       (Emphasis supplied.)

       (Emphasis supplied.)

        See Austin, 294 Ga. at 774-75 (“A motion to dismiss for failure to state a claim upon which relief may be granted should not be sustained unless (1) the allegations of the complaint disclose with certainty that the claimant would not be entitled to relief under any state of provable facts asserted in support thereof; and (2) the movant establishes that the claimant could not possibly introduce evidence within the framework of the complaint sufficient to warrant a grant of the relief sought[.]” (punctuation omitted)); Webb, 328 Ga. App. at 63 (same).

        See, e.g., Bobick, 321 Ga. App. at 869-70 (4) (b) (affirming dismissal under “right for any reason” doctrine).


author: McFADDEN, Presiding Judge.

text:
    A16A1494.
    BURCHFIELD v. WEST METRO GLASS COMPANY, INC. et al.
    (797 SE2d 225)
   McFADDEN, Presiding Judge.

We granted interlocutory review of the order of the State Court of Fulton County transferring venue to another county. Because venue was proper in Fulton County, we reverse.

“Here, the underlying facts relating to the issue of venue are undisputed. Therefore, the trial court’s application of the law to the undisputed facts is subject to de novo review.” Bd. of Regents of the Univ. System of Ga. v. Jordan, 335 Ga. App. 703 (1) (782 SE2d 809) (2016) (citation omitted). Those undisputed facts show that on July 29, 2014, a vehicle driven by Stephen Prince collided with a vehicle driven by Donna Burchfield in Fulton County At the time of the collision, Prince was acting in the course and scope of his employment with West Metro Glass, Inc.

On March 24, 2015, Burchfield filed an action in the State Court of Fulton County against West Metro Glass and Prince (collectively, the defendants) for injuries she allegedly sustained in the collision. Burchfield served this action on West Metro Glass on April 8, 2015. On May 29, 2015, the defendants filed answers to the complaint in which they asserted improper venue as a defense. But West Metro Glass never filed a notice to remove the action from Fulton County Instead, on November 11, 2015, the defendants filed a motion to transfer venue. The trial court granted the motion, finding that neither West Metro Glass nor Prince was a resident of Fulton County and concluding that venue was improper in Fulton County

The trial court erred in granting the motion to transfer, because venue was proper in Fulton County and West Metro Glass did not file a timely notice to remove. OCGA § 14-2-510 (b) provides:

... [A] corporation authorized to transact business in this state shall be deemed to reside and to be subject to venue as follows: ... (4) In actions for damages because of torts, ... in the county where the cause of action originated. If venue is based solely on this paragraph, the defendant shall have the right to remove the action to the county in Georgia where the defendant maintains its principal place of business. A notice of removal shall be filed within 45 days of service of the summons. . . .

OCGA § 14-2-510 (b) (4). As our Supreme Court has explained, OCGA § 14-2-510 (b) (4) “establishes venue for tort actions against corporations in the county where the cause of action originated [and] establishes a procedure for removal from that county[.]” Pandora Franchising v. Kingdom Retail Group, 299 Ga. 723, 724 (791 SE2d 786) (2016) (citation and punctuation omitted).

The cause of action in this case originated in Fulton County, where the collision occurred. So OCGA § 14-2-510 (b) (4) established venue for Burchfield’s action against West Metro Glass in Fulton. County Pandora Franchising, supra, 299 Ga. at 724. And West Metro Glass did not file a notice of removal within 45 days of the summons. We disagree with West Metro Glass’s argument that its answer, which it did file within 45 days of the summons, was the functional equivalent of a notice of removal. In that answer, West Metro Glass asserted improper venue as a defense to Burchfield’s action. But a notice of removal under OCGA § 14-2-510 (b) (4), by that statute’s terms, concerns a defendant’s right to move the action out of a county in which venue is otherwise proper. And even if West Metro Glass’s later motion to transfer could be construed as a notice of removal, West Metro Glass filed that motion well outside of the 45-day period. Compare Huddle House v. Paragon Foods, 263 Ga. App. 382, 387 (3) (587 SE2d 845) (2003) (holding that defendant’s motion to transfer action from county where tort occurred to county where defendant had place of business served to preserve defendant’s right to remove case under OCGA § 14-2-510 (b) (4) because defendant filed transfer motion within 45-day period). So West Metro Glass did not avail itself of the procedure for removal from Fulton County afforded by OCGA § 14-2-510 (b) (4). As a result, venue for this action remained proper in Fulton County as to West Metro Glass. (Because West Metro Glass had the opportunity to file a notice of removal within 45 days of service of the summons as required by OCGA § 14-2-510 (b) (4), we do not address the situation where it only becomes feasible for a defendant corporation to seek removal during the course of the litigation.)

Decided February 22, 2017.

Goldstein & Hayes, James A. Goldstein, Jonathan P. Hayes, Jared M. Lina, for appellant.

Gray, Rust, St. Arnand, Moffett & Brieske, Matthew G. Moffett, W. Drew Gilliland, Margaret E. McClatchey, Jason D. Hergenroether, for appellees.

“In a tort action, if venue in a particular county is proper as to one joint tortfeasor, it is proper as to the other joint tortfeasor[ ] as well. Consequently, because venue was proper in Fulton County as to [West Metro Glass], it was likewise proper as to [Prince].” HD Supply v. Garger, 299 Ga. App. 751, 756 (2) (683 SE2d 671) (2009) (citations omitted). So we do not reach Burchfield’s separate enumeration of error regarding a purported admission in judicio by Prince regarding venue.

The defendants’ challenge to venue on the ground that it was improper had no merit, and the trial court erred in holding that venue was improper in Fulton County and in granting the defendants’ motion to transfer venue.

Judgment reversed.

Miller, P. J., and McMillian, J., concur.